Setting Up a Conflicts System - Content of Conflicts Checking System
There are a great many data identifiers you can enter into your conflicts checking system. As a general principle, more information is better, but that information also has to be relevant and the data has to be entered correctly.
Each conflict index should contain the following (provided the information exists):
- the client name (including alias);
- current and former clients;
- affiliates or partners of the client;
- directors or officers of the client;
- affiliated corporations/entities of a corporate client;
- adverse parties;
- co-plaintiffs or co-defendants;
- known relatives of the client as well as other parties;
- common law spouses of the client and others;
- one-time consultations;
- name of counsel representing any party to the matter; and
- name of lawyers and staff in the firm.
Entering proper data will help you flag potential conflicts, but you must still turn your mind to whether a potential conflict exists or will arise. This involves considering a host of factors, including:
- the various interests of the parties involved in the matter;
- whether more than one person is relying on your advice;
- whether more than one person believes you are protecting their interest. In circumstances where those involved in the matter have an apparently common interest, you need to assess the equality of their bargaining positions; and
- how likely is the potential for falling out to occur between the parties, etc.
For the system to work, everyone at the firm must understand how the system operates and participate in its operation.