Lawyer Conflict Checks: 5 Tips to Tune Up Your Process

Karen Dunn Skinner and David Skinner | Here are five process improvement tips to help you handle conflict checks efficiently and ethically.
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A robust conflict-checking process ensures your law firm steers clear of conflicts of interest when vetting potential clients, preventing ethics violations and legal liability. Here are five tips to help you handle conflicts efficiently and ethically.

Checking Conflicts Is One Process You Definitely Need to Get Out of Your Head!

At the risk of revealing just how old we actually are, when we first started practicing law, the conflict-checking process centered around the Pink Sheets. This list of new law firm clients, printed on bright pink paper, landed on our desks at the beginning of each week. We had to read it, circle names we recognized, and pass the list back to the managing partner. The firm was one of the largest in Canada, with offices in Europe and Asia as well. Even in the Budapest office, where we were working, we got the Pink Sheets!

A lot has changed since those days, but one thing remains constant: You need a robust conflict-checking process. Here are five things to think about when you’re refining your law firm conflicts process. You may need to adjust them for your firm and your jurisdiction.

1. Keep Your Database Up to Date

The starting point for an effective conflict-checking process is a well-organized, up-to-date database that includes current and past clients, opposing parties, witnesses and other key individuals or entities involved in your cases.

Ensure that everyone who handles intake captures all the required information, including any alternative spellings and abbreviations. Here in Montreal, where we are based, an entity like the Royal Bank of Canada might be listed as:

Royal Bank of Canada
The Royal Bank of Canada
Royal Bank
RBC
Banque Royale du Canada
Banque Royale
La Banque Royale

Set standards for how you will record names and abbreviations at intake, and ensure your team knows and follows your process. This information forms the backbone of your conflict-checking process and allows you to quickly identify potential issues.

Tip: When you are a solo practitioner or working in a very small practice, it can be tempting to keep this information in your head. Don’t. Checking conflicts is part of your intake process and, as you know if you’ve been reading our articles for a while, conflicts and intake are not in your Power Zone. You need to get this information out of your head so that you can delegate intake and conflict-checking to others.

2. At Intake, Check All New Clients and Matters for Potential Conflicts

Conflict checks apply to new matters for your existing clients as well. Conduct a thorough check including:

Current and former clients
Opposing parties, witnesses and other stakeholders
Key relationships, including financial interests, personal ties or business affiliations

Don’t forget to look beyond the client at hand to identify any indirect conflicts (e.g., business partners or subsidiaries).

Tip: Checking for potential conflicts is easier when it is automated. The conflict-checking features found in legal intake software such as Lawmatics or Clio Grow vet clients for conflicts before the engagement begins. Modern practice management software includes robust full-text search capabilities, allowing you to identify possible conflicts. Some also offer integrations with third-party client-checking apps. Or, depending on your firm size, standalone conflict-checking software might be an option. Conflict-checking software analyzes data from client lists, case files, employee lists, financial holdings and prior employment history, for example, to ensure the firm is aware of conflicts before proceeding.

3. Check for Different Types of Conflicts

You may be conflicted out of a matter for several reasons. Direct conflicts are obvious, but don’t forget about positional conflicts (e.g., taking different stances on similar legal issues in different cases) and business or financial interest conflicts (e.g., you have a financial stake in the outcome).

4. Get It in Writing

When your firm is small, the easiest solution will be to avoid all conflicts and automatically refer conflicted parties out to other firms. However, if you decide to obtain a waiver, make sure your process provides for informed written consent from all affected parties. Create a standard waiver template that includes space for the specifics of the conflict and its related risks, along with your standard language. Make sure you advise clients to seek independent advice before consenting.

Tip: Also make sure your firm has templates for both non-engagement letters and letters of closure. For advice on when you might use them, read “A Letter of Closure for All the Right Reasons” and “You’re Not Hired! The Rules of Non-Engagement (Letters).”

5. Ensure Your Ethics Walls Apply to Everyone … Not Just the Lawyers

Include all employees in your confidentiality measures (not just your legal team), including IT, administrative and janitorial personnel. Everyone should understand the importance of not accessing or discussing any information related to conflicted cases. Your ethics walls apply to everyone, and should include:

Limiting access to physical and electronic files.
Partitioning technology systems, like your case management, billing and time tracking software, so that people can’t inadvertently access information from other matters.
Segregating workspaces and communication channels.
Assigning dedicated teams to each client or matter involved in the conflict.
Creating clear guidelines for all team members to follow.

The Key to an Effective Conflicts Process

If you’re still relying on the modern-day equivalent of the Pink Sheets, it’s time to revamp your law firm conflicts process. The key is to be proactive, transparent and meticulous. By following a clear, consistent process — from identifying and assessing conflicts to obtaining informed consent and setting up ethical barriers — small law firms can handle conflicts of interest ethically and efficiently.

More Process Improvement Tips:

Law Firm Intake: 3 Tips to Save Time and Convert More Clients
New Client Onboarding: 5 Tips to Win Over New Clients
Time to Build Your Team: 5 Steps to Improve Your Hiring Process
From Hire to Higher: 6 Ways to Improve Employee Onboarding

Karen Dunn Skinner and David Skinner help lawyers and legal professionals build more efficient, productive and profitable practices. They’re the co-founders of Gimbal Lean Practice Management Advisors and lawyers with over 20 years of experience each in Canada and Europe. Together, they’re the exclusive Global Advisors on Legal Process Improvement to the International Institute of Legal Project Management. They write and speak regularly, facilitate legal process improvement projects across North America, and have taught Gimbal’s LeanLegal® approach to thousands of legal professionals. Their latest book is “The Power Zone Playbook for Lawyers.“

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