by John Paul Kemp

A problem arises during the merger of legal services programs that lacks a standardized solution or national policy. This is the ethical problem raised by conflicts. What should occur when two or more legal services programs merge, and they are representing or have represented two individuals on opposite sides of a legal dispute? Since I am most acquainted with this problem in terms computer software, I will look at it from a technical aspect. I don’t propose any solutions here, but point out the potential ethical violations.

The problem can arise in two ways. The first and most obvious is when two different legal services programs are representing opposing parties in the same dispute, such as a divorce. This can occur in many instances, such as when one program used to have legal services program in a prison.

The second and more difficult conflict to spot is when one program represents an individual in a particular type of problem, such as a divorce, and the other program represents the other adverse individual in a totally unrelated action, such as a bankruptcy. Not only does this cause a theoretical conflict, but it might be important to change the way the first party is pursuing the divorce in light of the knowledge that a bankruptcy might be filed.

In practice, most directors seem to assume conflicts aren’t a major problem and they'll deal with them when discovered. However, my real world observations seem to be quite different. I've seen more than a thousand potential conflicts arise in each of the several mergers I've worked on.

How should a program director respond to such a list? The consensus seems to be that the response is dependant on two different factors. The first is what the State bar association's policy is on mergers of different firms. The second factor is the current status of the case. Is it open or closed? Most directors seem to feel that if both cases are closed, then there is no current issue. If either of the clients come in for additional representation, it would not be possible to represent either of them. Even using this criteria, the list of potential conflicts can be quite long.

There are practical aspects to the accuracy of detecting the existence of conflicts. Exactly how far back in time must a program go to check for conflicts? How hard must the program look at names to determine if a conflict exists.

The question of time is probably governed by the Bar's rules or by the information sitting in the computer system. Some State Bars have a period of time after which a closed case ceases to be a conflict, such as seven years.

The question of names and other identifiers is much more problematical. Clients often lack any but the most rudimentary of information about the opposing party. The one general exception to this rule involves domestic cases, where discovery and living in close proximity to the opposing party makes things such as Social Security Number much more available. The accuracy of using this information is further complicated by birth names, variations in spellings and inaccuracies in entry..

How should the program check for problems? Matching clients from one program against adverse parties from the other program, and vice versa is the basic minimum. What information is useful for narrowing down the list? Field such as the case number, problem code, the client’s first and last name (same as adverse for program 2), problem code, date opened, dates closed, reason closed, address, city, age and Social Security Number of the client can be useful. The client opposing the adverse party (client in first program) in the second program's database along with the problem code, date, useradv field, and status of the case could also be useful. Remember, the additional information might be of limited use if the representation involves a totally different action. It might also be possible to check using wild cards for the first and last name, to avoid the problems of extensions (Jr., Sr., etc.) and alternate spellings. Unfortunately, Jo* (or % in SQL) will pull out Joan and Jon, whereas Joh* will exclude Jon and Jonathon. This wreak havoc for common names such as Smith, where the number of matches increase geometrically.

The common response to any bar exam involving an ethical question usually requires an examination of four rules,

1. No conflict of interest

2. Full disclosure

3. No appearance of impropriety

4. Confidentiality

Some of these rules collide under the above circumstances. If both clients are given information about the presence of pending law suits such as a bankruptcy, one client may modify their actions to the detriment of the other.

In some instances programs have what they call a ‘conflict panel’ of private attorneys that take cases when an internal conflict is discovered. This can be a convenient way of getting rid of the conflict without putting the clients on the street to represent themselves.

It would be useful to have some guidance and ‘rules of thumb’ to deal with such issues. Until some are developed, these potential problems will be addressed on an ad hoc and local basis.

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