The most dangerous people to you (from a risk management perspective) are your own clients/wards/persons. These are the people you are charged with serving/protecting. A close second are family meambers or other “interested persons” who may disagree with your methods. The best time to protect yourself against “that client” or “that file” (you know – the one above all others that you have anxiety about) is before you take the file.
First, is the dull but necessary practice of running a conflict search. The proper identification and resolution of conflicts of interest are major concerns facing Fiduciaries today. It is incredibly difficult to defend a professional liability claim against you where a conflict of interest exists. Judges and juries do not like them. Even if you think they are not a problem, the moment the slightest thing goes wrong, “conflicts” become a big problem.
To avoid conflict problems, before permitting a client or prospective client to provide confidential information regarding a prospective representation, the names of relevant parties and other public facts concerning the matter should be run through a conflicts system. The system can be very basic. In this day and age virtually every fiduciary has some kind of document management or file management system. And all of these have search capabilities. (1) Spend a few minutes searching the relevant names through your current and old files. If you are lucky enough to have one, train your secretary or support staff to do this for you. Make this a simple, but routine part of your practice. Better than that, have this part of your practice reduced to writing, i.e. memorialize the steps you or your secretary go through for each new matter and you now have a clear, formal written conflict checking and resolution procedure.
If a conflict exists, it must be identified, and where possible, resolved through the use of an appropriate conflict waiver agreement. Conflict issues must be addressed before proceeding with the matter and prior to deciding if it is in the best interests of both the client and the Fiduciary to take on this matter.
If no conflict is present, a Fiduciary can proceed to decide if they wish to take on the new Client. (2) When deciding to take on a new assignment, again ask yourself: “is this something I want to do/a person I want to work with?” Here is a short list of basic “self-audit” risk management questions that a Fiduciary should ask:
The answers to these questions will help determine whether a new client poses an unreasonable risk to the Fiduciary. See also the risk management “checklist” we have formulated. We loaded the checklist online so that it can be updated with suggestions from professional fiduciaries. Please email ajones@fkblaw.com and/or larry.hilton@dominioninsurance.com with any such suggestions.
(1) Various specialized software is also currently available to search all active and closed files to ensure up to date conflicts awareness.
(2) Fiduciaries appointed through the Court, for example as as temporary trustees, may feel pressured to take on new appointments when a judge is calling their name in the courtroom. Such appointments often occur without any opportunity for the Insured to either review the operative documents or ask themselves if “this is something I want.” It is important that Fiduciaries remember that they are permitted to decline an engagement and/or request more information prior to their agreement. In such a scenario, it is also important to memorialize in the appointment language that such an engagement is being commenced at the request of the Court and prior to any review of any documentation.