Class Action (posted August 9, 2022) Brantley v. City of Gretna, 2022 WL 3146334 (La. App. 5th Cir. Aug. 5, 2022). Trial court certified class. In this opinion the appellate court affirmed. Defendants objected in part because class counsel ("Lawyer") was not adequate. One of eight class representatives was Lawyer's "aunt-in-law." She alone could not force "any settlement decisions" on the other class representatives. Thus, the trial court's allowing Lawyer to continue was not an abuse of discretion.

Current Client; No Written Consent (posted August 8, 2022) In re Basic Food Group, LLC, No. 21-cv-246 (LJL) (S.D.N.Y. July 29, 2022). This is a suit against Law Firm, arising out of sale of a restaurant. Law Firm represented Buyer in the sale. The restaurant failed and is in Chapter 11. So, Buyer sued Seller, Lender, and Law Firm. Law Firm represents Seller and Lender in other matters. Thus, Buyer claimed, in part, that Law Firm had a conflict of interest. There was no written consent. The bankruptcy judge granted Law Firm a summary judgment. In this opinion the district judge affirmed. The key point for this audience is that the court found that, while N.Y. Rule 17 requires a consent to be "confirmed in writing," Law Firm had disclosed its relationships with Seller and Lender, and that disclosure was adequate. The court said failure to secure a written consent may be grounds for discipline, but does not establish a right to damages.

Waiver; Delay as Waiver (posted August 3, 2022) Quicklogic Corp. v. Konda Techs., Inc., No. 5:21-cv-04657-EJD (N.D. Cal. San Jose Div. Aug. 2, 2022). Patent Infringement case. Defendant waited seven months before raising the conflict of Plaintiff's lawyer ("Lawyer"). The alleged conflict was Lawyer's violation of California Rule 1.18 (prospective client). In this opinion the district judge denied Defendant's motion to disqualify Lawyer, given the delay and the amount of work that had gone into the case. Pretty good discussion of waiver by delay in California.

Current Client (posted August 1, 2022) Living Lands, LLC v. Cline, 2022 WL 2839231 (S.D. W. Va. July 20, 2022). The facts and the parties' relationships are extremely hard to follow. So, we will get to the nub. Lawyers for the plaintiffs appear to be representing opposing parties in the case. One party moved to disqualify the lawyers. In this opinion the court denied the motion because one of the parties had signed an "option agreement" authorizing the bringing of the action in its name ("an unusual set of circumstances"). Thus, the name was "merely nominal," and there was "no invidious conflict."

Current Client (posted August 1, 2022) G.D. v. Utica Cmty Schools, No. 20-12864 (E.D. Mich. July 27, 2022).  Lawyer successfully represented the parents of a student under a disabilities-related statute. Parents and Lawyer, as "prevailing party," brought this suit to recover lawyer's fees and costs. Utica moved to disqualify Lawyer. In this opinion the court denied the motion. Lawyer had Parents sign an agreement with an "anti-settlement" provision, which assigned to Lawyer the right to receive "attorney fees and costs" from Utica. Utica cited no authority regarding the propriety of the agreement. Thus, the agreement "is not a reason to disqualify" Lawyer.

Standing (posted August 1, 2022) In re Arriaga & Assocs. Wage & Hour Cases, 2022 WL 2952206 (Cal. App. Unpub. July 26, 2022). Although unpublished, this opinion is a pretty good exposition of standing in California. Arriaga company, defending wage and hour claims, moved to disqualify Law Firm from representing the plaintiffs. Arriaga has never been a client of Law Firm. However, Arriaga is claiming that because Law Firm represents a competitor of Arriaga, Law Firm's interests conflict with those of the individual plaintiffs. The trial court denied the motion to disqualify. In this opinion the appellate court affirmed. The court noted that "some courts" apply an infects-the-litigation exception for non-clients. The court said even were it to apply the exception, this is not one of those situations. We are omitting a lot of reasoning. If standing interest you, you may enjoy reading the opinion.

[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.]

Nothing current.

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

(posted July 11, 2022) Doe 1 v. Madison Metro. School Dist., 2022 WL 2550014 (Wis. July 8, 2022). This litigation is about the duties of school personnel to communicate (or not) to parents regarding pupils' trans-gender status. The parent/plaintiffs wish to have their names withheld from lawyers for the district/defendant. (Wisconsin rules already allow courts to keep that information from the public and the district/defendant.) In this opinion the court ruled that the district's lawyers should get the parents' identities. One factor of "no minor importance" is the ability of the district's lawyers to identify possible conflicts with the parents. The court stressed that it is the duty of lawyers, more so than that of clients, to police compliance with the conflict rules.

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

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

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

(posted August 9, 2022) Brantley v. City of Gretna, 2022 WL 3146334 (La. App. 5th Cir. Aug. 5, 2022). Trial court certified class. In this opinion the appellate court affirmed. Defendants objected in part because class counsel ("Lawyer") was not adequate. One of eight class representatives was Lawyer's "aunt-in-law." She alone could not force "any settlement decisions" on the other class representatives. Thus, the trial court's allowing Lawyer to continue was not an abuse of discretion.

(posted July 18, 2022) Doster v. Kendall, 2022 WL 2760455 (S.D. Ohio July 14, 2022). Suit by airmen against their superiors claiming that being forced to obtain COVID vaccinations violates their religious beliefs. In this order granting Plaintiffs' Motion for Class Certification, the court held that the pendency of other litigation involving some members of the class over the COVID vaccination issue does not disqualify those class members, or their counsel, here. "[T]he injunctive relief [in this case] would benefit all religiously opposed Airmen who are currently pursuing litigation for the same purpose as Plaintiffs."

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

COMMERCIAL NEGOTIATIONS (To read full article, click .)

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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.)

No Written Consent

(posted August 8, 2022) In re Basic Food Group, LLC, No. 21-cv-246 (LJL) (S.D.N.Y. July 29, 2022). This is a suit against Law Firm, arising out of sale of a restaurant. Law Firm represented Buyer in the sale. The restaurant failed and is in Chapter 11. So, Buyer sued Seller, Lender, and Law Firm. Law Firm represents Seller and Lender in other matters. Thus, Buyer claimed, in part, that Law Firm had a conflict of interest. There was no written consent. The bankruptcy judge granted Law Firm a summary judgment. In this opinion the district judge affirmed. The key point for this audience is that the court found that, while N.Y. Rule 17 requires a consent to be "confirmed in writing," Law Firm had disclosed its relationships with Seller and Lender, and that disclosure was adequate. The court said failure to secure a written consent may be grounds for discipline, but does not establish a right to damages.

(posted August 1, 2022) Living Lands, LLC v. Cline, 2022 WL 2839231 (S.D. W. Va. July 20, 2022). The facts and the parties' relationships are extremely hard to follow. So, we will get to the nub. Lawyers for the plaintiffs appear to be representing opposing parties in the case. One party moved to disqualify the lawyers. In this opinion the court denied the motion because one of the parties had signed an "option agreement" authorizing the bringing of the action in its name ("an unusual set of circumstances"). Thus, the name was "merely nominal," and there was "no invidious conflict."

(posted August 1, 2022) G.D. v. Utica Cmty Schools, No. 20-12864 (E.D. Mich. July 27, 2022).  Lawyer successfully represented the parents of a student under a disabilities-related statute. Parents and Lawyer, as "prevailing party," brought this suit to recover lawyer's fees and costs. Utica moved to disqualify Lawyer. In this opinion the court denied the motion. Lawyer had Parents sign an agreement with an "anti-settlement" provision, which assigned to Lawyer the right to receive "attorney fees and costs" from Utica. Utica cited no authority regarding the propriety of the agreement. Thus, the agreement "is not a reason to disqualify" Lawyer.

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 July 20, 2022) Daddono v. Hoffman, 2022 WL 2802695 (M.D. Fla. July 18, 2022). Expert is a "certified correctional healthcare professional." Plaintiff's lawyer ("Lawyer") contacted Expert early on. They spoke twice on the telephone. Expert provided Lawyer with his CV and fee schedule. Expert took no notes and did not invoice Lawyer. Later Defendant retained Expert. Plaintiff moved to disqualify Expert. In this opinion the court denied the motion. The analysis was very fact-specific. The court held that Lawyer had never retained Expert, that it was not reasonable for Lawyer to believe that he had a confidential relationship with Expert, and that Lawyer had not provided Expert with Plaintiff's confidences. The court was also influenced by the scarcity of experts with knowledge "specific to the incarcerated care setting."

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

Nothing current.

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

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

Right to Cumis Counsel

(posted July 25, 2022) Simonyan v. Nationwide Ins. Co. of Am., 78 Cal. App. 5th (2022). As a result of an accident, in which InsCo determined that its insured was at fault, InsCo raised its insured's premium. However, InsCo agreed to defend its insured for claims against its insured, arising out of that accident, with no reservation of rights. In this opinion the court held that raising the insured's premium does not create the kind of conflict of interest justifying hiring of Cumis counsel.

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

Nothing current.

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

(posted July 15, 2022) In re Matteis, 2022 IL App (1st) 210800-U (Ill. App. July 14, 2022). W passed away leaving a will. H was not a legatee, but was beneficiary of an inter-vivos trust created by W. The trust contained two companies, jointly owned by W and her brother ("Brother"). After W's death, Brother's son, W's nephew ("Nephew"), became manager of the two companies. As beneficiary of the trust, H had certain distribution rights during his lifetime. In this litigation, H on one side, and Brother and Nephew on the other side, are contesting who has rights to what. Law Firm has appeared for Brother, Nephew, and the two companies. H moved to disqualify Law Firm. The trial court held that Law Firm could not represent all four, but could represent the two companies or Brother and Nephew. In this "order" the appellate court affirmed the trial court. The court found that H had standing to move to disqualify Law Firm because of his "potential interest" in the court's resolution of his ownership rights. Second, the court found that, under Rule 1.7(a)(2) (material limitation) Law Firm had a conflict because the interests of Brother and Nephew potentially differ from those of the two companies. Warning: Because this order was deemed non-precedential under Ill. S. Ct. Rule 23(e)(1), we have chosen not to delve into the precise ways the court felt that the interests of Law Firm's clients could conflict. Same, with respect to standing. That discussion was lengthy and referred to numerous cases not dealing with motions to disqualify. Thus, in our view it was of questionable utility to this audience.

Nothing current.

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

Fee Forfeiture

(posted July 25, 2022) Avco Corp. v. Turner, No. 21-2750 (3d Cir. July 22, 2022). Lawyer formerly represented Avco in product liability cases involving Avco small plane engines. Lawyer later represented a plaintiff against Avco involving an Avco small plane engine. In this case Avco sued Lawyer for breach of fiduciary duty. The trial court granted Lawyer summary judgment. In this opinion the appellate court found that the the trial court was correct except as to disgorgement, and ordered the trial court to consider that claim. In this case disgorgement would mean that Lawyer should give up all the fees she earned in the plaintiff's case. Given that this opinion is "not precedential," we will not discuss other aspects of the case for which the trial court was affirmed. This includes compensatory damages, attorney's fees, nominal damages, and injunction.

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.)

(posted August 1, 2022) In re Arriaga & Assocs. Wage & Hour Cases, 2022 WL 2952206 (Cal. App. Unpub. July 26, 2022). Although unpublished, this opinion is a pretty good exposition of standing in California. Arriaga company, defending wage and hour claims, moved to disqualify Law Firm from representing the plaintiffs. Arriaga has never been a client of Law Firm. However, Arriaga is claiming that because Law Firm represents a competitor of Arriaga, Law Firm's interests conflict with those of the individual plaintiffs. The trial court denied the motion to disqualify. In this opinion the appellate court affirmed. The court noted that "some courts" apply an infects-the-litigation exception for non-clients. The court said even were it to apply the exception, this is not one of those situations. We are omitting a lot of reasoning. If standing interest you, you may enjoy reading the opinion.

Nothing current.

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

(posted August 3, 2022) Quicklogic Corp. v. Konda Techs., Inc., No. 5:21-cv-04657-EJD (N.D. Cal. San Jose Div. Aug. 2, 2022). Patent Infringement case. Defendant waited seven months before raising the conflict of Plaintiff's lawyer ("Lawyer"). The alleged conflict was Lawyer's violation of California Rule 1.18 (prospective client). In this opinion the district judge denied Defendant's motion to disqualify Lawyer, given the delay and the amount of work that had gone into the case. Pretty good discussion of waiver by delay in California.

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

Nothing current.

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

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