Screening proposed lateral attorneys for conflicts, claims, and other issues is critical for avoiding disqualifying conflicts of interest, potential insurance coverage issues, and for general due diligence in hiring.
The following is a checklist of recommended actions to take, as well as forms that can be used, in that process.
- Have the candidate identify (without disclosing client confidences) all matters in which he/she had substantial involvement or gained confidential information during his or her career, or for at least the past five calendar years, including, the party represented, all affiliated and related parties, all adverse parties, and any other persons interested in the matter.
- If any actual or potential conflicts of interest are identified, determine what actions are necessary to minimize or resolve such conflicts, including obtaining written waivers from current or past clients of the firm, taking precautions to ethically screen the lateral attorney – the moment employment commences – from any contact with any matters in which a conflict has been identified, or revoking the candidate’s offer of employment if conflicts cannot be resolved.
- Ask the candidate’s current and previous law firm employers to send letters to their clients for whom the candidate has rendered significant services, and whose former representation by the candidate may create conflicts with the firm’s clients, requesting waivers of any actual or potential conflicts and providing their informed written consent to continuing representation by the firm.
- Give the candidate a current list of the firm’s clients (excluding any client whose identity itself must remain confidential) to identify any client in which the candidate has an economic or business interest, including any investment or other ownership, possessory, security, or other financial interest.
- Have the candidate complete a Lateral Attorney Questionnaire (link to download example copy is below), and resolve all issues raised by the questionnaire before the employment commences.
- Have the candidate provide a list of all errors and omission insurance he/she has been covered by throughout his/her legal career (if more than 10 years, the last 10 years only), including insurer, policy number, policy period, limits, and whether it was a claim made or occurrence policy.
- Have the candidate provide a list of all claims and occurrences which might reasonably be believed to pose a risk of a claim, including occurrences reported to an insurer in which the attorney has been involved in any way, or for which the attorney may be liable. The status of each such claim or occurrence and the name, address, and telephone number of who to contact to keep informed on the status of the case should also be provided.
- Before resignation from current firm becomes effective, have the candidate report to his/her prior firm’s insurer all claims he/she knows of and all circumstances which are reasonably believed might give rise to a future claim, and provide a copy of that report to your firm (appropriately redacted to preserve confidences).
- Request that the candidate purchase “tail coverage” or an extended reporting endorsement and to provide proof to your firm he/she has done so.
- Inform the candidate in writing that your firm’s malpractice insurance will not provide him/her with any insurance protection, and that your firm will not defend or indemnify for any claim asserted after employment with the firm but arising from acts or omissions before employment commenced.
- Investigate the candidate’s resume by verifying selected employment positions, bar memberships, and educational degrees.
Click here to download this article including example copies of the Cover Memo, Conflict of Interest Report and Lateral Attorney Questionnaire referenced in the article.
By Daniel W. Hager | Corporate Counsel | Ahern Insurance Brokerage
* No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis.