Conflict of Interest Checking

The Lexbe eDiscovery Platform (LEP) can be a key component in a robust conflict of interest checking system. This Technical Note will describe how to do that with your LEP Account.

Of note, because Lexbe charges for document and index storage only (no case fees or user fees), using Lexbe for conflict of interest checking has no additional or incremental cost, under account plans.

Overview of Conflict of Interest Checking

What is a legal conflict of interest?

A legal conflict of interest can occur when an attorney provides legal advice to an individual or entity that has interests that are adverse to another current or former client of the attorney or firm. Conflict of interest requirements are governed generally by U.S. state bar association professional responsibility/ethics rules or codes.

Each state bar association enforces its rules through disciplinary proceedings, and if a lawyer is found to have violated a conflict of interest rule he or she may be privately reprimanded, publicly admonished, placed on probation, suspended, or even disbarred. Alleged violation of conflict of interest rules can also lead to and support client litigation against an attorney and firm, or a demand that a firm withdraw from pending litigation. Malpractice insurance carriers usually require attorneys seeking malpractice insurance to complete an application process in which the applicant lawyer and firm maintain and verify that the attorney or firm utilize an effective method to avoid conflicts of interest.

An effective conflict of interest system should identify, prior to new client engagement, if the attorney or firm is currently, or has in the past, represented an adverse party in the proceeding or a closely related proceeding, or has received related confidential information. This check should include not only client names, but also individuals and entities related to the client, including corporations and affiliates, officers and directors, partners, major shareholders, and the like. This can get complicated quickly, even for a solo attorney. Given the complexity, this process can escalate out of control in a firm with several or many attorneys. The conflict of interest identification process should then be examined to determine if actual or potential conflicts of interest exist.

(The above notes are a general discussion only and each attorney should review his or her applicable rules.)

How To Identify Potential Conflicts of Interest in LEP

The following describes how to set up case specific persons and entities associated with current and past legal matters an attorney or firm have represented. It will also describe how to search across all matters to determine actual and potential conflicts of interest.

Select the Account(s) to Maintain Case-Related Persons and Entities.

First, determine which cases in your account should be included in the conflict of interest check process. We recommend including key individuals and entities from all current and closed cases.

Set up a Case for Prior and Current Representations.

Next, you will need to create an additional case to house the information relating to the case participants or “Custodians”. The case will not contain any documents. To create a new case in your account, navigate to Account>Manage Cases.

Expand the menu under “Create New Case in Account” in the left-hand column and type the name for the new case. Title the case “Conflict Checks”.

Set up Key Individuals and Organizations as Custodians.

You will need to create the custodians (i.e. case related persons or entities) in your Conflict Checks case. You will enter all key individuals and companies from all of your open and closed cases. The key individuals and companies should include clients, individuals and entities related to the client, affiliates, corporations, officers, directors, partners, major shareholders, or any other person or entity that could potentially create a conflict of interest.

To create a new custodian, navigate to Analysis>Custodians.

From the Custodian screen, expand the menu next to Create in the left-hand column and choose New Custodian.

Next, fill in the information for your custodians using the fields provided. In the Name field, use the following format: Last Name, First Name. Identify the case(s) for this custodian using the field titled “Custom Field”. You can include additional details such as whether the case is open or closed, dates, disposition, etc. in the Memo field. Within this screen, you will also be able to indicate the custodian’s role, affiliation, and contact information.   

See the Custodian Help page for more detailed information about case custodians.

Running a Conflict Check Search.

In addition to having all of the key individuals and entities’ information stored in one convenient location, you will also now be able to search through all of the custodians’ names and information for all cases at once. To do this, type in the custodian’s name or the case name in the Keyword Search menu in the left-hand column:

When a new client or representation presents itself, request a list of the individuals and entities associated with the current or proposed client or matter at the outset. You will then use this list to run a search for the names in the Conflict Check case you created and you will have the relevant information available to determine whether a conflict of interest exists.

You can sort the custodian list using any of the column headers. Simply select the Name field to sort by custodian name or the Custom Field to sort by case name.

Alternatively, you have the option to export a log of all the key individuals and entities from your Conflict Check case which you can then sort and filter in Excel. To export a log to Excel, select the drop down arrow next to Select and choose “All”.

Then expand the menu next to Export in the left-hand column and choose “Export to Excel”.

You will then be prompted to save the Excel file to your local computer to further edit or review.

Evaluate Potential Conflicts

After you’ve run a search within the Keyword Search box and a list of potential conflicts hits have returned, these can be evaluated specifically as potential or actual conflicts of interest, and potential actions taken.