Conflict checks before accepting a client: what the rules prohibit, and how to run the check in your office

What exactly do the rules say?

Rule 8 prohibits a lawyer from any act that represents an actual or potential conflict with the interests of current or former clients, unless the client concerned consents in writing. The same prohibition applies to the lawyer's former employers. There are two time-based exceptions: acting against a former client is not a conflict once three years have passed since the relationship, or the last work for them, ended; against a former employer, five years.

Rule 9 concerns prior involvement: a lawyer may not accept to plead in a case they previously reviewed or took part in studying in another capacity, such as arbitrator, expert or employee of one of the parties, unless the parties agree in writing. Lawyers who previously served in the judiciary are subject to separate Ministry of Justice rules on limiting conflicts when they enter practice.

The word that gets forgotten in daily work is “potential”. A conflict does not arise only when you are against your client today, but when the new work might put you against them tomorrow, or let you use what you learned from them against them.

Where conflicts arise in a small firm

1. 01

   The opponent is a former client

   A company that was a client in a property dispute two years ago appears as the opposing party in a new labour claim. Less than three years means written consent from them, or declining the case.

2. 02

   Two parties from one group

   Heirs instruct the firm on dividing an estate, then one of them asks for a claim against the others. The firm represented all of them, and what it learned from all of them cannot be used for one.

3. 03

   The company and its owner

   An individual client owns a company, and the company is an opponent in another case under a commercial registration number that does not appear in the client's name. A name search does not reveal this; the registration number does.

4. 04

   The new lawyer

   A lawyer joins from another firm and previously saw the case there. Rule 9 applies to them personally, so it is not enough that the firm never saw the case before.

5. 05

   The name in another form

   “Mohammed Fahad Al-Qahtani”, “Mohammed bin Fahad Al-Qahtani” and “M. F. Al-Qahtani” are one person a name search alone will not catch. The ID number and the phone number catch him.

How to run the check in the office

1. 1Collect identifiers for all parties, not only the client: the client, the opposing party, their representative and any related party. For each, the ID, iqama or commercial registration number, phone, email and the name in both Arabic and English.
2. 2Compare them against three lists: current and former clients, opponents in every case the firm has handled, and the former employers of every lawyer who will work on the case.
3. 3Ask every lawyer to be assigned one written question: have you seen this dispute before, in any capacity?
4. 4Decide. No conflict: open the file. Potential conflict: obtain written consent from the affected client and keep it in the file. Actual conflict: decline in writing.
5. 5Record the result, the date and who ran the check in the case file, and repeat it whenever a new party joins the case.

What the check needs to be reliable

• One client list for the whole firm, not one on each lawyer's machine. A check that cannot see the other partner's clients is not a check.
• Opponents recorded on every case with their names and identifiers, not only in the case title. Most conflicts come from the other side of an old file.
• Closed cases kept in the system. The time exception is three years, and the check needs the date of the last work for each client.
• Identifiers before names: the ID number, commercial registration and phone are compared first, because a name is written ten ways.
• A written decision in the file. If you are asked a year later why you accepted the case, the answer must be in the file, not in memory.