Conflict Checks Are Not Optional:
A Practical Story About Preventable Risk in Law Firms
By Douglas V. Chandler
Chandler Law, LLC
All lawyers know they are supposed to run conflict checks. Do all lawyers do it? Incredibly, no. Fewer appreciate just how often conflict problems arise. A majority of the time, problems do not arise out of ill intent, but from informal systems, rushed decisions, and assumptions that “this will be fine” or “we can work around it.” Bigger problems arise when lawyers rationalize their way around a conflict situation—it’s like a landmine which will go off at some point in the future.
In our experience defending lawyers and advising firms on malpractice risk, conflict issues are among the most preventable problems we see. They are also among the most damaging when they go wrong. A conflict of interest shapes the claim from that of legal malpractice into a breach of fiduciary duty claim. Indeed, a lawyer’s duty of loyalty mandates the avoidance of conflicts and juries certainly understand without much explanation the lack of loyalty going out of their way to punish offenders. Breach of fiduciary damages include general damages, exemplary (punitive) damages, disgorgement of fees paid and the cost of litigation.
The typical story starts the same way. A new matter comes in. The lawyer recognizes the client name, believes there is no issue, and gets to work. The firm may technically have a conflict-check system, but it is incomplete, inconsistently used, or reliant on memory rather than process. Months later or worse, after substantial work has been done, someone realizes with shock that the opposing party was a former client, a related entity, or someone about whom the firm still holds confidential information.
At that point, the damage is often already done.
Under the Georgia Rules of Professional Conduct, conflicts implicate some of the most serious ethical duties lawyers owe to clients, including duties of loyalty and confidentiality. See Georgia Rule of Professional Conduct 1.6 Confidentiality of Information; GRPC 1.7 Conflict of Interest: General Rule; GRPC 1.8 Conflict of Interest: Prohibited Transactions; GRPC 1.9 Conflict of Interest: Former Client; and GRPC 1.10 Imputed Disqualification: General Rule. From a claims perspective, conflict of interest claims are particularly dangerous because they frequently lead to disqualification, fee forfeiture, grievances, and claims that are difficult to defend once a conflict is established.
The most important thing lawyers can do to protect themselves is to stop treating conflict checks as an administrative formality and start treating them as a core risk-management function.
A proper conflict check must occur before any legal work begins. It’s a best practice to clear conflicts before receiving any information or speaking to any party substantively about the matter for which they seek advice. Potential conflicts should also be monitored as cases evolve, when new parties appear, or when new lawyers or staff join the firm. Conflict checks are not a one-time task; they are an ongoing responsibility.
One of the most common breakdowns we see is an overly narrow search. Firms often look only for exact matches of current client names. That approach misses the most common sources of conflict: former clients, affiliated entities, family members, business partners, and situations where a lawyer has confidential information that could disadvantage a former client. Conflicts rarely announce themselves clearly. They require deliberate, thoughtful screening.
That screening only works if the firm maintains a centralized, searchable database of clients and matters. Whether a firm uses practice-management software, a CRM, or a carefully controlled spreadsheet matters less than consistency. Conflict systems fail when lawyers keep their own lists, when data is incomplete, or when no one can confidently say what was searched and when.
Equally important is documentation. If a conflict decision is ever questioned, the firm must be able to show who ran the check, what names were searched, what the results were, and how the decision was made. From a defense standpoint, undocumented conflict checks are functionally indistinguishable from no conflict check at all.
Waivers deserve special caution. Some conflicts can be waived, but only with informed written consent after full disclosure of the risks and a recommendation (and opportunity) to retain independent counsel to advise on the potential conflict and proposed waiver. Full disclosure is the key, and rushed or poorly explained waivers often provide little protection which can actually make matters worse. In some cases, the safest decision to a conflict analysis is to decline representation.
Firms should also be particularly careful during transitions when hiring laterals, merging with other firms, or taking on matters involving multiple related parties. These are moments when conflicts are most likely to arise and least likely to be caught without a disciplined process.
Ultimately, conflict checking is not about bureaucracy. It is about protecting clients, protecting the firm, and preserving professional integrity. The lawyers who get into trouble over conflicts are rarely careless or unethical. They are busy, confident, and accustomed to trusting their judgment.
Good systems exist to protect even good judgment from human error.
The most effective firms build conflict checks directly into their intake workflows, train lawyers and staff regularly, and treat compliance as non-negotiable. When that type of firm culture exists, conflict checks stop being a source of frustration and become what they were always meant to be; a quiet safeguard against preventable harm.
Conflicts are not inevitable but, with the right process, they become avoidable.
For Georgia lawyers looking for practical support on issues like conflict management, malpractice prevention, and ethics compliance, our Professional Liability & Ethics Protection Program (PLEPP) offers resources, guidance, and support. You can learn more about the program and how to apply through our qualification process at: https://chandler-law.net/resources/pl-membership/. Space is limited.
