Volume 19, Number 5
Checking for Conflicts
Most conflict checking systems are oriented toward detection of simple conflicts: Does the lawyer or the firm already represent someone on the other side of the proposed litigation or deal? For business planning and litigation, this simple check usually is enough.
Things are considerably more complex for the estate planner, how-ever. Suppose an intended beneficiary of the estate plan wants to be represented by the firm. Is this a conflict? Possibly not, but what happens if the estate planning client decides to cut out the beneficiary shortly after the firm begins representation?
The firm now finds itself in the middle of a hopeless conflict of interest it cannot resolve, and will have to withdraw from representing any of the clients. Worse yet, the firm may not even realize it has a conflict if the work is being done by different people, and may continue working after the conflict arises, thereby exposing the firm to claims of breach of fiduciary duty and malpractice from both clients.
How to avoid the problem? In an estate planning practice, the names of all beneficiaries must be entered into the conflict checking system. Time Matters and Amicus software make such work fairly easy and allow the lawyer to enter appropriate codes to facilitate identification of potential conflicts. The lawyer or firm may end up with what looks like a bloated contact list on the electronic Rolodex, but all the information should be at the lawyer's fingertips anyway. The contact list is a convenient place to put it-as well as a safeguard against conflicts of interest.
Note that this procedure discloses only potential conflicts. But that is all you can ask from a system; determining the nature of the conflict, if any, necessarily requires the lawyer to evaluate the potential conflict in light of the facts of each situation.