Make a List, Check It Twice
David Silverstone recalls his lesson about conflict checks—the one that mattered.
Early on in his fledgling practice, the Hollywood, Fla., solo received an irate call from a law school classmate who had referred several cases to Silverstone regarding his father’s real estate company.
“Why are you suing my father?” the man demanded.
“What? Suing your father? I’m not,” Silverstone stammered. And then it struck him. The landlord in a suit he’d just filed on behalf of a tenant had the same last name as his angry classmate—and was, indeed, the owner of the real estate firm Silverstone had represented. The name was a common one in his South Florida community, so he hadn’t put two and two together.
“Needless to say, I quickly instructed the tenant to find other counsel, and then I got serious about conflicts checks,” says Silverstone, who has practiced solo for about five years after 10 years with a small firm.
Now, when a potential client comes in, Silverstone asks a lot of questions to help him determine whether that person has any connection to current or former clients. Reid Trautz, director of the Practice Management Advisory Service of the District of Columbia Bar, says that initial interview must be fairly comprehensive.
“The key is, lawyers have to ask enough questions about the client’s associations: former spouses, business affiliations, that sort of thing,” Trautz says. “And then, even more important, they have to keep their [conflicts] system up to date.”
Many attorneys use software to check for conflicts. Two widely known programs are Amicus Attorney from Gavel & Gown Software Inc. and Time Matters, owned by Lexis-Nexis.
Both programs allow the user to enter contact information about a current or potential client, as well as info about that person’s business partners, family and other relevant interests, Trautz says. By checking a new entry against information already in the system, many potential conflicts will pop up.
Trautz notes that the best conflict system for any attorney is whatever works best. If software is most efficient, use it. But if the lawyer is more comfortable with a paper or index card system, that’s fine, as long as it is properly updated and checked. Many attorneys use the commercial software and then a paper or card backup system.
Rule 1.7 of the ABA Model Rules of Professional Conduct governs concurrent conflicts of interest, and Rule 1.9 governs conflicts with prior clients. The Model Rules are the basis for lawyer ethics codes in most states.
Some lawyers say that interpreting Model Rule 1.9 can be difficult.
One of that rule’s provisions, for example, states that an attorney may not represent a new client if the client’s interests are materially adverse to those of a former client and the new client’s legal matter is the same or substantially related to the former client’s matter. An exception is made if the former client gives informed consent in writing.
Darrell G. Stewart, who practices in San Antonio, summarizes his state’s equivalent rule. “The Texas standard is we can take a case adverse to a prior client as long as it is not substantially related to the prior matter,” says Stewart, who checks conflicts with commercial software and his own database of party names—as well as with his memory. Stewart adds that obvious conflicts are easy to avoid, but gauging just what constitutes “substantially related” representation can sometimes be more difficult.
“Potential conflicts are harder, obviously. If anything is triggered, I make it very clear that I may bow out,” he says.
Solo Deidre Ganopole also uses commercial software. But she finds that she can’t make herself let go of an index card file she started around 1982.
To this day, the Anchorage, Alaska-based lawyer creates two cards for each new case: a white one for the client and a colored card for the opposing party and opposing counsel. “My computer records only go back about 15 years. My cards go all the way back to the beginning of my practice,” she says.
Ganopole quizzes potential clients about family names, businesses they may own and other information that helps her to draw a complete picture of the client’s place in the community and whether Ganopole may have crossed paths with mutual contacts. If she finds she must refuse a case, Ganopole rarely tells the client why she is doing so. Since much of her practice is domestic relations, she says she believes revealing the conflict could be in itself a breach of attorney-client privilege or could even be dangerous for her client. But even a client who is turned down gets a card in the file, just in case.
Each card contains the name, the type of case, a file reference number, the date the case was opened and closed, what jurisdiction it was in and where the closed file is stored. She also cross-references the cards, with one file holding cases in chronological order and another in alphabetical order.
“If I ever lost my card file,” says Ganopole, “I would definitely grieve the loss.”