The Risk Manager, Spring 2005

This checklist was presented at the 2005 Legal Malpractice & Risk Management Conference by Holland & Knight LLP, Tallahassee, Florida. It is reprinted here with their kind permission.

  1. "Just the names, ma'am." Get no substantive or confidential information about a prospective representation until after getting the pertinent names, running a conflict check, and making sure no conflict exists. Advise potential clients, including those receiving a presentation or holding a "beauty contest," that no attorney-client relationship exists until a conflict check is completed and a formal engagement entered.
  2. Ignorance is no excuse. Complete all information on every new matter memo, especially adverse parties, corporate and ownership affiliations, opposing counsel, and a detailed matter description. You have an affirmative duty to find out. Ask. And, by the way, SPELLING COUNTS.
  3. "Almost" counts. Submit declined/potential client information to … new matters staff for entry into the conflict system. Provide the same information as for a new matter, especially including the subject matter of the consultation.
  4. Once is not enough. Update all categories on the new matter memorandum whenever something changes, especially when a new party enters the case, or a party is acquired by or acquires another entity, or new or additional opposing counsel become involved.
  5. Inquiring minds want to know. Read the new matter list when it comes out and investigate, or ask a loss prevention partner to investigate, any potential conflicts you see.
  6. Shut the door. When a matter is concluded, write the client a wrap-up letter advising that we are closing the file on that particular matter. Then close the file. If it is the last matter for that client, write a "have a nice life" letter ending the representation.
  7. Don't put all your eggs in one basket. Open a new file with a separate new matter memorandum and a new conflict check for each distinctive matter you undertake (and, per firm policy, for all appellate matters). Avoid charging a variety of legal services involving different parties or counsel to a catch-all or general file or to a file opened for a different matter.
  8. Reading is fundamental. Learn to read a conflict check accurately and intelligently. The system is not the problem: the users are. When in doubt, ask questions. Keep in mind that the nature of your proposed matter (e.g., a corporate acquisition) might create new conflicts down the road; deal with them now. Call all other attorneys who are listed as having run conflict checks on the same name - they may have opened a matter that is not yet on the list.
  9. Walls make good neighbors. Yes, we have a lot of ethical walls. But they are important to our ongoing efforts to comply with the rules of ethics. Keep up with the walls that affect you, the people with whom you work most closely, and the people whose files and offices are close to yours. Always be aware of, and comply with, any restrictions that apply to you.
  10. Don't bury your head in the sand. Each lawyer and non-lawyer staff member has an individual responsibility to comply with the rules of ethics, including the conflicts rules. Don't assume that someone else, no matter how senior or influential in the firm, has handled potential conflicts. Take the initiative: ask questions, check the file, run your own conflict check if necessary. Report any potential problems to, a loss prevention partner immediately. DO NOT GENERATE INTERNAL MEMORANDA PLACING BLAME OR ADMITTING FAULT.
  11. BONUS. No lawyer is an island. The reality of big-firm practice is that other lawyers, other practice areas, other offices also have clients, and their clients may be opposed to your clients. Stay informed about what the rest of the firm is doing. For example, all litigators should bear in mind that we have an active media practice that often seeks access to sealed files and closed proceedings, and all media lawyers should bear in mind that our litigation clients often have very good cause to seek closure. Be proactive and professional in dealing with business and ethical conflicts.