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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 Changing Firms (posted February 15, 2019) Janczewski v. Janczewski, 2019 WL 576291 (N.Y. App. Div. Feb. 13, 2019). W sued H for assault. W moved to disqualify H's lawyer. The Family court denied the motion. In this opinion the appellate court reversed. The problem was an associate who moved to H's current law firm. At the associate's previous firm, which was representing W, W discussed with the associate, in detail, the facts relating to this case. Janczewski v. Janczewski, 2019 WL 576849 (N.Y. App. Div. Feb. 13, 2019) is the parties' divorce case. In its opinion the appellate court also found H's law firm should be disqualified. Insurance Defense (posted February 15, 2019) Reliable Transp. Specialists, Inc. v. Wausau Underwriters Ins. Co., 2019 WL 609385 (E.D. Mich. February 13, 2019). In this case InsCo sues for a declaratory judgment. It involves an "underlying lawsuit," which is not described in this opinion. In this case Law Firm represents both the plaintiff and defendants from the underlying case. In this case InsCo moved to disqualify Law Firm. In this opinion the court denied the motion. [Our note: That's it! We were unable to follow the court's reasoning. And, we tried. We have recited the bare bones in the event that some interested lawyer(s) might think there is something useful enough about the case to justify further digging.] Class Action (posted February 13, 2019) Spotswood v. Hertz Corp., 2019 WL 498822 (D. Md. Feb. 7, 2019). Plaintiff is suing Hertz for improperly charging him for damage to a rental car. In this opinion the court denied class certification on numerous grounds. One of the grounds was that Plaintiff was not an adequate class representative. Plaintiff, a lawyer, has served as co-counsel with class counsel on other cases. Moreover, they live within a few doors of each other and occasionally socialize. Plaintiff's recovery in this case would be modest compared with the lawyers' fees. Thus, there is a "serious risk" that Plaintiff would make decisions favoring class counsel to the detriment of the class. Current Client (posted February 12, 2019) Denhollander v. Michigan State Univ., No. 1:17-CV-00029 (W.D. Mich. Feb. 1, 2019). Law Firm represents a number of women suing MSU. They claim they were sexually abused by Larry Nassar, an MSU employee. MSU moved to disqualify Law Firm because Law Firm had previously represented Lisa DeStefano at a time when she had opined that Nassar's treatment of a complaining student was medically appropriate. DeStefano has since concluded that Nassar's conduct was inappropriate. Law Firm's representation of DeStefano overlapped by several months Law Firm's representation of the plaintiffs in these cases. In this opinion the court granted the motion to disqualify. Because of the overlap, the court treated Law Firm's alleged conflict as a current client conflict, under Rule 1.7. [Our note: We aren't sure the court's reasoning holds together. DeStefano no longer sides with Nassar. Thus, Law Firm presumably will not have to cross-examine her. Law Firm may call DeStefano as a witness for the plaintiffs. How is that a conflict? The court has certified the issue of disqualification under 28 U.S.C. § 1292(b). Stay tuned.] Former Client (posted February 11, 2019) Plonsey v. Lanigan, 2019 WL 493569 (N.D. Ohio Feb. 8, 2019). In this case Plaintiff claims Defendants breached their agreement to sell their healthcare business to Plaintiff. Law Firm filed this case for Plaintiff. Defendants moved to disqualify Law Firm. Between 2010 and 2012 Law Firm advised Defendants on the sale of their business to a different purchaser (not Plaintiff). The parties disputed whether Law Firm did anything for Defendants after 2012. In this opinion the court granted the motion, holding, without a lot of discussion, that the earlier services regarding sale to a different purchaser were substantially related to this case. Corporation; LLC (posted February 7, 2019) Dahl v. Montana 1st Dist. Ct., 2019 WL 441957 (Mont. Feb. 5, 2019). Dahl and Runkle were principals in R&D Partners, LLC. Their relationship deteriorated, and Dahl brought this action against Runkle. Dahl moved to disqualify Runkle's lawyer ("Feeback"), claiming Feeback had represented Dahl on R&D matters, because Dahl was an officer of R&D. The trial court denied Dahl's motion, and Dahl appealed (sought "supervisory control"). In this opinion the court affirmed (denied supervisory control), finding that representation of an LLC is not, without more, representation of its officers. Former Client (posted February 7, 2019) Janes v. Anctil, 2019 WL 438563 (Mass. App. Feb. 5, 2019). Lawyer Anctil represented Fairview Orchards, Inc., owner of adjacent lots, 116 and 120. Lawyer drafted an easement agreement regarding access, parking, and sewage, anticipating that the lots would ultimately be owned separately. Plaintiff Janes now owns 116. PCM, a trust, owns 120 and intends to use it in manner adverse to 116. Evidently, Anctil is representing PCM in this effort. Janes brought this action for malpractice against Anctil. The trial judge granted a motion to dismiss. In this opinion the appellate court affirmed. One claim by Janes was that Anctil gave the town a "pro-PCM interpretation" of the easement detrimental to Lot 116. The court noted that Anctil had drafted the easement for Fairview, and not as Janes' lawyer. The court also said that Janes failed to plead anything that Anctil might have done for her that related to her claim for malpractice. Last, the court said that Janes had not shown what confidences of hers Anctil might have shared with others. 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.] CONFLICTS - UNCATEGORIZED [Note: These, too, will appear at the This and That pages.] Nothing current. BANKRUPTCY (To read full article, click here) (posted January 28, 2019) Coan v. Dunne, 2019 WL 302674 (D. Conn.
Jan. 22, 2019). In this bankruptcy proceeding the trustee sought to
employ Law Firm to handle litigation for the estate and against several
third parties. Law Firm had represented one of those third parties until
2016. In this opinion the court denied the retention because this case
is substantially related to the earlier representation of the third
party under Rule 1.9(a). [Our note: We choose not to describe the
routine substantial relationship analysis here. What piqued our interest
was the court's comparison of 11 U.S.C. §327 with Rule 1.9(a). The
court held that retention of Law Firm would not violate §327 because
that section does not apply to a lawyer's former conflict; Rule 1.9(a),
of course, does. That distinction may be valid, but we have not seen it
made in 18 years of reading conflicts and bankruptcy cases.] Nothing current. BOARD POSITIONS (To read full article, click here.) Nothing current. CHANGING FIRMS - SCREENING (To read full article, click here.) CLASS ACTIONS (To read full article, click here.) (posted February 13, 2019) Spotswood v. Hertz Corp., 2019 WL
498822 (D. Md. Feb. 7, 2019). Plaintiff is suing Hertz for improperly
charging him for damage to a rental car. In this opinion the court
denied class certification on numerous grounds. One of the grounds was
that Plaintiff was not an adequate class representative. Plaintiff, a
lawyer, has served as co-counsel with class counsel on other cases.
Moreover, they live within a few doors of each other and occasionally
socialize. Plaintiff's recovery in this case would be modest compared
with the lawyers' fees. Thus, there is a "serious risk" that Plaintiff
would make decisions favoring class counsel to the detriment of the
class. Nothing current. CO-COUNSEL/COMMON INTEREST (To read full article, click here.) Nothing current. Nothing current. CORPORATIONS (To read full article, click here.) LLC (posted February 7, 2019) Dahl v. Montana 1st Dist. Ct.,
2019 WL 441957 (Mont. Feb. 5, 2019). Dahl and Runkle were principals in
R&D Partners, LLC. Their relationship deteriorated, and Dahl
brought this action against Runkle. Dahl moved to disqualify Runkle's
lawyer ("Feeback"), claiming Feeback had represented Dahl on R&D
matters, because Dahl was an officer of R&D. The trial court denied
Dahl's motion, and Dahl appealed (sought "supervisory control"). In this
opinion the court affirmed (denied supervisory control), finding that
representation of an LLC is not, without more, representation of its
officers. Nothing current. CRIMINAL PRACTICE (To read full article, click here.) Nothing current. CURRENT CLIENT (To read full article, click here.) (posted February 12, 2019) Denhollander v. Michigan State Univ.,
No. 1:17-CV-00029 (W.D. Mich. Feb. 1, 2019). Law Firm represents a
number of women suing MSU. They claim they were sexually abused by Larry
Nassar, an MSU employee. MSU moved to disqualify Law Firm because Law
Firm had previously represented Lisa DeStefano at a time when she had
opined that Nassar's treatment of a complaining student was medically
appropriate. DeStefano has since concluded that Nassar's conduct was
inappropriate. Law Firm's representation of DeStefano overlapped by
several months Law Firm's representation of the plaintiffs in these
cases. In this opinion the court granted the motion to disqualify.
Because of the overlap, the court treated Law Firm's alleged conflict as
a current client conflict, under Rule 1.7. [Our note: We aren't sure
the court's reasoning holds together. DeStefano no longer sides with
Nassar. Thus, Law Firm presumably will not have to cross-examine her.
Law Firm may call DeStefano as a witness for the plaintiffs. How is
that a conflict? The court has certified the issue of disqualification
under 28 U.S.C. § 1292(b). Stay tuned.] 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.) Nothing current. FORMER CLIENT (To read full article, click here.) (posted February 11, 2019) Plonsey v. Lanigan, 2019 WL 493569
(N.D. Ohio Feb. 8, 2019). In this case Plaintiff claims Defendants
breached their agreement to sell their healthcare business to Plaintiff.
Law Firm filed this case for Plaintiff. Defendants moved to disqualify
Law Firm. Between 2010 and 2012 Law Firm advised Defendants on the sale
of their business to a different purchaser (not Plaintiff). The parties
disputed whether Law Firm did anything for Defendants after 2012. In
this opinion the court granted the motion, holding, without a lot of
discussion, that the earlier services regarding sale to a different
purchaser were substantially related to this case. (posted February 7, 2019) Janes v. Anctil, 2019 WL 438563 (Mass.
App. Feb. 5, 2019). Lawyer Anctil represented Fairview Orchards, Inc.,
owner of adjacent lots, 116 and 120. Lawyer drafted an easement
agreement regarding access, parking, and sewage, anticipating that the
lots would ultimately be owned separately. Plaintiff Janes now owns 116.
PCM, a trust, owns 120 and intends to use it in manner adverse to 116.
Evidently, Anctil is representing PCM in this effort. Janes brought this
action for malpractice against Anctil. The trial judge granted a motion
to dismiss. In this opinion the appellate court affirmed. One claim by
Janes was that Anctil gave the town a "pro-PCM interpretation" of the
easement detrimental to Lot 116. The court noted that Anctil had drafted
the easement for Fairview, and not as Janes' lawyer. The court also
said that Janes failed to plead anything that Anctil might have done for
her that related to her claim for malpractice. Last, the court said
that Janes had not shown what confidences of hers Anctil might have
shared with others. (posted February 4, 2019) Zappin v. Comfort, 2019 WL 409831
(S.D.N.Y. Feb. 1, 2019). Zappin moved to disqualify the law firm ("Law
Firm A") for certain defendants in this case because Law Firm A had
earlier, in another case, represented a law firm ("Law Firm B") being
sued by Zappin for malpractice. In this opinion the court denied the
motion. First, the court noted that Law Firm had never represented
Zappin. Second, the court applied the substantial relationship test.
Both the earlier case and this case involve Zappin's divorce case.
However, the conduct of Law Firm B involved issues arising before July
2014 when Law Firm B stopped representing Zappin. The issues in this
case involve matters occurring after July 2014. Last, the court held
that Zappin could not show that Law Firm A, while opposing Zappin in the
earlier case, had received any of Zappin's information that would
"taint" this proceeding or "prejudice" Zappin. (posted February 1, 2019) P&L Dev. LLC v. Bionpharma Inc.,
2019 WL 357351 (M.D.N.C. Jan. 29, 2019). In this case P&L ("PLD") is
suing Bionpharma ("Bion") for breach of contract and related causes of
action. Charles Cain has been GC for PLD since September 2016. From 2000
to March 2013 Cain was GC of Banner Pharmacaps, PLD's predecessor. Bion
moved to disqualify Cain and the law firm Cain retained for this case,
Kilpatrick Townsend. In this opinion the court denied the motion. The
court bottomed the denial on a finding that Cain's earlier work for
Banner was not substantially related to this case, under N.C. Rule
1.9(a). While at Banner, Cain had been involved in the preparation and
distribution of the contracts involved in this case. However, this case
involves Bion's conduct after the contracts were finalized. The court
said any concerns Bion might have about the relationship of the
preparation of the contracts to the conduct of Bion leading to this case
are "speculative." The finding under Rule 1.9(a) was preceded by a
confusing, and unnecessary, discussion of whether Banner's
"attorney-client privilege" passed to Bion upon Bion's purchase of
Banner's business. 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.) (posted February 15, 2019) Reliable Transp. Specialists, Inc. v. Wausau Underwriters Ins. Co.,
2019 WL 609385 (E.D. Mich. February 13, 2019). In this case InsCo sues
for a declaratory judgment. It involves an "underlying lawsuit," which
is not described in this opinion. In this case Law Firm represents both
the plaintiff and defendants from the underlying case. In this case
InsCo moved to disqualify Law Firm. In this opinion the court denied the motion. [Our note: That's it! We were unable to follow the court's
reasoning. And, we tried. We have recited the bare bones in the event
that some interested lawyer(s) might think there is something useful
enough about the case to justify further digging.] INVESTING IN CLIENTS/STOCK FOR FEES (To read full article, click here.) 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. Nothing current. MALPRACTICE LIABILITY/FEE FORFEITURES (To read full article, click here.) (posted January 28, 2019) Kalra v. Adler Pollock & Sheehan,
2019 WL 319397 (D. Conn. Jan. 24, 2019). Law Firm had represented
Plaintiffs in commercial litigation. Evidently, the litigation did not
go well, and Plaintiffs sued Law Firm for malpractice and breach of
fiduciary duty. The latter claim was based, in part, on Law Firm having a
conflict of interest. The conflict claim was that Law Firm made
decisions about commencing actions and conducting them, which were
motivated by a desire to maximize Law Firm's own fees. In this opinion
the court denied a motion to dismiss that claim and said that it "should
proceed to discovery." 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.) Nothing current. SETTLEMENT AGREEMENTS (To read full article, click here.) Nothing current. STANDING (To read full article, click here.) Nothing current. Nothing current. UNDERLYING WORK PROBLEM (To read full article, click here.) (posted January 18, 2019) Ultrapak, LLC v. Laninver USA, Inc.,
2019 WL 244492 (W.D.N.Y. January 17, 2019). In this opinion the
magistrate judge disqualified Jason Schmidt ("Schmidt") as plaintiffs'
lawyer. The facts are confusing and the judge's legal analysis does not
hold together particularly well. So, bear with us. Ultrapak makes
packaging materials. Kalid Khan formed it in the 2015-2016 time period.
Schmidt has been Ultrapak's business lawyer since it was formed. As a
result of various organizational maneuvers, Laninver became a 51% owner
of Ultrapak, leaving Kahn as the 49% owner. A dispute has arisen among
the various players. Schmidt filed this case on behalf of Ultrapak and
Kahn against Laninver and the other two directors of Ultrapak, who are
friendly to Laninver. The defendants moved to disqualify Schmidt. In
granting the motion the court first expressed concern as to who decided
to file this case, noting that the board was "fractured." The court then
noted that Schmidt may have exposure to Kahn about his advice leading
to the merger with Laninver. As to consent, the court said how Ultrapak
could consent to any conflict was "unclear." Last, the court said that
Schmidt's appearing as a fact witness was a "likelihood," thus an
"additional reason" for disqualification. WAIVERS/CONSENTS (To read full article, click here.) Nothing current. WITNESS - ADVERSE - CURRENT/FORMER CLIENT (To read full article, click here.) Nothing current. Home/Table of Contents Website powered by Network Solutions® |