Identifying Potential Conflicts of Interest
Consider your financial interests. When you work for a company, you should put their financial interests above your own. You, your spouse, or a relative may own a company or stock that will earn money as the result of a business deal or contract. You need to make sure that any sales or contracts do not personally benefit yourself. For example, your corporation needs a catering company for their conference. You suggest a company owned by your wife. The fact that you might make money off of your wife's company being selected represents a conflict of interest and should be disclosed to the selection committee.
Make note of your personal relationships. You may have a relationship with someone else who may benefit in some way from your position. Personal relationships include blood relatives, relatives by marriage, and romantic partners. For example, teachers and professors may have a student who is related to them. The teacher cannot show favoritism to this student. If your office needs a new roof, it may be a conflict of interest if you suggest your brother as a roofer. A new position may have opened up at your company. It may be a conflict of interest to promote your boyfriend to the position, especially if your boyfriend is less qualified. However, this is not true if your boyfriend is equally qualified for the position compared to the other candidates.
Locate situations where the conflict of interest may arise. Different professions have different types of conflicts of interest. Knowing what you may encounter in your profession will prepare you for dealing with the situation when it arises. If you are a researcher, a company may hire you to do a study for them. Because they are paying you, you may feel pressured to change your results so that they favor the company's products. The conflict arises when the report is provided to others without disclosing the relationship. For example, a CPA has responsibilities to the public that over-ride the client's interests. If you are starting a side business, it should not offer the same products or services as your main employer unless you have received approval from the employer to do so. As a consultant, you should not offer services to two competing businesses unless you have disclosed that to the companies.
Consider the appearance of a potential conflict. If there is the slightest possibility that a conflict might arise, it should be disclosed. Even if you are not earning any money from it, you should still disclose the conflict. Similarly, even if you hire a family member but do not favor them over other employees, you still need to let others know of your relationship. For example, your business may be contracted by a non-profit to which you belong. Accepting the contract may be seen as a conflict of interest as you would be offering your services for your benefit only. Even if the contract would only contribute minimally to your sales, and you are offering your services as a favor, you should still disclose the potential conflict.
Disclose your conflict of interest. Disclosure is the remedy to everything. Potential conflicts should be disclosed to the parties that will be affected by the action or decision. This should be done as soon as possible. An outside party can help you put your interests in perspective to determine whether a conflict exists.
Identifying Potential Company Conflicts of Interest
Require every employee to state their business interests. Some employees may have jobs at more than one company. Require them to disclose these other jobs to ensure that they do not conflict with the company. Have the employees read and understand the conflict of interest policy in the employee handbook. Furthermore, ask everyone to inform you of any potential investments or properties that might influence their decision making. Many business require employees to fill out a conflict of interest form once a year to announce these interests. If your company does not currently require this, you may want to create such a policy and add it to the employee handbook. In the handbook, document specific conflicts that might arise.
Track gifts given to or received from other companies. Gift-giving is a common way for other business to solicit contracts, clients, and favorable policies. While your company may not forbid gift giving or receiving outright, you should be alert to forms of gifts that are given to individual employees from companies trying to gain your business. For example, a drug company may give a doctor's office free calendars, pens, posters, and clipboards to advertise their services. A snack company might offer a free vending machine to a school. The school will then be required to buy their brand of snacks. A company may take you out to dinner in order to persuade you to hire them. This is considered a gift as well, even though you may have rejected their offer. Creating policies for giving and receiving gifts. Most companies identify a maximum value for such transactions.
Review all third-party business deals. Before any deal goes through, make sure it has been subject to a thorough review by others in the company. However, each employee in charge of the deal should still have the authority to make it.
Determining a Conflict in the Legal Profession
Discover the conflict before you start a lawyer-client relationship. A lawyer-client relationship is established as soon as the client asks the lawyer for representation and the lawyer agrees. No money needs to have changed hands. The lawyer is expected to protect the client's privacy from this point forward. Before you agree to undertake representation, double-check to see if the client's case will conflict with any other ongoing or former case. If Bob is hiring you to sue Allison, you should check to make sure that Allison is not a current or former client.
Determine if new clients have any connections to other cases. If you are taking in a new client, it is best to know if they are involved in any ongoing cases in which you have participated. Even if your or their involvement was minimal, you should identify these cases. If you served as a witness to a trial where Bob was accused, then you should consider the possibility of a conflict and its impact upon your existing and potential client relations.
Disclose your personal ties to your firm. Your firm should be generally aware of your family ties, financial investments, relations, and connections to local government. Informing your firm in specific terms about these ties can help everyone in the office identify potential conflicts with greater ease. If your status changes (for example, if you get married), inform your firm immediately. Always inform the firm when you become aware of a potential conflict through a relative. However, no firm expects its employees to disclose every instance which might arise in the future as a conflict.
Identify any personal relationships between legal representation, clients, and third parties. Judges, lawyers, paralegals, plaintiffs, clients, consultants, and expert witnesses should disclose all personal and financial relationships for which there might be a conflict of interest. Of course, this does not always happen. If you suspect two people have a personal relationship that can affect the partiality of the case, you may approach the judge with what is called a formal motion of recusal. This motion asks the judge to dismiss a member of the case due to a conflict of interest. If you and a relative are both lawyers, it is generally considered a conflict of interest for you to represent opposing parties. A lawyer may represent his or her own relatives, but it is a conflict of interest when the lawyer is representing a party opposing their relatives. Judges should not have any ties to the members of the case. It is standard procedure for a judge to remove themselves from a case if such a conflict arises. If you know their personal or financial interests are at stake and they do not excuse themselves, you may file a formal motion of recusal.
Avoid taking on cases that create a conflict of interest with a client. Lawyers cannot sue their own clients, nor can they represent both sides in a legal conflict. If another client comes to you with a case against one of your existing clients, you should not accept the case. If this client is a new client, you can still represent your old client, but if both clients are existing clients, you should remove yourself from the case entirely. If Bob is trying to sue Allison, you may find that Allison is a current client. She may want you to defend her against Bob. If Bob is a potential new client, you can still represent Allison. However, if Bob has hired you in the past, you should not represent either Bob or Allison. This does not represent a conflict of interest as you have no relationship with Bob.
Gain informed consent. If you believe there is a conflict of interest, you may still be able to proceed. You may not break lawyer-client confidentiality, nor can you represent two clients against one another. That said, if the clients' cases are not involved and you have no other personal stake, you may get written permission from your clients. This is called informed consent. Without breaking confidentiality, tell your clients of the potential conflict. If they understand the conflict and still agree to hire you, they may sign a contract. Bob is suing Allison. Allison hired you five years ago on an unrelated case. You have not worked for Allison since. You have no personal ties to Allison. You can inform Bob that she is a former client. If he still wants to hire you, get his permission in writing. Always consult your state or local bar for guidelines on what conflicts are acceptable to handle. There may also be varying guidelines on informed consent.
Checking Whether Your Doctor Has a Conflict
Locate any connections between doctors and testing facilities. It is increasingly common for doctors to have invested in local testing facilities. These doctors will then refer their client to these facilities for their medical testing. The doctor might have an interest in testing for as many diseases as possible since each diagnosis may increase their profits. As a patient, be sure to ask for any possible financial connections between the facility and your doctor. Ask if you can choose your own testing facility. As a doctor, research the facility. Even if you yourself do not own it, perhaps another doctor in your practice does. It is considered an ethical conflict of interest to do unnecessary tests on patients for the financial benefit of you or any other doctor.
Trace the sale of data. Some pharmacies and medical practices make money by selling patient data to pharmaceutical companies for marketing purposes. If you are a doctor or in charge of a practice, check your records. Make sure that there are no deals involving the sale of patient data. While selling data is legal in some places, it is not considered ethical by many. It may represent a conflict of interest to your patients. HIPAA that regulates disclosure of patient data without patient consent.
Quiz your physician on their interests. If you are a patient looking for a new doctor, be sure to ask your doctor questions. Ask them about their financial interests. Before agreeing to a procedure, research it thoroughly. Get a second opinion if necessary. There are many questions a patient can ask to determine if the doctor is giving a treatment to make money. Do you own the facility where you perform tests? Do you sell any of the equipment that will be used in the procedure? Do you have a business relationship with the testing company? Do you earn any bonuses for prescribing me this medication? Do you sell patient data?
Search for your doctor on a database. There are many online programs available that gather data on payments and gifts to individual practices. You can search your doctor's name to discover how much particular companies are paying him or her. Physicians are bound by medical ethics that require them to disclose potential conflicts of interest. If you cannot trust your doctor by online research and credentials, you should probably go to someone else.
Identifying Conflicts of Interest in Government
Identify those parties who benefit from a new policy. Any law or regulation may be designed to benefit one or more politicians or their associates. For example, one of the more common conflicts is when a policy maker creates new rules that benefit a property or business that they own. Identify which district these properties are located. Figure out the potential benefit that may be gained from the new policy. For example, a politician may support lower property taxes for farms in District A. They may own a farm in District A. This is a conflict of interest.
Do a background check. Government employees are subject to strict rules to prevent bribery and inappropriate deals. Make sure that the employee has not served as a lobbyist in the past two years. Most government workers cannot accept money from any job or person outside of the government. A background check will ensure that every employee entering the government fulfills local and federal laws in this matter.
Learn the employee's financial stake in contracted businesses. The government may hire a private business that is partly owned by a public servant. Policies vary from state to state, but generally, the employee may not own more than 5% to 25% of the business. Ask the employee to give you records that prove their exact investment in the company. Your department needs new computer systems. They hire a local company. You own a 3% stake in the company. Usually, this would not be a conflict of interest because you do not own enough of the company to profit much off the deal.
Research private businesses hired by the government. Government employees may hire businesses owned by a relative or spouse. Government employee data is often public information, as will be the ownership of the business in question. You can research both to ensure that there are no private interests profiting from taxpayer money. Your department needs new computer systems. They hire a local company. You find out that the company is owned by your boss's husband. This is a conflict of interest.
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