Suggested Best Practices
Conflicts of interest accounted for 1931 claims from 2008 to 2011 according the the ABA Profile of Legal Malpractice Claims: 2008-2011. Here are some tips to avoid such a claim:
- One of the most important things to remember about conflicts is that not all conflicts are waivable. A conflict can be found even when the client has signed a comprehensive conflict waiver. Most state bar associations provide a mechanism for attorneys to obtain an opinion on conflicts of interests presented by a particular fact scenario. This can be very useful in potential conflict situations or where you might want a second opinion.
- Utilize technology. There are a number of software products available that will search your database of current and former clients and identify conflicts. Though it is not recommended that they be relied on exclusively, such products are excellent tools to assist with the process.
- Maintain your database. Current clients should be moved to the former client category only when a disengagement letter has been sent to the client formally ending the matter. Check to see if a disengagement letter should have been sent but was not and if appropriate, take action to assure that disengagement is formalized.
- It is wise to outline not only who the client IS, but who the client IS NOT in an engagement letter. When additional parties become involved, providing clarification that they are not your client, can help to avoid risk.
- Have proper intake procedures in place. And follow them! While intentions are usually good, procedures can be forgotten when the pace picks up at the office. Routine audits can help assure that procedures are consistently followed.
- Ask the right questions of the potential client, including affiliations and business relationships.
- Get a second opinion. It’s a good idea for the firm to make it a standard practice for another partner to review a case before it is accepted. Two sets of eyes are better than one. Something that may not be seen as a conflict by one partner, may be a red flag to another.
- Remember to check not only the lawyer’s conflicts of interest but also the conflicts that non-lawyer staff may have with a client matter.
Watch a recording of our "Spotlight on Conflicts of Interest" webinar:
Risk Management Best Practices Database Legal Statement
Information provided by Attorney Protective is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. These best practices are not intended to meet or establish the standard of care, and sometimes recommend practices that exceed the standard of care. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of Attorney Protective's Best Practice Database have been carefully researched, Attorney Protective makes no warranty as to the accuracy, applicability or timeliness of the content. Anyone wishing to reproduce any part of the Attorney Protective Best Practices Database content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to firstname.lastname@example.org. Additionally the rules cited in the contents of this database may have since changed. You should check the laws and model rules in your state for specific information on the topics addressed here.