CONFLICTS OF INTEREST RISK MANAGEMENT PRACTICE GUIDE OF LAWYERS MUTUAL LIABILITY INSURANCE LAWYERS COMPANY OF www.lawyersmutualnc.com MUTUAL NORTH CAROLINA ABOUT THE AUTHOR: This Practice Guide provided by Lawyers Mutual has been updated by Alondra Bribiesca. Alondra Bribiesca was a rising second year law student at Campbell University School of Law during her internship with Lawyer’s Mutual. Alondra interned for the summer of 2018 as part of the North Carolina Bar Association Minorities in the Profession 1L Summer Associate Program. Alondra graduated summa cum laude from Salem College in 2016 with departmental honors in Business Administration. As she continues her legal education, Alondra seeks to pursue experience in Business Immigration. DISCLAIMER: This document is written for general information only. It presents some considerations that might be helpful in your practice. It is not intended as legal advice or opinion. It is not intended to establish a standard of care for the practice of law. There is no guarantee that following these guidelines will eliminate mistakes. Law offices have different needs and requirements. Individual cases demand individual treatment. Due diligence, reasonableness and discretion are always necessary. Sound risk management is encouraged in all aspects of practice. SEPTEMBER 2018 Conflict of Interest Risk Management Practice Guide of Lawyers Mutual TABLE OF CONTENTS Conflicts 2 Important Rulings on Conflicts of Interest 4 Importance of a Good Conflict System 6 FORMS Types of Names to be Added to Conflict List 7 Conflict of Interest Search Terms 8 Request for Conflict Search and System Entry 9 Conflict Bulletin 10 Conflicts of Interest Audit 11 SAMPLE LETTERS NON-ENGAGEMENT LETTER: Conflict of Interest 13 ENGAGEMENT LETTER: Simple 14 ENGAGEMENT LETTER: Hourly, Potential Conflict of Interest 16 ENGAGEMENT WAIVER CLAUSE: Waiver of Potential Conflict of Interest Form 19 Letter to Disclose Conflict and Seeking Consent to Continue Representation 20 Take Our Conflict of Interest Test 21 Additional Resources 22 LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA 919.677.8900 | 800.662.8843 | www.lawyersmutualnc.com CONFLICTS OF INTEREST CONFLICTS Conflicts. The one word answer for why the firm made the headlines in the newspaper today. Yes, the most severe legal malpractice settlements and verdicts all come from conflict claims. Visualize the sting of seeing “Breach of Fiduciary Duty” and “Punitive Damage” when reading the demand letter or pleadings. A conflict of interest is a compromising influence that is likely to negatively affect the advice which a lawyer would otherwise give to a client. A conflict of interest can adversely affect a lawyer’s judgment, loyalty, and ability to safeguard the interest of a client or prospective client. When a conflict exists and is not or cannot be waived by the relevant parties, lawyers may face many difficult consequences, including disqualification motions and orders; disciplinary actions; reversal of proceedings; forfeiture of fees and time invested in the case; and malpractice claims and ethics grievances. Conflict of interest malpractice claims and related ethics complaints are among the most rapidly increasing types of allegations lodged against lawyers today. Legal consumers are no longer hesitant to cry foul when made aware of their lawyer’s alleged conflicts. While it’s true that conflicts are a complicated matter particularly in larger firms with thousands of clients, this guide serves as a referral primer when a thought or concern arises. Be proactive and implement a system for conflict checks at different stages of an attorney-client relationship. — 2 — RISK MANAGEMENT PRACTICE GUIDE OF LAWYERS MUTUAL It is a proven fact that attorneys who correspond with their clients regularly and make sure their services and fees are reduced to writing have fewer complaints filed against them, fewer problems with their clients, and provide better legal services. Letters set the stage for the relationship and responsibilities between the parties. They protect both the lawyer and the client by providing a clear written description of the client’s relationship with counsel. An engagement letter is also an excellent opportunity to address potential conflicts with the client and obtain advance consent where permitted. Many legal malpractice claims are successfully defended because the lawyer can produce a letter which establishes that he or she did not have responsibilities to the client. As such, it is wise to delineate these relationships in writing. It is a proven fact that attorneys who correspond“ with their clients regularly and make sure their services and fees are reduced to writing have fewer complaints filed against them, fewer problems with their clients, and provide better legal services. TOP TEN PROBLEM AREAS Here is a list to refer to of the top ten problem areas and why, which came from real legal malpractice suits and claims. 1. The continued representation after a conflict 5. Insured vs. Insurer. You really do need the three legs develops. This is number one because it is to balance the stool of the tripartite relationship. a sleeper issue. Conflicts are checked at the 6. Representing all the parties in a transaction. The “I beginning of the representation but should be was only the scrivener” defense rarely works and checked again when facts unfold by way of witness both sides may sue you for malpractice. or documents and/or when parties are added or 7. Agreeing to a matter that is adverse to a former subtracted. Does your firm have a procedure in client or a current client. Both run the risk of alleged place to catch subsequent activity? misuse of information acquired in confidence. 2. Prejudging the matter based upon a concern 8. Representing multiple defendants. Who is of not getting paid. Word to the wise, always the client? Is the client the board, president, place payment concerns in a separate letter that shareholders, general partner or limited partner, starts with the sentence: “Just a follow up on our etc.? Picture a minefield. Address this in your conversation . .” engagement letter. 3. Changing the terms of your service (fee) 9. Representing Multiple Plaintiffs. One is one. Two or agreement. This creates the perception that the more is never one. Strive to follow the one client attorney has an advantage and that the dealings one lawyer rule. We are all granted the same rights are unfairly weighted in your favor. not the same results. 4. Doing business with your clients. Again, the 10. Agreeing to represent a client despite inexperience perception is that the client is at a disadvantage and and lack of knowledge in the appropriate area of you the attorney took advantage to line your pockets. law. — 3 — CONFLICTS OF INTEREST FIVE TIPS FOR AVOIDING A CONFLICT OF INTEREST 1. Even if there is no conflict at the start of a case, senior partner. Don’t just keep silent and look the keep your radar on as the matter proceeds – other way. and even after it ends. Some conflicts appear 4. Full disclosure and client consent can often over time. Others may arise after the matter is defuse a sticky situation and prevent a costly concluded. malpractice claim. 2. Have a system to check for conflicts of interest. 5. Review N.C. State Bar Rules of Professional Lawyers Mutual has risk management practice Conduct 1.7 through 1.18 at your next staff guides that can help you set up a system to suit meeting. your practice needs. 3. Take action at the slightest hint of a conflict. Talk to your client. Discuss the situation with a IMPORTANT RULINGS ON CONFLICTS OF INTEREST There are ten primary North Carolina Rules of Professional Conduct that govern most conflict situations with which lawyers should be familiar. These rules should be reviewed every time a conflict disclosure or waiver is prepared. Such time should be accounted for and may or may not be billed. Imagine how easy it would be to pinpoint the amount of time spent conducting a conflict check and using real facts to defend yourself against a spurious claim. Although evidence sufficient to establish a violation of the Rules does not establish a cause of action for legal malpractice, courts look to the Rules of Professional Conduct with increasing frequency for guidance in considering issues of conflict of interest in disqualification cases. • Rule 1.4 – Communication • Rule 1.6 – Confidentiality • Rule 1.7 – Current Clients • Rule 1.8 – Current Clients/Specific Rules • Rule 1.9 – Former Clients • Rule 1.10 – Imputation of Conflicts • Rule 1.11 – Conflicts Rules for Current & Former Government Employees • Rule 1.12 – Former Judges, Arbitrators, Mediators • Rule 1.13 – Representing an Organization • Rule 1.18 – Prospective Clients — 4 — RISK MANAGEMENT PRACTICE GUIDE OF LAWYERS MUTUAL Here are ten NC ethics opinions issued over the past ten years regarding conflicts of interest: • 2015 Formal Ethics Opinion 4. Opinion • 2010 Formal Ethics Opinion 3. Opinion analyzes a lawyer’s professional responsibilities provides guidance on the cross-examination of when she discovers that she made an error that current and former clients. may adversely impact the client’s case. • 2011 Formal Ethics Opinion 2. Opinion sets • 2016 Formal Ethics Opinion 3. A lawyer forth the factors to be taken into consideration working for a private law firm may not negotiate when determining whether a former client’s delay for employment with another firm if the firm in objecting to a conflict constitutes a waiver. represents a party adverse to the lawyer’s client unless both clients give informed consent. • 2012 Formal Ethics Opinion 4. Opinion rules that a lawyer who represented an organization • 2014 Formal Ethics Opinion 6. A lawyer who while employed with another firm must be provides free brief consultations to members screened from participation in any matter, or of a nonprofit organization must still screen for any matter substantially related thereto, in which conflicts prior to conducting a consultation.