Conflicts Checking

Getting Entangled in a Web

By John L. Mellitz

FEW THINGS hold more potential trouble for a lawyer than getting entangled in a conflict of interest. Traditionally, lawyers have relied on their client lists to avoid conflicts of interest. After all, if you want to avoid representing people with opposing interests, you review the people you have represented to identify potential conflicts of interest. Yet, we are always reading about lawyers who have become caught in a web of conflicts. Obviously, there has to be a better way to manage this critical function.

Conflict of interest checking lends itself to automation because it involves searching for information--a task idea for computers. Yet, the software industry, and lawyers themselves, have managed to compromise most efforts to automate conflicts checking. As is often the case when people decide to automate some aspect of their lives, they shortchange themselves by concentrating on the way they've always done something, rather than considering the potential of what can be done . . . especially when starting fresh. "Thinking outside the box" is the buzz phrase du jour for this process.

Indexing by Computer YOUR COMPUTER can scan a hard disk from beginning to end; compare the characters of the words you are looking for with every possible combination of sequential characters; and report or print out the location of each sequence of characters that matches the original. While computers can do this faster than humanly possible, it is like reading an entire book to find specific reference, and it can take a fairly long time, depending on the number of characters stored on the drive. Instead, just as you would use the index at the back of a reference book, your computer can go to an index file on the hard disk and locate the desired words on a list of all the words on the disk. The index will, in turn, tell the computer exactly where on the hard disk the words can be found, and the computer will go to those spots and show the actual words, in context. This entire process might take less than one second. QuickFinder, FastFind and Wilbur are tools that gather the words on the hard disk and store them in the "index file." This file often has an extension ".IDX." When it's time to find information stored on a hard disk, (such as the name of a potential client and that of his or her family members and friends), the program can locate every instance of each name, in about two seconds. Keep in mind that virtually every word on the hard disk is on the list, and is compared for conflict of interest purposes with every name or word you enter.

Lawyers have maintained accurate and current client lists, even before mass mailings infected the profession. It wasn't much of a stretch to recognize that automating the process of searching a firm client list would facilitate conflict checking in firms of any size, but especially in very large firms.

This is where lawyers' habits negated the potential of much more thorough automated conflicts check.

Let's suppose that in 1993 your client, Howard Homie, sued the builder of his new home for breach of warranty, alleging the material used in the plumbing did not conform to standards of common sense, much less the county building code. In an effort to nail down the facts you retained Christopher Plumber as an expert witness to testify for your client. On the stand, Mr. Plumber testified that the water and drain pipes throughout the house were made of inexpensive crystalized sugar water that had been shown by extensive testing to be inadequate for the channeling of liquids within a residence.

In selecting an expert you reviewed the backgrounds, qualifications and reputations of several plumbing contractors. It was Mr. Plumber who was selected, and it was Mr. Plumber who carried the day when you won your case.

Fast forward to 2000. Your firm has grown and changed its name several times. There are firm offices in 12 cities throughout the world. Six months ago, at one of those remote offices Ms. Nattie Lee Plumber walked in and asked for a lawyer to represent her in divorce proceedings against her husband, Mr. Christopher Plumber.

When interviewed, she claimed to have no idea what assets Mr. Plumber had, or what it cost them to live the way they did, (in apparent poverty), because her husband felt is wasn't a woman's place to know such things.

Upon being questioned, she professed no knowledge of her husband's business other than the fact that he boasted of being the best sewer-rooter on their block, and he was frequently away from home on extended business trips. She thought her husband was broke and without skills, and that all she expected was a quick divorce to be rid of the bum.

The managing partner in the remote office ran a conflict of interest check against the client list maintained in the firm's centralized time-and-billing system. There were no references to any Plumber, Plummer, Plumre, or any other sound-alike name.

The case went to trial, and your partners in the remote office won a judgement in Ms. Plummer's favor awarding her a divorce and alimony of $500 per month.

Shortly thereafter, Mr. Plumber learned that his ex-wife's law firm was the same one that had done a background check on him seven years before. He is now seeking to void the judgement, alleging that his ex-wife's attorneys had a conflict of interest. He pointed out to his attorney that he was interviewed as a candidate for an expert witness job, and that in response to questions he had disclosed information about his financial condition and earning capacity, as well as additional confidential information regarding his so-called business trips that he contended was outside the scope of discovery.

While the merits of Mr. Plumber's case may be debatable, the important facts are that Mr. Plumber had a relationship with the firm representing his ex-wife, that the relationship had been more than casual, (but not an attorney/client arrangement), and that the firm had information about him that it would not have acquired but for the relationship. The existence of the prior relationship, coupled with the fact that Mr. Plumber's name was not on the firm's client list, points out the need for a more thorough conflict checking system.

A brief review of several popular time-and-billing programs disclosed just one, Elite Information System's Conflict of Interest System, that searches for names outside the client list.

Looking at two case management systems shows a difference in approach.

John L. Mellitz is president of Mellitz & Associates, a legal technology consulting firm with offices in St. Louis, Mo. and San Francisco, Calif. He is a Timeslips certified consultant and a Time Matters authorized independent consultant.