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[Ruined_My_Life]

What is the standard for determining a "conflict" with a firm?  Is a conflict when you represented an entity that is adverse to a client of the firm? 


Does that mean if you represented company A you can never work for a law firm that represents a client that is or has ever been adverse to A in a legal proceeding?

Or, does a conflict have to be related to a specific matter?  In other words, if I represented company A in some matter or another, but the firm represents a company B in a suit against A... is that a conflict even though I never did any work relating to the law suit in question?  Or would it be a conflict only if I had represented A in the suit? 

[bleedingpen]

This isn't answering your question, but I know of one law firm that's only conflict check is to simply insert the new potential client's name into the Windows search toolbar and then see if that new client's name appeared in any correspondence on the firm's server.   

[smgsmc]

Not sure if there's a universal standard.  In my firm, we get e-mail concerning a prospective case listing the parties involved and a very brief (sometimes unintelligible) summary of the matter.  If you think that there might be a conflict, you answer yes, and a member of the conflicts committee contacts you for further discussion.  Each instance is evaluated on its own specifics.

[blakesq]

at one firm i was at, the conflict check was to determine whether the claims of a patent/application for the potential client would conflict with the claims of a patent/application of the current client. 

[stuffball]

at one firm i was at, the conflict check was to determine whether the claims of a patent/application for the potential client would conflict with the claims of a patent/application of the current client. 

What, like, ALL of them?  That seems both crazy and impossible.

[blakesq]

why?  simply knowing who your clients are will probably eliminate 75% of the current clients from consideration, due to the clients being in completely different technological areas, and then looking at the titles of the patent apps for your current clients would probably eliminate another 10-25%.  Of course I am a solo, so its not too hard.  Maybe for a giant firm, with hundreds of clients and thousands of patent apps, it is a more formidable task.   

at one firm i was at, the conflict check was to determine whether the claims of a patent/application for the potential client would conflict with the claims of a patent/application of the current client. 

What, like, ALL of them?  That seems both crazy and impossible.

[patentsusa]

at one firm i was at, the conflict check was to determine whether the claims of a patent/application for the potential client would conflict with the claims of a patent/application of the current client. 

This is the approach I've taken.  If claims you are going to write for a new client would be infringed by an existing client, you have a subject matter conflict.  Similarly, if you take on a client whose subject matter is likely to infringe the claims of an existing client, you have a subject matter conflict.  At my previous firm, we would send emails around with brief descriptions of the technology involved and took a very conservative approach to avoiding conflicts. 

The comments to my state's rules of professional conduct specifically state that conflicts can arise in purely transactional matters.

Even if there isn't a conflict from an ethics rules perspective, it is bad business to represent two companies who are competitors.  Even if you do nothing wrong, you risk being accused of passing secrets from one to the other if they end up developing similar inventions.

Your malpractice carrier may have some good practical advice and recommendations on how to define conflicts in a transactional practice.

[khazzah]

Even if there isn't a conflict from an ethics rules perspective, it is bad business to represent two companies who are competitors. 

I think "bad business" is an overstatement. I would put it differently: you run the *risk* that one or both clients will be "upset" about your desire to represent both. You run a smaller *risk* that leaking of confidential info would actually happen. Some folks are more comfortable with risk than others.

Also, note that this depends a lot on whether we're talking solo, micro-firm, or larger firm. That is, a large enough firm can often avoid true conflicts by putting one set of practitioners on the Client #1 team and another set on the Client #2 team. Solo guy can't do this.

[patentsusa]

Even if there isn't a conflict from an ethics rules perspective, it is bad business to represent two companies who are competitors. 

I think "bad business" is an overstatement. I would put it differently: you run the *risk* that one or both clients will be "upset" about your desire to represent both. You run a smaller *risk* that leaking of confidential info would actually happen. Some folks are more comfortable with risk than others.

Also, note that this depends a lot on whether we're talking solo, micro-firm, or larger firm. That is, a large enough firm can often avoid true conflicts by putting one set of practitioners on the Client #1 team and another set on the Client #2 team. Solo guy can't do this.

Fair enough, it is a question of risk tolerance. 

For a larger firm, it would be ideal to have an "intake committee" of uninterested attorneys who decide which clients to accept, taking conflicts into account.  Otherwise you have a risk of bullying between the attorney who wants to take a client and an attorney who has an existing client.  Often the decision isn't made by risk analysis but based on power within the firm.  An independent committee can evaluate the risk, decide what makes good business sense (e.g., do you really want to take on a client with a one time project who will create a conflict against a better potential client).

I know I've read an opinion that "Chinese Walls" don't work.  But I suppose it reduces the risk of confidential material being passed (makes it harder to prove).

But do you even want to get into the uncomfortable situation?