The Former CFO and the Misspelled Conflict Check
Daniel Ruiz is the sole owner of a three-person licensed advisory practice. For 14 years he has represented Meridian Logistics on contract and employment matters. On Monday, Meridian’s former CFO, Priya Shah, asks Ruiz to represent her in a dispute with Meridian over severance and alleged misuse of confidential pricing data. During intake, Ruiz learns that his office manager, Elena, is Shah’s niece and has already opened a draft matter file and run a conflict check that returned no matches because Meridian was entered as “Meridian Logistik.” Separately, Ruiz’s marketing consultant, Northstar Growth, introduced Shah and is entitled under a separate agreement to a 15% referral fee on any engagement she signs. Ruiz’s standard engagement letter is five years old and contains no conflict-waiver or referral-fee disclosure. Shah wants to sign that day and says she needs a “quick, quiet” resolution. Meridian has not been told about the inquiry.
1. Identify the conflict issues raised by the proposed engagement and explain whether Ruiz may accept the matter. What must happen before any work begins?
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Issue. Meridian is a current client. Shah is adverse to Meridian and was its CFO, so the new matter is substantially related to the work Ruiz does for Meridian. A practitioner may not represent a person in a matter adverse to a current client without both clients’ informed consent, confirmed in writing, and a reasonable belief that the representation can be undertaken competently and without material limitation. Meridian’s consent has not been sought, and the confidential pricing-data allegation makes consent unlikely.
Imputation. In a three-person firm, a conflict held by the sole owner generally disqualifies the firm. Screening can sometimes avoid imputation for a lateral hire or a nonlawyer, but it does not cure a direct conflict held by the owner. Ruiz cannot accept the matter merely by telling Elena to stay out of it.
Intake error. The misspelled conflict check is not a defense. Ruiz must rerun the check under all name variants and related entities, document the correction, and treat the earlier “no match” as unreliable. He should also determine whether Elena already accessed Meridian information or Shah’s draft file.
Conclusion. Before any work begins, Ruiz should decline the engagement or, only if full disclosure supports it, obtain written informed consent from both Meridian and Shah. Given the CFO’s access to Meridian’s confidential information and the direct adversity, declination is the safer and likely required course. The request for a “quick, quiet” resolution does not change the analysis.
2. Analyze the 15% referral fee arrangement. What disclosures, consents, and documentation are required, and what should Ruiz do if Shah refuses?
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Disclosure. A referral fee is a fee sharing arrangement. It must be disclosed to the client in writing, including the amount or method of calculation and the identity of the recipient, before the client signs. The client must give informed consent, preferably in the engagement letter or a separate signed acknowledgment. The disclosure cannot be buried in boilerplate; Shah must understand that she is paying for the introduction and that the total fee remains reasonable.
Substance. The total fee must not be increased because of the referral. If Northstar is not a licensed practitioner, the applicable rules may prohibit paying a percentage of fees to a nonpractitioner for a referral, even with disclosure. Ruiz should have the arrangement reviewed under the governing fee-sharing rule. A permissible alternative may be a fixed marketing fee that is not tied to the outcome or the amount of the client’s fee, but that too must be disclosed if the client is effectively paying for it.
If Shah refuses. Ruiz cannot pay the referral fee without consent. He may proceed only if he can do so without the fee arrangement, and only after amending or clarifying the fee agreement. If the referral payment is a condition of the introduction, he should decline the engagement. All communications, disclosures, and consents should be documented in the file, and the fee agreement should be reissued rather than relying on the old five-year-old letter.
3. What supervision and file-management steps are required regarding Elena and the failed conflict check?
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Access controls. Elena must be removed from the Shah matter and from any Meridian file that could contain information relevant to the dispute. Her access to the document management system, billing records, and shared drives should be restricted and the restriction logged. The fact that she is Shah’s niece does not automatically disqualify the firm, but her access to confidential information does create a risk that must be managed.
No discussion. Elena should be instructed in writing not to discuss the matter with Shah, Ruiz, or other staff, and not to use any information she may have seen. She should not be penalized for a relationship she did not choose, but she must understand the confidentiality obligation.
Correct the system. Ruiz should correct Meridian’s record, add common misspellings and related entities, and rerun conflict checks on all active matters. A second person should review the results. The office should adopt a written intake procedure requiring a signed conflict report before a matter is opened, not after.
Documentation and training. The file should record the failed check, the corrective steps, the access restriction, and any training provided. If Elena already saw confidential information, Ruiz should assess whether that information has been used or disclosed and consult ethics counsel if necessary. A periodic audit of conflict checks and matter-opening records would reduce recurrence.