By Eileen Burkhalter Smith 

For those of us who are litigators, a referral from the corporate guy downstairs is great, right?  I have really enjoyed stepping in for a client of one of my corporate colleagues when the client is in a litigation situation.  This referral situation raises some conflict issues, though, that might be overlooked here when they would not have been for a new client off the street.  Here is what I now have on the top of my list in this situation when handling the new matter:

1. Did the guy downstairs run a conflict check on this new litigation matter?  Often some preliminary negotiations or conflict resolution may have been performed, but was a formal conflict done consistent with firm procedures?  When in doubt—run the conflict check!
   
2. Does the engagement need to be defined in a letter?  How is this matter being treated—as part of the corporate matter or a new matter completely?  I think it never hurts to put in writing your understanding of the representation.
   
3. Are the parties here the same as in the corporate matter?  This is important with entity-clients whose individuals have a litigation matter—whether personal or related to the business performed by the corporate attorneys.  Rule 1.13 of the Tennessee Rules of Professional Conduct, for example, addresses specifically Organizational Clients and “dealing with” the individuals associated therewith.
   
4. Does the dispute concern work that the firm did?  This may or may not completely prevent me from handling it.  For example, if my colleague may be a witness or documents we prepared are at issue, the Rules of Professional Conduct in Tennessee likely prevent me from handling it (See R. P.C. 3.7 and 1.10).  This may not always be the case, though.  If my corporate colleague anticipated a potential conflict and received a conflict waiver, or if his representation was narrowly defined, I might still be okay.
   
5. Is this something the firm wants to handle?  This should be part of every inquiry on a new matter, obviously.  But with this type of referral, I find that I sometimes forget to ask it.  Are other entities or parties involved in the new litigation matter that were not involved in the corporate matter?  Are there employees involved that have a precarious relationship with the corporate client/employer?