Checklist · Legal Ethics

Running a Conflicts Check: A Practical Checklist

Type: Checklist
Jurisdiction: National
Date: 2024-02-27
Topic: Legal Ethics

Every representation begins with a conflicts check, and a surprising number of malpractice claims, disqualification motions, and fee forfeitures begin with a conflicts check that was run badly or not at all. This checklist walks the entire operational process: capturing every party, affiliate, and beneficial owner at intake; building a conflicts database that is complete and actually searchable; screening for current-client conflicts under Model Rule 1.7 and former-client conflicts under Model Rule 1.9's substantial-relationship test; understanding imputation under Model Rule 1.10 and when an ethical screen will cure it; handling lateral hires, prospective clients under Model Rule 1.18, corporate families, joint representations, and positional conflicts; recognizing which conflicts are simply non-consentable; obtaining informed consent confirmed in writing; and re-running the check whenever the parties change. The ABA Model Rules are a model only — the rules that bind you are your own jurisdiction's, and they vary meaningfully, especially on screening and advance waivers. Use this as an operational spine and confirm every rule number against your state's adopted text and ethics opinions.

Running a Conflicts Check: A Practical Checklist

Legal Ethics > Professional Responsibility | Published 27 February 2024 - Updated 14 July 2025 | UpLaw - uplaw.us

A conflicts check is not a formality you complete on the way to the engagement letter. It is the moment you decide whether you are permitted to take the money at all. Run it late, run it narrowly, or run it against a database nobody has maintained, and you will find out about the conflict from opposing counsel's disqualification motion.

Keywords: conflicts check, conflicts of interest, Model Rule 1.7, Model Rule 1.9, Model Rule 1.10, imputation, ethical screen, lateral hire, substantial relationship test, prospective client, informed consent, advance waiver, positional conflict, corporate family, disqualification

How to use this checklist

Conflicts law is state law. The ABA Model Rules of Professional Conduct are a model: they bind no lawyer anywhere until a jurisdiction adopts them, and jurisdictions adopt them unevenly. California's rules, renumbered in 2018 to track the Model Rules' numbering, still diverge on substance — most notably by requiring informed written consent, meaning a client signature, where the Model Rules accept consent merely "confirmed in writing." New York has its own gloss on screening. Some states permit screening to cure a lateral hire's imputed conflict; others do not. Treat the rule numbers below as a map, then verify the terrain against your own jurisdiction's adopted text, its ethics opinions, and its disqualification case law. The deep doctrinal treatment lives in Legal Ethics and Professional Responsibility: A Comprehensive Guide to the Model Rules; this document is the operational drill.

Our running example. Alderman & Voss LLP is a 60-lawyer firm. It represents Kestrel Grain Co. in a live breach-of-contract suit against Meridian Rail Holdings, Inc. Alderman & Voss has also, for three years, done modest trademark work for Cascade Shortline LLC — which, unknown to the litigation partner, is a wholly owned subsidiary of Meridian Rail. And the firm has just extended an offer to Tessa Nordquist, a fourth-year associate at Bristol Yarrow LLP, who has spent eleven months on Meridian's defense team in the Kestrel case. Every trap in this checklist is somewhere in that paragraph.

Phase 1 — Intake: capture every party, affiliate, and beneficial owner

[ ] Record the prospective client's full legal name, all d/b/a names, former names, and any name changes from merger or conversion.
[ ] Record every adverse party by full legal name — not "the landlord," not "the ex-husband."
[ ] Record related and interested non-parties: co-defendants, co-plaintiffs, guarantors, indemnitors, insurers, lenders, key witnesses, expert candidates, opposing counsel, and the judge or arbitrator if known.
[ ] For every entity, capture the corporate family: parents, subsidiaries, sister companies, general partners, managing members.
[ ] Capture beneficial owners and control persons — the individuals behind the LLC, the trust behind the holding company, the private-equity sponsor behind the platform.
[ ] Capture the matter description in enough detail that a future conflicts search can tell whether a new matter is substantially related to it.
[ ] Record the date and time of the first substantive contact and who took it.
[ ] Flag whether the contact came through a referral, a pitch, an RFP, or a beauty contest — each has different Rule 1.18 consequences.

Why it matters, and the traps. A conflicts system can only find what intake fed it. The single most common failure mode in conflicts practice is not a lawyer who ignored a hit; it is a lawyer who got a clean report because the search never contained the right name. "Meridian Rail Holdings, Inc." will not surface "Cascade Shortline LLC" unless somebody typed Cascade into the record. Beneficial ownership matters because clients increasingly appear as special-purpose vehicles with anodyne names; the SPV is new, the sponsor is not.

The trap that catches good lawyers is the timing trap. Intake conflicts data must be captured before the substantive conversation, not after. The moment a prospective client starts describing the facts, Model Rule 1.18 attaches and you may already have acquired disqualifying information. Take names first. The same discipline applies to expert witnesses and opposing counsel: a firm that has previously represented the opposing party's testifying expert in a personal matter has a problem worth knowing about early.

For Alderman & Voss, correct intake three years ago would have recorded that Cascade Shortline's ultimate parent was Meridian Rail. It did not, and that omission is now a live imputation problem.

Phase 2 — Maintain a conflicts database that is complete and actually searchable

[ ] Confirm every matter — open, closed, declined, and dormant — is in the database. Declined matters especially.
[ ] Confirm the database records roles, not just names: client, adverse, co-party, witness, insurer.
[ ] Confirm it captures prospective clients who never became clients (Rule 1.18) and the lawyers who spoke to them.
[ ] Confirm it captures each lawyer's and staff member's prior-firm matters, populated at hire.
[ ] Confirm it captures pro bono, board service, and outside business interests of every lawyer.
[ ] Confirm the search engine supports fuzzy matching, aliases, and transliteration variants — not exact-string matching only.
[ ] Assign a single conflicts owner (a person, not a committee) with authority to stop a matter.
[ ] Audit the database annually for completeness and orphaned records.

Why it matters, and the traps. A conflicts database is a permanent record. Rule 1.9 duties to former clients do not expire, and neither does the duty of confidentiality under Rule 1.6, which survives the end of the representation and, indeed, the death of the client. A firm that purges closed matters after seven years to save storage has destroyed the only evidence that could clear — or condemn — a future engagement.

Declined matters are the sleeper. If a prospective client pitched you and you passed, you may hold their confidential information; that is precisely the Rule 1.18 scenario, and the only way to catch it later is if the pitch is in the system. Board service is the other sleeper: a partner sitting on a nonprofit's board creates a Rule 1.7(a)(2) material-limitation risk that no name-based search will find unless the board seat is recorded.

Technology choices here are ethics choices, not merely IT choices — a point developed at length in The Open-Source Law Firm: Building a Cost-Effective, Ethics-Compliant Technology Stack. Exact-string matching is the enemy: "Meridian Rail Holdings" and "Meridian Rail Hldgs., Inc." are the same company and different strings.

Phase 3 — Run the search: names, aliases, subsidiaries, and prior matters

[ ] Search every captured name, plus common variants, misspellings, abbreviations, and former names.
[ ] Search parent and subsidiary names independently.
[ ] Search individual principals' names, not just entity names.
[ ] Search every lawyer's and paralegal's prior-firm client list.
[ ] Circulate a firm-wide new business email describing the matter and the parties, with a deadline to respond — this catches relationships the database cannot.
[ ] Preserve the search report: query terms, date, who ran it, and the raw hits.
[ ] Route every hit to a human for adjudication. Never let a paralegal clear a hit.
[ ] Do not open the matter, do not accept a retainer, and do not deposit funds into trust until conflicts clears.

Why it matters, and the traps. The firm-wide circulation is the step people skip and the step that saves them. A database records matters; it does not record that a senior partner's brother-in-law is the CFO of the adverse party. The email costs ten minutes and catches what the software cannot.

Preserve the search report because the report is your defense. If a disqualification motion arrives eighteen months later, "we ran a check" is worth nothing; a timestamped report showing the queries, the hits, and the reasoned resolution is worth a great deal. It is the same discipline that governs Building a Privilege Log: A Practical Checklist — the contemporaneous record is the work product that proves you did the work.

Finally, sequence matters. Money in the trust account before conflicts clears creates a refund problem and, worse, an argument that the representation had already begun. See Client Trust Accounting and IOLTA Compliance: A Practical Checklist.

Phase 4 — Current-client conflicts under Rule 1.7: direct adversity and material limitation

[ ] Ask: is the new matter directly adverse to a current client of the firm — in any matter, related or not? (Model Rule 1.7(a)(1))
[ ] Ask: is there a significant risk that the representation will be materially limited by responsibilities to another client, a former client, a third person, or the lawyer's own interests? (Model Rule 1.7(a)(2))
[ ] Identify who is and is not a current client — check whether the "former" client's file was ever actually closed.
[ ] Do not attempt to fix a current-client conflict by dropping the inconvenient client.
[ ] If a concurrent conflict exists, go to Phase 12 (non-consentable) before Phase 13 (consent).

Why it matters, and the traps. Rule 1.7(a)(1) is the rule people underestimate. Suing a current client is prohibited even where the two matters are entirely unrelated. There is no substantial-relationship filter here — that filter belongs to former clients under Rule 1.9. If Alderman & Voss is doing trademark work for Cascade Shortline today and suing Cascade tomorrow over a rail contract, the unrelatedness of trademarks to rail contracts buys the firm nothing.

Rule 1.7(a)(2) — material limitation — is subtler and is where most real conflicts actually live. It has no adverse party at all. It captures the lawyer whose duty to Client A will pull punches against Client B; the lawyer who cannot recommend a settlement structure because it would embarrass another client; the lawyer negotiating against a company where she holds equity. The First Circuit's decision in Fiandaca v. Cunningham is the classic illustration: counsel representing two client groups whose interests in a settlement diverged could not fully advocate for either, and disqualification followed.

The "hot potato" trap deserves its own warning. A firm that discovers a current-client conflict and terminates the smaller client so it can take the bigger matter is unlikely to solve the problem — many courts have held that a lawyer may not drop a client "like a hot potato" to convert a Rule 1.7 conflict into a Rule 1.9 conflict, though this is judge-made doctrine and its reception varies, so confirm how your own courts treat it. If you must exit, do it for legitimate reasons and by the book: see Withdrawing From a Representation: A Practical Checklist.

Phase 5 — Former-client conflicts under Rule 1.9 and the substantial-relationship test

[ ] Identify the former client and the matter the firm handled for them.
[ ] Ask: is the new matter the same or substantially related to that prior matter? (Model Rule 1.9(a))
[ ] Ask: are the new client's interests materially adverse to the former client's?
[ ] Ask: does anyone at the firm possess confidential information of the former client that is material to the new matter? (Model Rule 1.9(b) and (c))
[ ] If yes to the substantial-relationship test, presume the confidences were shared — do not try to prove otherwise by disclosing them.
[ ] Consider whether the information has become generally known, which Rule 1.9(c)(1) treats as no longer protected.

Why it matters, and the traps. The substantial-relationship test originates with T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953), which held that where a substantial relationship exists between the former and current matters, the court will presume that confidences were disclosed and will not require the former client to prove it — because proving it would require disclosing the very secrets at issue. Judge Posner's opinion in Analytica, Inc. v. NPD Research, Inc. sharpened the point: the test asks whether the lawyer could have obtained confidential information in the first representation that would be relevant in the second.

Comment [3] to Model Rule 1.9 gives the working test: matters are substantially related if they involve the same transaction or legal dispute, or if there is a substantial risk that confidential factual information normally obtained in the prior representation would materially advance the client's position in the new one. Note what that does not say. It does not require you to have actually received the information. Playbook knowledge — how this client evaluates risk, what it will pay to settle, who its decision-makers are — is a recognized species of material confidential information, though jurisdictions differ on how much generic playbook knowledge is enough.

The trap: firms routinely treat the substantial-relationship test as a subject-matter test. It is broader. A tax lawyer who learned a company's entire financial architecture while doing its restructuring may be substantially related to a later commercial dispute that has nothing to do with tax.

Phase 6 — Imputation under Rule 1.10 and when a screen will cure it

[ ] Assume every conflict of any lawyer in the firm is imputed to every other lawyer in the firm. (Model Rule 1.10(a))
[ ] Ask whether the conflict is personal to the lawyer and presents no significant risk of materially limiting others — the narrow Rule 1.10(a)(1) carve-out.
[ ] Check whether your jurisdiction permits screening to cure an imputed former-client conflict from a lateral hire (Model Rule 1.10(a)(2)) — many do not.
[ ] For former government lawyers, apply Model Rule 1.11, which — in the jurisdictions that have adopted it in the Model form — permits screening plus written notice to the government agency. Confirm your state's version; it may differ.
[ ] For former judges, arbitrators, mediators, and law clerks, apply Model Rule 1.12.
[ ] If screening is available, satisfy every element: timely screen, no fee apportionment from the matter, written notice to the affected former client, and certifications of compliance on request.
[ ] Confirm whether the former client can object to the screen in your jurisdiction and what showing an objection requires.

Why it matters, and the traps. Imputation is the doctrine that turns one lawyer's problem into the firm's problem. Model Rule 1.0(k) defines a "screened" lawyer as one isolated from participation by timely-imposed procedures reasonably adequate to protect the information — but the operative question is always whether your state lets a screen work at all.

This is the single most jurisdiction-dependent question in this checklist. The ABA amended Model Rule 1.10 in 2009 to permit screening of lateral hires without former-client consent, subject to conditions. A substantial number of states adopted that amendment. A substantial number did not, and in those jurisdictions the lateral's disqualification is imputed to the entire firm and can be cured only by the former client's informed consent. Some states occupy a middle ground, permitting screening only where the lateral's exposure to the prior matter was limited. Do not rely on the Model Rule. Read your rule, and read your state's ethics opinions applying it. Also note that federal courts applying local rules or their own inherent authority to decide disqualification motions may take a stricter view than the state bar does.

Phase 7 — The lateral hire and the migrating lawyer

[ ] Run conflicts on the candidate, before the offer, using a list of the candidate's prior-firm matters.
[ ] Obtain from the candidate only the information necessary to detect conflicts — client names, matter descriptions, and the candidate's role — and no privileged detail.
[ ] Determine which prior matters the candidate personally worked on versus which are merely imputed from the old firm.
[ ] For personally-worked matters, apply Rule 1.9(a); for merely-imputed matters, apply Rule 1.9(b), which asks whether the lawyer actually acquired material confidential information.
[ ] Erect the screen on or before day one, in writing, and circulate it firm-wide.
[ ] Deny the screened lawyer access to the file — physically and in the document management system.
[ ] Send written notice to the affected former client with a description of the screening procedures.
[ ] Document that the screened lawyer receives no part of the fee from the screened matter.

Why it matters, and the traps. Tessa Nordquist is the problem. She personally worked eleven months on Meridian's defense of the Kestrel case — the very case Alderman & Voss is litigating from the other side. This is Rule 1.9(a) at its purest: same matter, materially adverse, and no argument about substantial relationship is even necessary.

Whether the screen saves the firm depends entirely on the jurisdiction. In a state that adopted Model Rule 1.10(a)(2), Alderman & Voss may screen Tessa — timely, written, no fee share, notice to Meridian — and continue representing Kestrel. In a state that did not, Tessa's conflict is imputed to all 60 lawyers and the firm must obtain Meridian's informed written consent or withdraw from the Kestrel representation entirely. Meridian, staring at a chance to disqualify Kestrel's counsel mid-litigation, will not consent.

Two further traps. First, ABA Formal Opinion 09-455 addresses the disclosure of conflicts information during lateral hiring negotiations: a moving lawyer may disclose client names and general matter descriptions as reasonably necessary to detect conflicts, but must not disclose information that would prejudice the client — and should ordinarily wait until the negotiations are serious. Second, the screen must be timely. A screen erected the week after opposing counsel's disqualification letter arrives is not timely; it is evidence.

Phase 8 — Prospective clients under Rule 1.18 (the consultation that disqualifies you)

[ ] Treat every intake conversation as potentially creating a prospective client under Model Rule 1.18.
[ ] Limit the initial conversation to what is necessary to run conflicts. Do not invite the narrative.
[ ] Where a beauty contest or pitch is likely, use a written pre-consultation agreement in which the prospective client agrees that no disclosed information will be disqualifying, and/or consents in advance to the firm's later adverse representation.
[ ] If disqualifying information was received, check whether Rule 1.18(d) permits screening plus notice in your jurisdiction.
[ ] Log the prospective client, the date, the lawyer, and the general subject in the conflicts database.

Why it matters, and the traps. Rule 1.18(c) prohibits a lawyer who received information from a prospective client from representing a client with materially adverse interests in the same or a substantially related matter if that information could be significantly harmful to the prospective client. The "significantly harmful" threshold is real — not every scrap of information disqualifies — but it is a fact question you will litigate under time pressure.

The imputation consequence is what stings: under Rule 1.18(c) the disqualification is imputed to the firm, though Rule 1.18(d) provides an escape hatch through informed consent or through screening plus written notice, provided the lawyer took reasonable measures to avoid exposure to more information than necessary.

Sophisticated parties exploit this. A "conflicts-out" consultation — calling every good firm in town to seed disqualifying information — is a recognized tactic. The defenses are procedural: keep the first call short, take names before facts, use a written pre-consultation acknowledgment for pitches, and screen the intake lawyer immediately if the pitch goes nowhere. The early-case discipline described in Evaluating a New Civil Case: A Practical Checklist and Assessing a Civil Lawsuit: A Comprehensive Early-Case Framework should be sequenced after conflicts clearance, not before it.

Phase 9 — Corporate families: who is the client, and the affiliate problem

[ ] Under Model Rule 1.13, confirm that the organization is the client — not its officers, directors, or shareholders.
[ ] Determine whether the engagement letter defines the client to include or exclude affiliates.
[ ] Absent a definition, apply Comment [34] to Rule 1.7: a lawyer for one corporate affiliate is ordinarily not thereby the lawyer for the other affiliates — unless the affiliates share an operational identity, the same in-house legal department, or the lawyer has agreed otherwise, or the circumstances create a reasonable expectation of representation.
[ ] Ask whether the representation of one affiliate is nonetheless materially limited by adversity to another under Rule 1.7(a)(2).
[ ] Ask whether representing the subsidiary gave you confidential information belonging to the parent.
[ ] Give the Rule 1.13(f) corporate Miranda warning when the organization's interests diverge from a constituent's.

Why it matters, and the traps. This is Alderman & Voss's second, quieter problem. Cascade Shortline is a current client. Meridian Rail is the adversary. If the engagement letter with Cascade is silent, Comment [34] is the starting point and there is no automatic conflict — but the Second Circuit's decision in GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C. held that where the affiliates are operationally interdependent and share a legal department, suing the parent can be treated as suing the client. Alderman & Voss must ask: does Meridian's in-house counsel supervise Cascade's trademark work? Does the firm's client contact at Cascade report to Meridian's general counsel? If yes, the firm is suing its own client.

The clean fix is prophylactic and belongs in the engagement letter, not in the disqualification briefing: define the client, state expressly whether affiliates are or are not included, and — if they are excluded — obtain advance consent to adverse representation of affiliates. On the corporate-entity fundamentals underneath all of this, see Corporate Governance and Fiduciary Duties: A Comprehensive Guide for Directors and Officers and Board Governance, Minutes, and Corporate Formalities: A Practical Checklist. Corporate structure also drives the client-identification analysis in Conducting Merger and Acquisition Due Diligence: A Practical Checklist, where the target's counsel, the buyer's counsel, and the entity's own privilege can all end up in different hands post-closing.

Remember Upjohn Co. v. United States, 449 U.S. 383 (1981): the corporation's privilege belongs to the corporation, and the employee you interviewed is not your client. In an internal investigation — see Responding to a Government Subpoena or Investigation: A Practical Checklist — failing to give the Rule 1.13(f) warning is both a conflicts problem and a privilege problem.

Phase 10 — Joint representation, common-interest arrangements, and advance waivers

[ ] For any joint representation, analyze Rule 1.7(a)(2) at the outset: is there a significant risk the clients' interests will diverge?
[ ] Explain, in writing, that in a joint representation there is generally no privilege between the co-clients if they later fall out.
[ ] Explain that a conflict arising mid-representation may require withdrawal from both clients.
[ ] For aggregate settlements, comply with Model Rule 1.8(g): no aggregate settlement without each client's informed consent, in a writing signed by the client, after disclosure of all participants and their shares.
[ ] For advance waivers, assess whether the client is sophisticated and independently represented — the two factors that make them stick.
[ ] Draft advance waivers with specificity: identify the types of future matters, the types of adverse parties, and the fact that the client will not be further consulted.
[ ] Confirm whether your jurisdiction enforces advance waivers at all, and on what terms.

Why it matters, and the traps. Comment [22] to Model Rule 1.7 and ABA Formal Opinion 05-436 both accept that advance waivers can be effective, and both make effectiveness turn on the same thing: the quality of the client's understanding. An open-ended "we may be adverse to you in anything, ever" waiver signed by an unsophisticated individual client is worth nothing. A specific waiver — "the firm may represent parties adverse to you in matters unrelated to our engagement, including in litigation, and you agree we need not seek further consent" — signed by a Fortune 500 general counsel who negotiated it, is generally enforceable. Sophistication and independent counsel are the swing factors.

The limit is hard: an advance waiver cannot waive a conflict that is non-consentable when it ripens. See Phase 12. And note that even a robust advance waiver may not cover the same-matter adversity Tessa Nordquist brings with her.

Phase 11 — Positional (issue) conflicts

[ ] Identify whether the firm is arguing opposite sides of the same legal issue in different matters.
[ ] Assess whether a favorable outcome for Client A would materially harm Client B — Comment [24] to Rule 1.7.
[ ] Weigh the factors: are the matters in the same court? Is the issue likely to be dispositive? Would a precedent bind the other client? Is the timing close? Are the same lawyers involved?
[ ] If the risk is material, obtain informed consent from both clients or decline.
[ ] Consider whether an appellate posture converts a tolerable positional conflict into an intolerable one.

Why it matters, and the traps. Positional conflicts are the ones most firms never check for, because no name-based database search will ever surface them. Comment [24] to Model Rule 1.7 makes clear that ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times — that is the nature of advocacy. It becomes a conflict when there is a significant risk that the lawyer's action on behalf of one client will materially limit effectiveness in representing another, as where the two matters are pending in the same appellate court and a ruling in one will control the other.

Appellate work sharpens this to a point. Winning a circuit-level holding for Client A that becomes binding precedent defeating Client B in the same circuit is a material limitation, and the fact that no one is technically "adverse" to anyone is no defense. Firms with large appellate and amicus practices should screen for issue conflicts as a distinct step, not as a byproduct of the name search.

Phase 12 — Which conflicts are NON-consentable — and stop

Under Model Rule 1.7(b), a concurrent conflict may be waived only if all four conditions are met. If any fails, the conflict is non-consentable and no client signature will save it.

[ ] (1) The lawyer reasonably believes she can provide competent and diligent representation to each affected client. (An objective test — the client's willingness is irrelevant.)
[ ] (2) The representation is not prohibited by law.
[ ] (3) The representation does not involve the assertion of a claim by one client against another client represented by the same lawyer in the same litigation or other proceeding before a tribunal. This is absolutely non-waivable.
[ ] (4) Each affected client gives informed consent, confirmed in writing.
[ ] Separately confirm no Model Rule 1.8 per se prohibition applies (business transactions with a client, acquiring an adverse literary or media interest, providing financial assistance to a litigation client, sexual relationships).

Why it matters, and the traps. Condition (3) is the wall. You cannot represent both plaintiff and defendant in the same lawsuit, no matter how enthusiastic the consent, no matter how sophisticated the parties. Condition (1) is the wall people walk into, because it is objective: if no reasonable lawyer could competently serve both clients, the conflict is non-consentable even if both clients desperately want you.

Alderman & Voss cannot cure the Tessa Nordquist problem by asking Kestrel — its own client — to consent. Kestrel's consent is irrelevant. The client whose consent matters is Meridian, the former client whose confidences are at risk, and Meridian has every strategic incentive to refuse. If the jurisdiction permits screening, the firm survives. If it does not, and Meridian withholds consent, the firm withdraws from a case it has litigated for a year, at enormous cost, because it made an offer before it ran the check.

Phase 13 — Informed consent confirmed in writing: what the letter must actually say

[ ] Identify the conflict specifically — the parties, the matters, and the nature of the adversity.
[ ] Explain the material risks of the conflicted representation in concrete terms: what the client stands to lose.
[ ] Explain the reasonably available alternatives, including retaining separate counsel.
[ ] State what information will and will not be shared among jointly represented clients.
[ ] State what happens if the conflict ripens: which client the firm will continue to represent, and which it will drop.
[ ] Advise the client of the right to consult independent counsel about the waiver — and give real time to do so.
[ ] Obtain the consent in writing — and in California and some other jurisdictions, signed by the client.
[ ] Save the executed waiver in the conflicts database, linked to the matter.

Why it matters, and the traps. Model Rule 1.0(e) defines informed consent as agreement "after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." That definition is doing all the work. A waiver that recites "the client consents to the conflict described above" and nothing else is not informed consent; it is a signature on a document.

The most consequential omission is the advance allocation: if this joint representation blows up, whom do we keep? Say it in the letter. A firm that has not said it will find itself unable to represent either client and possibly liable to both.

And note the direction of the writing requirement. Under the Model Rules, consent must be confirmed in writing — an oral consent promptly memorialized by the lawyer suffices. California requires informed written consent, meaning the client's own signed writing. Do not assume the looser standard applies to you.

Phase 14 — Document the analysis and re-run the check when parties change

[ ] Write a conflicts memo for every non-trivial hit: the facts, the rule, the analysis, the conclusion, and who approved it.
[ ] Preserve the search report, the memo, the waiver, and the screen (if any) together.
[ ] Re-run conflicts on every party addition: new defendants, third-party defendants, intervenors, class members, new subsidiaries, substituted counsel, and newly identified experts.
[ ] Re-run conflicts on every lateral hire, summer associate, contract attorney, and paralegal.
[ ] Re-run conflicts when a client is acquired — a merger can make your adversary your client overnight.
[ ] Re-run conflicts when a matter's scope expands materially.
[ ] Calendar an annual client-list reconciliation: which "current" clients are actually dormant, and which files were never formally closed?
[ ] Send closing letters — a client is a current client for Rule 1.7 purposes until you tell them the representation is over.

Why it matters, and the traps. Conflicts are not a gate you pass through once; they are a condition you maintain. The corporate acquisition trap is the cruelest: a firm suing Company X wakes up to find that Company X has been acquired by the firm's largest client's parent, and the firm is now suing an affiliate of its own client. Model Rule 1.7 Comment [5] acknowledges this problem and counsels that the lawyer may need to withdraw from one of the representations, taking into account which came first, whether the conflict was foreseeable, and the prejudice to each client.

The closing letter is the cheapest insurance in law practice. A file that was never closed keeps its client in the "current" bucket forever, which means Rule 1.7's no-adversity-in-any-matter rule keeps applying to a client you last billed in 2019. Preservation discipline here rhymes with the discipline in Issuing a Litigation Hold and Preserving ESI: A Practical Checklist: the record you keep at the moment of decision is the record that defends you later.

Common mistakes to avoid

Running the check after the substantive conversation. By then Rule 1.18 has attached. Take names first, facts second.
Searching only the named parties. Affiliates, beneficial owners, insurers, guarantors, and experts all matter.
Purging closed and declined matters. Rule 1.9 and Rule 1.6 duties never expire; neither should the database.
Treating Rule 1.7 like Rule 1.9. Suing a current client is prohibited even in a wholly unrelated matter. There is no substantial-relationship safe harbor for current clients.
Dropping a client to cure a conflict — the "hot potato." Courts see it, and courts punish it.
Assuming a screen works. Screening for lateral hires is permitted in some jurisdictions and forbidden in others. Read your Rule 1.10.
Erecting the screen late. A screen that follows the disqualification letter is not a screen; it is an admission.
Never checking for positional conflicts. No name search will find them. Screen for issues separately.
Relying on a boilerplate advance waiver. Specificity, sophistication, and independent counsel are what make waivers hold.
Believing consent cures everything. Rule 1.7(b) has four gates. Same-litigation adversity between two of your own clients is non-waivable, full stop.
Failing to define the client in the engagement letter. The affiliate question should be answered in writing on day one, not in a disqualification brief on day 400.
No closing letters. A file you never closed is a client you never stopped having.
Not documenting the clearance. "We looked and it was fine" is not a defense. The memo is.
Running conflicts once. Every new party, every lateral, every acquisition, every scope expansion resets the clock.

The consolidated conflicts checklist

Before the first substantive word:

[ ] Names of client, adverse parties, affiliates, beneficial owners, related non-parties captured.
[ ] Search run across all entity names, aliases, principals, and lateral prior-firm lists.
[ ] Firm-wide new-business circulation sent; deadline passed.
[ ] Search report preserved with queries, date, and hits.

The analysis:

[ ] Rule 1.7(a)(1) — direct adversity to any current client, in any matter?
[ ] Rule 1.7(a)(2) — material limitation from another client, a former client, a third person, or the lawyer's own interest?
[ ] Rule 1.9(a)/(b) — same or substantially related matter, materially adverse, former client?
[ ] Rule 1.10 — imputed to the firm? Does your jurisdiction allow a screen?
[ ] Rule 1.11/1.12 — former government lawyer, judge, clerk, or neutral?
[ ] Rule 1.18 — prospective client with significantly harmful information?
[ ] Rule 1.13 — is the organization (not the constituent) the client? Affiliates in or out?
[ ] Rule 1.8 — any per se prohibition?
[ ] Positional conflict screened for separately?

The disposition:

[ ] If non-consentable under Rule 1.7(b) — decline, and say so in writing.
[ ] If consentable — informed consent, confirmed in writing (signed, where required), with risks, alternatives, information-sharing terms, and advance allocation.
[ ] If screening applies — timely written screen, file access blocked, no fee share, written notice to the affected client, certifications available.
[ ] Conflicts memo written and filed with the search report and the waiver.
[ ] Matter opened; only then, funds to trust.

Ongoing:

[ ] Re-run on every new party, lateral, acquisition, and scope change.
[ ] Annual client-list reconciliation.
[ ] Closing letters sent on every completed matter.

Primary Authority

Rules of professional conduct (ABA Model Rules — a model only; the binding rules are your adopting jurisdiction's, and they vary):

Model Rule 1.0(e) — definition of informed consent; Model Rule 1.0(k) — definition of "screened."
Model Rule 1.6 — confidentiality; survives the representation.
Model Rule 1.7 — concurrent conflicts of interest: direct adversity, material limitation, and the four conditions for waiver.
Model Rule 1.8 — specific per se conflicts, including 1.8(g) on aggregate settlements.
Model Rule 1.9 — duties to former clients; the substantial-relationship test.
Model Rule 1.10 — imputation of conflicts and, in adopting jurisdictions, screening for lateral hires. Adoption varies substantially by state; confirm your rule.
Model Rule 1.11 — former and current government officers and employees; screening permitted.
Model Rule 1.12 — former judges, arbitrators, mediators, and law clerks.
Model Rule 1.13 — organization as client.
Model Rule 1.18 — duties to prospective clients.
California Rules of Professional Conduct 1.7, 1.9, 1.10 — note the "informed written consent" standard, which is stricter than the Model Rules' "confirmed in writing."

Case law:

T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953) — origin of the substantial-relationship test; confidences are presumed shared where the matters are substantially related.
Upjohn Co. v. United States, 449 U.S. 383 (1981) — the corporate privilege belongs to the corporation, not its employees.
Analytica, Inc. v. NPD Research, Inc. (7th Cir. 1983) — the substantial-relationship inquiry asks whether the lawyer could have obtained confidential information in the prior representation that would be relevant to the later one.
Cinema 5, Ltd. v. Cinerama, Inc. (2d Cir. 1976) — a firm may not sue a current client without consent, even in an unrelated matter. The related "hot potato" principle — that a firm may not drop a client in order to sue it — developed in later cases in a number of courts; it is judge-made and applied unevenly, so check your own jurisdiction rather than assuming a uniform rule.
Fiandaca v. Cunningham (1st Cir. 1987) — material-limitation conflict where counsel's duties to two client groups diverged over a settlement.
GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C. (2d Cir. 2010) — corporate affiliates may be treated as one client where they are operationally interdependent and share a legal department.

(Where a reporter citation is omitted above, verify the full cite and the current status of the holding in your jurisdiction before relying on it; disqualification law is decided court by court and local rules often control.)

Secondary Sources

Restatement (Third) of the Law Governing Lawyers §§ 121–135 — the conflicts chapter; the most useful synthesis in print.
ABA Formal Opinion 05-436 — advance waivers of conflicts.
ABA Formal Opinion 09-455 — disclosure of conflicts information when lawyers move between firms.
ABA/BNA Lawyers' Manual on Professional Conduct — practice-level treatment of screening and imputation across jurisdictions.
Your state bar's ethics opinions and its lawyer-assistance or ethics hotline. Use it. It is free, and a documented hotline call is powerful evidence of good faith.

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This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. The ABA Model Rules of Professional Conduct are a model only; the rules that bind you are those adopted by your licensing jurisdiction, and they vary in material respects — particularly on screening, imputation, and advance waivers. Laws vary by state and change over time; verify current requirements and consult qualified counsel or your state bar's ethics resources before acting.