Conflict Checks: Why Process Matters More Than Experience

By Douglas V. Chandler

Chandler Law, LLC

One of the most common refrains we hear from lawyers facing conflict issues is some version of: “I didn’t think this would be a problem.”

And most of the time, they are right; until they aren’t.

In our work defending lawyers and advising firms on malpractice and ethics risk, conflict of interest issues consistently rank among the most preventable problems we see. They are also among the most disruptive when they occur. Disqualification Motions (which clients never want to have to pay for), fee disputes, grievances, malpractice and breach of fiduciary duty claims often follow, not because a lawyer acted in bad faith, but because the firm relied on informal systems instead of a disciplined process.

The typical scenario is familiar. A new matter comes in. The client name seems familiar but with many years in practice under your belt every name starts sounding familiar, right? The lawyer believes there is no issue and gets to work. The firm may technically have a conflict check system, but it is incomplete, inconsistently applied, or dependent on memory rather than documentation. Months later—or sometimes much later—someone realizes the opposing party was a former client, an affiliated entity, or someone about whom the firm still holds confidential information.

At that point, the problem is no longer theoretical.

Why Conflict Issues Escalate Quickly

Under the Georgia Rules of Professional Conduct, conflicts of interest implicate some of the lawyer’s most fundamental duties, including loyalty and confidentiality. From a malpractice standpoint, conflict claims are particularly difficult to defend once a conflict is established. Courts, juries and disciplinary counsel are rarely sympathetic to explanations that amount to “we didn’t realize it at the time.” Without having to do too much convincing, juries innately understand that a lawyer cannot serve two masters.

What makes these situations especially frustrating is that most conflict problems could have been avoided with a process that takes only minutes to follow.

The Limits of Informal Conflict Checks

Many firms believe they are running conflict checks, but in practice those checks are often too narrow to be effective. Common weaknesses include searching only for current clients, relying on exact name matches, relying on incomplete information, not comparing all firm systems (e.g. email, practice management, servers or CRMs) or trusting that someone in the firm will remember a past relationship.

Conflicts rarely present themselves that clearly. More often, they involve former clients, related entities, family members, or business relationships that do not appear in a simple name search. Lawyers also underestimate how often confidential information from a prior matter can create a conflict, even when the subject matter appears different or, as the bar rules dictate the matters are not “substantially related”.

Conflict checks that rely on memory rather than systems are especially risky in busy practices, growing firms, and firms with turnover.

Timing Is Critical

A conflict check must be completed before any legal work begins. This sounds obvious, but it is one of the most common failure points we see. Intake is rushed. A client wants immediate action. A lawyer plans to “just get started.” The conflict check is postponed—or skipped.

Conflict checks are also not a one-time event. New parties join a case. Business relationships change. Former adversaries become aligned. Lawyers and staff move between firms. An opposing party moves a court for sanctions against the client and lawyer jointly. A client alleges some sort of legal or ethical breach by the lawyer to avoid paying the lawyer’s bill. Each of these developments can create conflicts that did not exist at the outset.

Firms that treat conflict checks as a single step at intake miss these evolving risks. Potential conflicts should be assessed periodically throughout the attorney-client relationship.

Here is a checklist that you can start implementing now. You should edit this checklist to make it specific to your firm.

• Identify and collect full legal names, aliases, trade names, former names, and common misspellings for all parties
• Run searches across all firm systems (case management, billing, CRM, email, document systems)
• Review close or partial matches carefully
• Evaluate whether the firm holds confidential information material to the new matter
• Document who ran the check, when, and the conclusion reached
• Update conflict checks as parties or scope change and periodically throughout the attorney-client relationship.

What Effective Systems Have in Common

Effective conflict-check systems share a few core characteristics. First, they rely on complete and accurate information. Conflict checks only work if firms consistently capture meaningful data about clients, former clients, adverse parties, affiliated entities, and key individuals.

Second, that information must live in a centralized, searchable system used firm-wide. Whether the firm uses practice-management software, a CRM, or another controlled database matters less than consistency. Conflict systems fail when lawyers keep their own lists or when data is scattered across multiple platforms. If multiple tech platforms exist, the conflict check should involve all of them.

Finally, effective systems require discipline. When a new matter comes in, all relevant names must be entered and searched carefully. Close matches must be reviewed rather than dismissed. When questions arise, lawyers must be willing to pause before proceeding. Ideally, one knowledgeable lawyer in the firm should be responsible for conducting conflict checks and analyzing any potentially conflicting data.

Documentation Protects the Firm

From a malpractice and grievance defense perspective, documentation is critical. If a conflict decision is later questioned, the firm should be able to show who ran the conflict check, when it was conducted, what was searched, and how the decision was made.

Undocumented conflict checks are often indistinguishable from no conflict check at all. Even when a firm ultimately made the right call, the inability to prove it can create unnecessary exposure, trouble and expense.

Waivers Are Not a Safety Net

Some conflicts are waivable, but waivers should never be treated as a shortcut. Informed consent requires meaningful disclosure of the conflict, the associated risks, the available alternatives, and an opportunity for the client or former client to consult with independent counsel regarding the substance of the written disclosure. Rushed or poorly documented waivers often provide little protection and can actually increase scrutiny.

In some situations, the safest course ethically and professionally is to decline representation.

Transition Points Require Extra Care

Conflict risk increases during periods of change. Lateral hires, firm mergers, and matters involving multiple related parties all warrant heightened attention. These are precisely the moments when informal systems are most likely to fail and the consequences are most severe.

Advanced planning and formal screening procedures using only the required amount of information necessary to fully vet potential conflicts are essential during these transitions.

Culture Makes the Difference

Ultimately, conflict check procedures succeed or fail based on firm culture. Firms that treat conflict checks as an inconvenience or overly focus on the potential revenue tend to cut corners. Firms that treat them as a professional obligation and risk management tool build systems that protect both clients and lawyers.

The most effective firms integrate conflict checks directly into their intake workflows, train lawyers and staff regularly, audit compliance, and treat deviations seriously. Over time, conflict checks become routine, not burdensome, and serve their intended purpose as a quiet safeguard against preventable harm.

Conflicts of interest are inevitable. With the right systems, documentation, and culture in place, they are almost always avoidable. Chandler Law helps firms evaluate conflict situations and, more importantly, develop firm specific defensible conflict check procedures that tip the balance in your firm’s favor should a claim or grievance arise.