Why your conflict check should catch close spellings

Most small firms run conflict checks the same way: someone types a name into the practice software, a spreadsheet or the email search box, and if nothing comes up, the check is "clear."

The weakness is obvious once you say it out loud. A search only finds what was typed the same way both times. And names are typed wrong all the time: by callers spelling over the phone, by staff in a hurry, and by whoever opened a file five years ago.

Why it matters

The conflict rules are strict for good reason. Under the ABA Model Rules, Rule 1.7 covers conflicts with current clients, Rule 1.9 covers duties to former clients, and Rule 1.10 generally imputes one lawyer's conflict to the whole firm. Rule 1.18 adds duties to prospective clients, people who consulted you but never hired you.

A missed conflict can mean withdrawing from a case after work has been done, a disqualification motion, or a bar complaint. For a small firm, any of those is expensive.

Where exact matching fails

Here are the near misses that an exact-match search can let through:

• Spelling variants. Kowalski and Kowalsky; Thompson and Thomson; Steven and Stephen.
• Nicknames and formal names. Bill and William, Liz and Elizabeth, Bob and Robert.
• Name changes. Marriage, divorce or a legal name change.
• Typing slips. A transposed letter or a missing one.
• Business names. "Gulf Coast Ortho," "Gulf Coast Orthopedics, LLC" and "GCO Medical Group" may be the same party.
• Order and punctuation. "O'Brien" versus "OBrien," or a family name entered as a first name.

What a good conflict check does

Whatever tools you use, a conflict check that holds up tends to have these features:

1. It searches everyone, not just clients. Opposing parties, insurers, witnesses and other people connected to each matter, on open and closed files, and prospective clients you've declined.
2. It finds close matches, not only exact ones. Similar spellings should surface as "possible matches" for a person to review.
3. It shows context. A possible match is only useful if you can see which matter it came from and what role the person had.
4. A person decides. Software can find candidates; whether a match is actually a conflict, and whether it can be waived with informed consent, is a lawyer's judgment.
5. The decision is recorded. Who reviewed it, when, and what they concluded.

A simple routine for a small firm

• Run the check before substantive conversations, using only the facts needed to identify the parties.
• Search every name the caller mentions, plus the obvious variants.
• Search businesses by their common names and their legal names.
• If anything comes up, stop and have a lawyer look before going further.
• Note the result on the enquiry, even when it's clear.
• When you take a case, add every party to your system with their role, so tomorrow's check can find them.

The last step is the one that gets skipped. Your conflict check is only ever as good as the list of names it searches.

How Meruit handles it

Meruit's conflict check runs against every contact and party in the firm when you record an enquiry, and it looks for close spellings, so Kowalski turns up when someone types Kowalsky. Each possible match shows the matter it came from and the person's role on it. Meruit doesn't decide whether a match is a conflict; a lawyer does.