When a lawyer joins your firm: the conflicts check people forget

A different question from the usual conflict search

Most conflict checking asks whether the firm has acted against this party before. Running a new client name against the client list answers that, and a great many firms do it well.

The transferring-lawyer rules ask something the client list cannot answer: whether a person who has just joined the firm carries confidential information about a client of their old firm that could prejudice that client in a matter this firm is handling. The conflict arrives with the person, not with the file, so a name search over existing matters will never find it.

The test is actual knowledge, not employment history

The question the new firm has to answer is whether the transferring person actually possesses relevant confidential information. Someone who spent six years at a firm that acted for the opposing party, but never touched the matter and knows nothing about it, is in a different position from someone who sat in the strategy meetings.

That determination is the work. It has to be made, and made on arrival rather than when the conflict surfaces, because a screen only functions if it is in place before the information can travel.

Screens are timely or they are nothing

Where relevant confidential information does exist, the firm puts a screen in place and gives the required notice. A screen is a set of arrangements keeping the transferring person away from the matter: no access to the file, physical or electronic, no discussion of it, and people around them who know the screen exists.

• Decided on arrival, not when someone notices the overlap.
• Recorded, so the firm can show what was decided and when.
• Actually enforced in the document system, not merely announced.
• Accompanied by the notice the rules require.

Why small firms are more exposed, not less

Large firms have onboarding processes that ask these questions because they hire constantly. A four-lawyer firm taking on one lateral every few years has no routine for it, and the person doing the hiring is usually also the person carrying the files, so the check that ought to be independent is made by someone with every practical reason to conclude there is no problem.

The cheapest fix is a standing question on arrival, asked of every hire including staff: which files did you work on, and are any of the parties known to us. Written down, dated, kept. It takes ten minutes and it is the only record that will exist if the question is ever asked.