Toolkit · Legal Ethics

The Conflicts Check, Advance Waiver, Ethical Screen, and Disqualification Motion Toolkit

18 U.S.C. § 207

Type
Toolkit
Jurisdiction
National
Date
2025-04-02
Topic
Legal Ethics

This toolkit contains the working documents a conflicts function runs on. It includes an intake and conflicts check form, a clearance memorandum template, a prospective client notice, an informed consent and advance waiver framework, a joint representation letter, a constituent warning script, a lateral hire conflicts questionnaire, an ethical screen memorandum, a screening notice letter to a former client, a matter closing letter, an outside counsel guidelines tracker, and an outline for a disqualification motion and response. Each is annotated with the failure mode it prevents. Adapt the language to the governing jurisdiction, because screening rules in particular vary more than any other part of this field.

The Conflicts Check, Advance Waiver, Ethical Screen, and Disqualification Motion Toolkit

Legal Ethics > Conflicts of Interest, Imputation, and Disqualification | Published 2 April 2025 - Updated 16 November 2025 | UpLaw - uplaw.us

Tool 1: Intake and conflicts check form

NEW MATTER INTAKE — CONFLICTS SECTION

Proposed client
  Full legal name: ______________________________
  Entity type / state of organization: ______________
  Ultimate parent: ______________________________
  Subsidiaries / affiliates relevant to this matter: ______________
  Does the client expect affiliates to be treated as clients? [Y/N]
  Outside counsel guidelines provided? [Y/N]  Location: __________

Adverse parties
  Name: ____________  Parent: ____________  Affiliates: ____________
  Name: ____________  Parent: ____________  Affiliates: ____________

Likely additional parties
  Co-defendants / co-plaintiffs: ______________________________
  Insurers / indemnitors / guarantors: __________________________
  Third-party defendants anticipated: ___________________________

Individuals
  Officers / directors / principals who may be parties or witnesses:
  ______________________________________________________________

Opposing counsel: ______________________________

Matter description (substantive — this will be read in ten years)
  ______________________________________________________________
  ______________________________________________________________

Prior relationship between proposed client and the firm? [Y/N] ______
Any proposed team member with a prior relationship to a party? ______

Searches run
  [ ] Client name + variants   [ ] Parent / affiliates
  [ ] Adverse parties + variants  [ ] Individuals
  [ ] Closed matters included  [ ] All offices included
  Run by: __________  Date: __________

Why the matter description line is emphasized. It is the firm's institutional memory. A generic entry defeats every future substantial relationship analysis.

Tool 2: Conflicts clearance memorandum

CONFLICTS CLEARANCE MEMORANDUM — CONFIDENTIAL

Matter: ______________________  Proposed client: ______________
Date: ______________  Prepared by: ______________

1. SEARCHES PERFORMED
   [list databases, terms, date ranges]

2. HITS RETURNED
   Party            Status              Matter(s)         Dates
   ____________     current/former      ____________      ______
   ____________     current/former      ____________      ______

3. ANALYSIS
   (a) Current client hits
       Direct adversity? ____  Material limitation? ____
       Basis: ______________________________________________

   (b) Former client hits
       Substantially related? ____
       Prior matter involved: _______________________________
       Categories of confidential information ordinarily
         generated by that matter: __________________________
       Whether that information would materially advance the
         new client's position: _____________________________

   (c) Prospective client hits
       Significantly harmful information received? ____

   (d) Individual disabilities (prior firm / government service)
       Person: ______  Source of disability: ______
       Screening available in [jurisdiction]? ____

4. OUTSIDE COUNSEL GUIDELINES
   Restrictions beyond the rules? ____  Detail: ______________

5. CONSENTABILITY
   Competent and diligent representation possible for each
     affected client? ____
   Prohibited by law? ____
   Claim by one client against another in same litigation? ____

6. DECISION
   [ ] Clear   [ ] Clear with consent   [ ] Clear with screen
   [ ] Decline [ ] Restructure: ______________________________
   Decided by: ______________  Date: ______________

Why this exists. A contemporaneous memorandum is the whole of the firm's defense if the clearance is later challenged. It takes five minutes and is worth more than any after-the-fact explanation.

Tool 3: Prospective client notice

Before we discuss your matter, I need to explain two things.

First, our firm has not agreed to represent you, and no
attorney-client relationship exists unless and until we send
you an engagement letter and you accept it.

Second, before we can consider representing you, we must run
a conflicts check. Until that check clears, please do not
share confidential information about your matter. I only need
the following to run the check: your full legal name and
corporate family, the names of the parties on the other side
and their corporate families, and a general description of
the type of matter.

If information you share now turns out to conflict with an
existing client relationship, it may limit both what we can
do for you and what we can do for others. Limiting what you
tell me at this stage protects you as well as us.

[If a competitive pitch is involved, add:]
We ask that you agree in writing that information disclosed
during this process will not preclude the firm from
representing other parties in this or related matters.

Failure mode prevented. The exploratory call in which a caller describes their case, their weaknesses, and their settlement range — and thereby disqualifies the firm from the other side six months later.

Tool 4: Informed consent and advance waiver framework

CONFLICT DISCLOSURE AND CONSENT

To: [client]
Re: [matter]

We have identified a conflict of interest that requires your
informed consent before we may proceed.

1. THE CONFLICT
   [Describe specifically: who the other client is, what the
   other representation involves, and how it relates to yours.]

2. MATERIAL RISKS TO YOU
   [State them concretely: divided loyalty, limits on the
   arguments we may make, limits on information we may use,
   the possibility we must withdraw from your matter if the
   conflict becomes non-consentable.]

3. REASONABLY AVAILABLE ALTERNATIVES
   [Retaining separate counsel; the firm declining the other
   matter; limiting the scope of one engagement.]

4. WHAT WE WILL DO
   [Screening arrangements, if any; limits on team membership;
   information barriers.]

5. YOUR RIGHT TO INDEPENDENT ADVICE
   You may consult independent counsel about this consent, and
   we encourage you to do so.

6. CONSENT
   By signing, you confirm that you understand the conflict,
   the risks, and the alternatives, and that you consent to
   our proceeding as described.

   ______________________     Date: __________

ADVANCE WAIVER — ELEMENTS

  Categories of future matters covered:
    [ ] unrelated litigation adverse to client
    [ ] transactional matters adverse to client
    [ ] regulatory matters adverse to client
    [ ] other: ______________________
  Types of adversity contemplated: ______________________
  Expressly EXCLUDED: matters substantially related to any
    matter the firm has handled for the client
  Affiliates: [covered / not covered] ______________
  Screening: [will be used / not applicable] ____________
  Client had opportunity to consult independent counsel: [Y]
  Client is represented by in-house counsel: [Y/N]

Why the exclusion line matters. An advance waiver that purports to cover substantially related matters is the version most likely to be held unenforceable. Excluding them expressly strengthens the rest.

Tool 5: Joint representation letter

JOINT REPRESENTATION — KEY PROVISIONS

You have asked us to represent both [A] and [B] in this
matter. We can do so, but you should understand four things.

1. NO SECRETS BETWEEN YOU. Information either of you gives us
   that is relevant to this matter will be shared with the
   other. We cannot keep one client's confidences from another
   client in the same representation.

2. PRIVILEGE BETWEEN YOU. Our communications are protected
   from outsiders. But if you later become adverse to each
   other, those communications will generally NOT be
   privileged as between the two of you.

3. IF YOUR INTERESTS DIVERGE. If a conflict develops that we
   cannot manage, we may have to withdraw from representing
   BOTH of you. You would each need new counsel, and the cost
   and delay would fall on both of you.

4. YOUR RIGHT TO SEPARATE COUNSEL. Each of you may retain
   separate counsel now instead, and you may consult
   independent counsel about whether to sign this letter.

Consented:  ____________ [A]   ____________ [B]   Date: ______

Failure mode prevented. The lawyer who receives a secret from one joint client and must choose between disclosing it and concealing it — a position in which both options breach a duty.

Tool 6: Constituent warning script

Before we begin, I need to be clear about who I represent.

I am counsel to [the company]. I am not your lawyer. My
client is the company, and my duty of loyalty runs to the
company, not to you personally.

What you tell me is protected by the company's
attorney-client privilege. That privilege belongs to the
company, not to you. The company can decide to waive it and
to disclose what you tell me — including to the government or
to another party — and you cannot prevent that.

Your interests and the company's interests may not be the
same. If at any point you believe they diverge, you may want
your own lawyer, and you are free to obtain one.

Do you understand what I have just explained?

[Record the answer and the date. Repeat the warning at each
subsequent interview.]

Why repeat it. Constituents forget, and an interview six months later without the warning is the one that produces the claim that the lawyer was representing the individual too.

Tool 7: Lateral hire conflicts questionnaire

LATERAL CANDIDATE — CONFLICTS QUESTIONNAIRE

Candidate: ______________  Prior firm(s): ______________
Practice dates: ______________

1. List every client for whom you performed work in the past
   [ ] years, including matter type and dates.

2. List every matter on which you had access to confidential
   information, whether or not you billed time.

3. Identify any matter in which you supervised, consulted,
   attended a meeting, reviewed a document, or discussed
   strategy — even briefly.

4. Identify any matter for which you had system access to the
   file, whether or not you opened it.

5. Have you held any government position? If so, identify
   every matter in which you participated personally and
   substantially. [See *[18 U.S.C. § 207](/documents/statute/united-states-code-sect-18-usc-sect-207)*, *[18 U.S.C. § 203](/documents/statute/united-states-code-sect-18-usc-sect-203)*, *[18 U.S.C. § 205](/documents/statute/united-states-code-sect-18-usc-sect-205)*, *[18 U.S.C. § 208](/documents/statute/united-states-code-sect-18-usc-sect-208)*;
   agency practice standards at *[5 U.S.C. § 500](/documents/statute/united-states-code-sect-5-usc-sect-500)*, *[5 C.F.R. Part 2635](/documents/regulation/5-cfr-part-2635)*, *[31 C.F.R. Part 10](/documents/regulation/31-cfr-part-10)*.]

6. Do you possess confidential government information about
   any person or entity?

7. Have you served in a judicial capacity? [See *[28 U.S.C. § 455](/documents/statute/united-states-code-sect-28-usc-sect-455)*,
   *[28 U.S.C. § 144](/documents/statute/united-states-code-sect-28-usc-sect-144)*, and the conduct standards at *[28 C.F.R. Part 45](/documents/regulation/28-cfr-part-45)*.]

8. Are you subject to any restrictive covenant, protective
   order, or confidentiality undertaking?

Interviewed by: __________  Date: __________
Record of answers attached: [Y]

Why record the answers. The question of whether the lateral actually acquired confidential information is factual, and the firm's contemporaneous record of the inquiry is its principal defense.

Tool 8: Ethical screen memorandum

CONFIDENTIAL — ETHICAL SCREEN

Effective date: ______________
Screened person: ______________  Role: ______________
Screened matters: ______________________________
Governing jurisdiction(s) and rule relied on: ______________

PROHIBITIONS. The screened person shall not:
  - participate in any way in the screened matters;
  - access any file, document, or system entry relating to them;
  - discuss them with any firm personnel;
  - receive any communication about them;
  - share in any fee derived from them.

FIRM PERSONNEL working on the screened matters shall not
discuss them with the screened person or copy the screened
person on any communication concerning them.

CONTROLS IMPLEMENTED (confirm each; attach system report)
  [ ] Document management access removed   Date: ______
  [ ] Billing system access removed        Date: ______
  [ ] Email distribution lists updated     Date: ______
  [ ] Shared drive permissions revoked     Date: ______
  [ ] Physical files secured               Date: ______
  [ ] Fee apportionment excluded           Date: ______

UNDERTAKING
  I acknowledge this screen and agree to comply.
  ______________________  Date: ______

CERTIFICATION SCHEDULE
  Initial: ______  Quarterly: ______  At conclusion: ______

Implemented by (operations): ______________

The element most often missing. The system report proving the access controls were actually applied. A screen documented but not implemented is worse than no screen, because it establishes that the firm knew.

Tool 9: Screening notice to former client

[Date]
To: [former client / agency]
Re: Notice of screening — [lawyer name]

We write to advise that [lawyer] has joined this firm
effective [date]. [Lawyer] previously [was associated with
[prior firm] / served as [position]] and may have acquired
confidential information relating to [matter/subject].

The firm currently represents [client] in [matter], in which
[former client] has an interest.

[Lawyer] has been screened from that matter effective [date].
The screening measures are:
  - complete exclusion from participation;
  - removal of all system and file access;
  - a prohibition on any discussion of the matter with firm
    personnel, and a corresponding instruction to those
    personnel;
  - no apportionment of any fee from the matter.

[Lawyer] has signed a written undertaking to comply.

We will respond promptly to any inquiry about these
procedures and will provide written certification of
compliance at reasonable intervals and on request, and at the
conclusion of the matter.

[Signature]

Timing note. Promptness is an element of the screening rule in most jurisdictions. Send this within days of the lateral's arrival, not after an objection.

Tool 10: Matter closing letter

[Date]
To: [client]
Re: Conclusion of engagement — [matter]

Our work on this matter is complete as of [date]. This letter
confirms that the engagement has concluded and that we are
not undertaking further work unless you engage us separately.

We are not monitoring deadlines, statutes of limitation, or
filing obligations relating to this matter.

We will retain the file for [period] in accordance with our
retention policy, after which it may be destroyed. If you
would like the file transferred, please let us know within
[period].

We appreciate the opportunity to have represented you.

[Signature]

Why this document matters more than it looks. It fixes the date on which the client became a former client, which determines whether the current-client rule or the substantial relationship test applies to every future question. A firm without closing letters cannot answer the threshold question in its own conflicts analysis.

Tool 11: Outside counsel guidelines tracker

OUTSIDE COUNSEL GUIDELINES — CONFLICTS RESTRICTIONS

Client: ______________  Guidelines dated: ______________
Location of document: ______________  Reviewed by: ________

  Restriction                                Present?  Detail
  Affiliates treated as clients               [ ]      ______
  No adversity in unrelated matters           [ ]      ______
  Geographic scope of restriction             [ ]      ______
  Advance consent prohibited                  [ ]      ______
  Screening prohibited / consent required     [ ]      ______
  Notice obligations on lateral hires         [ ]      ______
  Duration after matter closes                [ ]      ______
  Positional conflict restrictions            [ ]      ______
  Consequence of breach (fee disgorgement,
    termination, indemnity)                   [ ]      ______

Loaded into conflicts system? [Y/N]  Date: ______
Flagged on clearance screen? [Y/N]

Why this belongs in the conflicts system. Guidelines bind by contract, independently of the ethics rules. A firm that clears a conflict correctly under the rules and breaches a guideline faces fee disgorgement and the loss of the relationship — consequences the disciplinary analysis never surfaces.

Tool 12: Disqualification motion and response outline

MOTION TO DISQUALIFY — OUTLINE

I.   STANDING
     Movant is a current [or former] client of the firm.
     Evidence: engagement letter, billing records, correspondence.

II.  THE PRIOR RELATIONSHIP
     Dates, scope, and personnel. Documentary support.

III. THE CONFLICT
     (a) Current client: direct adversity — the firm is
         [suing / negotiating against / cross-examining] its
         own client, and relatedness is not required.
     (b) Former client: substantial relationship — the prior
         matter would ordinarily have generated [categories of
         confidential information], which would materially
         advance the present client's position because [ ].
         Content of the confidences need not be disclosed.

IV.  IMPUTATION
     The disqualification of [lawyer] extends to the firm.
     Any screen is [untimely / not permitted here / not
     technically implemented] because [ ].

V.   REMEDY AND PROPORTIONALITY
     Why a lesser remedy is inadequate; the risk to the
     integrity of the proceeding; the absence of prejudice
     from removal at this stage.

VI.  TIMELINESS
     When movant learned of the conflict and why the motion
     is prompt.

RESPONSE — OUTLINE

I.   STANDING — whether movant is in fact a client.
II.  THE RECORD — engagement letter, closing letter, clearance
     memorandum, screening memorandum, system access reports.
III. NO SUBSTANTIAL RELATIONSHIP — what the prior matter
     actually involved and why the information does not bear
     on this one.
IV.  SCREENING — timeliness, technical implementation, no fee
     apportionment, prompt notice; attach the proof.
V.   WAIVER — movant knew and delayed.
VI.  PREJUDICE AND MOTIVE — stage of the case, cost of
     replacement counsel, timing indicating tactical purpose.
VII. LESSER REMEDY OFFERED — screen, limited role, or separate
     counsel for a discrete task.

Appellate posture to keep in view. Firestone Tire & Rubber Co. v. Risjord holds that denial of civil disqualification is not immediately appealable; Richardson-Merrell Inc. v. Koller holds the same for a grant; and Mohawk Industries, Inc. v. Carpenter applies the reasoning to privilege disclosure orders. Prepare as though the ruling is final, because for practical purposes it is.

Tool 13: Authority reference sheet

Privilege and work product — what the prior representation protects.

Criminal conflicts.

Sanctions and inherent authority.

Regulatory frame.

How the thirteen tools fit together

At the first call: Tool 3 (prospective client notice).

At intake: Tool 1 (check form) and Tool 11 (guidelines tracker).

At clearance: Tool 2 (clearance memorandum) and, if needed, Tool 4 (consent and waiver).

At engagement: Tool 5 (joint representation letter) and Tool 6 (constituent warning) where applicable.

Before a lateral offer: Tool 7 (questionnaire).

On the lateral's first day: Tool 8 (screen memorandum) and Tool 9 (notice to former client).

At the end of the matter: Tool 10 (closing letter).

If a motion arrives: Tool 12 (outline) and Tool 13 (authority sheet).

The sequence matters more than any individual document. Nearly every conflicts problem that reaches a court could have been prevented by one of the first six tools, used at the moment it belongs, and no amount of skill applied at Tool 12 fully substitutes for that.

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