A solo attorney in Ohio lost a $200,000 contingency fee because a conflict of interest was not caught at intake. The representation was disqualified, the case went to another firm, and the bar inquiry that followed was resolved with a public reprimand. The underlying conflict was not complicated. It was a former client on the opposing side. The check was simply never run.
Conflict of interest failures are not usually the result of ignorance. They result from systems that are either absent or inconsistently used. This guide covers the rules, how to run a proper conflict check, and how to build a system that actually works at your practice.
Disclaimer: This article is for general information only and does not constitute legal advice. Bar rules vary by state. Consult your state bar's ethics counsel for guidance specific to your jurisdiction.
The Two Categories of Conflict
Model Rule 1.7 governs concurrent conflicts: representing two clients whose interests are directly adverse, or where representation of one client is materially limited by responsibilities to another client, a former client, a third party, or the attorney's own interests.
Model Rule 1.9 governs successive conflicts: representing a client whose interests are materially adverse to a former client in the same or a substantially related matter, or using information from the prior representation against the former client.
Model Rule 1.10 extends both rules to the entire firm through imputed disqualification. If one attorney at a firm is conflicted, every attorney at that firm is generally conflicted unless the conflict is based on personal interest and does not materially limit the representation.
For small firms, the imputation rule matters significantly. A two-attorney firm where one attorney previously represented the adverse party is conflicted as a firm, not just as an individual. The screening procedures that can sometimes cure imputed conflicts at larger firms are not reliably available to small firms under many state rules.
How to Run a Conflict Check
A conflict check is not just checking whether you have represented the prospective client before. It requires searching for:
- The prospective client (current legal name plus any former names)
- Adverse parties identified in the matter
- Related parties: guarantors, co-defendants, co-plaintiffs, corporate affiliates, family members in family law matters
- Any individual or entity who might be materially affected by the representation
The search must run against your full database of current clients, former clients, and adverse parties from prior representations. A search that only checks current clients misses the most common source of successive conflicts.
The conflict check must happen before you discuss the substance of the matter in any meaningful way. Once you have received confidential information from a prospective client, your obligations to that person exist even if you ultimately decline representation. The conflict check must precede substantive intake.
What to Store in Your Conflicts Database
Your conflict database is only as good as what goes into it. Minimum fields for each matter:
- Client name (legal name, any aliases or former names)
- Matter type and brief description
- Adverse parties (all of them, by name)
- Related parties (guarantors, co-parties, key witnesses with interests)
- Date representation began and ended
- Whether any waivers were obtained and documented
The database needs to be searchable. A physical card file works for a two-attorney firm with 50 active matters. It does not work for a five-attorney firm with 200 active matters and 10 years of history. Practice management systems like Clio and MyCase include conflict check functionality that searches across all matters with a few keystrokes.
When Conflicts Can Be Waived
Some concurrent conflicts are waivable. Under Model Rule 1.7(b), a conflicted representation can proceed if the attorney reasonably believes the representation will not be adversely affected, the conflict does not involve asserting a claim against a current client in the same proceeding, representation is not prohibited by law, and all affected clients give informed written consent.
Successive conflicts under Rule 1.9 can also sometimes be waived by the former client whose interests are at stake.
Written consent matters. An oral waiver is almost impossible to prove if the conflict later becomes the subject of a disciplinary complaint. Get the waiver in writing, describe the conflict specifically in the waiver, and make sure each consenting client has had enough information to make the consent meaningful.
Building a Conflict Check System That Gets Used
The most common failure is not a bad conflict check process. It is an inconsistently used one. When intake is hectic, the conflict check gets skipped or done superficially. The solution is making the conflict check a mandatory, documented step in your intake workflow.
Practical system elements:
- Conflict check before substantive intake. The sequence must be: prospective client names and matter description first, conflict check second, substantive discussion of the matter third. If intake staff are gathering detailed case information before the conflict check runs, the process is backwards.
- Document every check. Log the date, who ran the check, what was searched, and the result. This documentation protects you if a conflict is later alleged that you actually checked for and cleared.
- Assign a responsible person. In a solo practice, that is you. In a firm with multiple attorneys and staff, one person should be responsible for running and documenting the check before any new matter is opened.
- Require sign-off before opening a matter. Do not open a matter in your practice management system until the conflict check is documented as cleared. If the system requires a conflict check field to be completed before matter creation, it becomes part of the workflow rather than a separate step that can be skipped.
Common Conflict Scenarios at Small Firms
Scenario 1: A personal injury attorney who previously represented a defendant's employer is now asked to represent the plaintiff in a new matter involving that same employer. The prior representation created confidential information about the employer's practices that could materially affect the new case. Successive conflict under Rule 1.9 -- must be checked carefully and may be non-waivable.
Scenario 2: A family law attorney representing both spouses in an "amicable" divorce. The representation begins as collaborative but the parties dispute asset division. What started as dual representation becomes a direct conflict. Rule 1.7 concurrent conflict -- most ethics authorities advise against dual representation in divorce even when initially amicable.
Scenario 3: A business attorney whose firm has represented a company for five years is asked to represent a minority shareholder in a dispute against that company. The firm's access to five years of confidential company information creates both a conflict and an imputation problem for the entire firm.
Most law firms run conflict checks the same way they handle everything else: manually, inconsistently, and under time pressure. The firms that stay clean on this have made the conflict check a hard stop in their intake workflow, one that cannot be bypassed. Many have also connected their intake systems to their practice management platforms so the check runs automatically as part of new matter creation. If you want to see how that works in practice, book a free audit call. For related compliance topics, see our guide on legal billing ethics: what every attorney must know.