Wednesday, April 2, 2014

Risk Bulletin: Beyond Adversity — On Business, Positional and Subject Matter Conflicts


Recently returned from the Legal Malpractice and Risk Management conference in Chicago, Intapp's Kathryn Hume has published a risk bulletin summarizing and commenting on some of the lively conflicts discussions at the event: "Intapp Risk Bulletin: Beyond Adversity — On Business, Positional and Subject Matter Conflicts" --
  • Managing conflicts is integral to the new business intake and lateral onboarding processes at every law firm. Over the years, firms have honed procedures and adopted software to search and identify potential adversity to avoid malpractice risks by resolving conflicts or turning down matters or lateral hires. Increasingly, however, clearing conflicts requires much more than simply identifying legal conflicts.
  • To manage these business, positional, subject matter and playbook conflicts successfully requires firms to keep abreast of industry trends, update procedures, collect and manage new information and leverage new technology to streamline compliance.
  • Increasingly, firms face "business conflicts" involving simultaneous representation — in unrelated matters — of clients whose interests are only economically adverse.
  • Another conflict type discussed  at the LMRM event is known as "issue" or "positional" conflicts... this type of conflict "occurs when a law firm adopts a legal position for one client seeking a particular legal result that is directly contrary to the position taken on behalf of another present or former client seeking an opposite legal result, in a completely unrelated matter."
  • Firms with active intellectual property practices are likely familiar with the challenges of identifying and resolving "subject matter" conflicts, which occur when firms represent multiple clients trying to protect closely related inventions.
  • Perhaps the trickiest conflicts today’s firms must consider are "playbook" conflicts, which occur when a lawyer’s former representation provides inside knowledge into a client’s litigation strategies or internal decision-making practices that may be used to its disadvantage in subsequent representation.
See the complete bulletin for additional detail, analysis and links to further resources. (And visit Intapp's white paper library for additional risk resources, and information about software designed to enable prudent response to these sorts of trends...)

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