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Conflict About Conflicts
Few things hold more potential trouble for a lawyer than
getting entangled in a conflict of interest.
Traditionally, lawyers have relied on their client lists to
avoid conflicts of interest. After all, if you want to avoid
representing people with opposing interests, you review the
people you have represented to identify potential conflicts of
interest. Yet, we are always reading about lawyers who have
become caught in a web of conflicts. Obviously, there has to
be a better way to manage this critical function. Conflict of
interest checking lends itself to automation because it
involves searching for information--a task idea for computers.
Yet, the software industry, and lawyers themselves, have
managed to compromise most efforts to automate conflicts
checking. As is often the case when people decide to automate
some aspect of their lives, they shortchange themselves by
concentrating on the way they've always done something, rather
than considering the potential of what can be done . . .
especially when starting fresh. "Thinking outside the box" is
the buzz phrase du jour for this process. Lawyers have
maintained accurate and current client lists, even before mass
mailings infected the profession. It wasn't much of a stretch
to recognize that automating the process of searching a firm
client list would facilitate conflict checking in firms of any
size, but especially in very large firms. This is where
lawyers’ habits negated the potential of much more thorough
automated conflicts check. Let's suppose that in 1993 your
client, Howard Homie, sued the builder of his new home for
breach of warranty, alleging the material used in the plumbing
did not conform to standards of common sense, much less the
county building code. In an effort to nail down the facts you
retained Christopher Plumber as an expert witness to testify
for your client. On the stand, Mr. Plumber testified that the
water and drain pipes throughout the house were made of
inexpensive crystalized sugar water that had been shown by
extensive testing to be inadequate for the channeling of
liquids within a residence. In selecting an expert you
reviewed the backgrounds, qualifications and reputations of
several plumbing contractors. It was Mr. Plumber who was
selected, and it was Mr. Plumber who carried the day when you
won your case. Fast forward to 2000. Your firm has grown and
changed its name several times. There are firm offices in 12
cities throughout the world. Six months ago, at one of those
remote offices Ms. Nattie Lee Plumber walked in and asked for
a lawyer to represent her in divorce proceedings against
herhusband, Mr. Christopher Plumber. When interviewed, she
claimed to have no idea what assets Mr. Plumber had, or what
it cost them to live the way they did, (in apparent poverty),
because her husband felt is wasn't a woman’s place to know
such things. Upon being questioned, she professed no knowledge
of her husband’s business other than the fact that he boasted
of being the best sewer-rooter on their block, and he was
frequently away from home on extended business trips. She
thought her husband was broke and without skills, and that all
she expected was a quick divorce to be rid of the bum. The
managing partner in the remote office ran a conflict of
interest check against the client list maintained in the
firm's centralized time-and-billing system. There were no
references to any Plumber, Plummer, Plumre, or any other
sound-alike name.
The case went to trial, and your partners in the remote
office won a judgement in Ms. Plummer's favor awarding her a
divorce and alimony of $500 per month.
Shortly thereafter, Mr. Plumber learned that his ex-wife’s
law firm was the same one that had done a background check on
him seven years before. He is now seeking to void the
judgement, alleging that his ex-wife's attorneys had a
conflict of interest. He pointed out to his attorney that he
was interviewed as a candidate for an expert witness job, and
that in response to questions he had disclosed information
about his financial condition and earning capacity, as well as
additional confidential information regarding his so-called
business trips that he contended was outside the scope of
discovery.
While the merits of Mr. Plumber’s case may be debatable,
the important facts are that Mr. Plumber had a relationship
with the firm representing his ex-wife, that the relationship
had been more than casual, (but not an attorney/client
arrangement), and that the firm had information about him that
it would not have acquired but for the relationship. The
existence of the prior relationship, coupled with the fact
that Mr. Plumber’s name was not on the firm’s client list,
points out the need for a more thorough conflict checking
system. A brief review of several popular time-and-billing
programs disclosed just one, Elite Information System’s
Conflict of Interest System, that searches for names outside
the client list.
Looking at two case management systems shows a difference
in approach.
Time Matters, Ver. 3.0, searches its contact list and
includes all the related tables, notes and memoranda
maintained by the system. But it offers a strong caveat: The
online documentation specifically states, "However, this
search does not search the contents ofany external files
attached to records. For example, the text in a word
processing document attached to a Document Record IS NOT
searched." The publishers recognize that a conflict search
restricted to the files maintained by a single system is not
adequate. Amicus Attorney’s conflict search is restricted to
its contact list. While this is marginally better than relying
on a client list, it does not cover notes, memoranda, and
other tables maintained by the system. More importantly, it
does not alert the user to the limitations of the search,
leaving the user assuming that the conflict search was
comprehensive.
What’s a poor lawyer to do? Answer: Search the entire
contents of all the hard drives on which data of any kind is
stored. This is a much more thorough method of identifying
potential conflicts of interest. You may not even need
specialized conflict checking software. Virtually every
computer in every law office has a version of either Corel
WordPerfect or Microsoft Word. Each of these products comes
with an "indexing" feature. In WordPerfect, it is called
QuickFinder. In Microsoft Word it is called FastFind. If by
any chance your office uses neither of these programs, or uses
older versions that may lack such a feature, there is an
excellent indexing program called Wilbur. (It¹¹s free, subject
to the same restrictions and conditions as apply to Linux.) It
is impossible to define the range of possible sources of a
conflict of interest. But the likelihood of conflicts stemming
from tangential or collateral relationships is very high. That
being the case, it would appear that the promotion of a client
list search as a ³³conflict of interest feature²² does a
disservice to the profession.
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