Conflict of Interest
It is impossible for an attorney or staff member to have an instant recall of all former clients. Not only do you have to remember former clients, but also adverse or opposing parties. The memory method is not easy and definitely not reliable. Memory alone is not sufficient to avoid conflicts of interest.
The problem becomes even more complicated with firms that have several attorneys. It is impossible for each attorney to know the past and/or present clients of the other members of the firm. Mergers are almost impossible to handle even with a good conflict of interest system. Conflict of interest information should be compiled when the file is opened. Parties may also be added during the pendency of the case.
Note to Attorney: See the Client Intake section of this publication for sample interview forms that capture conflicts information.
Four different options are discussed below. Review the options. Though the options are similar in that they all accomplish the same goal, they differ slightly. The option you choose will depend upon your preference as to procedure.
The names of related or adverse parties should be printed on 3 x 5 index cards to be maintained in one central location. You will need to include on the card the name of the party, the relationship of the party to your client (ex: opposing party, co-defendant, witness, etc.), the client's name, the file number and case matter.
- 3 x 5 index cards or rolodex cards
- File box large enough to hold 3 x 5 index cards or rolodex cards
- Set of alphabetical dividers
|Doe, John Opposing Party #11789
Client:J.W. Smith & Sons, Inc.
Case:Doe vs. J.W. Smith & Sons, Inc.
The cards should be filed alphabetically. Cards could be stored in the file box or on a rolodex depending on your preference.
You should prepare a separate card for each individual or party involved.
Your firm may be asked to represent a future client against a former client. A review of the master client listing is also important. To save yourself an additional step, you could prepare an index card for clients as well as other parties involved in the case. This way you would only have to check one place for all possible conflicts.
This option is similar to Option A. The 4 x 6 cards, however, are carbonized. You could list the client as well as numerous other parties on one card and then separate the cards for filing.
- 4 x 6 five-part, one-write carbonless, preprinted cards
- File box for 4 x 6 cards
- Set of alphabetical dividers
|Client J.W. Smith & Sons, Inc. #11789|
Opposing Parties:Other Parties:
Doe, John J.W. Smith, Sr.
J.W. Smith, Jr.
Once the card has been completed, separate the parts and file them in alphabetical order in the system.
This option is the least time-consuming because you type only one card as opposed to a different card for each party in Option A.
This option will be the most expensive because you will need your local printer to print the carbonized forms.
The Initial Interview form is prepared when a file is opened. It should be carbonized and have a section dealing with conflicts of interest. One of the copies could be filed alphabetically in a notebook and used as a checking system. This option works basically the same as the other two options discussed.
- Pre-printed initial Interview forms
- Notebook large enough to hold the Initial Interview forms
The advantage to this system is that it is simple, low-maintenance and does not require forms. And you will not have to prepare a separate entry for the system. The conflict information will be obtained by simply filing the carbonized copy of the Initial Interview form.
Note to Attorney: See the Client Intake section of this publication for sample interview forms that can suit this purpose.
Your conflict of interest database could be placed on your office computer or word processor. There are various software packages available or you may want to create your own. Simply search the database for possible conflicts.
This option is quick and accurate. The amount of storage space used, of course, depends on the size and nature of your practice.
Using the Conflict System
When a new file is opened, the person responsible will check the alphabetically filed cards to see if any of the names that appear on the Initial Interview form appear in the listing. If so, the responsible attorney should be notified immediately.
You should disseminate a "Conflict of Interest Questionnaire" form. A copy should be distributed to each attorney and staff member in the firm. The form should be returned by the date indicated and should be initialed or signed by the attorney or staff member giving the information. The person responsible for disseminating the forms should keep the original of the form and enter the date by which the forms should be returned in the docket control system. Keep a list of those people in the firm that received a copy of the questionnaire. If all of the forms are not received by the date requested, the person responsible for the system can easily see who has and who hasn't returned the forms.
Once the file is set up, the original of the Conflict of Interest Questionnaire should be placed in the file.
The conflict of interest system should be centrally located in the office and everyone in the firm should contribute. It will not be of much help if several people or groups of people do not participate or insist on maintaining systems on their own. The file room is a good place to house the conflict of interest system.
A file clerk is an ideal person to assume responsibility for the system. Although it would be everyone's responsibility to make entries into the system, the clerk would be the only person responsible for checking the system for conflicts when requested to do so by an attorney or staff member.