How to run a conflict check that would survive a bar complaint
Searching your client list is not a conflict check. Here is who actually has to be in the search, when it has to run, and why the consultation you never took can still disqualify the firm.
Searching your client list is not a conflict check. It finds the people who paid you, which is the one group least likely to create the problem. The conflicts that disqualify firms come from the other side of the matter: an opposing party from four years ago, a company you did not realise was a subsidiary of your client, a spouse, a witness, or a consultation somebody took over the phone and never wrote down.
The rules here are Rule 1.7 for current clients, Rule 1.9 for former ones, Rule 1.10 for how a conflict spreads to everyone else at the firm, and Rule 1.18 for the prospective client who never became one. That last rule is the one that catches people.
Everyone with a name on a matter.
If your search covers only the first row of this list, it is a client list lookup wearing a conflict check's name.
Clients, current and former
Including matters that closed years ago. A former client conflict turns on whether the new matter is substantially related to the old one, so the file has to be findable long after it closed.
Opposing parties
Every person or company you have ever acted against. This is the single largest source of real conflicts and the one a client-list search misses entirely.
Spouses and family members
Family law generates these constantly, and so does estate work where you acted for a parent and are now asked to act for one child against another.
Corporate affiliates
Parents, subsidiaries and sister companies trading under names that look unrelated. Record the group, not just the entity that signed the engagement letter, or you will find out from opposing counsel.
Prospective clients you turned away
Rule 1.18. Someone who consulted you and shared confidential information can bar you from acting against them even though you never took the matter and never sent a bill. If the only record of that call is in somebody's memory, you have no check at all.
Everyone your staff brought with them
A lateral attorney or paralegal carries their old firm's conflicts to yours under Rule 1.10. Screen at hiring, before they touch a file, not when somebody notices.
Conflict check · Marchetti
2 hitsBefore the conversation, not before the invoice.
The check has to happen before anyone at the firm hears confidential information, which means before the consultation rather than before the engagement letter. Run it again when a new party joins the matter, because the case you cleared in March acquires a third-party defendant in September and nobody re-checks.
- At first contact. Before the consult, on the names you have, even if that is only two.
- Again at engagement. By then you know the real party names and the corporate structure.
- Every time a party is added. New defendants, intervenors, insurers and experts all re-open the question.
- On every new hire. Before their first day on a matter, not after.
The record is half the protection.
Record that it ran, not just the result
Who ran it, when, against which names, and what came back. "We always check" is not evidence. A dated record naming the search terms is.
Write down why a hit was cleared
Most hits are not conflicts. A common surname, a company with a similar name, a matter that closed and is unrelated. The reasoning is what you will need years later, and it takes one sentence at the time.
Get waivers in writing, informed
Some conflicts are waivable with informed consent confirmed in writing, and some are not. Informed means the client actually understood what they gave up, which is a longer letter than most firms send.
Screen properly when you screen
An ethical screen is access control plus written notice, not a promise not to discuss it. If the screened person can still open the file in your system, the screen is decorative.
Know it is clean before you hear a word.
One search across every party, opposing party, affiliate and prior consultation the firm has ever recorded, run while the caller is still on the line, with the result logged against the matter and the reasoning saved next to it. Permissions enforce a screen when you need one. In the $49 plan.
Common questions about conflict checks.
Do I have to check conflicts for a free consultation?
What if the conflict is with a matter that closed ten years ago?
Does one lawyer's conflict really disqualify the whole firm?
Can I just search my email instead?
How do I handle a hit I am not sure about?
The software that does this for you.
CaseFuze handles the ledger, the statement, and the checks. $49 per user per month.