How to set up a conflict of interest system

1. OSB Bulletin Magazine - July 2001
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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;
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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
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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
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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.
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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
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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.
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