Peer to Peer Magazine

PEER TO PEER: THE QUARTERLY MAGA ZINE OF ILTA 12 BEST PRACTICES FINDING TALENT In the legal profession, there are relatively few practitioners of conflicts clearance, no professional organizations dedicated to new business intake and conflicts of interest, and few acknowledged best practices. Firms with a strong culture of risk management typically employ risk attorneys, ethics counsel and/or offices of general counsel that can be instrumental in navigating conflicts issues. While some firms are lucky to have administrative experts versed in the firm's history and skilled in coaxing responses to potential conflicts issues, most do not. Implementing administrative clearance can seem impossible when the pool of talent knowledgeable in these risk management issues is so small. Some firms have successfully implemented the centralized clearance model by bringing in non-practicing lawyers to conduct the clearance effort. Clearing potential conflicts does not require a law degree, but knowing the law can significantly reduce training time. Contract attorneys available through staffing agencies and lawyers not interested in the partner track or direct service to clients can be utilized as conflicts counsel, and they can be effective in their communication with practicing lawyers solely by virtue of their credentials. However, noted legal ethics expert and former Holland & Knight LLP conflicts and ethics counsel Gilda Russell cautions: "Given the likely lack of legal ethics expertise of such attorneys, firms employing this model undoubtedly should have persons within the firm with such expertise and who are versed in the history of firm clients and culture — such as the firm general counsel or ethics counsel — supervise the contract attorneys." WHERE TO START Consider starting with the lateral attorney process. Working with recruiting or risk management resources on lateral intake will allow your firm to document standards and practices related to managing clearance and will expose your administrative resources to communicating directly with internal lawyers. From there, your firm might consider extending this service to new client requests or to particular practices. The clear benefits of centralized clearance will spread throughout the firm organically, bringing interested lawyers into the fold at a measured pace. You can achieve an important balance of responsibility by continuing to make all potential conflicts of interest available to your internal requesting lawyer. Additional review could also be necessary for practice- specific and business conflicts, depending on the potential engagement. There are no reliable metrics explaining the volume of staff needed to manage the conflicts clearance process. It depends on the volume and complexity of the conflicts search and the responsiveness of the internal attorneys contacted. Adding this service gradually will allow you time to determine needed staffing levels and, as Gilda Russell notes, time to gain buy- in from firm attorneys and staff for the administrative process. THE RETURN ON YOUR INVESTMENT If you (or your firm's partnership) are looking for cost justification for these additional resources, consider this: avoiding even a single conflict of interest claim, disqualification or disgorgement of fees can be a huge cost savings. Speeding the time frame needed to open new matters and ensuring that conflicts due diligence is complete before substantive work begins can also be a major benefit. Consider surveying your firm's lawyers to quantify the non-billable hours spent on conflicts of interest analysis and review to gauge the amount of potentially billable hours that could be handed back to lawyers. Multiply this by billable rate, and the number looks very attractive. Consider also that the investment in human capital will bring major benefits to the data maintained in your systems. Recording details of terms of engagement gleaned during the conflicts clearance process will pay dividends into the future. While transition to a centralized conflicts clearance process can be a significant cultural change, the model is well-received and successful. Contact peer firms and your firm's liability insurance provider for information about their experiences with this approach. Some firms have successfully implemented the centralized clearance model by bringing in non-practicing lawyers to conduct the clearance effort. Working with recruiting or risk management resources on lateral intake will allow your firm to document standards and practices related to managing clearance.

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