Conflict Cautions: What Might the New Rules Require in a Conflict Check System

By Edward McIntyre

Sara ushered two young women into Macbeth’s office.

“My friends, Samantha and Fiona, are opening their own firm.”

“Congratulations. A great adventure. Let’s move to the conference table.”

When all were seated, Macbeth asked, “How can we help?”

Fiona started. “We’ve been at large firms. Took things for granted. Now we have to be sure our firm does stuff right.”

Samantha joined. “There’s so much at the start. We’re grateful Sara suggested we meet you.”

“We’re happy to help. Let’s start at the beginning — new clients.”

Fiona laughed. “Best place to start.”

“You’re aware of the new rules?”

Both nodded.

“Let’s look at rule 1.7 — conflicts. It affects every new client. Each new matter.”

Macbeth opened his rules booklet and handed copies to Fiona and Samantha.

“Rule 1.7 (a) doesn’t change much. We can’t represent a client with interests directly adverse to another client without the informed written consent of each. Whether in the same or unrelated matters.”

Macbeth continued. “Now look at 1.7 (b). It requires informed written consent of each client if my responsibility to, or relationship with,” he started to tick the items off on separate fingers, “another client, a former client, a third person — or my own interests — will materially limit my representation of that client.”

Samantha looked up. “I’ve puzzled over that since I first read it.”

Macbeth set his booklet down. “We can talk about examples in a bit. First, how does a lawyer determine whether any such responsibility or relationship even exists? It starts with a practical problem.”

Fiona sighed. “A conflict check system. Something the firm always did. Our general counsel reviewed all new matters.”

Samantha shrugged. “We’re our general counsel now.”

Macbeth smiled. “Precisely. I can’t consider whether responsibility to someone, or a relationship, will materially limit representation of a new client — or a new matter for an existing client — until I identify the responsibilities and relationships each lawyer has.”

“Each lawyer?”

“Yes. If one lawyer has a conflict, it’s imputed to each firm lawyer.”

“Glad we’re only two. We can talk.”

“I suggest setting up your system from the beginning. Then, as you grow, it’ll be there for you.”

Sara added. “And save you from a world of hurt with disabling conflicts.”

Samantha opened a tablet and looked toward Macbeth. “ OK. Conflict check system.”

“Let’s start with the obvious. All current clients.”

Both nodded.

“Then, all clients you represented in the past. At your former firms. I suggest not only corporate, partnership and other entity names, but also fictitious business names. Also names of principal officers, directors and partners. Members of LLPs and LLCs. Then parent and subsidiary corporations — to determine if those relationships create a conflict.”

Fiona and Samantha both took notes.

“Be prepared to pick up corporate and partnership name changes. Entity clients sometimes merge. Get acquired. When you represent individuals, be aware of spouse or partner name changes after marriage or divorce. We also include names of insurers involved in any case.”

Fiona looked up. “Insurers?”

“Remember the tripartite relationship — if you represent an insured based on a contract of insurance, each is a client.”

“Right. Forgot. The firm didn’t do much of that.”

“You may not at your new firm. But I’d have a place for the information — if you do.”

Samantha spoke. “I can see an artificial intelligence-aided system really helping.”

Sara nodded. “ That’s what we have. Interactive. Fully automated.” Read More

#TechTuesday | Add-ins, Add-ons and Apps in April

The most recent issue of San Diego Lawyer is dedicated to Law + Tech – a major initiative by the SDCBA to help members and the legal community at large, use technology better. It’s also the reason I, Adriana Linares, have the honor of serving as the Bar’s Member Technology Officer.  Earlier this year, we held a two day conference dedicated to the topic. Renee Stackhouse and I spoke to lawyers about “Serious Productivity Apps and Tips for the Mobile Lawyer”. One topic we included, is a favorite of mine, add-ons! I love good add-ons that improve my productivity and simplify time in front of my computer. Read More

Ethical Considerations When Joining a Networking Organization

By Alara Chilton

You are an ambitious family law attorney who wants to increase your client base.  After exploring several marketing options, you decide the best way to increase your business is to obtain client referrals by joining a professional networking organization.  You consider several organizations and decide to request an application for membership to one that meets weekly and requires a $500.00 annual membership fee. Read More

Trial By Fire Is No Way To Use Tech @ Trial

By Shannon Bales

For many, the first use of trial presentation technology is trial by fire: they are thrown into a less-than-ideal situation. After all, everybody gets their start somewhere. The current tech reality in the courtroom is that lawyers seem to forget that going to trial is the most visible and high-stakes aspect of the work they do—and if the media are involved, their audience will go far beyond their clients and colleagues. Many lawyers simply do not have the commitment to technology used in the courtroom that they should have and it shows in the way they present their case and can create a negative effect on Read More

Why Mediation?

By Lawrence A. Huerta

One of the most difficult jobs of an advocate is making a strong opening offer that generates a reasonable counter-offer.  There are no standard formulas, so how is a strong and realistic opening offer calculated?  In the context of litigation, when should an opening offer be conveyed?  Conventional wisdom is to open with an extreme offer to test the other party and to explore their flexibility.  Unfortunately, if the opening offer is perceived as extreme, it can lead to an early breakdown in negotiations.  Another piece of conventional wisdom is to make a “throwaway” offer without any reasonable expectation of launching a productive negotiation and for the primary purpose of probing the other party’s willingness to negotiate in a certain range.  In 26 years of mediating litigated cases, throwaway offers have been the source of many early stalemates or, at the very least, extensive time devoted to bringing the opening offer into a reasonable range.  In the worst cases, throwaway offers can poison an entire negotiation by negatively influencing all remaining counter-offers, including final offers.  Read More

How to Make a Strong-And Realistic-Opening Offer in Negotiation

Gregg F. Relyea

Opening a Negotiation 
A case must be strategically positioned before meaningful negotiation can take place.  An invitation to negotiate can be perceived as premature if there are significant gaps in information about liability and damages.  Negotiation can be viewed as too late if the parties have waited too long, costs have become prohibitive, or the parties have become entrenched in their positions. Read More