Peer to Peer Magazine

12 PEER TO PEER: THE QUARTERLY MAGAZINE OF ILTA | FALL 2016 BEST PRACTICES The Business of Avoiding Business Conflicts is to a corporate entity. There are myriad examples detailing discrepancies between the expectations of the client and counsel. It is increasingly common for clients to document these expectations within outside counsel guidelines. If clients suggest the lawyer represent a larger corporate structure or not be adverse to entities in their structure, the burden must be placed on the client to communicate to all members of that corporate structure. Similarly, if a client or prospective client dictates that counsel will not represent competitors, the burden must be returned to the client to identify and communicate who will be viewed as competitors. It is very important that individual lawyers not agree to outside counsel guidelines without an understanding of the entire law firm's prior or possible obligations. Centralized review and acceptance of outside counsel guidelines help ensure consistency in a law firm's response to these types of guidelines. The lawyers developing and maintaining relationships with clients should lead the charge to establish early on whether outside counsel guidelines might be received. It is difficult to assess and respond to such guidelines if they are only received in response to the first invoice. Lawyers who are proactive about producing thorough engagement leers, ideally requiring a response, help draw out conflicting guidelines from the client. Technology Assistance Technology and automation solutions are being employed to assist in the assessment of business conflicts — a necessity in sizable law firms to manage the volume of potential business conflicts. Some of the top technology solutions include: » A conflicts of interest database that can be updated to include information about the primary industry type of existing and proposed clients. This allows a law firm to understand when a proposed new client operates primarily in an area where it might compete with an existing client. » Detailed documentation of the terms under which a law firm has engaged its clients. This might include a summary or assessment of nonstandard terms in the engagement documentation, whether a larger corporate entity is represented or if the law firm has agreed to avoid representation of competitors. » Technology area and subject area keywords that can be tracked in the conflicts of interest database. This gives insight into the areas of focus of a particular maer engagement and helps avoid those types of business conflicts. This approach is especially prevalent in intellectual property practices. » Automated follow-up with lawyers working a new maer to obtain any new parties that became involved aer the initial creation date. These additional parties can be vital to assessing potential business conflicts. A Significant Advantage Business conflicts can present as much of a hurdle to taking on new engagements as traditional conflicts of interest, yet the rules outlining business conflicts are undefined and oen based on assumptions. Lawyers and administrators armed with accurate data and the proper technology to analyze and communicate potential business conflicts are at a significant advantage. P2P ERIC MOSCA Eric Mosca, CRM, is the Director of Operations for InOutsource and has more than 13 years of experience in new business intake and information management consultation. He conducts comprehensive analyses of new business intake, conflicts and records operations; develops policies and procedures; assists with documenting business and technology requirements and system selection; provides software development, implementation and testing; and oversees staffing solutions and vendor relationships. Contact him at emosca@inoutsource.com.

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