Tuesday, September 19, 2017

Conflicts: Concerning Checking Standards and Skills

The Legal Intelligencer notes: "Carefully Evaluate Whether Issues Involving Your Case Are 'Substantially Related'" --
  • Comment 3 to Rule 1.9: "Matters are substantially related for the purpose of this rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information, as would normally have been obtained in the prior representation, would materially advance a client's position in the subsequent matter. For example, a lawyer who has represented a business person and learned extensive financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose the zoning of the property on the basis of environmental consideration."
  • "It does appear from the case law that confidential information is often a sticking point in deciding whether or not the matters are substantially related. A review of the case law seems to also suggest that the cases are decided on the specific facts of a particular case. But, there does not appear to be a bright line. A number of factors could be involved. The length of time between the current representation and the past representation is one. Also, confidential information or lack of it being obtained or whether the representation was directly adverse or not."
  • "Also, the business of representing a client or representing a competitor of a client can, at times, create potential issues of conflict or disqualification. In this modern world where new business is eagerly sought and a substantial fee can, at times, blind one to their ethical obligations, a lawyer must step back and think about the consequences. As difficult as it may be, clients are entitled to independent representation and also entitled to the fact that their prior lawyer will not be acting in an adverse manner against them in the future if there are similar or substantially related issues or issues of confidentiality. All lawyers should very carefully evaluate that."
And the folks at InOutsource have launched it's "Conflicts Essentials" training program --
  • "Researching and evaluating potential conflicts of interest serve as a fundamental component of law firms’ business operations. However, many law firms are challenged with incorporating rules from different jurisdictions into their internal processes for evaluating conflicts."
  • "InOutsource, an industry-leading global legal consulting firm celebrating its 15-year anniversary, has launched an innovative service to help law firms identify and address this challenge: Conflicts Essentials. Led by InOutsource experts with established experience with conflicts, the service includes an intensive series of programs for conflicts administrative professionals, review for nonlawyer professional staff and education and training for attorneys."
  • "InOutsource's new Conflicts Essentials program can be scaled and tailored to the needs and interests of each member of your team. Seminar offerings include: Intensive training series for conflicts administrative personnel; Basic review for non-lawyer professional staff; CLE-eligible* risk education for your firm's lawyers"
More information via their web site.

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