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Cox: Implement a system of checks to avoid conflicts of interest

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cox-dina-mug.jpg Cox

Loyalty and independence of judgment are essential to the effective representation of a client. A conflict of interest may make it impossible to exercise these essentials, or it may create an appearance that is injurious to the health of the lawyer-client relationship. While a violation of the Indiana Rules of Professional Conduct does not equate to legal malpractice, courts are entitled to look to the rules for guidance in considering whether there has been a breach of the lawyer’s duty of care. And, an actual conflict can inflate the jury’s perspective of a malpractice claim when the claim itself could have been easily defended. Trial advocates for clients frame conflicts as issues of loyalty, and juries can react severely to perceived betrayal. As a result, claims of conflict of interest can exacerbate even a small mistake or a “close call” made by the attorney.

Conflicts of interest are not the exclusive headache of large, urban, multi-office law firms. Conflicts arise within law practices of every size and geographic location. Moreover, conflicts of interest spawn an alarming number of disciplinary grievances, disqualification motions and legal malpractice claims. For these reasons, it is essential for every practitioner to implement a conflicts-checking system and procedures that are uniformly followed.

Practitioners cannot pretend to rely exclusively upon attorney memory to check conflicts. The number of clients, adverse parties and interested nonparties with whom attorneys become involved throughout their careers is staggering and invariably underestimated. Also, in today’s world, both individual clients and business entities tend to have more complex relationships (extended families, business subsidiaries, etc.); we cannot rely on our cluttered brains to keep it all straight. While lawyers in smaller firms tend to think they can keep a conflicts-checking system in their head, they’re wrong. A system must be established either on paper or in the firm’s computer system. An actual system is critical.

Any effective conflicts-checking system must be implemented and used firm-wide. One staff person in the office should be responsible for maintaining the system because centralization increases accountability and compliance. Consider one backup conflicts clerk in the event the primary conflicts clerk becomes indisposed. The essentials of any conflicts-checking system include: (1) a firm-wide data bank; (2) a procedure for opening new files; and (3) a procedure for the ongoing checking of conflicts in open or existing files. No new matter should be opened until a conflicts check has been completed and the data entered into the system. While it may be tempting to bypass a preliminary conflicts check if immediate action is required, this temptation must be resisted.

Declined prospective clients should be routinely entered into the conflicts databank when the declined client communicates confidential information during the initial meeting which could create a subsequent conflict. Rule 1.18 imposes a confidentiality obligation upon information imparted by prospective clients. This is true even though an attorney-client relationship may never be established. However, it goes without saying that limited but important information must be gathered in order to perform the preliminary conflict of interest check.

For open files, any new parties or interested nonparties which become known to counsel during representation should be checked against and added to the data bank to monitor any actual or potential conflicts which arise subsequent to the initiation of representation.

The conflicts-checking system is only as good as the information that it contains. Creating a conflict-checking system and maintaining it should be viewed as an ongoing and permanent commitment to securing client trust. Effective conflicts can be checked only if there is a thorough, well-maintained list of client names; if the conflict-checking procedure is part of the firm routine; and everyone in the firm is trained on the system and procedures.

The conflicts-checking system does not have to be high tech. Indeed, it could be as simple as a word document or an index card filing system. The best conflict-checking system is one that will work and that the members of the firm will find easy to use and maintain. There is nothing inherent in a computer-based conflicts program that makes it superior to a well-maintained manual system except for the speed of a thorough conflicts check within a computer-based program. Because of this efficiency, computer-based conflicts program are often more likely to be used on a routine basis, and there is less likelihood of overlooking a single name buried in a large database.

Conflicts of interest are subtle, and there are no hard-and-fast rules to avoid many conflict problems. The rules that do exist are not absolute; they contain conditions, exceptions and discretionary factors. These circumstances make it imperative that each lawyer considering a new matter or representation invest the time and energy necessary to (1) collect the necessary information to perform a conflicts check, (2) oversee the proper performance of a conflicts check, and (3) review and analyze any potential conflicts.

Practical tips for checking conflicts

It is evident that clearly and accurately identifying one’s client is essential to identifying a conflict. But identifying one’s client may be easier said than done. Take, for instance, the situation where the lawyer is asked to represent a closely held corporation with a limited number of shareholders. Is the client the board, the president, shareholders, a general partner or a limited partner? Determine and clearly define (and make sure you understand) who the client is and who you are (and are not) representing.

Clearly define and memorialize in either a letter or in a retainer agreement the exact nature and scope of the representation. Then, work only within the scope of the representation. If additional work outside the scope of the representation is requested, analyze whether any conflicts exist in providing that representation; and, if the representation is undertaken, modify the engagement letter or retainer agreement accordingly.

If representation proceeds despite conflicts based upon client consent, be forewarned that anything less than full disclosure prior to obtaining client consent may result in a malpractice action.

Attorney involvement with corporate clients in any capacity other than as legal counsel is risky and should be avoided. The number of lawsuits filed against officers and directors has increased substantially in recent years, and attorneys and their law firms risk noncoverage in most instances. Attorneys in these situations often maintain that their situations are “different” and that their relationships with their corporate clients are bulletproof. Keep in mind that most attorney-directors who have been sued have had the same confidence in their client relationships.

Prospective lateral hires should provide the firm with a listing of all files that he or she has worked on during the previous two years, as well as a list of files that he or she intends to bring to the firm as active files. This information is critical to check for potential conflicts of interest which could jeopardize existing relationships of both the firm and the prospective hire.

Try to always follow the “one client, one lawyer” rule. It is risky to represent multiple plaintiffs or multiple defendants in litigation, for instance. Be wary if you are asked to represent two parties, such as a divorcing couple, an estate and its beneficiaries, or a buyer and seller who announce “we agree to the property settlement and we just want you to write the agreement.” Avoid representing all parties in a transaction. The “I was only the scrivener” defense rarely works, and both sides can sue the attorney for malpractice.

Refrain from doing business with your clients. Doing business with your clients creates the perception that the attorney has an advantage and the dealings are unfairly weighted in the attorney’s favor.

Refrain from changing the terms of your service or fee agreement. Changes of this nature risk the perception that the client is at a disadvantage and the attorney took advantage to line his pockets.

Avoid continued representation after a conflict develops. This is easier said than done. This is a “sleeper” issue, because even in firms where conflicts are routinely checked at the beginning of the representation, they are sometimes forgotten or ignored as facts unfold by way of discovery and pleading amendment. Make sure the firm has a procedure in place to catch subsequent activity in a case.

The most sophisticated conflicts-check system will be worthless as a risk-management tool if, once identified, conflicts of interest are dismissed as insignificant or if the firm’s course of action is not documented. If an actual or potential conflict of interest is identified, check, read and analyze the applicable Rules of Professional Conduct. Discuss the conflict with a disinterested attorney either within the firm or another member of the bar whose judgment is trusted. An objective analysis is critical, especially when the involved attorney is feeling pressure to accept representation. If you are on the fence as to whether a conflict of interest really does exist, consider advising your prospective client of the relationship you have discovered in your search and let the prospective client decide whether the connection is too close for comfort.•

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Dina M. Cox is an attorney with Lewis Wagner LLP in Indianapolis. She focuses her practice on professional liability defense, drug and medical device/products liability defense, consumer class-action defense, insurance coverage, and insurance bad faith defense litigation. The opinions expressed are those of the author.

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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