Attorneys are notorious for telling war stories and some of them even have a point. Here is one recently shared with me that drives home an important lesson.
Attorney A represented Client A while Attorney B represented Client B with respect to a litigation matter. As the lawyers and clients entered the courtroom for the first pretrial hearing, Client A asked his attorney why Attorney B was present. Attorney A responded “That is your adversary’s lawyer” whereupon Client A discloses that he had consulted with Attorney B in his office a year ago to obtain a professional opinion about the issues that lead to the current lawsuit. The consultation fee was paid in cash and no receipt was provided. Attorney A explained the conflict to her client who elected not to waive it. Attorney B did not remember Client A and failed to spot the ethics issue even after Attorney A spelled it out.
While some conflicts of interest are subtle, this one could not be so classified. I suspect that the lawyer did not maintain an adequate conflicts checking system. He also may not have been aware of his Duties to Former Clients outlined in Rule 1.9 (Model Rules of Professional Conduct).
Relying on memory and instinct is unfortunately the “system” used by many attorneys in running a conflicts check. Because this approach exposes the law firm to ethics complaints and malpractice suits, attention needs to be given to development of a system which is followed by all attorneys and staff members. A conflicts checking system can be set up using the word processing program already being used in the law office although most firms opt to use an integrated program which includes accounting, case management, document and financial management.
No matter what system is used, it is critical to develop and implement a conflict checking procedure. Once the procedure is developed, one individual should be given primary responsibility to ensure that conflicts are ALWAYS checked.