Conflicts remain the most common error resulting in legal malpractice claims. Nearly all participating insurers cited conflicts as either the first or second biggest cause of claims. Interestingly, about half of participating insurers witnessed an increase in conflicts claims involving lateral hires, some of which stemmed from inadequate resolution of a conflict of interest. —“Legal Malpractice Claims Level Off as Conflicts and Cyber Claims Rise,” J. Randolph Evans and Shari L. Klevens.
It seldom ceases to amaze us. In the legal sector as well as other professional businesses, the concept of managing information on paper is well established among those who began their careers as early or earlier than either of us have. Yet, when technology is put into play, the logic of organization flies out the window, with or without the baby and the bathwater. Both of us have stood at podiums speaking of the so-called good old paper days, and have described electronic filing systems organized by attorney rather than client/case/matter. We know why it happened—but more importantly—why it must be cleaned up, particularly when the bright young minds pouring out of law school today are of Generation T(ablet), and not necessarily grounded in the index card culture.
Regardless of the technologies and organization that might make sense in the short-term of managing a practice, it is still the lawyers’ responsibility to follow and adhere to the rules, regulations and canons of ethics adopted by the bar associations, professional liability funds and malpractice insurance carriers. In our combined experience, we have seen it all, from the sublime to ridiculous methods of tracking names of persons and entities to comply with the ethical rules governing conflicts. We have seen large firms dedicate departments to docketing and conflict checks. We have seen outrageous custom databases with thousands upon thousands of names coded with the word “conflict,” yet zero information about why it is a conflict. We have seen firms with hundreds of members where a conflict check is still an email between partners stating basically: “Do you recognize this name?”
You Are Responsible!
The questions of whether conflicts exist between an attorney and client or former client are some of the thorniest issues a lawyer may face during his or her career. While the message is conveyed repeatedly in law school and CLE ethics courses, for many of us, it’s hard enough to remember what we ate for breakfast this morning. The likelihood that you will be able to recall the names of every individual or entity (including officers and members) that you or other members of your firm have represented during the course of your careers is daunting. And yet, the rules are clear. Thou shall not represent a client if the representation involves a concurrent conflict of interest (ABA Model Rules of Professional Conduct, Rule 1.7). Thou shall not represent a new client in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing (ABA Model Rules of Professional Conduct, Rule 1.9).
These conflict rules speak to the integrity of your practice and the loyalty you show to your clients. The conflict rules are absolute liability rules. The fact that you may not know about an existing conflict is no excuse. No mens rea requirement applies here. Are you frightened yet?
Whether there is sweat on your upper lip, brow, or running down your back, ask yourself some simple basic questions. Sit back and think about the following:
- Do I have a mechanism for finding any name or variation thereof of a party involved in a potential matter in the history of the firm’s work?
- If I found such a name, would I be able to discern how that party has been involved with the firm in the past?
- If I found a name like Jane Doe, could I reasonably determine if it was the same Jane Doe I am currently contemplating?
- How can I provide reasonable proof that as of the date of signing, I had no recorded conflict of interest?
- Do I take reasonable actions to ensure that the attorneys that are hired by my firm document the conflict history they bring with them?
- If a new name is associated with a matter during the due course of standard transactions, does anyone create a record of this, or must I search all the documents in the electronic and paper files?
Madness, Mayhem, or Method?
The attempts we have seen to try to comply in good faith with even a portion of the letter of the law boggle the mind:
- Single spreadsheets with lists of names randomly entered.
- Costly custom databases that are dutifully updated at case opening, but almost never updated during the processing of the case.
- Global searches of individual contact lists in email, or searches of emails themselves.
- Searches of all the documents the firm has stored electronically.
None of these methods are complete or would come close to surviving scrutiny—you certainly wouldn’t let opposing counsel get away with it, would you? And even if you do have sophisticated document storage, and even if you have run OCR (Optical Character Recognition) against every one of your PDF or TIFF files, how could you possibly decide quickly whether a referenced name was a conflict or not? And how would you document that, as of the date of the search?
Enter Case Management
Regardless of whether you find case management software flashy and exciting or initially cumbersome and daunting (it really isn’t), case management packages with document assembly features can solve most of the conflict of interest issues, almost overnight. Think of it this way:
- Case management systems are made up of several components, based upon a contact database and a matter database.
- The two databases cross-reference each other. If a contact card is linked to a matter, at the time of linking, a description for the relationship is attached (e.g. opposing counsel, adverse party, insurance agent, executor, beneficiary, you name it). So, while a contact card might have its own code, such as “vendor” or “client,” that same contact card might be “expert witness” as related to one matter and “injured party” to another matter.
- When a single contact card is linked to one or more matters, that contact card lists what matters it is linked to and for what reason.
- When a single contact card is updated, that contact’s information is instantly listed inside the linked matter. Many systems allow for a history of the changes to a contact card to be documented.
- With document automation, new documents are fed the most up to date name and address information from the matter. (A couple notes for document assembly doubters: 1. It takes about as much time to set up a document template as it does to open an old document, find, and replace the key information. Do it one last time and get on to the business of practicing law, not the business of word processing. 2. Re-used documents with information “replaced” is another leading cause of malpractice claims. Think about that for a moment.)
- When document assembly is in full motion, writing a letter or composing a will, or assembling a service list requires that a contact card be linked. And if the contact card is not present, it must be added. Accordingly, in-process updating of potential future contacts happens by nature, not by edict.
- Contact cards also can be coded individually for cases the firm does not have in their history, but a new attorney might. Fields for each contact can include the names of attorneys who have brought the conflicts with them and notes on the cases.
- The same contact cards also can be coded for marketing and goodwill (e.g. holiday cards, seminar mailing list, quarterly newsletter, etc.) Imagine having only one database for the firm!
- Searching for a name then yields bountiful results, including not only that a conflict may exist based on that name, but also why—which can lead directly to the proper point of investigation and swift decisions.
- The results of the searches can also be printed directly to PDF with a date stamp, forever documenting that no conflict was found and that due diligence was indeed applied to the effort.
Conflict Me, Conflict Me Not
One of the most difficult tasks for the eager and experienced consultant is to sit on our hands, and with mouths zippered not jump to the end of the story and exclaim with glee, “Case management can change your practice and the quality of your sleep at night!” In the not-too-distant past, that argument couldn’t be made without the proverbial rolling of the eyes. Many practices do not wake up and smell the subpoena until the ever-present founding lawyer or faithful legal assistant announces a retirement, and the reality that a lifetime of institutional knowledge is walking out the door sets in. In the final analysis, these responsibilities have always been looming, even in the days of Bartleby the Scrivener. Case management software, simply by its existence in your practice, can grow into a solution for conflict checks. Just as it can solve the problem of a matter’s correspondence folder, now scattered among how many email accounts. But that is a topic for another article…
About the Authors
Deborah Tesser is a lawyer and the vice president for strategic planning for Zola Media, a producer of case management and marketing software for law firms. She can be reached at Deborah.firstname.lastname@example.org. Allan Mackenzie is the founder of Mackenzie Consulting, a legal technology consulting firm, and is a board member of ABA TECHSHOW. Contact Allan at email@example.com.