Conflict Avoidance

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How to set up a conflict of interest system

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Conflict Avoidance

  1. 1. OSB Bulletin Magazine - July 2001 Home | Sitemap | Forms | Contact Member Directory Member Login Public Info Search Regulatory Functions Managing Your Practice Admissions Discipline Conflict Avoidance Discipline Home Disciplinary What you need to know about conflict of interest systems Board Reporter Disciplinary Boards By Beverly Michaelis Local Professional Responsibility Committee State Professional NAMES TO TRACK IN YOUR A good conflicts checking system is essential to avoiding serious malpractice and ethical Responsibility Board CONFLICT SYSTEM problems. No lawyer can remember every person connected with every case. Eventually a new MCLE client will appear with interests opposed to a present or past client. The conflict will waste much MCLE Home of your effort if you are ultimately forced to resign from the case, and you may face malpractice When listing an individual, be sure to Committee claims and disciplinary proceedings. How can you avoid this outcome? By establishing and include all known names (i.e., former implementing a system to detect conflicts prior to representation. or maiden names). When listing Forms lawyers and employees of the firm, Program Database APPROACHES TO SETTING UP AN EFFECTIVE CONFLICT SYSTEM consider including contract attorneys, Rules (PDF) There are different approaches to setting up a conflict system depending on the size and type of temporary workers and freelancers. Sponsors office. All effective systems have certain things in common. A good conflict system has all of Key vendors or service providers of these characteristics: the firm may also be included in the Status Change Forms conflict system. Inactive Status The system is integrated with other office systems; ● Form (PDF) It provides for easy access to conflict data for everyone in the office; Some examples: ● Active Pro Bono Searches check for varying spellings of names; ● Status Form (PDF) Litigation: Insured; lay witness(es), Conflict entries show the party's relationship with the client; ● Reinstatement All parties connected with a case are entered into the system; and plaintiff(s); defendant(s), insurer; ● Forms (listing of PDFs) Conflict searches are documented in the file. guardian ad litem; spouse; expert ● Resignation witness(es). Q: How do I set up a conflict system? Form A (PDF) Corporate/Business/Real The traditional conflict system uses index or Rolodex cards to keep track of conflict names. IOLTA Certification Estate: Owner/spouse; buyer(s); Following the client interview, a card is created with the client's name at the top and a list of Unlawful Practice of Law conflict names and their relationship to the client below. Individual cards are then created for seller(s); partner(s); officer(s); each of the conflict names with the client's name below. The client and conflict cards are filed shareholder(s); director(s); Member Resources alphabetically in a card box that is searched as needed. subsidiaries/affiliates; key employees; https://www.osbar.org/publications/bulletin/01july/myp.htm (1 of 6) [5/9/2009 7:16:07 PM]
  2. 2. OSB Bulletin Magazine - July 2001 Bar Publications property address; any opposing party While this old-style card system continues to have some appeal because of its simplicity, it also in a transaction. Bar Bulletin has major drawbacks. Conflict searches are slow, completing cards for new client matters is time – Archives Probate: Deceased; personal consuming, cards are often lost or misfiled and storage of cards as the conflict system grows can Bar Leader Communicator be problematic. Fortunately, a relatively inexpensive solution is available; a simple database can representative; spouse/children/heirs/ Bar Leadership store the same information and allow for fast and easy updates and searches. devisees; trustee/guardian/ Conference Handbook conservator. Q: How can I computerize my conflict system? Capitol Insider Estate Planning: Testator; Fortunately there are many choices when it comes to setting up a computerized conflict system. Disciplinary Board Reporter Setting up your own database is one alternative, and usually the least expensive. If you prefer personal representative; spouse/ OSB Legal Publications not to dive in to database design and want an off-the-shelf program, you have three options: children/heirs/devisees; trustee/ Casemaker™ contact management, case management, or conflict-checking software. guardian. Legal Research SETTING UP YOUR OWN DATABASE Dissolution: Client; spouse; Casemaker™ Login If you have the Corel or Microsoft Office application suites or have purchased a new computer in children; grandparents. Casemaker™ FAQ the last few years, odds are you already own a database program that can be used to set up a Casemaker™ conflict system. Database programs such as Access, Paradox, Microsoft Works and FileMaker Criminal: Client; co-defendant(s); User Guide (PDF) Pro can all be used to create a conflict system. witness(es); victim(s). Casemaker™ EULA (PDF) Career Center When you set up a database for your practice, be sure to include the following fields in each Workers' Compensation: Injured client record: Date Opened; Matter Name; Matter Number (if applicable); Client Name; Attorney Forms Library worker; insurer; employer. (initials of the responsible attorney, if applicable); Description of Matter (a description of the Judicial Vacancies matter detailed enough to allow the user to determine if a conflict exists without having to pull the Bankruptcy: Client; spouse; Member Fee FAQ file); Conflict Names (names of all related and adverse parties and their relationships to the creditors. client); Date Closed; Closed File Number; and Date Destroyed. Online Fee Payment Your firm: All lawyers; spouses/ Online Resources Other fields that could be added to a conflict database include the client's federal taxpayer parents/siblings/in-laws; employees. OSB Events identification or Social Security number and the name of opposing counsel. At a minimum, always include each party's role in the case or relationship with the client. This makes it much OSB Group Listings Other: Declined clients and adverse easier to quickly assess the seriousness of a potential conflict. Performance Standards parties, if known; prospective clients; Products & Services agencies or individuals for whom you If you would like to use existing software to set up a conflict checking system and need help, the provide investigation work, such as practice management advisers of the Professional Liability Fund can assist you. To take Rules Regulations Oregon State Bar Professional advantage of our free and confidential service, call (503) 639-6911 or (800) 452-1639. and Policies Responsibility Board. + Surveys and Research CONTACT MANAGEMENT SOFTWARE Membership Services Contact management programs are used to manage prospect and client information and usually consist of a calendar, a task list and contact or 'Rolodex' cards. The contact or 'Rolodex' portion Affirmative Action Program of the program contains the client information. Each client has his or her own card which AAP Home contains separate fields for the client's mailing address, telephone number, e-mail address, etc. AAP/OLIO Registration Each card also has a 'Notes' area into which the law firm can enter conflict information. These cards can then be searched for potential conflict names. Examples of contact management AAP CLE Info https://www.osbar.org/publications/bulletin/01july/myp.htm (2 of 6) [5/9/2009 7:16:07 PM]
  3. 3. OSB Bulletin Magazine - July 2001 programs include Sidekick 99 (visit www.starfish.com); GoldMine (available through www. Allocative Programs egghead.com and other sources); Act!2000 (visit www.officedepot.com and similar sources); and Non-Allocative Programs AnyTime (www.individualsoftware.com). These and similar products are readily available for Staff Contacts under $200, sometimes much less, but are not legal-specific and may be limited in space as to CLE Seminars the number of client cards or records which the program will store. Ethics Information CASE MANAGEMENT SOFTWARE Ethics Home If you are looking for a solution that integrates various office systems (conflicts, client database, Ethics Opinions Info matter database, calendar, tickler, etc.), case management software may be the right choice for Ethics Opinions TOC you. Case management software is specifically written for the legal profession and has unlimited storage capacity plus many other features as detailed above. Examples include Time Matters Ethics Opinions Search (www.timematters.com), Amicus (www.amicus.ca), Abacus (www.abacuslaw.com/law) and Trial Bulletin Bar Counsel Column De Novo (www.denovosys.com). For a review and discussion of case management software, Archive see the article entitled What? Me Worry? Finding the Right Case Management Software by Dee Legislative/Public Affairs Crocker which appeared in the May 2001 issue of the Oregon State Bar Bulletin. Legislative Home CONFLICT CHECKING SOFTWARE Committee Contacts If you are satisfied with the software your office presently uses and you are not interested in a Policies/Proposals case management program, then conflict checking software may be the right choice for you. Publications These programs are designed solely to manage conflicts and do so very effectively. Your options Staff Contacts at this level include Conflict Checker by Billing Software for Attorneys (www.seabill.com) and Useful Links ConflictSearch by Tremco (www.tremco.com). Softlaw Corporation of Salem offers a conflict module which can be used on its own or in conjunction with their calendaring, accounting and Loan Repayment Assistance time and billing software. Contact Softlaw at (800) SOFT-LAW for more information. Program LRAP Home Q: What names should I be entering in my conflict system? LRAP FAQ Whether you track conflicts manually or choose to computerize, your conflict system must LRAP Policies capture more than just the names of the client and the adverse party. Everyone connected to the and Guidelines case, including lay witnesses, expert witnesses and so forth should be added to the system. See the sidebar, Names to Track In Your Conflict System, accompanying this article. Oregon Law Foundation OLF Home Lawyers in your own firm, staff members and close relativesof lawyers and staff should be listed Leadership Banks in the conflict system as well. This ensures that cases will not be taken against people Grantees connected with the firm. OLF Contacts In addition to all clients1, enter all prospective clients and declined clients into the conflict OSB Legal Publications system. Failure to enter prospective or declined clients in the conflict system can be Legal Publications Home embarrassing, costly and may result in ethical or malpractice claims against you. For example, BarBooks™ Online Info assume a husband comes in for a consultation because he is contemplating a divorce. During the consultation, the husband discloses confidential information. The husband then decides not Online Bookstore to proceed with the dissolution or you decline to represent the husband. Two years later the wife New Releases comes in to your office seeking a divorce. If you accept the wife as a client, you will have a https://www.osbar.org/publications/bulletin/01july/myp.htm (3 of 6) [5/9/2009 7:16:07 PM]
  4. 4. OSB Bulletin Magazine - July 2001 Legal Pubs Catalog (PDF) conflict of interest. This could happen easily if you forgot about the consultation with the husband and did not maintain a record of consultations in the conflict system. A similar situation can occur Pro Bono Information when two lawyers in the same firm interview prospective clients who have adverse interests. Pro Bono Home Pro Bono Attorney Resources Q: When should I run a conflicts check? Pro Bono Reporting A good conflict system includes a procedure for checking conflicts three times. A preliminary check should be done when the prospective client first contacts the office. This will allow you to Pro Bono Volunteer decline further discussion, preventing a crucial divulgence of confidences. A second, more Opportunities thorough check, should be conducted immediately following the client interview when you have Professional the names of the other parties connected to the case. A third check must be done whenever a Liability Fund new party enters the case. PLF Website – Oregon Attorney Q: What should I do when a name comes up during a conflicts check? Assistance Program If a name is found in the conflict system, the responsible lawyer should be notified immediately. – Practice Management The faster the lawyer is aware of the new client's relationship to a current or past case, the better position the lawyer is in to make a decision to decline representation or make proper disclosure. Advisor The fact that a name does come up during a conflict check does not necessarily mean there is a Bar Leadership conflict. The lawyer, not staff, must make the final decision. However, if there is no way to check for conflicts, or if a check was not done, the lawyer will not know until it is too late. Board of Governors BOG Home Q: How should our firm screen for conflicts when a new lawyer or staff person Agendas is hired? Committees Conflicts can arise when a new lawyer or staff member comes to the firm. The new lawyer or staff member may have worked on cases that present a conflict with the new firm's clients. Every Contacts lawyer and staff member should maintain a personal list of past clients. The new person should Meetings review a list of the firm's clients and compare it with his or her personal list. Members Q: How can we document conflict checks? Minutes A client intake sheet or specific conflict check request forms are possible methods for keeping House of Delegates track of conflict checks. Always show the names that were checked and who did the check. HOD Home When a new file is opened, make sure that the conflict check was actually done. Elections Guidelines Sample client intake and conflict check request forms are available from the Professional Liability Fund. Call (503) 639-6911 or (800) 452-1639, or visit the PLF website at www.osbplf.org. Meetings Rules (PDF) Q: How can we screen for potential conflict names that may not be in our Roster (PDF) conflict system? Staff Contacts Regularly circulate a list of new clients and cases to all lawyers and staff in the office. Ask that Committees everyone review the list for potential conflicts. This way, a new lawyer or staff member should not have potential conflicts that the firm's conflict system could not detect. Circulating a list also Committees Home serves as a back-up to the conflict checking routine. Someone in the office may recognize a Committees, conflict from the list that would not be detected otherwise. https://www.osbar.org/publications/bulletin/01july/myp.htm (4 of 6) [5/9/2009 7:16:07 PM]
  5. 5. OSB Bulletin Magazine - July 2001 Councils & Groups QUESTIONS ABOUT SETTING UP CONFLICT SYSTEMS Program Advisory Committees If you have questions about setting up a conflict system or would like help reviewing your conflict CommitteeAssignments (PDF) procedures, contact the practice management advisors of the Professional Liability Fund at (503) Leadership College 639-6911 or (800) 452-1639. Our services are free and confidential. Local Bars/Legal Orgs For ethics assistance on potential conflicts of interest, call Sylvia Stevens (ext. 359) or George Legal Orgs Home Riemer (ext. 405) at (503) 620-0222 or (800) 452 8260. + Local Bars List Local Bar Calendar ENDNOTE Specialty Organizations (XCL) 1. All clients should be included in your conflict system, including private pro bono clients, legal advice given through volunteer work at pro bono agencies, such as Legal Aid Services of Oregon Oregon New and agencies or individuals for whom you provide investigation work, such as the Oregon State Bar Lawyers Division Professional Responsibility Board. ONLD Home Brown Bag CLEs Job Resources Law Students ABOUT THE AUTHOR Mentor Program Subcommittees The author is a lawyer and practice management adviser with the Professional Liability Fund. For free office system consultations and assistance, contact Bev Michaelis, Carol Wilson or Dee Crocker at the numbers above. Upcoming Events Section Information Section Info/Websites Joining Sections return to top Section CLE Guide return to Table of Contents Treasurers Tools Volunteer Opportunities Brochure and Form Client Services Client Assistance Office Client Security Fund Fee Arbitration Fees for Public Records Lawyer Referral Service Military Assistance Panel OSB Center https://www.osbar.org/publications/bulletin/01july/myp.htm (5 of 6) [5/9/2009 7:16:07 PM]

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