The following points are intended to facilitate a discussion about how to screen for, recognize and avoid conflicts of interest.
- Discuss the importance of adequately screening for conflicts of interest. Share with the new lawyer the firm’s procedure for screening for conflicts (if in an internal mentoring relationship) or the mentor’s office procedure for screening for conflicts (if in an external mentoring relationship).
- Explain the importance of including prospective clients and declined clients in a conflicts database. Are these clients treated like former clients in terms of conflicts? What does this mean if another client comes along with interests adverse to the prospective client that never hired the lawyer?
- Discuss different types of conflicts of interest that can arise, particularly in the new lawyer’s practice area(s) or office setting.
- Give examples of conflicts which can be waived with informed consent. Explain how to document your clients’ consent to conflicts.
- Discuss the substantial relationship test which, when met, prohibits a lawyer from representing a client against a former client. Discuss whether informed consent by the former client can cure the conflict.
- Discuss the article: Todd C. Scott, Conflict-Checking Systems: Three Great Ways to Effectively Manage Conflict Checking, GP/Solo Law Trends & News Vol. 2, No. 2, http://tinyurl.com/d9hu7kg.
- Discuss screening walls, when they apply and practically speaking, how a law office manages them. What may the new lawyer share with others within the same firm if a screening wall exists? What is the office protocol for such matters?
- Discuss how conflicts are handled when a lawyer changes firms. Should a lawyer be concerned about the same issues when hiring non-lawyer personnel who come from another firm?
- Discuss the propriety of working on a case where opposing counsel is a spouse, close relative, or any person with whom the lawyer shares a close personal relationship. Does client consent cure the potential problem?
Margaret Graham Tebo, Make a List, Check It Twice: A Good Conflicts-Checking System Helps Protect You From Ethics Violations, ABA Journal, Feb 2006, http://www.abajournal.com/magazine/article/make_a_list_check_it_twice/.
Harry H. Schneider Jr., An Invitation to Malpractice: Ignoring Conflict-of-Interest Rules Can Open Pandora’s Box, ABA Standing Committee on Lawyers’ Professional Liability On-Line Resources, http://apps.americanbar.org/legalservices/lpl/downloads/invitation1.pdf.
Lawyers’ Professional Indemnity Company, Managing a Conflict of Interest Situation, On-line Practice Aids, http://www.practicepro.ca/practice/conflict/ident.asp.
Harry H. Schneider Jr., An Invitation to Malpractice (Part II): Once a Conflict of Interest Is Spotted, Take Action Promptly, ABA Standing Committee on Lawyers’ Professional Liability On-Line Resources, http://tinyurl.com/kpnqm95.