Conflict Checks: Not Just for New Clients
September 12, 2016
In evaluating conflicts, I always tell my attorney clients that it is important to have a mechanism in place to (1) Identify, (2) Assess and (3) Address conflicts of interest. You would think the first step is obvious, but you may be surprised by how easy it can be to miss identifying a conflict of interest in the first place. Sometimes the failure to identify a conflict stems from a complicated factual scenario such as multi-party litigation with various business entities or subsidiaries or unusual facts involving representation of estates or uninsured motorist claimants. Luckily, those kinds of conflicts are few and far between. More often, the conflict of interest that is missed is the one that should be obvious, if only we were looking for it. Where we fail to look most often is the conflict that involves the existing client. If there is an existing client, then you’ve already done your initial conflict check before accepting that person as a client, and you feel safe in knowing you have done your due diligence. But what happens if the client introduces a new matter? Or suppose it is not as clear as a new matter? Instead, the client changes the scope of the representation so that there may be additional issues, or suppose as you get deeper into the representation, you determine the scope of the representation should be expanded or changed. Or, what if after additional investigation, you discover or receive new information suggesting that there are other adverse or potentially adverse parties or witnesses.
In any of the above scenarios, if you notice that there are additional issues with potential additional parties or adverse interests, then you should go ahead and run another conflict check. The Rules of Professional Conduct provide that an attorney must be vigilant about identifying conflicts of interest that may arise during the course of the representation. Sometimes a conflict arises through the direct action of a client, and other times, a conflict can arise that no one could have anticipated. For example, suppose you represent a client in an employment dispute. After you have represented a client for a number of months, you discover there are a number of fact witnesses that the employer intends to call at trial. This is an opportunity to run another conflict check. In so doing, you learn that one of the employer’s witnesses against your client is someone your firm is currently representing in a domestic dispute. If this is a matter that is proceeding to trial, then you have a conflict of interest because you cannot cross-examine a current client of the firm.
There may be a number of discoveries that you make or changes that occur during the course of representation that would trigger the requirement to run conflict checks. If you stay vigilant, and know when to look, you won’t get blind-sided by a conflict of interest.