Questions about conflicts of interest are frequently asked through the Loss Prevention Hotline. While every situation is unique, this post presents steps to take for your conflicts check.
USE A CLIENT INQUIRY FORM
Always use a standard form to ensure that you collect the information you need for your conflicts check, without obtaining disqualifying information that may preclude future representation. See ABA Formal Opinion 510. This form should be completed by the potential client and promptly reviewed to submit for the conflict checking process.
MAINTAIN DATABASE FOR CONFLICTS CHECK
After receiving and reviewing the Client Inquiry Form, new information must be added to the database. Conflicts check should include all open and active clients, any prospective clients for whom representation was not undertaken, related parties, and closed clients. Information on FKA (formerly known as) and NKA (now known as) should be included in the database, if known. Additional information may need to be added on related corporate entities as well.
ANALYZE WHETHER A CONFLICT EXIST
When the conflicts check is complete, the analysis begins. If there are no “hits” on any of the information submitted, the potential client can be contacted and the initial meeting set up.
If the information indicates a potential conflict, the Ohio Rules of Professional Conduct are applied to determine how to proceed. Click on the links below to analyze your conflicts.
- IF THE POTENTIAL CONFLICT INVOLVES:
- CURRENT CLIENTS
- SPECIFIC SITUATIONS WITH CURRENT CLIENTS (BUSINESS TRANSACTIONS, GIFTS TO ATTORNEYS)
- FORMER CLIENTS
- IMPUTATION OF CONFLICTS OF INTEREST TO FIRM
- FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES
- FORMER JUDGE, ARBITRATOR, MEDIATOR, OR OTHER THIRD-PARTY NEUTRAL
- ORGANIZATION AS CLIENT (DERIVATIVE ACTIONS)
- PROSPECTIVE CLIENT
ESTABLISH PROCEDURES
Establish standard procedures to be sure whether the potential client cleared conflicts.
- Inform the lawyer and/or support person
- If conflicts cleared, proceed with the next steps on the File Checklist
- If conflicts preclude representation, send Non-Engagement letter to timely inform potential client
- If informed consent is needed, clarify the communication to be provided
- Inform client of the situation, what adverse effects may be to the client and reasonable alternatives
- Obtain the informed consent and confirm the informed consent in writing.
- Contact OBLIC for an Ethics Consult for a Conflict Waiver
- If screening it required, define the procedures for screening
- How the screening will be implemented for timely compliance
We hope this information is helpful. This Alert indicates the complexity of conflicts of interest. Ethics Consults are available to assist you. As always, please contact us with any questions.
Gretchen K. Mote, Esq. Director of Loss Prevention Ohio Bar Liability Insurance Co. Direct: 614.572.0620 [email protected] |
Merisa K. Bowers, Esq. Loss Prevention & Outreach Counsel Ohio Bar Liability Insurance Co. Direct: 614.859.2978 [email protected] |
This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.