Current Client (posted May 16, 2022) Banks v. Jackson, 2022 WL 1451904 (D. Col. May 9, 2022). Plaintiffs, church-related, have sued Defendant for defamation and related causes of action. Defendant moved to disqualify the lawyer for Plaintiffs ("Lawyer") because Lawyer is suing Defendant in New York state court. This opinion does not disclose the nature of the New York claims. In this opinion the magistrate judge denied the motion. First, the judge said the mere fact of the other case is, standing alone, not a conflict for Lawyer. Second, as to Defendant's claim that Lawyer is using information from this case to advantage Defendant in the New York case, the court said that Defendant failed to establish the nature of that information.

[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.]

Rule 1.12

(posted April 22, 2022) Hassett v. Olson, No. C092212 (Cal. App. Unpub. 3d Dist. April 20, 2022). Hassett brought this case in El Dorado County to enforce his right to purchase certain South Lake Tahoe property ("The Property"). The defendant/sellers retained Steven Bailey to help defend. Hassett moved to disqualify Bailey because Bailey is a former El Dorado County judge who had made earlier rulings regarding The (same) Property. Hassett was not a party to those earlier proceedings. The trial judge granted the motion to disqualify, relying on California's version of Model Rule 1.12. In this opinion the appellate court affirmed. Because the opinion is "Unpublished," we will look at the issues only briefly. First, the court ruled that Hassett had standing to bring the motion. Even though Hassett was not a party in the earlier proceedings, Bailey's violation of Rule 1.12 was so serious as to "undermine the integrity of the judicial process." Last, the court ruled that the earlier proceedings and this case are all part of the same "matter" as the term is used in Rule 1.12

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

(posted April 29, 2022) Margetak v. Hughes, 2022 ABPC 91 (CanLII) (Prov. Ct. Alb. April 6, 2022). Marital dispute. H moved to disqualify one of W's lawyers ("Lawyer") because Lawyer had represented an earlier wife of H against H in a marital dispute. H is claiming that Lawyer retains H's confidences from the earlier dispute. In this very fact-specific opinion the court held that the paucity of the record prevents the court from concluding that H retains information from the earlier case that is sufficiently related to this case. Moreover, H waited two years to raise the issue, a delay "beyond reasonable contemplation."

Information from Non-Client

(posted April 29, 2022) Talon Int'l Inc. v. Min, 2022 ONSC 1791 (CanLII) (Super. Ct. Ont. March 21, 2022). Plaintiff owns a hotel, which sells condominium units to individual investors. One of those investors is Defendant. Plaintiff is suing Defendant for damages. Plaintiff moved to disqualify Defendant's lawyer ("Lawyer") because Lawyer had represented numerous other hotel unit investors in disputes with Plaintiff. Plaintiff claims Lawyer would have received Plaintiff's confidences during discovery and resolution of the other investors' cases. In this opinion the court granted the motion to disqualify, finding that litigation provided Lawyer "with a high level of exposure" and that "there is a real risk of even inadvertently misusing the confidential information he possesses."

(posted April 27, 2022) Escobar v. Mazie, No. A-3761-20 (N.J. App. Div. April 25, 2022). Legal malpractice case. Law Firm had represented Plaintiff in a case arising out of serious injuries to an infant. Plaintiff ultimately lost the case and is blaming her law firm, the Mazie Law Firm. Plaintiff moved to disqualify the law firm ("Wilentz Firm") defending the the Mazie Firm in this case. The Wilentz Firm had entered this case in January 2021. The problem is that, in February 2021, "Mediator," who had presided in two mediation sessions during the injury case, joined the Wilentz Firm.  Prior to joining Wilentz, Mediator had filed, in this case, a declaration about the issues in the mediation. Evidently, Mediator may also be a courtroom witness in this case. Carefully parsing New Jersey's Rule 1.12, this court agreed with the trial court that the Wilentz Firm can continue in the case. Both courts found the Wilentz firm's screening of Mediator to be adequate under the rule. As to whether Mediator could testify during depositions or the trial of this case, the court suggested that the Wilentz firm might rely on the Mazie firm to handle that part of the case.

Contract Unconscionable

(posted April 27, 2022) Simon v. Smith, No. 18-FM-1333 (D.C. App. April 22, 2022). Divorce. Control of property. W and H separated in 2016 after ten years of marriage. W sued for divorce in 2017. At issue here is ownership and control of a condominium, which W had owned outright before the marriage. During their marriage H had his longtime lawyer ("Lawyer") prepare documents providing for transfer of certain rights to the condo from W to H. Lawyer purported to be W's lawyer when the documents were signed. Given, in substantial part, Lawyer's longtime relationship to H, and Lawyer's conflict, the trial court ruled the condo documents unconscionable -- "one-sided and oppressive" -- and ordered that W resume full ownership and control of the condo. In this opinion the appellate court affirmed the trial court. The opinion contains much more about the doctrine of unconscionability and trust law. The purpose of this piece is to illustrate how a lawyer's seeming over-the-top conflict can invalidate contract rights.

APPEALABILITY (To read full article, click here.)

Nothing current.

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

Nothing current.

BANKRUPTCY (To read full article, click here.)

(posted April 20, 2022) In re: 38-36 Greenville Ave LLC, No. 21-2164 (3d Cir. "Not Precedential" April 19, 2022). This is really not a conflict of interest matter. It is a failure by a lawyer to be honest with the court and make a full and timely disclosure of his compensation arrangements. Late in the case the lawyer applied for fees of nearly $32,000. The application papers, for the first time, referred to payments totaling $19,400, made without court approval, to the lawyer by the debtor's sole owner. The bankruptcy judge denied the fee application and ordered the lawyer to disgorge fees already received. The district judge affirmed. In this opinion the Third Circuit affirmed, noting the "first law of holes: when you're in one, stop digging."

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

Nothing current.

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

(posted April 29, 2022) Smith v. Lafarge Canada Inc., 2022 ABQB 289 (CanLII) (Ct. Q.B. Alb. April 20, 2022). In this class action Plaintiffs claim that they are employees of Lafarge and that Lafarge engaged in an illegal scheme to underpay them. Plaintiff Smith, additionally, is making a claim for age discrimination. Law Firm appeared for the class as well as for Smith on his age discrimination claim. In this opinion the court ruled that the age discrimination claim is not a class claim and will be deferred until after certification. Law Firm must drop representation of Smith in his age discrimination claim or drop the class claims "as selected by the plaintiff." The opinion contains an extensive analysis of how representation in the age discrimination claim would be inconsistent with the class claims.

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 May 16, 2022) Banks v. Jackson, 2022 WL 1451904 (D. Col. May 9, 2022). Plaintiffs, church-related, have sued Defendant for defamation and related causes of action. Defendant moved to disqualify the lawyer for Plaintiffs ("Lawyer") because Lawyer is suing Defendant in New York state court. This opinion does not disclose the nature of the New York claims. In this opinion the magistrate judge denied the motion. First, the judge said the mere fact of the other case is, standing alone, not a conflict for Lawyer. Second, as to Defendant's claim that Lawyer is using information from this case to advantage Defendant in the New York case, the court said that Defendant failed to establish the nature of that information.

Verein

(posted April 28, 2022) RevoLaze LLC v. Dentons US LLP, No. 109742 (Ohio App. 8th Dist. April 28, 2022). Because of our various associations with a number of players in this matter, we will report here only the basic findings relating to Swiss vereins and conflicts of interest. On April 28, 2022, the Ohio Court of Appeals affirmed the trial court's denial of a JNOV motion by Law Firm following a $32 million legal malpractice verdict against Law Firm in favor of Client. This started during a proceeding before the International Trade Commission ("ITC") when an administrative law judge disqualified Law Firm from proceeding on behalf of Client. The problem was that Law Firm was a member of a verein. Another member of the verein in another country was representing a party that was Client's opponent in the ITC proceeding. Client is claiming that it suffered all sorts of losses as a result of Law Firm's disqualification. Client sued Law Firm in Ohio state court. One of Client's claims (there were several) was that Law Firm's clumsy handling of the conflict led, in part, to Client's losses. After a trial, the jury found that those losses totaled $32 million. The judge denied Client's motion for JNOV. In this opinion the appellate court affirmed that denial. While we express no view as to the correctness of all this, we will say that the appellate court's 56-page (142 paragraphs) opinion provides a fairly clear description of what has gone on and what the issues are.

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

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

(posted April 20, 2022) Stanko v. Domina, 2022 WL 1146265 (Neb. App. Unpub. April 19, 2022). Stanko was in commercial litigation against Schwarting (not this case). Schwarting hired the Domina law firm to represent him in that case. Stanko objects to this because the Domina firm had represented Stanko in an even earlier criminal case. Stanko brought this case to enjoin the Domina firm from representing Schwarting in the other -- commercial litigation -- case. The trial court in this case granted the Domina firm a judgment on the pleadings. In this opinion the appellate court affirmed. While the opinion is not a model of clarity, the rationale of both the trial and appellate courts appears to be that Stanko had an adequate remedy at law in that he could have moved to disqualify the Domina firm in the commercial litigation case.

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

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

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

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

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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.)

(posted April 18, 2022) In re Flint Water Cases, 2022 WL 1127398 (E.D. Mich. April 15, 2022). The Napoli firm represents thousands of plaintiffs. Mark Cuker represents nearly a thousand other plaintiffs. The court has approved a partial settlement affecting both groups of plaintiffs. The Napoli firm moved to disqualify Cuker because Cuker had, before the settlement was approved, filed objections to the proposed settlement on behalf of twelve of his clients. In this opinion the district judge denied the motion to disqualify. The court found that Coker's conduct "likely violated" ethics rules, but that the conflict was "short-lived and did not ultimately affect" any of Cuker's clients.

Nothing current.

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.)

Nothing current.