Setting Up a Conflicts System

Your conflict system, whether manual or computerized, requires a centralized index, book, or database, in which conflicts can be checked.

Although it is possible to use a manual conflict checking system, there is tremendous value in using a centralized computerized conflict checking system. This is particularly so as your practice grows. You need routine procedures to check for conflicts before opening a file and before you receive any confidential information from a potential client.

You should use a conflict of interest checklist. A sample checklist is available. For a conflicts system to work, it needs to be integrated into the other systems in your practice, and no file should ever be opened or work performed on a file until the conflicts search has been performed.

Content of Conflicts Checking System

There are many data identifiers that you can enter into your conflicts checking system. As a general principle, more information is better, but the information should be relevant and you must safeguard against data being entered incorrectly.

Each conflict index should contain the following (provided the information exists):

date the file was opened;
matter or file name;
file number;
client name (including any alias);
brief description of the matter;
names of the related and adverse parties and a description of their relationship to the client;
name of counsel representing any party to the matter;
name of lawyers and staff in the firm responsible for the file; and
date the file was closed, and closed file number if one was assigned.

Entering proper data will help you flag potential conflicts, but you must still turn your mind to whether a potential conflict exists or will arise. This involves considering a host of factors, including:

the various interests of the parties involved in the matter;
whether more than one person is relying on your advice;
whether more than one person believes you are protecting their interest. In circumstances where those involved in the matter have an apparently common interest, you need to assess the equality of their bargaining positions; and
how likely is the potential for a falling out to occur between the parties, etc.

For the system to work, everyone at the firm must understand how the system operates and participate in its operation.