When Must a Lawyer Check for Conflicts of Interest?
LAWYERS MUST RUN A CONFLICT CHECK BEFORE AGREEING TO REPRESENT A CLIENT
Where a conflict of interest exists, a lawyer must:
- Obtain proper consents and clearances, if the conflict can be waived
- Refuse to represent the potential client, if the conflict cannot be waived or addressed in a way that permits representation
Since this is true, it’s essential that lawyers run a proper conflict check before agreeing to represent a new or potential client.
WHAT DO LAWYERS LOOK FOR IN CONFLICT CHECKS?
During a conflict check, a lawyer is looking for any actual or potential conflicts–meaning any actual or potentially adverse interests on the part of:
- the lawyer
- other lawyers who work at the lawyer’s firm
- current (and, in some cases, former) clients
- reasonably foreseeable parties and witnesses in matters the lawyer (and the firm, where appropriate) is handling currently
This is a fairly extensive list, and requires lawyers and law firms to have proper systems in place to review and identify actual and potential conflicts of interest. Some lawyers and firms have computer software that performs the conflict check; others run checks manually. Regardless of the chosen method, it’s vital that the check be thorough and sufficient to identify actual or potential conflicts of interest before the lawyer agrees to represent a potential client.
REFERRALS AND CO-COUNSEL RELATIONSHIPS ALSO REQUIRE CONFLICT CHECKS
Sometimes lawyers meet potential clients through third-party referrals, or as a result of other lawyers reaching out to request assistance with a matter the other lawyer or firm is handling. Every lawyer who works on a client’s matter must be free from conflicts of interest (or, if relevant, obtain the proper waivers); thus, the fact that a situation was “a referral” or that a lawyer was just helping out on a limited basis is no excuse for failing to run an appropriate check and confirm there are no conflicts of interest involved.
MUST LAWYERS ALWAYS CLEAR CONFLICTS OF INTEREST BEFORE ASSISTING POTENTIAL CLIENTS?
Generally, yes – but like just about everything in the law, there are exceptions.
For example, if a lawyer is participating in a limited legal services program, such as a legal advice hotline, and there is no expectation that the lawyer will represent the (potential) client beyond a limited consultation in connection with that program, there is no need to run a conflict check. This is because the circumstances of the advice or representation are such that it is not reasonable – and may be impossible – to run a conflict check before helping the individual in question. This is particularly obvious in the case of a legal hotline, where people can call for limited advice and answers to simple questions. If a lawyer does represent the client beyond, or outside of, these special exceptions, however, a conflict check must be run and cleared before the representation can progress.
A lawyer also can defer a conflict check in certain situations, where the circumstances prohibit running a conflict check immediately, but the client needs legal representation on an urgent basis. In these cases, sometimes a lawyer can agree to represent the client contingent upon a later conflict check revealing no problems. In these cases, the conflict check must be run as soon as reasonably possible, and the lawyer may have to withdraw from representing the client if the check reveals a problem that cannot be waived or addressed in compliance with law.
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