A conflict check is more than just finding a client’s name against a database. A proper conflict check is looking at people, companies, insurers, witnesses, prior matters, and other relationships that could affect the firm’s ability to represent the client.
However, not every law firm has an adequate process for conducting the conflict check, and some do not even know how to conduct it properly.
A conflict check is not complete when a firm’s intake team performs only a name search and comes up with no matches. Such negligence may have adverse impacts in legal practice. It can misguide the firm. This can be a major risk in legal practice, and it highlights why basic name searching is not enough.
This guide walks you through what conflict checks are, the ABA rules that apply, common conflict situations, and who should be responsible for handling conflict checks.
What a Conflict Check Is and Why Firms Are Required to Run One
A conflict check is a quick review by a professional to make sure that helping a new client would create an unfair situation for an existing client.
The duty of loyalty behind every conflict check
Client checks are closely connected to a lawyer’s duty of loyalty. Clients expect their lawyers to protect their interests first and avoid following competing obligations or personal interests to affect the representation.
For example, a law firm takes an employment discrimination case; later, they realize that the opposing company’s HR director was their former client.
The former client had shared confidential information with the firm, and some of that information is relevant to the present case. The firm may have to withdraw from the case, which causes a loss of money and time for the client. During such situations, the firm may also face disciplinary consequences.
A simple conflict check at the beginning can prevent firms from this type of clash later. Running the conflict check before accepting the matter gives the firm a chance to identify the problem before representation begins.
What’s at stake when a conflict is missed
Some might think that conflict checks are mainly a concern for large firms that handle numerous cases. But the ethical responsibilities and dangers are also the same for small businesses or solo practitioners. In fact, there’s a higher likelihood that a conflict may go undetected with fewer people in the company.
Conflict checks have the same criteria whether a firm has 2 lawyers or 200 lawyers.
Failure to recognize a conflict may have serious repercussions, including disqualification from a case, malpractice claims, or ethical inquiries under the ABA Model Rules of Professional Conduct, Rule 1.7.
The ABA Model Rules That Govern Law Firm Conflicts of Interest
There are multiple ABA Model Rules that are relevant to preventing conflicts. Do not rely on only one rule. It could lead to overlooking some circumstances covered by other rules on conflict.
Rule 1.7: Conflicts with current clients
Rule 1.7 deals with conflicts of interest involving current clients. A conflict may occur when two current clients have interests that could conflict with each other.
For example, if a person hires a law firm for business matters, and their spouse later contacts the same firm for a personal injury case.
The firm should ensure that representing the spouse is not affecting the previous client negatively.
Rule 1.9: Duties to former clients
Confidentiality does not end when the case is over! This rule means that a firm should not accept a case involving a previous case brought by a former client, particularly one which might adversely impact the interests of the previous client.
For this reason, it is also necessary to add past clients and their cases to a firm’s database as part of conflict checks.
Rule 1.10: Imputed conflicts across the firm
Rule 1.10 deals with the potential impact of conflicts on other lawyers within the same firm. A conflict of interest for one lawyer may also apply to the firm.
There are exceptions, however, such as personal conflict or when a lawyer moves to a new firm where he or she is properly screened from certain cases. There is an “ethical wall” to keep the conflicted attorney away from any information that is sensitive in relation to that case.
Under Rule 1.7, conflicts may be waived in some instances if certain conditions are satisfied. Conflicts can affect the entire firm, so all attorneys need to be aware of possible conflicts when accepting new clients.
Rule 1.11: Conflicts from lateral hires and prior government service
Rule 1.11 explains conflicts of interest involving attorneys moving from one firm to another as well as between government attorneys and other members of the legal profession.
If a lawyer previously handled a case for a party that is also part of the current case in another part of their new firm, that conflict can extend to the new lawyer unless steps are taken to screen the new lawyer.
For example, if a firm brings on a new associate who worked on the other side of an ongoing case, that situation could disqualify the entire firm. Clients should also be notified properly to ensure that there are no issues.
It is important to note that Kurt D. Anderson, in his paper Ethical Issues in Insurance Coverage Litigation, estimates that approximately 80% of civil litigation in the United States involves liability insurance. Because insurance can create additional relationships, a conflict check may need to include insurers and other related parties, not just the parties named in the case.
Depending on the matter, the search may also need to include insurers, related entities, and other connected parties.
Note: The ABA Model Rules are not themselves binding law. Every state adopts its own version of these rules, and numbering or specific requirements can vary by jurisdiction. Firms should always confirm the exact rule language and any local ethics opinions that apply in their state.
Common Conflict of Interest Scenarios Law Firms Encounter
Law firms, when they sign on new clients, typically just compare the names with the opposing party listed in the paperwork. But this limited view is problematic because a conflict of interest can occur from many sources other than the people directly involved. In order to prevent issues such as disqualification from a case, malpractice claims, or even breaches of ethical guidelines, it is crucial for businesses to expand their search.
Opposing parties and adverse interests
A clear conflict of interest can happen when a new client is against the existing client of the lawyer in the same firm. There may be a conflict. This can include the main person, co-defendant, third-party defendant, or insurer.
Third parties, witnesses, and related entities
Some conflicts involve parties who are not directly named in the matter. For instance, a personal injury law firm might have secured an expert witness and found that the expert had previously worked for the other insurance company.
If the firm can detect this problem at an early stage, the problem can be resolved at the beginning. If it is discovered in the middle of the case, it could have a negative impact on the credibility of the expert and the client’s case.
A search for just the named plaintiff and defendant will exclude other relevant relationships. The best approach also investigates the co-parties, insurance companies, employers, and known witnesses.
What Information a Thorough Conflict Check Should Include
The accuracy of the search relies on the information that is already stored on the firm’s client and matter records. Even a careful check may fail to uncover the conflict if firm records are incomplete.
Core data points every check should capture
There should be at least the full legal name, co-parties, insurers, opposing counsel, witnesses, and employers involved in the case in the conflict check.
Any of these missing components could prevent the firm from discovering a conflict with an insurer, witness, or other related individual.
Handling name variations and business entities
Variations in names may also cause issues, especially if multiple records have the same person’s name but in different spellings. Inconsistent naming of firms is one of the most frequent reasons for missing a conflict
A client might be found in one file in the maiden name and another file in the married name; a simple search would not find the client. Consistent naming and use of known aliases assist in identifying the same person.
The same goes for the businesses. Firms should monitor companies by their primary company name, trade names, subsidiaries, and officers or owners involved.
Effective legal document management ensures that clients’ and matter files are well documented. This is beneficial for detecting alternate spellings during a conflict check.
But even accurate records are helpful only if the conflict check is done at the right time during intake.
When and How Often Conflict Checks Should Be Run
The timing of the check is important as potential clients might reveal confidential details prior to the firm’s decision to represent them. The conflict check in a law firm should occur at the right time during intake and be repeated when relevant circumstances change.
Before the first substantive conversation
A preliminary conflict check should be done before a potential client provides a firm with any in-depth or confidential details regarding the conflict. Confidential information may be communicated in preliminary discussions prior to an awareness of the firm that something is amiss.
For example, a caller can begin talking about the situation even before anyone verifies their name. Staff may find there is a conflict but already have sensitive information shared with the caller. So, make sure to conduct a conflict check as the first step in the intake process to prevent this issue.
Re-running checks as new parties emerge
The initial search shouldn’t necessarily be the firm’s last check. As a matter progresses, new parties or relationships may come into existence. As an incident progresses, additional co-defendants can be brought in, witnesses may be located, insurers or other parties may become involved. All new entries must go through the same conflict checking process.
An initial conflict check is only a check for conflicts the firm is aware of at the time of the matter opening and may not cover later incidents of conflict. Even if you do a thorough check at the right time, there will be risks that are not eliminated.
If a potential conflict does arise later, the firm must have a way to escalate and review the conflict. After the conflict is recognized, the firm must decide what kind of conflict it is, and which rules apply.
What Happens When a Conflict Is Identified
It is not a failure to find a conflict; it is a failure not to have found a conflict. When a conflict check identifies a potential conflict, the firm should know what the conflict is, the possibility of addressing it, and what needs to be done before the conflict moves forward.
Declining representation
If a conflict is found, the firm may decline the case, get written permission from the clients, or keep the conflicted lawyer away from their information.
The firm may have to decline the representation when the conflict can’t be resolved or waived under the applicable rules. Correcting the problem before the representation starts can help prevent future disruption of the client and matter.
Conflict waivers and when they’re an option
A conflict may be waivable if the client gives written consent. The firm explains the conflict and its risks to the clients and gives them time to make an independent decision.
Not every conflict can be waived off. In some cases, conflicted lawyers may keep away from the information related to the case. By conducting early conflict checks, firms can prevent delays, unnecessary transfers, and loss of client trust.
Who Should Run Your Firm’s Conflict Checks and What It Costs When No One Owns It
For many firms, this is also a major concern: who will be responsible for running and documenting conflict checks. Without an assigned person, things may lead to claim delays or even dismissal.
Attorney time vs. delegated intake staff
Conflict checks can be done by an attorney, a paralegal, or dedicated intake staff. The important thing is clear ownership. Someone should be clearly responsible for conducting and documenting the conflict check.
If two people are sharing the same task without documenting who will do what, then nobody takes ownership. Both may assume the other person completed the work.
An in-depth check can take significant non-billable time per intake, especially when the matter involves multiple parties, related entities, and prior matters.
Across multiple intakes, that adds up to significant non-billable time. Reducing legal administrative burden around intake can help firms save time while keeping conflict checks consistent and properly assigned.
Manual process vs. a documented system
By having the conflict check process, someone or a role is responsible for conducting, documenting, and re-conducting it as new parties join the process. A documented checklist removes the ambiguity that can lead to a loss of a case.
A firm can have a paralegal, an attorney, or a dedicated intake specialist to handle conflict checks. The right structure depends on the firm’s size and workflow, but the responsibility should always be clear.
This can reduce the administrative burden of intake while keeping conflict checks consistent and properly documented.
Manual Checks vs. Conflict Check Software
Some firms even use conflict check software or practice management systems to simplify the process. These software solutions can be used in searching client and matter records, locating possible name matches, recording the results, and capturing the user who performed the search.
Software does not replace professional judgment but assists. There remains a need for firms to keep up-to-date records and to have a system in place to review potential matches, related entities, former clients, insurers, and other relationships.
How to Run a Conflict Check Step by Step
The following are the steps a firm can take to run a conflict check step by step.
- Examine all co-parties (co-defendants and third-party defendants).
- Look at opposing counsel and firms in their records.
- Look for recognized insurance companies related to the issue and add them to the review process.
- Include all related businesses, subsidiaries, and officers/owners.
- Review known witnesses, including expert witnesses.
- Use old records of clients (not just new).
- Document the check and record who performed it.
- Recheck when a new party is introduced into the matter.
Conclusion
A conflict check is more than a name search during intake. It is an ongoing process which assists firms in recognising potential conflicts when a new party, client, witness, or insurer joins a matter.
The process works best when responsibility is clearly assigned, and each check is documented well. Firms that need additional support can also work with a legal staffing company to access qualified paralegal help without adding a full-time employee.
The goal is simple: make every conflict check thorough, timely, and review it properly.
Most Frequently Asked Questions
How do you explain conflicts of interest to clients who want to know what/why you can't take their case?
Describe that the firm has determined that there is a conflict that will make it impossible for the firm to represent the client. Generally, no confidential information is required to be disclosed about another client. Do not provide any information that may not be ethically disclosed, and avoid sharing any details that could harm another client’s confidentiality.
How long does it take a law firm to do a conflict check?
The time depends on the specific matter, firm, and number of parties involved. The process takes only a few minutes in most cases, but may be longer if there are multiple parties, related parties, variations in names, or if there are extensive prior client records. The important point is to complete the check thoroughly rather than rushing it.
Do law firms charge for conflict checks?
It depends on the law firm. Some firms count conflict checks as part of their normal intake process. Others may charge for the time spent. The firm should clearly inform the client at the start if there are any charges.
Should a conflict check be completed before sending an engagement letter?
Yes. Normally, firms should run the necessary conflict check before formally accepting a matter or relationship with an attorney. A check helps to determine if there are any conflicts before the firm agrees to represent the client. It also helps to avoid the need to cancel or reschedule an engagement once the work has started.
When should a firm run a conflict check?
A firm should check for conflicts before taking a new case and check again if anything changes. New entities may create conflicts that were not involved initially. So ongoing checking helps law firms prevent conflicts.
What information is needed for a conflict check?
Normally, a conflict check will need the name of the potential client and any other parties that may be involved. These can be opposing parties, witnesses, associated companies, insurers, subcontractors, and former clients, among other people, depending on the situation. Correct spelling, alternative spellings, and details of previous issues also help the search to be more effective.
