Conflict Checking- Impact of Covid-19
The Covid-19 pandemic has altered the way in which law is practiced, and more broadly, the way all business is conducted. Most courts have been closed for all but emergency matters. The vast majority of hearings are now conducted via Zoom or another telecommunications platform. In-person contact with clients is limited, and for good reason. This sort of change was coming, but the global health crisis only expedited the change.
For attorneys, conducting conflict checks are also impacted and make it even more important that due diligence is followed in a technologically responsible way. It’s easy to forget about potential conflicts when attorneys are not meeting with people face-to-face. Most interactions now with potential clients are conducted remotely. The good news about that is there is a record of all these interactions. The bad news is that it’s easier to prove that you may have had an improper interaction. It is important that attorneys are running these conflict checks immediately through a robust software program. Conflict of interest malpractice claims are more frequent than you might expect and can have serious consequences. Attorneys should all be aware of the changes in the way they interact with potential clients and ensure to avoid any potential conflicts.
Ethical Obligations of Tech Competence
The practice of law is becoming increasingly dependent on the use of technology. The days of the stereotypical lawyer having stacks of paper on his desk and being surrounded by rows of textbooks have passed. The advances in technology have made courts more efficient, and thus able to serve more people. Now attorneys need to be able to communicate by email and Zoom. They need to be able to e- file with the court and send documents electronically. Hand delivering documents to the court and mailing large files is slow and inefficient. In fact, many courts are making e-filing mandatory. Being unable to do these things, will likely limit your ability to effectively and efficiently represent your clients.
It seems that the American Bar Association is realizing that attorneys without the skills to use these new technologies will struggle, as the dependence on their use will only continue. In 2012, The American Bar Association approved a change to the Model Rules of Professional Conduct, specifying a lawyer’s duty of competence to include competence in technology. Comment 8 to Rule 1.1 states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This comment highlights there are also risks, as well as the advantages of speed and efficiency mentioned above. Attorneys and courts need to account for cybersecurity to ensure sensitive information remains private. Files may be maintained on an internet server. Communications and other personal information are passed electronically. Many attorneys work from home or in a small office that do not have the resources to invest in advanced security. Nonetheless, strong security systems are required to engage in the practice of law today.
The Supreme Court of South Carolina recently amended the state’s Rules of Professional Conduct, adopting a duty of technology competence. This means that 38 states have now adopted a duty of technology competence and this trend will continue. New lawyers and seasoned lawyers alike need to be aware of this obligation and will need to keep up with the latest developments. Technology in the practice of law is not going away and will only continue to advance. It will shape the way attorneys interact with the court, clients, and fellow attorneys. The benefits will likely outweigh the risks if attorneys embrace the change and educate themselves on the ways in which technology can help them provide better representation to their clients.
Do you receive REFERRALS from other attorneys?
Do you receive REFERRALS from other attorneys? If so, you MUST conflict check after receiving ANY information from an attorney colleague.
The District of Columbia (DC) bar released an Ethics Opinion (No. 346) that requires lawyers that receive any information about a case from anyone referring a potential matter to maintain the potential client’s confidentiality.
Imagine this situation: You are sitting in your office on a Tuesday morning, and a long-time attorney colleague calls you wanting to refer you a case. Your friend discusses details of the case at length but doesn’t mention any names. After the conversation, you never hear from the potential client. Five years later, a potential client calls your office wanting to hire you for legal services. Little do you know, the potential client calling you is the other party for the situation described by your colleague years earlier.
If you discuss the matter with the potential client or engage for services, you have violated both parties’ duty of confidentiality, which could lead to disgorgement of fees, suspension or other discipline. When a colleague refers a matter to you, ask right away (1) the name of the potential client and (2) the name of the opposing party and at a minimum input that information into your firm’s conflict check system!
4 Step How-To Guide to Check for Conflicts of Interest
As lawyers, we learned early in our Professional Responsibility class that we cannot represent (or even talk with a potential client) that has an adverse interest to a current or former client. Providing legal advice or even talking with a person with adverse interests to a former or current client can lead to malpractice lawsuits, disgorgement of fees, disqualification, and disciplinary action.
A recent ABA Journal article discussed the frequency of conflict of interest malpractice claims, which may be a surprise to many attorneys. You need to protect yourself from committing an error that is really easy to avoid when applying the proper procedures. This 4-step guide is designed to help.
Click this Link to see the full article.
Need a Checklist for New Clients?
Click this Link to see a helpful checklist attorney's can use for new clients. The list is designed for criminal cases; however, is applicable to many other disciplines.
Client Conflict Check is not affiliated with process.st.
Ever Consider Using Live Chat on your Law Firm Website?
We live in an age when a vast number of websites provide innumerable services and access to products, allowing consumers to expect immediate attention. People use smartphones constantly to order products on the go, locate businesses, and download information and services. Some bold lawyers have introduced “live chat” functions on their websites to get leads, but is this a good idea?
Click here to read the rest of this artile on the NWSidebar.wsba.org website
Client Conflict Check Announces Partnership with the Washington State Bar Association
Client Conflict Check is pleased to announce it has partnered with the Washington State Bar Association (WSBA), to provide WSBA members access to Client Conflict Check at a discounted rate.
Do You Have a Social Media Clause in Your Retainer Agreement?
As the impact of social media widens, with companies like Yelp, Google and Avvo providing avenues for clients to post reviews about lawyers, we should all strive to protect ourselves from false and negative online reviews. One way to do this may be through your attorney-client retainer agreement in a “non-disparagement” clause. . . .
5 Essential Annual Review Considerations for Solo and Small Firm Lawyers.
Many lawyers use the months of December through the end of February to catch up on static cases, take care of office administrative tasks, review employee productivity, create pleading and other templates for use during the year, review their retainer agreements, streamline office procedures, and review their malpractice plans. If you don’t do these things during slower periods of the year, you should. This article contains some considerations for attorneys in solo practice to implement during their annual review. . .
Check out Client Conflict Check's Introductory Video!
Client Conflict Check To Exhibit at the New Jersey State Bar Annual Meeting and Convention in Atlantic City
Look for us at New Jersey State Bar Annual Meeting and Convention in Atlantic City on May 14, 2014 through May 16, 2014. We will be at booth 102. Come by the booth to sign up for our giveaways of an Amazon Fire TV, and an IPOD shuffle. We are also offering substantial discounts for those who sign-up at the convention.
For more information about the Meeting and Convention click here. We hope to see you there.
Client Conflict Check Announces Partnership with the Maricopa County Bar Association
Client Conflict Check is pleased to announce it has partnered with the Maricopa County Bar Association (MCBA), in Arizona to provide MCBA members access to Client Conflict Check at a discounted rate.
Client Conflict Check Announces Partnership with the New Jersey State Bar Association
Client Conflict Check is pleased to announce it has partnered with the New Jersey State Bar Association (NJSBA) to provide NJSBA members access to Client Conflict Check at a discounted rate.
State Bar of Georgia Members Receive a Discount on Client Conflict Check's Yearly Subscription Fee!
Client Conflict Check is pleased to offer State Bar of Georgia Members access to the system at a discounted yearly price.
For more information about the benefits available to State Bar of Georgia Members click here, or to view State Bar of Georgia's Vendor Directory click here and choose "Business Needs" category or search for "Client Conflict Check" to view the State Bar of Georgia's Vendor Directory listing for Client Conflict Check.
What is a Conflict of Interest and I Know I’m Supposed to Check, But How?
A conflict of interest occurs when a lawyer provides legal advice to a person or entity that has interests that are adverse to another current or former client of the lawyer. More specifically, a conflict of interest is present where the circumstances of a particular case present a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person. Recent rule changes also require a lawyer to avoid conflicts of interest relating to potential clients.
Connecticut State Bar Association Members Receive a Discount on Client Conflict Check's Yearly Subscription Fee!
Client Conflict Check is pleased to offer Connecticut State Bar Association Members access to the system at a discounted yearly price.
Client Conflict Check Announces Partnership with the Alameda County Bar Association
Client Conflict Check is pleased to announce it has partnered with the Alameda County Bar Association (ACBA) in California, serving the Alameda, Oakland, Fremont, Berkeley, and Hayward area attorneys, to provide ACBA members access to Client Conflict Check at a discounted rate.
Client Conflict Check Announces Partnership with the King County Bar Association
Client Conflict Check is pleased to announce it has partnered with the King County Bar Association (KCBA) in Washington State, serving the Seattle, Bellevue, Kirkland, and Redmond area attorneys, to provide KCBA members access to Client Conflict Check at a discounted rate.
Client Conflict Check Announces Partnership with the San Diego County Bar Association
Client Conflict Check is pleased to announce it has partnered with the San Diego County Bar Association (SDCBA) to provide SDCBA members access to Client Conflict Check at a discounted rate.
Client Conflict Check Sponsors 2014 ABA Bar Leadership Institute
Client Conflict Check is pleased to announce its sponsorship of the 2014 American Bar Association Bar Leadership Institute on March 12-14, 2014, in Chicago, Illinois. We look forward to a longstanding partnership with the ABA and bringing our wonderful program to the attention of hundreds of bar association leaders.
For more information about the ABA Bar Leadership Institute, click here.
What is the Best Attorney-Client Conflict Check System?
Many solo practitioners and small law firms do not use a computer program specifically designed to check for conflicts of interest. Many firms have no conflict checking system in place at all! Others use an antiquated paper-based system or try to check for conflicts of interest using programs not designed for such a purpose, such as timekeeping systems, Microsoft Office programs, and other expensive firm management software programs.
This is a significant problem for many reasons. First, lawyers applying for malpractice insurance must identify that they have an adequate conflict checking procedure in place. Providing misleading information on a professional liability insurance application may not only lead to the denial of coverage, it is a crime to provide such false and/or misleading information in many states. Second, attorneys that fail to identify conflicts (even when potential clients call their office) may face reprimand, suspension, and disbarment, or other discipline. Third, if conflicts of interest are not identified it could lead to removal of an attorney from representing a client, disgorgement of fees earned and malpractice lawsuits.
Attorneys searching for client conflict checking programs must ask the following questions:
- Does the conflict checking method accurately and intuitively check for conflicts?
- Is the client conflict checking method inexpensive?
- Is the program fast?
- Does the method comply with every State’s professional rules of conduct for checking for conflicts?
- Does the client conflict checking program work from anywhere at any time?
- Can all the attorneys and staff in the firm use the system?
- Can the system provide customizable reports?
- Does the program work quickly when new clients call?
- Can old data be easily imported into the client conflict check system?
The answers to these basic questions should all be YES. There is only one client conflict checking program that meets these criteria, www.clientconflictcheck.com. For more information and to try a free, comprehensive demo, click HERE.
Your Malpractice Insurance Carrier Will Deny Coverage
Professional Liability Insurance Applications Must Be Completed Truthfully and Accurately!
Every lawyer knows that he or she should maintain a system to check for conflicts when a potential client contacts them. Every practicing attorney learned this requirement while passing the MPRE (Multistate Professional Responsibility Exam). However, the stark reality is that most attorneys have a haphazard way to check for conflicts or no system at all.
The failure to maintain a proper conflict check system can have devastating consequences, including the disgorgement of fees, suspension, disbarment, and malpractice lawsuits. In a 1997 article written by Elrod and Polak entitled, “Moving Targets: Attorney Disqualification and Malpractice Liability Resulting from Conflicts of Interest,” the authors cited two recent cases in Texas where law firms were sued for engaging in conflicts of interest. The judgments against these firms were $35.7 million and $8.1 million, respectively. And there may be other repercussions.
Shockingly, many attorneys cite their use of one or more conflict checking systems when filling out their malpractice insurance applications even though they do not have a system in place. If a conflict arises and your malpractice insurance company determines that you did not have a conflict system in place at the time you completed your application the company can and will deny coverage! An example of the application questions can be found on all professional liability insurance applications, and may look like this questionaire:
In addition, in many jurisdictions it is a crime to provide false information on a professional liability insurance application. Click here for additional information about what jurisdictions allow for criminal prosecution for an attorney providing false information on a malpractice insurance application.
Not only does Client Conflict Check.com meet every state’s professional conduct rules to check for all possible conflict situations, nearly all professional liability insurance companies offer a reduced rate for attorneys that have an adequate conflict checking system in place. For the low cost of $239 per year for the entire firm there is no reason not to register for Client Conflict Check today!
Ohio Attorney Suspended for 1 Year!
Attorney C.C. violated rule 1.18 when he revealed confidential information received during discussions with a potential client, E.R. He was suspended for a year. A tattoo artist and pawn shop owner called a lawyer about a potential case. C.C., a lawyer in Columbus OH was called the day his potential client E.R. had his house raided by federal officials investigating drug trafficking. They met the next day and talked about the potential criminal case, and about E.R.’s association with some college football players. Later that day, and without permission from E.R., C.C. sent an email to then football coach Jim T. about the raid and the ties E.R. had to the players. A couple of weeks later, as the investigation grew and C.C. had received further information from E.R. during another interview, he sent a second, then a third email to Jim T. He told Jim T., “What I tell you is confidential.” but it was E.R.’s confidence that C.C. shared. E.R. never hired C.C. to represent him in the charges. (Ohio, 2013)
Washington Probate Attorney Suspended for 2 Years!
E.T.W. was an attorney for an estate, wherein he failed to recognize and address the actual conflicts of interest between estate beneficiaries and the personal representative, whose status as an heir was not clearly defined. One of the clear beneficiaries, a daughter of the deceased, provided ETW with a written document expressing their concern that ETW had a conflict of interest in representing the “younger brother” (who was actually a cousin) both as personal representative and as a beneficiary, when he was wrongfully listed as a beneficiary in the probate documents. 2 year suspension. (Washington, 10/10/97)
Washington Criminal Attorney Reprimanded!
G.C.C. represented a client (“Client”) who was charged with Theft of a Motor Vehicle. Client told GCC that his relative, FS, who had multiple felony convictions, was the perpetrator of the crime. Later FS was arrested on a warrant and asked GCC to represent him. GCC said he could not due to conflict of interest but an associate employed at his firm where GCC was the principal could. GCC represented his client until he was discharged while his associate represented FS. Neither Client nor FS gave their informed consent, confirmed in writing, to any conflict of interest related to the two cases. GCC was publicly reprimanded. (Washington, 12/29/2010)
Suspended Attorneys When Changing Firms!
In re C., M.R. 18575, 99 SH 67 and In re D., M.R. 18575, 99 SH 68 (Ill. 2003) (former associates of a law firm were suspended for conflict of interest under Rule 1.9(a), when they represented clients against the former law firm’s client in matters that were substantially related to matters to lawyers had worked on while earlier employed at the law firm). (Illinois, 2003)
Suspended For Failure to Supervise!
S.F.M. was suspended for 30 days by consent for failing to communicate, conflict of interest and failure to properly supervise non-lawyer employees. (Virginia 2006)
Censured For Failure to Disclose Conflicts!
A.J.L. was censured on May 9, 2007 (190 N.J. 335) for engaging in conflicts of interest by representing approximately 45 clients with directly adverse interests to another client and for failing to comply with the disclosure requirements of RPC 1.7(b)(1).
Censured For Failure to Disclose Conflicts!
B.B. was publically reprimanded for an attorney who engaged in a conflict of interest by representing a corporate client while respondent's partner represented another client whose interest in a rezoning application was opposed by, and thus directly adverse to, respondent's client. (135 N.J. 461, 1994)