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FREIVOGEL ON CONFLICTS WHAT'S NEW Home/Table of Contents 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. Ten Day Bulletin Class Action (posted October 13, 2018) Vazquez v. Draft Heinz Foods Co., 2018 WL 4896072 (S.D. Cal. Oct. 9, 2018). Class action by employees for improper compensation. This opinion deals in part with a motion to disqualify Defendant's law firm ("Law Firm"). Prior to class certification Law Firm represented two potential class members (not class representatives) in their depositions and in preparation for the depositions. In this opinion the court denied the motion to disqualify. The court found that the deposition representation did not impact "Plaintiffs' interest in a just and lawful determination of their claims." Thus, Plaintiffs' lack of standing required denial of the motion. Former Client; Changing Firms (posted October 13, 2018) Lee v. BP p.l.c., 2018 WL 4932003 (N.D. Okla. Oct. 11, 2018). Lawyer, while at Firm 1, helped OilCo respond to a Government claim regarding Contaminated Site. Lawyer left Firm 1 and joined Firm 2. Firm 2, representing aggrieved land owners, brought this action against OilCo's parent for damages arising out of the condition of Contaminated Site. OilCo's parent, a defendant, moved to disqualify Firm 2. In this opinion the court granted the motion. First, the court held that Lawyer's work at Firm 1 was substantially related to this case. Second, the court held that under Oklahoma Rule 1.10(a) Lawyer's taint was imputed to the entire Firm 2. Because the Oklahoma rule does not have a screening provision, the court briefly looked at Model Rule 1.10, which does, but quickly concluded that Firm 2 had not complied with any of the Model Rules's screening requirements. The opinion does not include a corporate family discussion. That OilCo and OilCo's parent were one for conflicts purposes appears to have been a given. Two companion opinions involving different plaintiffs contain the same analysis and result as above: Lane v. BP p.l.c., 2018 WL 4932002 (N.D. Okla. Oct. 11, 2018); and Bristol 1st Assembly of God v. BP p.l.c., 2018 WL 4931997 (N.D. Okla. Oct. 11, 2018). Partnership (posted October 9, 2018) Vanderschaaf v. Bishara, 2018 WL 4677455 (Tenn. App. Sept. 28, 2018). Legal malpractice case. The trial court granted summary judgment to Lawyer. In this opinion the appellate court affirmed. The case involves a convoluted failure and sale of a real estate development. The development was owned by a partnership of two persons ("Partner A" and "Partner "B"). Lawyer had been Partner A's lawyer on various matters. Partner A caused Lawyer to handle the sale of the property on behalf of the partnership. This work did require Lawyer to communicate with Partner B on various matters. Partner B was unhappy with the outcome, and in this case sued Lawyer for malpractice and breach of fiduciary duty. In a very fact-specific analysis, the appellate court found that Lawyer never represented Partner B individually. The court's analysis includes a discussion of Restatement § 14, Tenn. Rule 1.13 (a) & (f), and ABA Op. 91-361 (1991). Expert Witness (posted October 8, 2018) Tex. Op. 676 (Aug. 2018). Lawyer has already retained one expert ("No. 1"). He is concerned that the other side will retain another highly-qualified expert ("No. 2"). So Lawyer arranges a meeting with No. 2 in order to review the facts and theories of the case. Once this occurs, No. 2 is probably precluded from being retained by the other side. But, Lawyer does not follow through with retaining No. 2. In this opinion the Committee held that Lawyer has violated Texas' version of Model Rule 4.4(a), and likely has violated Texas version of Model Rule 4.1(a). 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; Disaster Preparedness (post September 19, 2018) ABA Op.
482 (Sept. 19, 2018). While a lot of information about disaster
preparation is available, according to the Committee a "dearth of
guidance on a lawyer's ethical responsibilities" is available. In this
opinion the Committee recites the way in which the following Model Rules
could be implicated: 1.4, 1.1, 1.15, 5.5, & 7.1-7.3. We recommend
you read the opinion. 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.] Nothing current. Nothing current. BANKRUPTCY (To read full article, click here) (posted October 1, 2018) Fann Contracting, Inc. v. Garman Turner Gordon LLP,
2018 WL 4682325 (D. Nev. Sept. 27, 2018). The Chapter 11 Trustee hired
Law Firm on a contingent fee basis. Later, when the firm sought fees, a
creditor objected. One of the objections was that the contingent fee
created an impermissible conflict of interest. The bankruptcy court
allowed Law Firm its fees. In this opinion the court vacated the
bankruptcy court's order and remanded so the bankruptcy court could
consider the reasonableness of the fees under 11 U.S.C § 330. As to the
conflict allegation, the court held that a contingent fee agreement,
without more, does not create an impermissible conflict. Nothing current. BOARD POSITIONS (To read full article, click here.) Nothing current. CHANGING FIRMS - SCREENING (To read full article, click here.) (posted October 13, 2018) Lee v. BP p.l.c., 2018 WL 4932003 (N.D.
Okla. Oct. 11, 2018). Lawyer, while at Firm 1, helped OilCo respond to a
Government claim regarding Contaminated Site. Lawyer left Firm 1 and
joined Firm 2. Firm 2, representing aggrieved land owners, brought this
action against OilCo's parent for damages arising out of the condition
of Contaminated Site. OilCo's parent, a defendant, moved to disqualify
Firm 2. In this opinion the court granted the motion. First, the court
held that Lawyer's work at Firm 1 was substantially related to this
case. Second, the court held that under Oklahoma Rule 1.10(a) Lawyer's
taint was imputed to the entire Firm 2. Because the Oklahoma rule does
not have a screening provision, the court briefly looked at Model Rule
1.10, which does, but quickly concluded that Firm 2 had not complied
with any of the Model Rules's screening requirements. The opinion does
not include a corporate family discussion. That OilCo and OilCo's parent
were one for conflicts purposes appears to have been a given. Two
companion opinions involving different plaintiffs contain the same
analysis and result as above: Lane v. BP p.l.c., 2018 WL 4932002 (N.D. Okla. Oct. 11, 2018); and Bristol 1st Assembly of God v. BP p.l.c., 2018 WL 4931997 (N.D. Okla. Oct. 11, 2018). CLASS ACTIONS (To read full article, click here.) (posted October 13, 2018) Vazquez v. Draft Heinz Foods Co., 2018
WL 4896072 (S.D. Cal. Oct. 9, 2018). Class action by employees for
improper compensation. This opinion deals in part with a motion to
disqualify Defendant's law firm ("Law Firm"). Prior to class
certification Law Firm represented two potential class members (not
class representatives) in their depositions and in preparation for the
depositions. In this opinion the court denied the motion to disqualify.
The court found that the deposition representation did not impact
"Plaintiffs' interest in a just and lawful determination of their
claims." Thus, Plaintiffs' lack of standing required denial of the
motion. (posted September 14, 2018) Radner v. IAS Warranty, Inc., 2018 WL
4352692 (E.D. Mich. Sept. 12, 2018). Defendant moved to dismiss this
class action because the class representative, a lawyer, and class
counsel were affiliated in the same law firm(s). In responding to the
court's questions about their relationship, the representative and
counsel gave confusing and evasive answers that "clouded the issue." The
court ordered that either the class representative or class counsel
withdraw. Nothing current. CO-COUNSEL/COMMON INTEREST (To read full article, click here.) Nothing current. COMMERCIAL NEGOTIATIONS (To read full article, click here.) Nothing current. CORPORATIONS (To read full article, click here.) LLC (posted September 19, 2018) Reynolds v. Henderson & Lyman,
No. 17-1999 (7th Cir. Sept. 12, 2018). Plaintiff, an individual, owned
several LLCs. Law Firm advised the LLCs on federal disclosure laws.
According to the complaint, Law Firm got the advice wrong, causing
Plaintiff, himself, to violate federal disclosure laws. The trial court
granted Law Firm summary judgment because Law Firm never represented
Plaintiff. In this opinion the appellate court affirmed. The opinion
discusses the several exceptions in Illinois allowing a non-client to
sue a law firm. Example: client hires lawyer for the specific purpose of
aiding non-client. Not so, here. 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.) 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 October 8, 2018) Tex. Op. 676 (Aug. 2018). Lawyer has already retained one expert ("No. 1"). He is concerned that the other side will retain another highly-qualified expert ("No. 2"). So Lawyer arranges a meeting with No. 2 in order to review the facts and theories of the case. Once this occurs, No. 2 is probably precluded from being retained by the other side. But, Lawyer does not follow through with retaining No. 2. In this opinion the Committee held that Lawyer has violated Texas' version of Model Rule 4.4(a), and likely has violated Texas version of Model Rule 4.1(a). FORMER CLIENT (To read full article, click here.) (posted October 13, 2018) Lee v. BP p.l.c., 2018 WL 4932003 (N.D.
Okla. Oct. 11, 2018). Substantial relationship test applied in ground contamination cases. To read more about the case, go to "Changing Firms . . . ," above. (posted October 3, 2018) Acad. of Allergy & Asthma in Primary Care v. La. Health Serv. & Indem. Co.,
2018 WL 4739690 (E.D. La. Oct. 2, 2018). Plaintiffs are doctors
providing "therapeutic allergy and asthma care." In this suit they claim
that the defendants, health care insurers, conspired to deny wrongfully
coverage to Plaintiffs' patients. Law Firm appeared for one of the
insurers. The problem is that earlier Law Firm represented Plaintiffs in
negotiations with the state medical board regarding their allergy and
asthma care practices. Plaintiffs moved to disqualify Law Firm. In this
opinion the court granted the motion. First, Law Firm claimed that its
earlier services to Plaintiffs were somehow not legal services, taking
them outside Rule 1.9(a). The court rejected that claim, noting that
references to "legal services" appeared throughout the representation
documentation. Second, in a fact-intensive analysis, the court found
that the representations were substantially related. Nothing current. 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. Nothing current. Nothing current. JOINT/MULTIPLE REPRESENTATION (To read full article, click here.) Nothing current. 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.) (posted September 19, 2018) Utah Op. 18-04 (Sept. 11, 2018). Model Rule
1.8(h) prohibits a lawyer's prospectively limiting the lawyer's
liability in a client agreement unless the client is advised to seek
other counsel. A minority of states, including some big ones (e.g.,
California & New York), omitted the "unless" clause, meaning a
lawyer may never do this. This opinion approves of a lawyer asking a
client in advance to indemnify the lawyer for acts of the client. The
opinion also briefly discusses whether a lawyer can seek prospectively
the client's agreement to reimburse the lawyer's malpractice insurance
deductible. The opinion strongly recommends that the lawyer advise the
client in writing to seek other counsel regarding this request. OF COUNSEL (To read full article, click here.) 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.) (posted October 9, 2018) Vanderschaaf v. Bishara, 2018 WL 4677455 (Tenn. App. Sept. 28, 2018). Legal malpractice case. The trial court granted summary judgment to Lawyer. In this opinion the appellate court affirmed. The case involves a convoluted failure and sale of a real estate development. The development was owned by a partnership of two persons ("Partner A" and "Partner "B"). Lawyer had been Partner A's lawyer on various matters. Partner A caused Lawyer to handle the sale of the property on behalf of the partnership. This work did require Lawyer to communicate with Partner B on various matters. Partner B was unhappy with the outcome, and in this case sued Lawyer for malpractice and breach of fiduciary duty. In a very fact-specific analysis, the appellate court found that Lawyer never represented Partner B individually. The court's analysis includes a discussion of Restatement § 14, Tenn. Rule 1.13 (a) & (f), and ABA Op. 91-361 (1991). SETTLEMENT AGREEMENTS (To read full article, click here.) Nothing current. STANDING (To read full article, click here.) (posted October 13, 2018) Vazquez v. Draft Heinz Foods Co., 2018
WL 4896072 (S.D. Cal. Oct. 9, 2018). Lack of standing in class action context. To read more about the case, go to "Class Action," above. Nothing current. UNDERLYING WORK PROBLEM (To read full article, click here.) Nothing current. WAIVERS/CONSENTS (To read full article, click here.) WITNESS - ADVERSE - CURRENT/FORMER CLIENT (To read full article, click here.) Nothing current. Nothing current. Home/Table of Contents Website powered by Network Solutions® |