With so much attention paid to conflicts in immigration law, we should remember to use at least a basic system by which to check conflicts of interest.
C onflicts of interest issues are frequent in immigration law, in part because dual representation is common. While it would be hard to say that we discuss this topic too much in immigration law, the reality is focusing on conflicts takes time that could be devoted to other issues.
But there is no doubt that conflicts of interest issues are important. In his article “Conflict Waivers [sic?]--A Primer,” ethics scholar Nathan Crystal begins by saying, “Here’s a quiz: What are the three most important ethical issues that lawyers face? Answer: Conflicts, conflicts, conflicts.”
With conflicts being so important, it is surprising that some lawyers still don’t have a proper conflict checking system. A lawyer once told me that he didn’t have such a system because we don’t really have conflicts of interest in immigration law beyond the dual representation issue. When I raise the issue of a lawyer’s Of Counsel relationship creating conflict of interest issues, I often receive a similar response.
With so much attention paid to conflicts in immigration law, we should remember to use at least a basic system by which to check conflicts of interest. In fact, New York requires it:
(e) A law firm shall make a written record of its engagements, at or near the time of each new engagement, and shall implement and maintain a system by which proposed engagements are checked against current and previous engagements when:
(1) the firm agrees to represent a new client;
(2) the firm agrees to represent an existing client in a new matter;
(3) the firm hires or associates with another lawyer; or
(4) an additional party is named or appears in a pending matter.
T he rule goes on to say in part (f) that “[s]ubstantial failure to keep records or to implement or maintain a conflict-checking system that complies with paragraph (e) shall be a violation thereof regardless of whether there is another violation of these Rules.”
And then it says in part (g) that “[w]here a violation of paragraph (e) by a law firm is a substantial factor in causing a violation of paragraph (a) by a lawyer, the law firm, as well as the individual lawyer, shall be responsible for the violation of paragraph (a).”
Whether it be a simple spreadsheet or complex software designed specifically for this purpose, get a system in place and use it.