Should a plaintiff or defendant ask a prospective lawyer to check for conflict of interest before disclosing information to that lawyer in case the same lawyer has been hired by the opposing defendant or plaintiff in the same case? Why or why not?
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The first thing a lawyer will do is run a conflict-of-interest check against their own database of all matters presently or previously handled by the firm. They will ask for the potential client's name and the names of possible defendants.
The Law Society of Ontario provides an example checklist that a lawyer should be following.
If a conflict of interest is discovered, the lawyer should provide a non-engagement letter, explaining that they have discovered that they have a conflict of interest and cannot represent the would-be client.
Note that, among others, it recommends that "no file is opened, or confidential information obtained, before a conflict check is conducted and the results have been cleared." The lawyer should not start gathering any information (beyond that necessary for a basic subject area and conflicts check) from a potential client until the conflict check has revealed no conflicts of interest.
Such a conflict check is also required by American Bar Association Rule 1.7. This or substantially similar rules have been adopted by all state bar associations. See Idaho's for example.
It would not be out of place for a client to confirm this kind of check has been completed, especially if they have an actual conflict concern that they want some comfort about.
Jen
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ALWAYS! Even as an Expert Witness and Examiner in Digital Forensics, I'd ask and make sure too that there weren't any parties involved that could cause a conflict. I testified in such a hearing in KY.
