NLTP

Avoiding Client Conflicts

This resource is intended to facilitate discussion between mentor and new lawyer about how to screen for, recognize and avoid conflicts of interest.

Required Section 5:  Train, through discussion and client interaction, how to screen for, recognize, and avoid conflicts of interest.


Mentoring

Tips

  • Discuss the importance of adequately screening for conflict of interest.  Share with the new lawyer the mentor’s office procedure for screening for conflicts.
  • Discuss the obligations you have to potential clients (even after you do not take their case) regarding conflicts of interest.
  • Explain the importance of including prospective clients and declined clients in a conflicts database.  Are these individuals treated like current or former clients in terms of conflicts?  What happens when another prospective client comes along with interests adverse to a prospective client who was never retained by the lawyer?
  • Provide examples of conflicts that can be waived with informed consent.  Explain how to document your client’s consent to conflicts.
  • Discuss how conflicts are managed when a lawyer changes firms.

Sharing

Office space

  • Often, new lawyers, in an attempt to save overhead expenses, consider sharing office space with other lawyers.  Office sharing also affords the advantage of regular, frequent interaction and discussions with colleagues.  However, lawyers sharing office space must take special steps to protect client confidentiality.  Discuss practical issues that must be resolved when sharing office space with lawyers not in the same firm including the safeguarding confidential client information.
  • Files, documents, drafts, letters and notes must not be stored in or carelessly left in common spaces. Office sharing attorneys should have separate computer databases and voice messaging systems. Attorneys should take care not to leave documents on shared copy or fax machines. A shared receptionist should understand the confidentiality duties of each lawyer and each attorney has a duty to make sure the receptionist complies with those duties and doesn’t reveal client information to the other attorneys or their clients.
  • Same confidentiality rules apply if the lawyer shares office space with a non-legal business.
  • Attorneys cannot have letterhead, a firm name or otherwise hold themselves out as a firm if they are not actually a firm with shared liability.  See Rule of Professional Conduct 7.1-7.5.  Signage, letterhead and receptionist statements should indicate they are separate practices.