Insurance Defense; Privity, Subrogation, etc. (posted September 20, 2021) Arch Ins. Co. v. Kubicki Draper, LLP, No. SC19-673 (Fla. June 3, 2021). Arch insured an accounting firm ("Spear") for malpractice. Spear was sued by a client for accounting malpractice. Spear and Arch settled that case, paying $3.5 million (policy limits). Arch then brought this legal malpractice case against Kubicki, the law firm Arch had retained to defend Spear. The gist of this case is that Kubicki failed to "timely raise the statute of limitations defense significantly [increasing] the cost of settlement." The trial court in this case granted Kubicki summary judgment because "there was no privity between Arch and Kubicki." The intermediate appellate court affirmed, but certified to this court the issue of whether Arch had privity with Spear and standing to sue Kubicki. In this opinion the court acknowledged that there was no privity, but found that Arch had standing because of an express subrogation provision in its policy with Spear. [Note: We missed this case back in June because the opinion does not contain the word "conflict." We learned of it from Dan Bressler and his excellent blog at bresslerriskblog.co. There, you can subscribe for email updates. Anyone dealing with lawyer risk and ethics should do so.]

[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.]

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

(posted September 1, 2021) Amjadi v. Brown, 2021 WL 3855831 (Cal. App. Aug. 30, 2021). Auto accident case. Plaintiff signed a retainer agreement authorizing Law Firm to enter into a settlement agreement that Law Firm believed to be "reasonable" and in Plaintiff's "best interest." Law Firm accepted an offer of $150,000, over Plaintiff's objection. The trial court ordered that the settlement was enforceable. In this opinion the appellate court reversed, finding, among other things, that the retainer agreement violated Cal. Rules 1.7(b) and 1.2(a), and that the settlement agreement was void. The appellate court also referred Law Firm's conduct to the State Bar for possible discipline.

(posted August 25, 2021) Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R. Admin., 2021 WL 3700447 (D.C. Cir. Aug. 20, 2021). Unions are challenging a regulation issued by F.R.A. The regulation provides that accident information developed by F.R.A. be withheld from discovery in accident cases. One of the bases for the challenge was that the regulation was based upon a study by a biased contractor (Law Firm). In this opinion the court upheld the regulation, including a finding that Law Firm did not have a conflict of interest. Law Firm did represent a railroad a hundred years ago. It was involved in one litigation from an accident that occurred after Law Firm's study was completed, and it did counsel a railroad on environmental issues, not rail safety.

APPEALABILITY (To read full article, click here.)

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

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BANKRUPTCY (To read full article, click here.)

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

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

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

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

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CORPORATIONS (To read full article, click here.)

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

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

(posted August 31, 20210 Metzger v. Brotman, 2021 IL App (1st) 201218 (Ill. App. Aug. 27, 2021). The Illinois Supreme Court disbarred Metzger in 2013. Metzger brought this suit against various persons acting for, and with, the ARDC (the administrative agency answering to the Supreme Court on lawyer disciplinary matters). Two ARDC in-house lawyers appeared for all the defendants. Metzger moved to disqualify the ARDC lawyers. The trial court denied the motion. In this opinion -- in addition to affirming dismissal of the complaint -- the appellate court affirmed the trial court's denial of disqualification. The court noted that "the position of the ARDC and the individual defendants on the central issue in the case is the same."

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

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

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

(posted August 31, 2021) Avco Corp. v. Turner, 2021 WL 3722274 (E.D. Pa. Aug. 23, 2021). Avco makes piston engines for airplanes. Until 2018 Turner represented Avco in product liability cases. Turner has recently assisted a plaintiffs' law firm on Daubert matters including cases in which Avco was, or had been, a defendant. Avco brought this case against Turner for damages, for declaratory relief, and for injunctive relief. In this opinion the court granted Turner summary judgment. The focus was on Pa. Rule 1.9(a). First, the court found that Avco had not shown any damages. As to declaratory or injunctive relief, the court would not speculate as to how, in the future, Turner "might violate her duty to Avco." The opinion is not clear on when Turner's Daubert work was adverse to Avco in a meaningful way.

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

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

Privity, Subrogation, etc.

(posted September 20, 2021) Arch Ins. Co. v. Kubicki Draper, LLP, No. SC19-673 (Fla. June 3, 2021). Arch insured an accounting firm ("Spear") for malpractice. Spear was sued by a client for accounting malpractice. Spear and Arch settled that case, paying $3.5 million (policy limits). Arch then brought this legal malpractice case against Kubicki, the law firm Arch had retained to defend Spear. The gist of this case is that Kubicki failed to "timely raise the statute of limitations defense significantly [increasing] the cost of settlement." The trial court in this case granted Kubicki summary judgment because "there was no privity between Arch and Kubicki." The intermediate appellate court affirmed, but certified to this court the issue of whether Arch had privity with Spear and standing to sue Kubicki. In this opinion the court acknowledged that there was no privity, but found that Arch had standing because of an express subrogation provision in its policy with Spear. [Note: We missed this case back in June because the opinion does not contain the word "conflict." We learned of it from Dan Bressler and his excellent blog at bresslerriskblog.co. There, you can subscribe for email updates. Anyone dealing with lawyer risk and ethics should do so.]

(posted September 7, 2021) Consol. Chassis Mgmt. LLC v. Northland Ins. Co., No. 1-19-cv-05287 (N.D. Ill. Sept. 2, 2021). This opinion discusses whether, under Illinois law, Insureds may hire their own counsel at Insurer's expense. That issue depends upon whether Insurer's retained lawyer has a conflict of interest. The issue arose because Insurer hired one law firm to defend four defendants in an accident case. Their interests arguably did not align. (We will spare you with who was doing what to whom.) The court, in an October 23, 2020 order, found that there was no conflict. In this opinion the court granted, in part, a Rule 59(e) motion to alter or amend the October 23 order, finding that "Plaintiffs have plausibly stated that a conflict of interest exists." Both the October 23 order and this opinion contain interesting analyses of Illinois casualty insurance law and interweave opinions of the Illinois Supreme Court, Illinois Appellate Courts, Seventh Circuit, and Northern District of Illinois. Lawyers practicing insurance defense law in Illinois would do well to read, and keep handy, both documents.

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

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

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

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OF COUNSEL (To read full article, click here.)

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

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

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STANDING (To read full article, click here.)

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

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

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

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