Conflict Uncategorized (posted June 14, 2021) Cantu Servs., Inc. v. Worley, No. CIV-12-129-R (W.D. Okla. June 7, 2021). Discovery dispute. In this opinion the court found that parties being represented jointly by one lawyer enjoy a common interest privilege even after the parties interests diverge. The fact that the lawyer should have recognized the conflict, but kept going, does not remove the privilege. The court then found that the discovering party had made a prima facie showing of crime/fraud requiring that the court do an in camera inspection of the disputed material. The court's lengthy analyses of both common interest and crime/fraud appear to be good research tools.

Changing Firms; Screening (posted June 14, 2021) Prentice v. OfficeMax N.A., Inc., No. 13-71 (D.V.I. June 10, 2021). In this employment-related case the Rohn firm represents Plaintiffs, and the Ogletree firm represents Defendant. While with the Ogletree firm Lawyer worked on this case. He then joined the Rohn firm. The magistrate judge disqualified the Rohn firm. In this opinion the district judge affirmed, finding that the magistrate judge's findings were not clearly erroneous. The Rohn firm delayed giving notice to the Ogletree firm for a month. Virgin Island courts follow the ABA Model Rules. Thus, the notice was not "promptly given" under Rule 1.10(a)(2)(ii). The court found other deficiencies in the Rohn firm's screen, as well.

Lawyer as Expert Witness (posted June 14, 2021) Cicchiello & Cicchiello, LLP v. Sarris, No. HHD-CV-21-6137918-S (Conn. Super. Ct. Hartford Dist. May 19, 2021). Lawrence Connelli represents Plaintiff. The Dzialo law firm is a defendant. The defendants moved to disqualify Connelli, claiming that he represents the Dzialo firm. In this opinion the court denied the motion, finding that the Dzialo firm had hired Connelli as a testifying expert, and not as the Dzialo firm's lawyer. The court relied primarily on Commonwealth Ins. Co. v. Stone Container Corp., 178 F. Supp. 2d 938 (N.D. Ill. 2001), which essentially held that a testifying lawyer expert does not have a client.

Current Client; Patent Opinion (posted June 9, 2021) Kimberly-Clark Corp. v. Extrusion Group, LLC, 2021 WL 2291078 (N.D. Ga. June 3, 2021). Suit by Kimberly claiming Extrusion's infringement of Kimberly's "'104 patent." There is a lot going on in this opinion. We will limit our discussion primarily to the court's order regarding exclusion of a patent opinion. Law Firm representing Kimberly (but not in this case) had obtained a conflicts waiver from Kimberly allowing Law Firm to provide patent opinions to other clients relating to Kimberly patents. The waiver did prevent Law Firm from providing "assistance in, litigation or other disputes that are adverse to" Kimberly. One of Law Firm's lawyers, in November 2019, provided Extrusion a non-infringement opinion relating to the '104 patent. This was after Kimberly filed this case and after Kimberly told Extrusion it was claiming infringement of the '104 patent. Thus, the court found that the opinion violated Kimberly's waiver and ordered exclusion of the opinion and testimony relating to it.

Initial Interview (posted June 9, 2021) Tex. Op. 691 (6/2021). Does a lawyer have a duty of confidentiality to prospective clients who do not become clients? Texas does not have a version of Model Rule 1.18; they're looking at it. In this opinion the Committee has cobbled together several Texas rules to reach the conclusion that the lawyer does have such a duty. So, if Lawyer meets with W years ago to discuss a possible divorce, Lawyer probably cannot now represent H with respect to a possible divorce from W. Lawyer's partner could not represent H either. Consents could cure some of these conflicts. We will leave it to our Texas brethren to parse the opinion and sort through how the current, oddly numbered, Texas rules relate to all this.

Insurance Defense; Equitable Subrogation (posted June 9, 2021) Olson, Cannon, Gormley, Angulo & Stoberski v. Eighth Judicial Dist., 2021 WL 2328474 (Nev. June 4, 2021). We will keep this one narrow. The majority opinion left open the possibility that the trial court could make a finding of equitable subrogation enabling an excess carrier to maintain a legal malpractice action against the law firm retained by the primary carrier for the insured. The majority opinion was brief. In a lengthier dissenting opinion the minority said that Nevada should not recognize equitable subrogation of legal malpractice claims by non-clients. Good discussion of cases from other jurisdictions.

Joint Representation (posted June 9, 2021) N.Y.S.B. Op. 1224 (6/4/2021). Where a lawyer is representing jointly two clients who want to purchase property, the lawyer cannot proceed for either if the clients disagree on whether to proceed with the purchase. This is so even if one of the clients has diminished capacity. N.Y. Rules 1.7 and 1.14.

Class Action (posted June 8, 2021) Williams v. Apple, Inc., 2021 WL 2186223 (N.D. Cal. May 28, 2021). Williams and Stewart, named plaintiffs, moved for class certification. In certifying a class the court ruled that only Stewart can be class representative. Williams' problem is that she is sister-in-law of one of two proposed class lawyers. The opinion contains a good discussion of cases around the U.S. evaluating such relationships.

[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 June 14, 2021) Cantu Servs., Inc. v. Worley, No. CIV-12-129-R (W.D. Okla. June 7, 2021). Discovery dispute. In this opinion the court found that parties being represented jointly by one lawyer enjoy a common interest privilege even after the parties interests diverge. The fact that the lawyer should have recognized the conflict, but kept going, does not remove the privilege. The court then found that the discovering party had made a prima facie showing of crime/fraud requiring that the court do an in camera inspection of the disputed material. The court's lengthy analyses of both common interest and crime/fraud appear to be good research tools.

(posted June 1, 2021) St. Anselm Coll. Corp v. Bd. of Trs. of St. Anselm Coll., No. 2020-0172 (N.H. May 26, 2021)). Law Firm brought this suit against Board on behalf of Abbot. Board moved to disqualify Law Firm because Law Firm had previously represented Board in similar litigation. The trial court granted the motion. Law Firm appealed. In this "order" the N.H. Supreme Court "dismissed" the appeal because Law Firm did not "have standing to bring it." The trial court did not find Law Firm guilty of misconduct but only that Law Firm may have relevant confidential information of the Board from the earlier representations. Thus, Law Firm has not "suffered a legal injury" giving it standing to appeal.

(posted May 26, 2021) Echols v. Express Auto, Inc., 2021 WL 2099238 (6th Cir. May 25, 2021). Plaintiff accepted a $10,000 settlement in this Equal Credit Opportunity Act case. This appeal deals with the trial court's award, under the Act, of some $79,000 in lawyers' fees and costs. In this opinion the appellate court affirmed the award. The issue of interest here is whether the award should have included lawyers' fees for an unsuccessful attempt by Plaintiff to disqualify one of Defendant's lawyers. The court said yes because the motion was a "reasonable 'pursuit of the ultimate result.'"

(posted May 24, 2021) Khoury v. Niew, 2021 IL App (2d) 200388 (Ill. App. May 21, 2021). Husband and Wife were in the same law firm. Wife was the 100% owner of the firm. Wife, unbeknownst to Husband, stole $2.34 million of client money being held in the firm trust account. Clients sued Wife and Husband. The trial court granted summary judgment against Husband. In this opinion the appellate court reversed, granting summary judgment to Husband. Given Wife's misconduct, the case approaches slapstick. Among other things, the court noted that both Husband and Wife were disciplined earlier for taking out a marriage license while they each were married to someone else. One odd thing appeared in the appellate opinion; that is the court's assertion that not all lawyers in a firm owe all the firm's clients fiduciary duties. The court cited only a handful of Illinois authorities and a weird reference to the purpose of conflicts checking.

APPEALABILITY (To read full article, click here.)

Nothing current.

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

(posted June 3, 2021) Jacocks v. Capital Commercial Real Estate Group, Inc., 310 So. 3d 71 (Fla. App. Jan. 6, 2021). Employee and Employer jointly retained Law Firm to handle a dispute with a third party. The retainer agreement had an arbitration clause, but only Employer signed it. Employee and Employer had a falling out, and Employee sued Employer and Law Firm, the latter for malpractice. The trial court ordered the malpractice matter to arbitration. In this opinion the appellate court reversed because Employee had not signed the arbitration agreement. If Employee had sued to enforce a contract with an arbitration clause, the Employee would be bound by the arbitration clause. Not here, however, because Employee was suing Law Firm for malpractice.

BANKRUPTCY (To read full article, click here.)

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

Screening

(posted June 14, 2021) Prentice v. OfficeMax N.A., Inc., No. 13-71 (D.V.I. June 10, 2021). In this employment-related case the Rohn firm represents Plaintiffs, and the Ogletree firm represents Defendant. While with the Ogletree firm Lawyer worked on this case. He then joined the Rohn firm. The magistrate judge disqualified the Rohn firm. In this opinion the district judge affirmed, finding that the magistrate judge's findings were not clearly erroneous. The Rohn firm delayed giving notice to the Ogletree firm for a month. Virgin Island courts follow the ABA Model Rules. Thus, the notice was not "promptly given" under Rule 1.10(a)(2)(ii). The court found other deficiencies in the Rohn firm's screen, as well.

Screening; Non-Lawyer

(posted June 3, 2021) Rolnitzky v. Tyrnauer, No. 517715/19 (N.Y. Sup. Ct. Kings County May 27, 2021). One of the lawyers in Plaintiff's law firm had previously, while a law student, worked at Defendant's law firm. He even wrote a memo at the prior law firm relating to this case. In this opinion the court denied Defendant's motion to disqualify Plaintiff's law firm, primarily because Plaintiff's law firm had, on day one, erected a screen around the lateral.

Screening; Non-Lawyer

(posted May 28, 2021) Devora v. Costco Wholesale Corp., No B306090 (Cal. App. 2d Dist. Unpub. May 26, 2021). Plaintiff fell in a Costco store and, represented by VLG law firm, brought this tort case against Costco. VLG currently employs Federico Stea, a non-lawyer who has yet to pass the Bar exam. Stea formerly, for about 10 months, worked at the Yukevich firm, which is defending Costco in this case. While at Yukevich Stea worked on a bunch of Costco cases similar to this one, but, evidently, not this one. Costco moved to disqualify VLG in this case. The trial court denied the motion. In this unpublished opinion the appellate court affirmed. At Yukevich, Stea learned nothing about this case. At VLG, Stea has, from day one, been screened from any Costco matters. Kirk v. First American Title Ins. Co., 183 Cal. App. 4th 776 (2010) played an important part in the court's analysis. The court did not discuss California's Rule 1.10 related to screening because, we assume, it does not mention non-lawyers.

Screening

(posted May 20, 2021) McClain v. Wysong, No. 3:21-CV-00080-BJB (W.D. Ky. May 18, 2021). Plaintiff and Defendant did business together including the formation of an LLC ("LLC"). They have had a falling-out resulting in this case. Each party moved to disqualify the other's lawyer. In this opinion the magistrate judge denied both motions. The opinion is highly fact-specific; however, several things are worth mentioning. First, Defendant claimed that he was managing member of the LLC, and Plaintiff's lawyer in this case had represented LLC under Defendant's direction. The court cited authorities for the proposition that if a lawyer does work for a closely-held entity, that does not, without more, make that lawyer lawyer for a manager (in this case Defendant as managing member). Plaintiff moved to disqualify Defendant's law firm because a member of that firm had represented Plaintiff in an earlier matter. The magistrate judge's rationale for denying that motion was that the lawyer representing Plaintiff had been screened from this case. The court cites Ky. Rule 1.10(d), which allows screening to qualify a firm even though a member of the firm did, while at the firm, represent the opposing party. The ABA Model Rule 1.10(a)(2) refers to "a prior firm" and has been understood to apply to lawyers' changing firms.

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

(posted June 8, 2021) Williams v. Apple, Inc., 2021 WL 2186223 (N.D. Cal. May 28, 2021). Williams and Stewart, named plaintiffs, moved for class certification. In certifying a class the court ruled that only Stewart can be class representative. Williams' problem is that she is sister-in-law of one of two proposed class lawyers. The opinion contains a good discussion of cases around the U.S. evaluating such relationships.

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

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

Nothing current.

CORPORATIONS (To read full article, click here.)

LLC

(posted May 24, 2021) Liquor Bike, LLC v. Iowa Dist. Ct. for Polk County, 2021WL 2021660 (Iowa May 21, 2021). This is a suit by Vivone, LLC to remove a property encroachment by Liquor Bike. Liquor Bike is represented by the Brick firm. Vivone moved to disqualify the Brick Firm for having a conflict of interest. The trial court granted the motion. In this opinion the Iowa Supreme Court reversed. The conflict claim arose from the fact that the Brick firm represents Surgery P.C. in  seeking a certificate of need from the state, a matter not related to this encroachment case. Eugene Cherny is involved with both Surgery P.C. and Vivone. Cherny is a member of Vivone and is 100% owner of JSV, which is the manager of Vivone. Cherny is the sole owner of Surgery P.C. The basis for the Supreme Court's ruling in favor of the Brick firm is that the Brick firm is not opposing Cherny personally in this case. The fact that Cherny is a member of Vivone and 100% owner of Vivone's manager does not make the Brick firm directly adverse to Cherny. Moreover, the Brick firm does not represent Cherny personally in the certificate of need matter, only Surgery P.C. (of which Cherny is the 100% owner). The court also found no material limitation on the Brick firm. All of this is a routine application of the principal that the lawyer for an organization, without more, is not lawyer for the organization's constituents.

(posted May 20, 2021) McClain v. Wysong, No. 3:21-CV-00080-BJB (W.D. Ky. May 18, 2021). To read about the case, go to "Changing Firms . . . ," above.

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

Nothing current.

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

Patent Opinion

(posted June 9, 2021) Kimberly-Clark Corp. v. Extrusion Group, LLC, 2021 WL 2291078 (N.D. Ga. June 3, 2021). Suit by Kimberly claiming Extrusion's infringement of Kimberly's "'104 patent." There is a lot going on in this opinion. We will limit our discussion primarily to the court's order regarding exclusion of a patent opinion. Law Firm representing Kimberly (but not in this case) had obtained a conflicts waiver from Kimberly allowing Law Firm to provide patent opinions to other clients relating to Kimberly patents. The waiver did prevent Law Firm from providing "assistance in, litigation or other disputes that are adverse to" Kimberly. One of Law Firm's lawyers, in November 2019, provided Extrusion a non-infringement opinion relating to the '104 patent. This was after Kimberly filed this case and after Kimberly told Extrusion it was claiming infringement of the '104 patent. Thus, the court found that the opinion violated Kimberly's waiver and ordered exclusion of the opinion and testimony relating to it.

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

Nothing current.

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

Mittelstaedt v. Henney, 954 N.W.2d 852 (Minn. App. Jan. 4, 2021). To read about the case, go to "Malpractice," below.

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

(posted May 21, 2021) Gulf Coast Mktg. Group, Inc. v. JTH Tax LLC, 2021 WL 1990175 (E.D. Va. May 18, 2021). Defendant, JTH, does business as Liberty Tax Service. This is a dispute between Liberty and Plaintiff, to whom Liberty, in 2009, had sold the right to create tax preparation franchises (the "AD agreement"). Lawyer represents Plaintiff. The problem is that Lawyer had worked in-house at Liberty for six years, until 2013. So Liberty moved to disqualify Lawyer in this case. In this opinion the court denied the motion. The sole issue was whether Lawyer's work for Liberty was substantially related to this case. The court said no. Lawyer had nothing to do with Plaintiff's dealings with Liberty. This dispute arose years after Lawyer left Liberty. Lawyer did litigation for Liberty and had nothing to do with the ongoing contractual relationships with other AD agreement-parties. Lawyer's general knowledge of AD agreements and the law relating to them was not enough to satisfy the substantial relationship test.

Playbook

(posted May 20, 2021) Bartis v. Biomet, Inc., No. 4:13-CV-00657-JAR (E.D. Mo. May 17, 2021). In this opinion the court denied a motion to disqualify the Bachus firm, which is representing the plaintiff. This case is one of many involving the alleged failure of the Magnum-type hip replacement. The Faegre firm is representing the defendants. Mary Thompson, while an associate at the Faegre firm worked many hours on litigation involving the defense of the Durom Cup-type hip replacement. Thompson joined the Bachus firm in August 2019. The manufacturers of both types of hip replacements merged in 2015. There was no evidence that Thompson has worked on this litigation at the Bachus firm or that she has disclosed any confidential information to Bachus lawyers about hip-replacement technology. The crux of the court's denial of the motion to disqualify was that Durom Cup work was not substantially related to the Magnum issues in this case. Playbook was an important focus. Missouri has a well-developed approach to playbook as established in In re Carey, 89 S.W.3d 477 (Mo. 2002). The court in this case, in a fact-intensive analysis, found that Thompson had not learned the types of things itemized in the Carey opinion to establish that she had the client's playbook. The differences between Magnum technology and Durom Cup technology played a role in that analysis.

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

(posted June 9, 2021) Tex. Op. 691 (6/2021). Does a lawyer have a duty of confidentiality to prospective clients who do not become clients.?Texas does not have a version of Model Rule 1.18; they're looking at it. In this opinion the Committee has cobbled together several Texas rules to reach the conclusion that the lawyer does have such a duty. So, if Lawyer meets with W years ago to discuss a possible divorce, Lawyer probably cannot now represent H with respect to a possible divorce from W. Lawyer's partner could not represent H either. Consents could cure some of these conflicts. We will leave it to our Texas brethren to parse the opinion and sort through how the current, oddly numbered, Texas rules relate to all this.

(posted June 1, 2021) Collins v. Nova Ass'n Mgm't Partners LLC, No. C20-1206-JCC (W.D. Wash. May 28, 2021). Plaintiff, Collins, moved to disqualify Law Firm representing defendant Nova. In this very fact-intensive opinion the court denied the motion. Collins had had several contacts with lawyers at Law Firm. In each case he did not sign an engagement agreement and showed up later with different lawyers. Thus, the court found no lawyer-client relationship. In a thorough analysis of Washington Rule 1.18, the court found that Collins did not disclose to Law Firm "significantly harmful" information. Whatever detail Collins provided Law Firm was already "in earlier publicly filed court documents."

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

Equitable Subrogation

(posted June 9, 2021) Olson, Cannon, Gormley, Angulo & Stoberski v. Eighth Judicial Dist., 2021 WL 2328474 (Nev. June 4, 2021). We will keep this one narrow. The majority opinion left open the possibility that the trial court could make a finding of equitable subrogation enabling an excess carrier to maintain a legal malpractice action against the law firm retained by the primary carrier for the insured. The majority opinion was brief. In a lengthier dissenting opinion the minority said that Nevada should not recognize equitable subrogation of legal malpractice claims by non-clients. Good discussion of cases from other jurisdictions.

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

Nothing current.

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

(posted June 9, 2021) N.Y.S.B. Op. 1224 (6/4/2021). Where a lawyer is representing jointly two clients who want to purchase property, the lawyer cannot proceed for either if the clients disagree on whether to proceed with the purchase. This is so even if one of the clients has diminished capacity. N.Y. Rules 1.7 and 1.14.

(posted June 14, 2021) Cicchiello & Cicchiello, LLP v. Sarris, No. HHD-CV-21-6137918-S (Conn. Super. Ct. Hartford Dist. May 19, 2021). Lawrence Connelli represents Plaintiff. The Dzialo law firm is a defendant. The defendants moved to disqualify Connelli, claiming that he represents the Dzialo firm. In this opinion the court denied the motion, finding that the Dzialo firm had hired Connelli as a testifying expert, and not as the Dzialo firm's lawyer. The court relied primarily on Commonwealth Ins. Co. v. Stone Container Corp., 178 F. Supp. 2d 938 (N.D. Ill. 2001), which essentially held that a testifying lawyer expert does not have a client.

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

(posted June 1, 2021) Mittelstaedt v. Henney, 954 N.W.2d 852 (Minn. App. Jan. 4, 2021). Plaintiff Mittelstaedt and Defendant Prosser had several business relationships. Complicating things, Lawyer Henney, primarily Prosser's lawyer, had several business relationships with Mittelstaedt and Prosser, and, arguably, represented Mittelstaedt on occasion. The businesses struggled, and Mittelstaedt sued everybody, including Henney, the latter for breach of fiduciary duty. The trial judge granted Henney summary judgement. The others went to trial with mixed results. We will discuss only the claim against Henney. In this opinion the appellate court affirmed the summary judgement. We will spare you the details about the businesses and hit a couple of high points. First, the court held that elements of a breach-of-fiduciary claim are the same as a legal malpractice claim. Only the remedies may vary. The reason the claim against Henney failed was that Mittelstaedt failed to comply with Minnesota Statutes §544.42, which requires certain filings by, and about, standard-of-care expert witnesses. Mittelstaedt did not have such a witness. The court noted that cases against lawyers not requiring expert testimony are "rare and exceptional," such as blowing the statute of limitations or stealing client money. The claims here include violations of Rules 1.7 and 1.8, which involve concepts not within "'the common knowledge' of most jurors."

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

OPPOSING LAWYERS NEGOTIATING A LAW PRACTICE MERGER (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.)

Nothing current.

Nothing current.

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

Nothing current.

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

Nothing current.

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

Nothing current.