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Items posted here during the past thirty days will also appear on this What's New page.  Items posted within the past ten days will appear In Ten Day Bulletin immediately below.  Items older than ten days but less than 30 days will be posted in the Thirty-Day Holding Area, which follows.


Current Client; Passage of Time; Standing (posted May 21, 2018) High 5 Games, LLC v. Marks, 2018 WL 2278103 (D.N.J. May 18, 2018). Plaintiff, a manufacturer of slot machine-type devices, is suing a number of persons and firms for trade secret, patent infringement, and related causes of action. Law Firm appeared for all defendants. Plaintiff moved to disqualify Law Firm, alleging that several defendants were advancing defenses that conflict with each other. In a fact-intensive analysis, the court found that there was not really a conflict. In addition, the court held that the defendants had waived the non-existent conflict, that Plaintiff waited too long to bring the motion (4 years), and that Plaintiff, not being a current or former client of Law Firm, had no standing to make the motion.

Changing Firms (posted May 18, 2018) The Park Apartments at Fayetteville, LP v. Plants, 2018 Ark. 172 (Ark. May 17, 2018). Plaintiff, in 2015, represented by Legal Aid, brought this action against Housing Corp. and Mgmt. Co. challenging the liquidated damages in her lease. Lawyer worked at Legal Aid during the second half of 2016, in the economic justice workgroup. The Legal Aid lawyers representing Plaintiff work in the housing workgroup. In January 2017 Lawyer joined the legal staff of Mgmt. Co. In February 2017 Plaintiff moved to disqualify the defendants' entire legal staff. The trial court granted the motion. In this opinion the Arkansas Supreme Court reversed. The evidence was that Lawyer did not acquire any knowledge about this case while at Legal Aid. The Supreme Court held that mere "access" to information about this case was not disqualifying. One justice dissented and said mere access should be disqualifying. There was no discussion of screening, although one could infer that Lawyer is not working on this case for defendants.

Changing Firms; Non-Lawyer (posted May 18, 2018) Jones v. City of L.A., 2018 WL 2252543 (Cal. App. Unpub. May 17, 2018). This is one of several employment related cases. In three other cases Hispanic police officers sued L.A. because their supervisor ordered them to speak English only in the squad room. An in-house lawyer defended L.A. She was assisted by Officer Carla Cryer. In this case non-Hispanic officers sued L.A. because they were harassed by Hispanic officers speaking Spanish. L.A. is being represented by Outside Law Firm, which is being assisted by the same Officer Cryer. Because of Cryer's involvement, the non-Hispanic plaintiffs in this case moved to disqualify Outside Law Firm. The trial court granted the motion. In this opinion the appellate court affirmed. Much of the fact-specific analysis deals with what Cryer learned by and from the non-Hispanic officers during defense of the three cases brought by the Hispanic officers. On balance the court found that Cryer, the non-lawyer learned too much and had not been screened in this case. The court relied extensively on Shadow Traffic Network v. Superior Court, 24 Cal. App. 4th 1067 (1994).

Conflict Uncategorized; SLAPP (posted May 17, 2018) Yeager v. Holt, 2018 WL 2228304 (Cal. App. May 16, 2018). Legal malpractice case. Defendant Law Firm moved to dismiss under California's anti-SLAPP law. The trial court denied the motion. In this opinion the appellate court affirmed. The court said lawyer malpractice cases, including cases based upon a lawyer's conflict of interest, do not normally satisfy "the first prong" of the SLAPP analysis.

Common Interest; "Joint Defense" (posted May 14, 2018) Rosen v. Cream, 2018 WL 2146761 (Cal. App. Unpub. May 10, 2018). In 2011 Prosecutor filed criminal charges against Defendants 1, 2, and 3 for violating environmental laws. Lawyer A represented 2 and 3. Lawyer A and the lawyer representing 1 entered into a joint defense agreement and commenced an extensive sharing of information. In this civil case, 1 is suing 2 and 3 for conduct that essentially was the subject of the earlier criminal case. Lawyer A is representing 2 and 3. 1 moved to disqualify Lawyer A. The trial court granted the motion. In this "unpublished" opinion the appellate court affirmed. While the court's reasoning is not entirely clear to us, the case can certainly stand for the proposition that a lawyer who is in a joint defense arrangement cannot later be adverse to a non-client party to that agreement where confidential information actually changed hands.



                                                               Thirty Day Holding Area

MISCELLANEOUS ETHICS AND LIABILITY NEWS

[Note: Items that do not fit under the conflicts categories below, but which we believe will be of interest to this audience will appear here and on the This and That pages.]

Other; Award

On January 24, 2018, in New York City, we received this: "New York State Bar Association Committee on Professional Ethics Sanford D. Levy Memorial Award Presented to William Freivogel for His Contribution to the Field of Legal Ethics, 2017."

CONFLICTS - UNCATEGORIZED

[Note: These, too, will appear at the This and That pages.]

SLAPP

(posted May 17, 2018) Yeager v. Holt, 2018 WL 2228304 (Cal. App. May 16, 2018). Legal malpractice case. Defendant Law Firm moved to dismiss under California's anti-SLAPP law. The trial court denied the motion. In this opinion the appellate court affirmed. The court said lawyer malpractice cases, including cases based upon a lawyer's conflict of interest, do not normally satisfy "the first prong" of the SLAPP analysis.

Third-Party ("Closing") Opinion Letter

(posted May 5, 2018) UC Funding I, LP, Trustee v. Berkowitz, Trager & Trager, LLC, 2018 WL 2023485 (D. Conn. May 1, 2018). Borrower borrowed money from Lender. Borrower's law firm provided a closing opinion addressed to Lender. The loan agreement provided that Lender would have certain security rights to Borrowers' real estate. The loan went bad, and Lender learned that Borrower did not own 100% of the subject real estate. As a result Lender lost $13,000,000. Lender brought this case against Law Firm for breach of contract and related remedies. In this opinion the court granted a motion to dismiss, primarily because Lender was not Law Firm's client and there was no contractual language giving Lender rights against Borrower's law firm. Among other things, the court said that without "express language" obligating Law Firm to Lender, Connecticut's RPC 1.7 (a) would prevent Law Firm having obligations to both Borrower and Lender.

ARBITRATION OF MALPRACTICE CLAIMS (To read the full article, click here.)

Nothing current.

BANKRUPTCY (To read full article, click here)

Nothing current.

BANKS/TRUST DEPARTMENTS (To read full article, click here.)

Nothing current.

BOARD POSITIONS (To read full article, click here.)

Nothing current.

CHANGING FIRMS - SCREENING (To read full article, click here.)

(posted May 18, 2018) The Park Apartments at Fayetteville, LP v. Plants, 2018 Ark. 172 (Ark. May 17, 2018). Plaintiff, in 2015, represented by Legal Aid, brought this action against Housing Corp. and Mgmt. Co. challenging the liquidated damages in her lease. Lawyer worked at Legal Aid during the second half of 2016, in the economic justice workgroup. The Legal Aid lawyers representing Plaintiff work in the housing workgroup. In January 2017 Lawyer joined the legal staff of Mgmt. Co. In February 2017 Plaintiff moved to disqualify the defendants' entire legal staff. The trial court granted the motion. In this opinion the Arkansas Supreme Court reversed. The evidence was that Lawyer did not acquire any knowledge about this case while at Legal Aid. The Supreme Court held that mere "access" to information about this case was not disqualifying. One justice dissented and said mere access should be disqualifying. There was no discussion of screening, although one could infer that Lawyer is not working on this case for defendants.

Non-Lawyer

(posted May 18, 2018) Jones v. City of L.A., 2018 WL 2252543 (Cal. App. Unpub. May 17, 2018). This is one of several employment related cases. In three other cases Hispanic police officers sued L.A. because their supervisor ordered them to speak English only in the squad room. An in-house lawyer defended L.A. She was assisted by Officer Carla Cryer. In this case non-Hispanic officers sued L.A. because they were harassed by Hispanic officers speaking Spanish. L.A. is being represented by Outside Law Firm, which is being assisted by the same Officer Cryer. Because of Cryer's involvement, the non-Hispanic plaintiffs in this case moved to disqualify Outside Law Firm. The trial court granted the motion. In this opinion the appellate court affirmed. Much of the fact-specific analysis deals with what Cryer learned by and from the non-Hispanic officers during defense of the three cases brought by the Hispanic officers. On balance the court found that Cryer, the non-lawyer learned too much and had not been screened in this case. The court relied extensively on Shadow Traffic Network v. Superior Court, 24 Cal. App. 4th 1067 (1994).

CLASS ACTIONS (To read full article, click here.)

Nothing current.

CLIENT MERGERS/ASSET SALES (To read full article, click here.)

Nothing current.

CO-COUNSEL/COMMON INTEREST (To read full article, click here.)

(posted May 14, 2018) Rosen v. Cream, 2018 WL 2146761 (Cal. App. Unpub. May 10, 2018). In 2011 Prosecutor filed criminal charges against Defendants 1, 2, and 3 for violating environmental laws. Lawyer A represented 2 and 3. Lawyer A and the lawyer representing 1 entered into a joint defense agreement and commenced an extensive sharing of information. In this civil case, 1 is suing 2 and 3 for conduct that essentially was the subject of the earlier criminal case. Lawyer A is representing 2 and 3. 1 moved to disqualify Lawyer A. The trial court granted the motion. In this "unpublished" opinion the appellate court affirmed. While the court's reasoning is not entirely clear to us, the case can certainly stand for the proposition that a lawyer who is in a joint defense arrangement cannot later be adverse to a non-client party to that agreement where confidential information actually changed hands.

COMMERCIAL NEGOTIATIONS (To read full article, click here.)

Nothing current.

CORPORATIONS (To read full article, click here.)

(posted May 5, 2018) Kirsch v. Dean, 2018 WL 2068691 (6th Cir. May 3, 2018). Corp. has two 50% shareholders, A and B, and they are fighting in this case. Corp. is not a party. B moved to disqualify A's lawyer. The trial court denied the motion. B then sought to have Corp. intervene in this case to move to disqualify A's lawyer. The trial court denied the motion to intervene. In this opinion the appellate court affirmed. The court did not rule on the merits of disqualification but rather on procedural grounds, primarily on B's failure to comply with Rules 24 (a) & (b) of the FRCP.

CORPORATE FAMILIES (To read full article, click here.)

Nothing current.

CRIMINAL PRACTICE (To read full article, click here.)

Nothing current.

CURRENT CLIENT (To read full article, click here.)

(posted May 21, 2018) High 5 Games, LLC v. Marks, 2018 WL 2278103 (D.N.J. May 18, 2018). Plaintiff, a manufacturer of slot machine-type devices, is suing a number of persons and firms for trade secret, patent infringement, and related causes of action. Law Firm appeared for all defendants. Plaintiff moved to disqualify Law Firm, alleging that several defendants were advancing defenses that conflict with each other. In a fact-intensive analysis, the court found that there was not really a conflict. In addition, the court held that the defendants had waived the non-existent conflict, that Plaintiff waited too long to bring the motion (4 years), and that Plaintiff, not being a current or former client of Law Firm, had no standing to make the motion.

DERIVATIVE ACTIONS (To read full article, click here.)

Nothing current.

ENJOINING CONFLICTS (AND OTHER NON-TRADITIONAL REMEDIES) (To read full article, click here.)

Nothing current.

EXPERT WITNESSES (To read full article, click here.)

(posted May 5, 2018) Grant Heilman Photography, Inc. v. McGraw-Hill Global Educ. Holdings, LLC, 2018 WL 2065060 (E.D. Pa. May 2, 2018). Grant seeks to enforce copyrights on photographs used by McGraw in textbooks. Grant's law firm retained Expert for this case. The problem is that Expert had previously worked for McGraw in a role that included ensuring that McGraw was not infringing copyrights. In this opinion the court granted McGraw's motion to disqualify Grant's law firm. [Caution: The court applied various ethics rules in ways we have not seen before, in matters involving non-lawyers, particularly Pa. Rules 1.9 and 5.3(c). Another problem, at least for us, is that the court is seeking to protect "privileged or confidential/proprietary information." We get the "privileged" part, but are unsure about the "confidential/proprietary" part. The result "feels" right, but a further description seems pointless, given our inability to get our arms around the court's reasoning. If you have a situation like this, you might read the opinion.]

FORMER CLIENT (To read full article, click here.)

Nothing current.

GOVERNMENT ENTITIES - SUING ONE PART/REPRESENTING ANOTHER PART (To read full article, click here.)

(posted May 10, 2018) Spruce Grove Gun Club v. Parkland County, 2018 ABQB 364 (CanLII)(Ct. Q.B. Alb. May 4, 2018). Lawyer seeks to be adverse to County in these two cases. County seeks to disqualify Lawyer because in 2014 Lawyer acted for the County Appeal Board in a single matter. In this opinion denying disqualification, the court found that representing the Appeal Board was not tantamount to representing County. The court also found that County was not a "near client" in the 2014 matter and that Lawyer received no relevant confidences from County in that matter.

HOT POTATO DOCTRINE (To read full article, click here.)

Nothing current.

INITIAL INTERVIEW - HEARING TOO MUCH (To read full article, click here.)

Nothing current.

INSURANCE DEFENSE (To read full article, click here.)

Nothing current.

INVESTING IN CLIENTS/STOCK FOR FEES (To read full article, click here.)

Nothing current.

ISSUE OR POSITIONAL CONFLICTS (To read full article, click here.)

Nothing current.

JOINT/MULTIPLE REPRESENTATION (To read full article, click here.)

(posted April 25, 2018) Carrero v. Farrelly, 2018 WL 1900136 (D. Md. April 19, 2018). Suit against Officer and County for unlawful arrest. A County in-house lawyer ("Lawyer") attempted to represent both County and Officer. The procedural status of the case is messy, so we will skip that. The court had raised, sua sponte, whether Lawyer would have a conflict, which is the main issue in this opinion. The court held that Lawyer had a conflict and directed the defendants "to rectify this conflict forthwith." The court focused on a training issue. If Lawyer were to argue that County trained Officer well, that is a problem for Officer. If Lawyer were to defend the Officer by claiming his training was inadequate, that is a problem for County.

LAWYER AS EXPERT WITNESS OR CONSULTANT (To read full article, click here.)

Nothing current.

LAWYERS REPRESENTING LAWYERS (To read full article, click here.)

Nothing current.

MALPRACTICE LIABILITY/FEE FORFEITURES (To read full article, click here.)

Nothing current.

OF COUNSEL (To read full article, click here

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Nothing current.

OPPOSING LAWYERS NEGOTIATING A LAW PRACTICE MERGER (To read full article, click here.)

Nothing current.

PARTNERSHIPS (INCLUDING LIMITED PARTNERSHIPS) (To read full article, click here.)

Nothing current.

SETTLEMENT AGREEMENTS (To read full article, click here.)

Nothing current.

STANDING (To read full article, click here.)

(posted May 21, 2018) High 5 Games, LLC v. Marks, 2018 WL 2278103 (D.N.J. May 18, 2018). Court ruled that Plaintiff lacked standing. To read more about the case, go to "Current Client," above.

(posted May 5, 2018) Nebraska Data Centers, LLC v. Khayet, 2018 WL 2050567 (D. Neb. April 24, 2018). Corp. represented by Law Firm, sued Consultant on various contractual theories ("This Case"). Consultant then sued the president of Corp. in Kansas ("Other Case"). This court enjoined Consultant from maintaining Other Case because of the identity of the issues and the near identity of parties, in This Case. In This Case Consultant moved to disqualify Law Firm because Law Firm had appeared for the president in Other Case. In this opinion the court denied the motion on standing grounds. The court noted, citing Hawkes v. Lewis, 586 N.W.2d 430 (1998), that where the conflict is "serious," standing would not be a bar to disqualification. Here, because Corp.'s interests and those of the president were "aligned," the alleged conflict was not "serious."

TRADE (AND OTHER) ASSOCIATIONS (To read full article, click here.)

Nothing current.

UNDERLYING WORK PROBLEM (To read full article, click here.)

Nothing current.

WAIVERS/CONSENTS (To read full article, click here.)

Passage of Time as Waiver

(posted May 21, 2018) High 5 Games, LLC v. Marks, 2018 WL 2278103 (D.N.J. May 18, 2018). Four years too long.

WITNESS - ADVERSE - CURRENT/FORMER CLIENT (To read full article, click here.)

Nothing current.

ZERO SUM GAMES (To read full article, click here.

Nothing current.

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