Law Firm Conflict Checks in Tennessee: What to Collect, What the Rules Require

What is a conflict check?

A conflict check is a structured search of the firm's records, and often of outside sources, for any relationship that could prevent the firm from taking a new client or matter or from continuing an existing one. It compares the people and entities involved in the new matter against current clients, former clients, prospective clients, adverse parties in past matters and the personal interests of the firm's lawyers.

The check produces hits, not answers. A hit means a name or relationship matched and needs a lawyer's review. Many hits turn out to be harmless, such as a common name that belongs to a different person, while a few require declining the matter, obtaining consent or setting up a screen.

The point of doing this early is to protect confidential information. If a firm learns a prospective client's sensitive facts before discovering it already represents the other side, the firm may have created a problem that cannot be fully undone.

Which Tennessee rules govern conflicts of interest?

Tennessee's Rules of Professional Conduct are set out in Tennessee Supreme Court Rule 8. Four rules do most of the work in conflict checking, with RPC 1.8 adding specific prohibited transactions and RPC 1.11 and 1.12 covering former government lawyers, judges and neutrals. Read the current text and the Comments, which explain how the rules apply.

What does RPC 1.7 say about current-client conflicts?

Under Tennessee RPC 1.7(a), a concurrent conflict generally exists when representing one client will be directly adverse to another client, or when there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client, a former client or a third person, or by the lawyer's own interest.

RPC 1.7(b) generally allows the representation despite a concurrent conflict only if four conditions are met: the lawyer reasonably believes they can provide competent and diligent representation to each affected client; the representation is not prohibited by law; it does not involve one client asserting a claim against another client the lawyer represents in the same litigation or proceeding before a tribunal; and each affected client gives informed consent, confirmed in writing.

For conflict checking, this means current clients need to be identified not only by their own names but by their affiliates and key people, because adversity to a client's subsidiary or officer can raise RPC 1.7 questions depending on the facts.

How do former-client conflicts work under RPC 1.9?

Tennessee RPC 1.9(a) generally prohibits a lawyer who formerly represented a client from representing another person in the same or a substantially related matter where that person's interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing. RPC 1.9(b) addresses lawyers who move between firms and acquired material protected information about a former firm's client.

RPC 1.9(c) generally bars using information from the former representation to the former client's disadvantage, or revealing it, except as the rules permit or when the information has become generally known. That duty lasts after the representation ends.

This is why closed matters belong in the conflict database. A firm that purges or never recorded former adverse parties, matter descriptions and related entities cannot reliably spot a substantially related matter years later.

When is a conflict imputed to the whole firm under RPC 1.10?

Under Tennessee RPC 1.10(a), while lawyers are associated in a firm, none of them may knowingly represent a client when any one of them practicing alone would be prohibited by RPC 1.7 or 1.9 (among others), unless the conflict is based on a personal interest of the disqualified lawyer that does not present a significant risk of materially limiting the representation by the rest of the firm.

RPC 1.10(c) allows a firm to avoid imputation in some lateral-hire situations if specific steps are taken: the personally disqualified lawyer is identified, the firm determines no material protected information was passed to others in the firm, screening procedures are promptly implemented to prevent the flow of information, and the former client is advised in writing of the circumstances and the steps taken. RPC 1.10(d) generally makes screening unavailable when the disqualified lawyer was substantially involved in a pending adjudicative proceeding directly adverse to a current firm client. The Committee Comments note that paragraph (d) reflects the Tennessee Supreme Court's decision in Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001).

Lateral hires and new staff therefore need their own conflict review before they start, covering the matters they worked on at prior firms to the extent that can be disclosed consistent with confidentiality.

What information should intake collect for a conflict check?

A search is only as good as the names put into it. Intake forms should capture enough to identify everyone with an interest in the matter, and staff should ask follow-up questions when an answer is thin.

• The prospective client's full legal name, former names and common variations or nicknames.
• For entities: legal name, trade names, parent, subsidiaries and affiliates, officers, directors and principal owners.
• All adverse parties and their affiliates, officers and principal owners.
• Spouses or family members with an interest in the matter, such as in family-law or estate matters.
• Co-parties, insurers, guarantors and other related interested persons.
• Key witnesses and experts expected to be involved.
• Opposing counsel and their firm.
• A short, non-confidential description of the matter and its subject (property, contract, transaction).

How should the conflict search and review be run?

A consistent sequence helps the firm show it acted reasonably and makes it less likely that a hit gets overlooked.

1. Collect only the minimum information needed to run the check before receiving substantive confidential facts.
2. Search every name against current, former and prospective client records, adverse parties and related entities, using spelling variations.
3. Expand the search with public sources where useful, such as business entity filings that reveal officers and affiliates.
4. Route every hit to a responsible lawyer with the matter details needed to evaluate it.
5. The lawyer decides whether a conflict exists and, if so, whether to decline, seek consent or screen.
6. Document the decision, any written consents and any screening steps and notices.
7. Open the matter only after clearance, and rerun the check when new parties or entities appear.

What about prospective clients who never hired the firm?

Tennessee RPC 1.18 (Duties to Prospective Client) protects people who consult a lawyer about possibly forming a client-lawyer relationship. Even if no relationship forms, the lawyer generally may not use or reveal information learned in the consultation, except as RPC 1.9 would allow for a former client.

The rule can also prevent the lawyer from representing a client with materially adverse interests in the same or a substantially related matter if the lawyer received information that could be significantly harmful to the prospective client. The firm may still be able to proceed with written informed consent or, in some circumstances, a timely screen with prompt written notice. Recording declined consultations in the conflict system is therefore as important as recording engagements.

How outside conflict screening supports the firm's judgment

Delator Field Services provides conflict screening support: searching names and entities against public records and the information the firm provides, such as entity filings, officers and affiliates, and reporting potential conflicts back to the firm. No search can promise to identify every conflict, and it does not make ethical determinations. Whether a conflict exists, whether it can be waived and how to address it are decisions for the attorney and the firm.

Under Tennessee RPC 5.3, lawyers are responsible for making reasonable efforts to ensure that nonlawyer assistants, including outside providers, act consistently with the lawyer's obligations, which includes protecting client information shared for screening.

This guide is general information, not legal advice. Delator Field Services does not provide legal advice. Consult the current text of Tennessee Supreme Court Rule 8 and, where needed, the Board of Professional Responsibility's guidance.