A conflict check process a two-person firm will actually follow

Every conflict check process written for a large firm assumes a conflicts team, an intake form and a partner to escalate to. A firm of two has none of those. So on a busy Friday the check happens in someone's head, or not at all.

A smaller copy of the big firm process does not fix that. What works is a process short enough that skipping it saves no time, and rules written down before the awkward matter arrives.

One rule the conflict check process hangs on

No matter is opened, and nobody hears the details of a matter, until a check has been recorded. Recorded, not done. A check that exists only in memory cannot be shown to anyone later, including yourself in three years.

What goes in the register

One searchable list of every name the firm has dealt with. A spreadsheet is enough at this size. The Law Society of NSW's paper on the practical side of conflicts adds the part people skip: the register only works if everyone knows how to enter information into it correctly.

• Clients, current and former, with earlier names: a maiden name, a company's former name.
• The other side in every matter, and the lawyers acting for them.
• Connected people and companies: the directors of a company client, a spouse, a guarantor.
• People you turned away, if they told you about their matter before you declined it.
• Your own history. The clients each of you acted for at earlier firms. LPLC's guidance notes you will not know about those unless you routinely ask.

When to search

1. First contact. Take the names before the first call where the person explains their matter. Search, then book the meeting.
2. A new party appears. A second defendant, a purchaser's nominee, a new lender. Add them and search again.
3. Someone joins the firm. Search their former clients against your open matters before their first day.

The first one is the easiest to skip, because the call comes in and the person starts talking. A receptionist or a voicemail message that asks for names first solves it. LPLC's five item conflict checklist makes the same split between the start and the rest: check at the start of a matter, then stay alert for a conflict during it.

Searching a name properly

An exact match misses the conflicts that matter, because the register holds whatever spelling somebody typed years ago. Search each name several ways.

• The surname on its own.
• Obvious variants: Smith and Smyth, Bob and Robert.
• A company name without Pty Ltd, then each director's name.
• A trading name as well as the entity behind it.

Then record the check as one entry on the matter, in the same shape every time:

• the date, and who searched;
• every name searched, including the variants;
• what came back, including nothing;
• the decision: act, act with consent, or decline;
• the reason, in one sentence.

When a search finds something

In a large firm, a hit goes to someone with no stake in winning the work. In a firm of two, the person deciding usually wants the matter. Design the process around that.

• Open the old file. The Law Society of NSW paper warns against simply locking it away. Check what it was about, who acted on it and how relevant it is to the new matter.
• Write the reason before the decision. Note the connection and why it does or does not stop you acting. A reason written after deciding tends to fit the decision.
• Get a second view when it is close. In a two-person firm, the other person. LPLC's checklist ends with seeking advice from LIV ethics when in doubt.
• Put any consent on the file. If you act with the consent of the people affected, keep what you told them and what they agreed to with the check.
• Record a decline too. Note that you declined and when you told them, in writing.

Write your own rules down

LPLC describes a conflicts policy as the rules a practice, or a sole practitioner, makes for itself. It also records what lawyers sometimes say once a claim arrives: "usually I would not have acted but this time I broke my own rules". A one page policy is enough for a firm of two.

• The kinds of matter you will not take. LPLC recommends avoiding acting for more than one client in a matter.
• Who decides when a search finds something, and who decides when that person wants the work.
• What consent has to look like before you act, and where it is kept.

Keeping the register current

The process fails on the day the register falls behind. Two habits prevent it.

• Names are added by the person opening the matter, when they open it. Never in a batch at the end of the month.
• Once a month, compare the matters opened against the checks recorded. A matter with no check is the first one to look at.