Conflicts checking is the process — required by attorney ethics rules in every jurisdiction — of verifying that taking on a new matter or client doesn’t create a conflict of interest with an existing or former client. For a firm, conflicts checking gates client acceptance, lateral hiring, and even outside speaking engagements. For an in-house team, conflicts checking is narrower (no client portfolio to protect against) but still applies to outside counsel selection and certain regulated industries.
What constitutes a conflict
The Model Rules of Professional Conduct (and equivalent rules in non-US jurisdictions) define conflicts in three main categories:
- Direct adversity. Representing a current client against another current client of the firm. Generally prohibited; sometimes waivable with informed consent.
- Material limitation. A current representation that may be materially limited by responsibilities to another client, a third party, or the lawyer’s own interests. Requires consent if the lawyer reasonably believes representation will not be adversely affected.
- Former client conflicts. Representing a current client in a matter substantially related to a prior representation of a different client. Requires former client consent.
There are also imputed conflicts — when one lawyer in a firm has a conflict, the entire firm typically does, unless screened (“Chinese walls” — see below).
The conflicts check workflow
For a firm taking on a new matter:
- Intake gathers the data. Client name, adverse parties, related parties, subject matter, jurisdiction, prior counsel.
- Conflicts check searches the firm’s database. Every prior and current client, every adverse party in firm matters, every related party, every individual the firm has represented or opposed.
- Conflicts staff reviews the hits. Algorithm flags potential conflicts; conflicts attorney reviews each for actual conflict status.
- Resolution. Clean conflict (proceed); waivable conflict (obtain consent); non-waivable conflict (decline matter).
- Audit trail. Every check, every hit, every resolution decision logged for ethics-defense purposes.
In-house teams run a much lighter version: typically just a check that the proposed outside counsel doesn’t have a conflict against the company on related matters.
Imputed conflicts and ethical screens
When a lawyer joins a new firm from a prior firm, the new firm potentially inherits all of the lateral’s prior client conflicts (imputed conflicts). The fix is an ethical screen — also called a Chinese wall — that isolates the new lawyer from any matter against a former client. Requirements vary by jurisdiction but generally include:
- The lateral has no involvement in the screened matter
- The lateral receives no compensation derived from the screened matter
- The lateral has no access to files, communications, or work product on the screened matter
- The screened matter team is identified and instructed on the screen
- Notice is given to the former client of the screening arrangement
Effective screens require IT enforcement (file-system permissions, email rules, document management system access controls) plus written policies and periodic compliance audits.
How conflicts checking software works
Modern conflicts databases (Aderant Expert Sierra, Intapp, Litera Foundation, Clio for smaller firms) maintain searchable databases of:
- Every client the firm has represented (with related parties, family members, parent and subsidiary entities)
- Every adverse party the firm has opposed
- Every individual involved in firm matters (witnesses, third parties, opposing counsel)
- Every contractual relationship that might create a conflict (board memberships, business interests of partners)
Searches use fuzzy matching (corporate name variations, transliterations, alternative spellings) and increasingly AI to surface conceptually-related parties that string matching misses.
Common pitfalls
- Incomplete intake. If the intake doesn’t capture every related party — parent companies, subsidiaries, joint ventures — the conflicts check produces false negatives.
- Lazy resolution. Hits get cleared without serious review under deadline pressure. Document the clearing rationale.
- Outdated database. Closed matters get under-tagged for related parties; the database degrades. Annual conflicts database hygiene matters.
- Ignoring positional conflicts. Even when no direct client conflict exists, taking a position in one matter that contradicts a position taken for another client can create reputational or strategic conflicts.
- No re-check on new related parties. When a matter expands to include new parties, re-run the conflicts check. Original clearance doesn’t cover the expansion.
Related
- Matter management — system that holds matter records used in conflicts data
- Outside counsel management — for in-house teams selecting outside counsel
- Clio — practice management with built-in conflicts for solo and small firms