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The legal ethics rules in the District of Columbia do not expressly require lawyers to follow any particular type of conflict-checking procedure, but they do require that lawyers avoid conflicts of interest. The main test of a good conflicts procedure, therefore, is whether it works. Many large firms, for good reason, use database searches to assist in their conflicts checks. In very large firms, particularly those with offices in many cities, it would be impractical to conduct a conflicts check without a computer search. The database typically consists of all of a firm’s current and former clients and may be administered by a conflicts department. A large firm can, after all, pick up 50 or more new matters in a single day, and it would be cumbersome for every lawyer in the firm to have to respond to an inquiry about each of them. Moreover, database searches have the benefit of not being dependent on the recollection or attentiveness of attorneys. In fact, such conflicts software is useful to the smallest firms as well. Mark W. Foster, a partner at Washington, D.C.’s Zuckerman Spaeder, says, “If I were starting a two-person firm, I would buy one of these programs because nobody’s memory is that good.” Foster also points out that it’s important that lawyers be aware of conflicts arising from clients represented by attorneys who have left a firm. Such representations are particularly unlikely to be remembered by the firm’s current lawyers. Some of the current programs can be linked to searches for affiliates, subsidiaries, and corporate parents of an entity. When used properly, conflicts software will also catch a hit if a client is mentioned in a slightly different form, such as “Inc.” rather than “Company,” or if a person’s name is listed with or without a middle initial. Obviously, if the database search results in a hit, a knowledgeable attorney will need to be responsible for exploring and resolving the potential conflict. So what’s not to like about searches by computer? The concern is that a firm may rely too heavily on the database search and may substitute it entirely for an eyeball review by each attorney. With exclusive reliance on a computer search, for example, a simple spelling error could cause a match to be missed. Beyond that, at least two categories of conflicts can easily be left undetected: personal conflicts and positional conflicts. What if the adverse party in a potential new matter is the brother, sister, spouse, best friend, business partner, priest, or rabbi of a lawyer in the firm? Or is a business in which one of the lawyers has a significant equity interest? Or is the place of worship of a member of the firm? Any of those situations could constitute a personal conflict. For those firms that rely heavily on database searches, one option would be to expand the database with personal information on each lawyer. Each lawyer could be asked to fill out a form listing close family relatives, best friends, and religious, charitable or social memberships, and any business ventures in which the lawyer has a significant financial interest. The other issue of concern is positional conflicts. These conflicts are grounded not in the identity of the parties but in positions on important legal questions that are likely to be asserted in the course of the representation. If, for example, a new matter will require that the firm seek a ruling on a legal question that is not well-settled, and the firm is at the same time seeking an opposite ruling for another client, this could constitute a positional conflict. Such conflicts are recognized in the District of Columbia (D.C. Bar Legal Ethics Opinion No. 265), but not in every jurisdiction. Here, a human eye and brain are clearly needed. To catch such conflicts, attorneys who are familiar with their firm’s other cases should determine whether the new matter involves a positional conflict. One way to address this concern is to require the head of a practice group to explore the new matter with the originating attorney and other designated senior partners, to determine the nature of the representation and the issues involved. A firm’s ethics committee, conflicts committee, or ethics partner should be available to help make judgment calls that might arise from those discussions. An alternative that is used by many firms is to provide all lawyers with a single printout of the day’s new matters and require them to review it. Each lawyer would then be able to provide backup assurance that there were no personal or positional conflicts. Conflicts software can be a valuable tool, but it should not be relied upon to the extent of replacing all attorney involvement in the process. The costs of doing less are too high. Arthur D. Burger is a director with D.C.’s Jackson & Campbell, P.C. His practice includes representing lawyers and law firms in matters of professional responsibility. He is also a frequent instructor of the D.C. Bar’s mandatory ethics course for new admittees. His e-mail address is [email protected].

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