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The Conflict Check

The Conflict Check

I’ve contacted a lawyer about a potential case, and they seemed interested in hearing what I have to say, can the lawyer start representing me immediately?

This is a common question that many potential clients have for attorneys – what is the first step and when will that be done? As attorneys, we are dedicated to helping our clients achieve the best result possible in the most efficient manner possible. However, we also must balance this interest with the Rules of Professional Conduct. In other words, we must first determine that no such conflict would exist in our representation of the potential client. For firms that have hundreds of attorneys, the conflict check is extremely important as the larger the firm is, the more clients that the firm can take on and subsequently, the greater potential that a conflict in representing someone may exist.

There are several rules within the Rules of Professional Conduct that outline whether or not a conflict exists in the representation of a client, but two of the most important rules are as follows:

Rule 1.7 Conflict of Interest: Current Client 

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly averseto another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Rule 1.9 Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former clientunless the former client gives informed consent, confirmed in writing.

As you can tell from these rules, there are exceptions to which attorneys can overcome these types of conflicts; however, it is imperative that these conflict checks are done to ensure that no prohibited representation of an individual takes place.

How does one do a conflict check you may ask? To answer simply – there is no one set way for a conflict check to occur. Rather, how this is done generally will depend on the attorney – is he or she a sole practitioner? Is the attorney part of smaller firm? Does the attorney work for a national firm with hundreds of attorneys?  Regardless of how the check is done the most important information to have when doing a conflict check is the potential client’s name and background information – any spouses? Workplace information? Past civil actions, etc., as well as any information the potential client may have regarding the opposing party. Moreover, something as simple as ensuring that the spelling of the names of the potential clients, their spouses, as well as the opposing parties is key to ensuring that a conflict check is correct. 

In the case of sole practitioners, they may be able to rely on memory or a quick review of their files or computer database to determine whether a conflict exists in the representation of a potential client. For larger firms, the attorneys may need to rely on conflicts check technology which allows you to enter the prevalent information and then informs you whether or not a conflict exists.

In sum, no matter how the conflict check takes place, the most important thing to remember is that it must take place at the outset so as to prevent any harm to the representation of the client or any negative repercussions to the attorney who has spoken to the potential client.

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