Efirm Conflict Check

eFirm: Conflict Check

When to use this

A conflict check is mandatory before any of the following:

• Accepting a new client or new matter.
• Assigning a new lawyer to an existing matter (the new lawyer may bring conflicts from their prior firm).
• A lateral hire joins the firm (screens their prior client list against the firm's).
• A client's matter scope changes materially (new adverse parties, new jurisdictions, new issues).
• A potential conflict is reported by any member of the firm.

Never begin substantive work without completing the conflict check. Failure to do so is a malpractice and bar-discipline issue in every covered jurisdiction.

Inputs

Six search dimensions

1. Adverse-party conflicts

Has the firm currently or historically represented any person or entity that is now an adverse party?

• Search firm's client database for all variations of each adverse party's name.
• Include corporate predecessor names, former names, and known aliases.
• Include affiliated entities (parent, subsidiary, sister company).
• Result trigger: Any positive match → conflict concern.

2. Current-client conflicts

Would accepting the new matter place the firm adverse to a current active client on any matter?

• Being adverse to a current client — even on an unrelated matter — is a concurrent conflict under ABA 1.7 and analogous rules.
• "Positional adversity" (arguing a legal position for one client that contradicts a position argued for another client in another forum) can also be a concurrent conflict, though the threshold is higher.
• Result trigger: Any active-client adversity → conflict, not merely concern.

3. Former-client conflicts (substantially related test)

Is the new matter substantially related to a matter on which the firm previously represented a now-adverse party?

Under ABA 1.9 and equivalent rules:

• A matter is "substantially related" if it involves the same transaction or legal dispute, or if there is a substantial risk that confidential information obtained in the prior representation could be used to the prior client's material disadvantage.
• Time since representation is relevant but does not cure the conflict automatically.
• Result trigger: Substantially related former representation → conflict.

4. Issue / positional conflicts

Would accepting the matter require the firm to take a legal position that directly contradicts a position it has advanced for another client in another proceeding or jurisdiction?

• Most sensitive in appellate, regulatory, and legislative advocacy.
• Requires substantive analysis of the legal questions in both matters.
• Result trigger: Direct positional contradiction on a material question of law → concern requiring partner judgment.

5. Personal-interest conflicts

Does any proposed team member have a personal, family, financial, or other interest that could affect their professional judgment on this matter?

Common examples:

• Family member is an officer of the adverse party.

• Attorney holds equity in a client or counterparty.

• Attorney is personally named as a witness or potential defendant.

• Attorney has a personal relationship with a key decision-maker at the counterparty.

• Result trigger: Any personal interest that could materially limit representation → conflict or concern.

6. Material-limitation conflicts

Would representation of the new client be materially limited by the firm's responsibilities to another client, a former client, a third person, or the lawyer's own interests?

This is the catch-all prong. Examples:

• The firm has a standing arrangement with a lender that could affect advice given to a borrower.

• A co-counsel relationship creates cross-obligations.

• A referral source expects favorable treatment.

• Result trigger: Any material limitation → concern requiring partner review.

Output schema

CONFLICT CHECK RESULT — [New Client] vs [Matter Description] — [Date]

RESULT: [CLEAN | CONCERN | CONFLICT]

By dimension:
  1. Adverse-party check:          [Clean / Concern / Conflict — details]
  2. Current-client check:         [Clean / Concern / Conflict — details]
  3. Former-client check:          [Clean / Concern / Conflict — details]
  4. Issue/positional check:       [Clean / Concern / Conflict — details]
  5. Personal-interest check:      [Clean / Concern / Conflict — details]
  6. Material-limitation check:    [Clean / Concern / Conflict — details]

DETAILS ON ANY CONCERN OR CONFLICT:
  [Matter / client name]
  [Nature of the conflict or concern]
  [Governing rule reference]
  [Whether waivable — see below]

RECOMMENDED ACTION:
  Clean:    Proceed. Record this check in the matter file.
  Concern:  Route to conflicts partner for decision before proceeding.
  Conflict: Cannot proceed without waiver (if waivable) OR cannot proceed at all.

Waiver framework

Some conflicts are consentable — they can be cured with the informed written consent of all affected clients. Others are non-consentable — no consent cures the conflict.

Consentable conflicts (general rule)

A concurrent conflict is consentable if:

1. The lawyer reasonably believes they can provide competent and diligent representation to each affected client.
2. The representation is not prohibited by law.
3. The representation does not involve asserting a claim by one client against another in the same proceeding.
4. Each affected client gives informed written consent.

Non-consentable conflicts (examples)

• Directly adverse representation of two clients in the same proceeding.
• Representation materially adverse to a former client on a substantially related matter where confidential information cannot be screened.
• Situations where the lawyer's own interests are so adverse that competent representation is impossible.

Waiver drafting

Consent waivers require:

• Clear identification of the conflict.
• Explanation of the risks of dual representation.
• The client's alternatives (separate counsel).
• An unambiguous written consent signed by each affected client.

The waiver itself must be reviewed by the conflicts partner, not the matter-handling lawyer.

Bar-rule quick reference

Imputation and screening

When a conflicted lawyer joins a new firm (lateral), their conflict is imputed to the entire new firm under most bar rules. A Chinese wall (ethical screen) can cure the imputation in many (but not all) jurisdictions if:

• The screen is timely erected (before any confidential information is shared).
• The screened lawyer receives no part of the fee.
• Written notice is given to the affected former client.

DIFC and ADGM explicitly permit screening to rebut imputation; US rules vary by state; UK SRA permits screens in some circumstances.

Critical reminder

Conflict check completion must be recorded with a timestamp and outcome in the matter file. The check should be repeated if new parties emerge during the matter. A single check at intake is not sufficient for complex, long-running matters.

Related skills

• [[efirm-client-intake-form]]
• [[efirm-matter-creation-flow]]
• [[efirm-engagement-letter-draft]]
• [[efirm-team-handoff-summary]]
• [[research-sanctions-screening]]