Freivogel on Conflicts

Current Client - Part II
(“Other” Cases)

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Current Client - Part I

       Union Organization; Who's the Client?   Operative Plasterers' & Cement Masons' Int’l Assoc. of the United States and Canada, Local 222 v. Alberta, 2008 ABQB 225 (CanLII) (Alberta Ct. Q. B. April 16, 2008).  Only the local involved.       

        Donaldson v. City of Walterboro Police Dept., 2008 U.S. Dist. LEXIS 26801 (D.S.C. March 31, 2008).  The court applied Rule 1.7 as written and disqualified law firm.

        Post-Estate Planning Ministerial Work not Current Representation.  Yang Enterprises, Inc. v. Yang, 2008 Fla. App. LEXIS 11865 (Fla. App. Aug. 7, 2008).  This is an unremarkable opinion affirming the trial court’s denial of a motion to disqualify.  The movant had waited years to make the motion.  While the decision was based largely on a waiver by passage of time, the court made this interesting statement as to whether the client was current or former:

Petitioners argued below that they are current clients of Broad and Cassel and relied primarily on two cover letters sent from a paralegal in Broad and Cassel's Orlando office in 2004 and a paralegal's bill for minor changes to their estate file in 2007. None of these acts indicated a continuing legal representation, but rather they were ministerial tasks performed to update the completed estate planning documents.

        Hill v. Hunt, 2008 U.S. Dist. LEXIS 68925 (N.D. Tex. Sept. 4, 2008).  In this opinion the court granted a motion to disqualify the plaintiff’s law firm, Bickel & Brewer (“B&B”).  This suit involves allegations of mismanagement of two Hunt family trusts.  Two issues were whether B&B currently represented one of the defendants or whether B&B had formerly represented that defendant.  This decision is very fact intensive and, as far as we can tell, has no precedential value.  But, it is interesting.  Some of the factors discussed include who paid what fees, what bills were sent to whom, the significance of E-mails, the significance of who appeared at what meetings and what was discussed at the meetings, who sought legal advice, who directed the activities of B&B, and so forth.  The court frequently used the term “appearance of impropriety,” even though both the ABA Model Rules and the Texas rules dropped that expression when they were adopted.  The court did not discuss the fact that Texas is the only state whose version of Model Rule 1.7 allows a lawyer to represent a client on one matter and be adverse to that client on an unrelated matter, but the court did acknowledge that the Fifth Circuit in both American Airlines and Dresser Industries held that the ABA rules, and not the Texas rules, would apply in this context in the Fifth Circuit.  That distinction would not have changed the result in this case because the court held that the matters in question were related.

        Goodman v. Goodman, 2008 Mo. App. LEXIS 1375 (Mo. App. Oct. 7, 2008).  Husband and Wife met with Lawyer to discuss a divorce.  Lawyer was married to Husband's mother.  As a result of the meeting Lawyer prepared a petition for dissolution, in which Wife was petitioner and Lawyer was Wife's lawyer.  Wife never signed the petition, and it was never filed.  Husband then hired another lawyer who filed a petition for Husband (this case).  Before trial of this case Lawyer appeared for Husband.  Wife moved to disqualify Lawyer, which the trial court denied.  In this opinion the appellate court affirmed.  The court said that the result would be the same whether Rule 1.7 or Rule 1.9 applied because, in either case, Wife was not able to show that the conflict did "clearly call in question the fair or efficient administration of justice."  Among other things the court noted that Wife never met separately with Lawyer, except for a phone call to schedule a meeting during which she indicated she might go see another lawyer.

        Styles v. Mumbert, 79 Cal. Rptr. 3d 880 (Cal. App. 2008).  Creditor sued Debtor.  Lawyer represented Debtor.  After default judgment, and during pendency of an appeal of the default, Debtor sued Lawyer for malpractice, and Lawyer counterclaimed for fees.  Lawyer then purchased Creditor's judgment (judgment assigned) and sought leave to substitute for Creditor in the appeal of the default.  In this opinion the appellate court held that Lawyer had a serious conflict and should not be allowed to substitute.  The court stressed Lawyer's duty of confidentiality to Debtor.

        Avink v. SMG, 2009 Mich. App. LEXIS 97 (Mich. App. Jan. 20, 2009).  A door panel fell on Plaintiff's decedent, killing him.  Plaintiff sued the general manager ("Manager") of the property and several companies associated with manufacturing and selling the door.  The defendants included Overhead Door, which had installed the door.  Manager filed a cross-claim against Overhead Door.  Manager moved to disqualify Overhead Door's law firm ("Law Firm") because Law Firm was currently representing Manager in a different injury case.  The trial court denied the motion.  In this opinion, the appellate court reversed.  The court spent some time on what is direct adversity.  It also said that the fact that different lawyers at Law Firm worked on the two matters would not affect the outcome, noting that screens only work in the context of former clients.

        Waiver as to Unrelated Matter; Standing.  Camel v. Nijjar, 2009 N.Y. Misc. LEXIS 269 (N.Y. Misc. Feb. 11, 2009).  Auto accident case.  The plaintiff sued two individuals and two companies.  The plaintiff's lawyer ("Lawyer") is also representing one of the individual defendants ("Agins") in an unrelated workers' compensation matter.  Two other defendants moved to disqualify Lawyer.  In this opinion the court denied the motion because Agins and the plaintiff had waived the conflict, and because the moving defendants did not have standing to make the motion.

        Owning and Representing Competing Business.  Florida Bar v. Herman, 2009 Fla. LEXIS 244 (Fla. Feb. 19, 2009).  Disciplinary proceeding.  While representing Company A Lawyer established a competing Company B.  Lawyer represented Company B and ultimately became sole owner of Company B.  Lawyer never disclosed his interest in Company B to the owner of Company A.  In this opinion the court found that Lawyer violated Florida's versions of Model Rules 1.7(a)(1), 1.8(a), and 8.4(c).  As to 1.7, the court said that it does not just apply in litigation.  What Lawyer did was directly adverse to his client, Company A.  As to 1.8(a), the court applied the second prong of the rule about acquiring an interest adverse to a client.  As to 8.4(c), the court said that Lawyer's failure to request Company A's consent to his competing business was deceitful.  The bottom line: Lawyer was suspended for 18 months.

        Palgut v. City of Colorado Springs, 2009 U.S. Dist. LEXIS 21698 (D. Col. Mr. 3, 2009).  This opinion involves a motion to withdraw by the plaintiff's law firm because the plaintiff had stopped paying fees.  During a hearing on the motion an expert witness for the plaintiff testified that the law firm should not be permitted to withdraw because there was a "genuine dispute" between the plaintiff and her law firm over the propriety of the fees it was charging.  After that testimony the law firm amended its motion to withdraw claiming that the negative testimony by the expert created a conflict between the plaintiff and her law firm.  In this opinion the court denied the motion to withdraw, saying, in part, that a fee dispute does not automatically constitute a conflict of interest.

        Hillis v. Heineman, 2009 U.S. Dist. LEXIS 29914 (D. Ariz. Mr. 25, 2009).  Plaintiff sued the defendants and their lawyer ("Lawyer") for fraud and related causes of action.  Lawyer appeared for all defendants, including himself.  Plaintiff moved to disqualify Lawyer because he should be a witness.  The court denied the motion without prejudice because it was not yet clear whether Lawyer should be a witness.  What the court did not mention, and what the parties apparently did not raise, was the propriety of Lawyer defending himself as well as the other defendants, especially in light of Lawyer's having earlier represented the company involved in the case.

        Employers Mut. Cas. Co. v. Al-Mashhadi, 2009 U.S. Dist. LEXIS 75442 (E.D. Mich. Aug. 24, 2009).  An employee at a filling station ("Employee"), at about the time he was getting off work, was horsing around with a rifle owned by the filling station.  The rifle accidentally discharged injuring a friend of Employee ("Friend").  Friend sued the filling station and several individuals, including Employee, in state court.  The plaintiff in this case ("EMC") issued an insurance policy covering the filling station for liability.  EMC is seeking in this case a declaration that its policy does not cover the shooting accident.  The law firm representing EMC in this case ("Law Firm") also represents the filling station and individual defendants in the state court case.  However, EMC retained a different law firm to represent Employee in the state court case.  Employee moved to disqualify Law Firm in this case.  In this opinion the court denied the motion, finding no conflict of interest.

        Merck Eprova AG v. Pro Thera, Inc., 2009 WL 4067209 (S.D.N.Y. Sept. 17, 2009).  Patent infringement action.  For a time Law Firm was representing Merck as co-counsel in a patent prosecution while representing Pro Thera in this case.  The prosecution matter involved some of the same chemicals that are involved in this case.  Those relationships caused Merck to file a disqualification motion against Law Firm in this case.  The motion was filed after Merck had changed counsel in the prosecution matter.  In this opinion the magistrate judge granted the motion.  The judge treated the conflict as a current-client conflict, following those decisions that said that the situation had to be judged as of the time of the conflict, rather than at the time the motion was filed.

        Encompass Holdings Inc. v. Daly, 2009 U.S. Dist. LEXIS 93197 (N.D. Cal. Sept. 23, 2009).  Court enforces current client rule under California Rule 3-310(C).

        National Envelope Corp. v. American Pad & Paper LLC, No. 06 Civ. 12988 (S.D.N.Y. Nov. 5, 2009).  Law Firm represents the plaintiff in this matter.  Intervenor, not a party to this case, has moved to disqualify Law Firm because Law Firm represents Intervenor in another matter not related to this case.  Intervenor evidently claims that Law Firm's position in this case may affect Intervenor adversely in yet another case in which Law Firm is not involved.  In this opinion the district judge has affirmed the order of the magistrate judge denying the motion.

        Lincoln Associates & Construction, Inc. v. Wentworth Construction Co., Inc., 2010 Fla. App. LEXIS 121 (Fla. App. Jan. 12, 2010).  In a current client situation the trial court denied a motion to disqualify because the conflict was not "material."  In this opinion the appellate court reversed, holding that materiality has nothing to do with it.

        Feld v. Feld, 2010 U.S. Dist. LEXIS 4743 (D.D.C. Jan. 21, 2010).  This is an action by a beneficiary of a trust to remove the trustee.  In this opinion the court held that the lawyer for the trustee could stay in this case even though that lawyer also represented the trustee in his personal capacity in another suit by the beneficiary, and even though the lawyer also represented some of the trustee's children.

        Bals v. Metedeconk Nat'l Golf Club, Inc., 2010 U.S. Dist. LEXIS 32557 (D.N.J. March 31, 2010).  In this case Plaintiff sued Golf Club, Plaintiff's former employer, for age discrimination.  Law Firm represented Plaintiff.  A senior partner at Law Firm was on the board of Golf Club when Plaintiff was hired.  The senior partner and Plaintiff became friends, but, evidently, the senior partner while on the board of the Golf Club was not privy to any of the facts relevant to this case.  The senior partner turned this case over to another partner to handle.  Golf Club moved to disqualify Law Firm.  In this opinion the magistrate judge denied the motion.  First, she found no current-client or former-client conflict because neither the senior partner nor Law Firm had ever represented Golf Club.  Second, she found that under Rule 1.10 whatever personal interest the senior partner had in Plaintiff or Golf Club was not imputed to the partner handling the case.  Last, the judge found that Law Firm was not in violation of the lawyer-as-witness rule.

        Marks Constr. Co., Inc. v. The Huntington Nat'l Bank, 2010 U.S. Dist. LEXIS 32998 (N.D. W. Va. April 2, 2010).  This is an action by ERISA plan fiduciaries and participants against plan administrators.  The defendants moved to disqualify the law firm representing all the plaintiffs because there was a conflict between the plaintiff/fiduciaries on the one hand and the plaintiff/participants on the other.  The court found there was no conflict based upon somewhat arcane ERISA law principles.  (If you do ERISA litigation, you might want to read the opinion.)  The court also found that a four-year delay in bringing the motion was grounds, alone, to deny the motion.  Last, the court held that the conflict, if any, was waivable, and that the plaintiffs had proven to the court's satisfaction that there was a waiver.

        In re Savin, 2010 Minn. LEXIS 185 (Minn. April 7, 2010).  In this one-page opinion, containing no background, the court publicly reprimanded Lawyer for having a "1.7" "directly adverse" conflict of interest.  We got hold of the disciplinary authority's petition.  This is a crude attempt to summarize the allegations.  Lawyer represented a business person in setting up a joint venture to develop real estate.  This would be the same real estate the county planned to use for a baseball stadium.  Lawyer's partners, the county's bond counsel, represented the county in obtaining legislation authorizing the purchase of the land.

        California Earthquake Auth. v. Metropolitan West Securities, LLC, 2010 U.S. Dist. LEXIS 44016 (E.D. Cal. May 5, 2010).  In 2002 Law Firm and a state agency ("Agency") entered into a written retainer agreement.  Among other things, the agreement provided that Law Firm would have to give Agency thirty days written notice if it intended to terminate the relationship.  Law Firm did three hours work for the Agency during 2002 and did no work for Agency after that.  Law Firm never gave Agency written notice of termination.  In 2009 Law Firm appeared for the defendant in this case adverse to Agency.  Agency moved to disqualify Law Firm, and in this opinion the court granted the motion.  Basically, the court said that the absence of written notice of termination meant that Agency was a current client of Law Firm.  The court further said that written contracts between lawyers and clients should be "read expansively and not parsed to favor the lawyer."

        Filippi v. Elmont Union Free School Dist. Bd. of Educ., 2010 U.S. Dist. 66352 (E.D.N.Y. July 2, 2010).  This is an employment-related action against a school board and several of its administrators.  An associate at the plaintiff's law firm ("Law Firm") is a member of the school board.  For this reason the defendants moved to disqualify Law Firm.  In this opinion the court granted the motion.  First, the court held that there was a conflict under N.Y. Rule 1.7(a)(1).  Second, although Law Firm screened the board member from this case, the court held that Law Firm was too small for the screen to be trusted.  Although the board had initially approved of the board member joining Law Firm, the court held that there should have been a written waiver.  The court also expressed doubts about whether the conflict was waivable.  The court also discussed N.Y. Rule 1.11, saying that the rule offered no help to Law Firm.  Last, the court found an "appearance of impropriety."

        Robinson v. State of New York, 2010 U.S. Dist. LEXIS 70715 (W.D.N.Y. July 14, 2010).  This is an employment discrimination case against the state.  The plaintiff moved to disqualify the N.Y. Attorney General ("AG") from representing the defendants in this case because the AG is also, in another case, defending an action in which one of the defendants in this case is the plaintiff.  In this opinion the magistrate judge denied the motion, relying primarily on the fact that different personnel in the AG's office are handling the two matters and the AG's office promised to set up a screen between the teams of lawyers.

        North Carolina State Bar v. Sossomon, 2010 N.C. App. LEXIS 1768 (N.C. App. Sept. 7, 2010).   Discipline.  Fact-specific.  Complex.  Lawyer was suspended for one year for being insensitive to conflict and confidentiality rules.  If you want to know how not to handle the sale and resale of undeveloped real estate, read the opinion.

        Dimenco v. Service Empoyees Int'l Union, 2011 U.S. Dist. LEXIS 4068 (N.D. Cal. Jan. 10, 2011).  The court held that where a law firm is adverse to a labor union in an NLRB certification proceeding, that law firm is disqualified from bringing an action for several union members on behalf of that union.

        “Framework” Retainer Agreements.  Banning Ranch Conservancy v. Superior Court, No. G044223 (Cal. App. March 22, 2011).  Banning Ranch sued City to prevent City from building a highway on the ranch.  City moved to disqualify the ranch's law firm ("Law Firm") because City was a  current client of Law Firm on other matters.  In fact, Law Firm had done no work for City for about five years.  The City pointed to its written retainer agreement (actually, there were two) with Law Firm, which contemplated that the terms of the agreement (fees, etc.) would remain in force for each new matter that Law Firm handled for City.  The appellate court termed the agreement a "framework" agreement.  The trial court granted the motion to disqualify.  In this opinion the appellate court reversed (granted writ of mandate).  The court, in construing the "framework" agreement as a matter of contract law, held that the agreement did not extend out the lawyer-client relationship beyond the rendering of the services Law Firm performed for City.

        Alayoff v. Alayoff, 2011 N.Y. Misc. LEXIS 1957 (N.Y. Sup. Ct. April 27, 2011).  Daughter sued Father over a property dispute.  Daughter moved to disqualify Father's lawyer, alleging that she is a former client of the lawyer.  In this opinion the court denied the motion.  Daughter offered no specific evidence that she was a client, stating merely that the lawyer was a "family attorney" for many years.  That, the court said, was not enough.

        Multimedia Patent Trust v. Apple Inc., 2011 U.S. Dist. LEXIS 46237 (S.D. Cal. April 29, 2011).  Law Firm represents the plaintiff in this patent infringement case.  Direct TV, a non-party, sought leave to intervene and disqualify Law Firm, because Law Firm represented Direct TV in other matters.  Direct TV claimed that this case was antagonistic to its interests in other patent cases, in which Law Firm was not involved.  In this opinion the court denied the motion to disqualify.  The court noted two similar cases with different results: Rembrandt Techs. LP v. Comcast Corp., 2007 U.S. Dist. LEXIS (E.D. Tex. Feb. 8, 2007) (finding disqualification); and Enzo Biochem. v. Applera Corp., 468 F. Supp. 2d 359 (D. Conn. 2007) (finding no disqualification).  The court found the latter more compelling in this circumstance.

        Process Controls Int'l, Inc. v. Emerson Process Mgmt., 2011 U.S. Dist. LEXIS 49876 (E.D. Mo. May 10, 2011).  For part of the time this case was pending, a lawyer ("Lawyer") in Defendant's law firm ("Law Firm") did work for Plaintiff unrelated to this case.  Because of this work, Plaintiff moved to disqualify Law Firm.  In this opinion the court granted the motion.  The court said that disqualification was appropriate even if Lawyer's work for Plaintiff consisted of short, "self-contained" assignments that had ended by the time of the motion.  The fact that this work occurred during the pendency of this case was determinative.

        Ramos v. Quien, 2011 U.S. Dist. LEXIS 64871 (E.D. Pa. June 20, 2011).  This is a medical malpractice case against several medical providers.  Pursuant to a local ADR rule the case went to arbitration.  The arbitration award found for the plaintiff against one doctor but against the plaintiff as to the other providers.  Pursuant to the local rule the first doctor moved for a trial de novo.  That meant that all the defendants had to stand trial.  Lawyer, who moved for the trial de novo, appeared for all defendants.  The plaintiff moved to disqualify Lawyer.  In this opinion the court denied the motion.

        Wink, Inc. v. Wink Threading Studio, Inc., 2011 U.S. LEXIS 82379 (E.D. Va. July 26, 2011).  Trademark infringement action and issue of willfulness.  The defendant claims its actions were not willful because it relied on an opinion of a lawyer ("Payne").  Payne was deposed and testified that he advised the defendant that its trademark was "problematic."  Owners of the defendant testified that Payne told them the trademark was not a problem.  The same two lawyers ("Lawyers") represented both the defendant and Payne.  The plaintiff moved to disqualify Lawyers.  In this opinion the magistrate judge granted the motion.

        In re Stephenson, 2011 Ill. App. LEXIS 880 (Ill. App. Aug. 12, 2011).  Pay close attention.  This is complicated.  Divorce case.  W hired Elizabeth Wakeman to represent her and file a petition for dissolution.  H hired Paulette Gray to defend and counterclaim.  Paulette was married to Robert Gray.  Robert Gray was a member of the Gummerson Rausch law firm.  Later Mark Gummerson, of Gummerson Rausch, sought leave to become additional counsel for W.  H objected and moved to disqualify Gummerson.  Two troublesome conversations had taken place, leading to the motion to disqualify.  First, Paulette, H's lawyer, had discussed the case with her husband Robert, who was the partner of Mark Gummerson (who was seeking to become W's lawyer).  Second, Paulette had a discussion with Mark Gummerson, himself, at the court house about the foibles of practicing in that county.  The trial court disqualified Gummerson.  In this opinion the appellate court reversed.  First, the court held that H had never become a client of the Gummerson Rausch firm because of those conversations.  Thus, this could not be a current client conflict, or, for that matter, a former client conflict.  The court relied on agency law and implied authority concepts to an extent not usually seen in conflict-of-interest cases.  Second, the court felt that no sensitive information had gotten through to Mark Gummerson.  Third, the court noted approvingly that the Gummerson Rausch firm had erected a screen between its partner, Robert, and the rest of the firm.

        Stewart v. VCU Health System Auth., 2011 U.S. Dist. LEXIS 95407 (E.D. Va. Aug. 25, 2011).  The plaintiff wrote a letter to the court complaining that the plaintiff's lawyer ("Lawyer") had committed various frauds and other types of professional misconduct.  The court granted Lawyer's motion to withdraw.  The plaintiff then moved the court to reconsider the order allowing withdrawal.  In this opinion the court denied the motion to reconsider.  The court said that withdrawal was compelled by the material limitation provision in Virginia Rule 1.7(a)(2).

        Conflict before IRS.  Harbin v. Commissioner, 2011 U.S. Tax Ct. LEXIS 39 (U.S. Tax Ct. Sept. 26, 2011).  H and W were going through a divorce.  Lawyer represented both.  After the IRS declared a deficiencies against both H and W, H filed for relief from joint and several liability.  Lawyer had represented both H and W before the IRS.  Because of Lawyer's conflict of interest, the Tax Court, in this opinion, ruled that H should obtain relief from joint and several liability.

        DisciplineIn re Ferraro, 2011 N.Y. App. Div. LEXIS 8594 (N.Y. App. Div. Nov. 29, 2011.  Lawyer represented a decedent's estate in the sale of Parcel No. 1.  Lawyer did not inform the executor that the broker in the transaction, who had recommended Lawyer, was the principal of Buyer.  Lawyer also failed to inform the executor that Lawyer was representing Buyer in the transaction.  Lawyer also represented Buyer in the purchase of Parcel No. 2, which was contiguous to Parcel No. 1.  Lawyer represented Buyer in selling Parcel No. 1 to another company for more money than Buyer was paying the estate.  This resale of Parcel No. 1 was contingent upon the conclusion of the sale of Parcel No. 2.  None of this was disclosed to the executor.  In this opinion the court held that Lawyer should be suspended for two years.

        Little Italy Dev. LLC v. Chicago Title Ins. Co., 2011 U.S. Dist. LEXIS 138335 (N.D. Ohio Dec. 1, 2011).  Law Firm did work for Title Co.  While still doing work for Title Co., Law Firm got into a coverage argument with Title Co. on behalf of another client.  After Law Firm's work for Title Co. ceased, Law Firm filed this action over the aforesaid coverage issue.  In this opinion, in a fact-intensive analysis, the court granted a motion to disqualify Law Firm.  [Note: the court relied substantially upon Carnegie Cos., Inc. v. Summit Props., Inc., 918 N.E.2d 1052 (Ohio App. 2009), a case we have always felt exemplified the kind of analysis a court should make under modern conflict rules.]

         Withdrawal Denied.  Alzheimer's Inst. of Am., Inc. v. Avid Radiopharmaceuticals, 2011 U.S. Dist. LEXIS 140345 (E.D. Pa. Dec. 7, 2011).  Law Firm represents the plaintiff in this patent infringement case.  When Intervenor sought to intervene adversely to the plaintiff, Law Firm, in a conflicts check, discovered it represented Intervenor in unrelated matters.  Because of this conflict, Law Firm then sought to withdraw from this case.  In this opinion the court denied the motion.  The court held that Pennsylvania's Rule 1.16(c) trumps the current client provisions contained in Rule 1.7.  The court applied a balancing test, holding, in effect that the prejudice to the plaintiff if Law Firm withdrew would outweigh any harm to Intervenor if withdrawal was denied.  The court also mentioned the disruption to the court's docket if Law Firm were to withdraw.  The Federal Circuit affirmed at In re University of So. Fla. Bd. of Trustees, 2012 U.S. App. LEXIS 821 (Fed. Cir. Jan. 12, 2012).  In a somewhat related case a magistrate judge in Alzheimer's Inst. of Am. v. Elan Corp PLC, 2011 U.S. Dist. LEXIS 147471 (N.D. Cal. Dec. 22, 2011) refused to allow Law Firm to withdraw for much the same reason as the court gave in the Pennsylvania case.

        Feingold v. Liberty Mut. Group, 2011 U.S. Dist. 140336 (E.D. Pa. Dec. 6, 2011).  This is a bad faith claim against InsCo.  In the underlying state court case Lawyer, an employee of InsCo, appeared for InsCo, adversely to the plaintiff.  Lawyer is now in the law firm representing InsCo ("Law Firm"), but is not one of the lawyers of record.  The plaintiff moved to disqualify Law Firm.  In this opinion the court denied the motion.  The court said that Lawyer's relationship to the plaintiff in state court was plainly arms-length and adversarial.  Thus, no conflict in this case.

In re McElroy, 2011 N.Y. Misc. LEXIS 5913 (N.Y. Sup. Ct. Dec. 19, 2011).  Law Firm represented Incompetent.  Law Firm also represented Executor of the estate of Incompetent's mother and is moving for probate of the will.  Under the will Incompetent would receive less than she would have intestate.  Claiming that Law Firm had a conflict, GAL, on behalf of Incompetent, moved to disqualify Law Firm.  In this opinion the court granted the motion.

        Discipline.  People v. Johnson, 2011 Colo. Discipl. LEXIS 83 (Col. Dec. 13, 2011).  In this one-paragraph order Lawyer was suspended for thirty days solely (apparently) for representing a corporation and suing it at the same time.

        Gill v. Bischoff, 2011 Guam LEXIS 23 (Guam Dec. 20, 2011).  X entered into a contract with Lawyer, which provided in part for legal services.  X filed for bankruptcy.  Y claims he succeeded to the rights of X under the contract.  Lawyer refused to work for Y, and Y filed this case against Lawyer.  The trial court dismissed the complaint.  In this opinion the supreme court affirmed, holding that a contractual right to legal services is not assignable; both the client and the lawyer must agree for the relationship to continue.  Moreover, in this case, proceeding on behalf of Y would have put Lawyer in conflict with other clients.

        Discipline.  In re Kalla, 2012 Minn. LEXIS 4 (Minn. Jan. 25, 2012).  This is one of those rare disciplinary decisions based solely on a conflict of interest.  The lawyer was given a public reprimand and put on two years supervised probation.

        Cameron v. Rohn, 2012 U.S. Dist. 12381 (D.V.I. Jan. 30, 2012).  Lawyers A and B were partners in Firm AB.  A left Firm AB and is now suing Firm AB and B.  The only count against Firm AB alleges that it discriminated against A.  There other counts against B related to control of law firm property and the like.  B's new law firm, BC, has appeared in this case for Firm AB.  A moved to disqualify Firm BC and B, and the magistrate judge granted the motion.  In this opinion the district judge reversed holding that B and Firm BC would have no motive to favor themselves over Firm AB in the discrimination count.

        Krutzfeldt Ranch, LLC v. Pinnacle Bank, 2012 Mont. LEXIS 15 (Mont. Jan. 31, 2012).  In this case Borrowers sued Bank for breach of a loan agreement.  Borrowers' lawyer retained Tax Lawyer to advise Borrowers on how to structure a possible settlement.  Without warning to Borrowers, Tax Lawyer joined the law firm representing Bank ("Bank Firm").  When Borrowers received an announcement of this change, they immediately moved to disqualify Bank Firm.  The trial court denied the motion, holding that Borrowers were former clients of Tax Lawyer and that Bank Firm's screen of Tax Lawyer prevented Bank Firm's disqualification.  In this opinion the supreme court reversed.  After analyzing what transpired when Tax Lawyer joined Bank Firm, the court concluded that the Borrowers remained clients when the move occurred.  Thus, Bank Firm's disqualification became automatic.  The court also added that even under a former client analysis, the screen erected by Bank Firm was not timely.

        Hartford Life & Accident Ins. Co. v. King, 2012 U.S. Dist. LEXIS 60308 (W.D. Va. April 30, 2012).  H is a suspect in the death of W.  H is also executor of W's estate.  InsCo insured W's life.  InsCo filed this interpleader action against H and W's mother, the only other heir.  Lawyer appeared for H individually and as executor of the estate.  Among other findings, the court held that Lawyer had a conflict and could not appear for both, given the pending issue of whether H killed W.

        In re Neely, 2012 U.S. Dist. 67743 (N.D. Ind. May 14, 2012).  H died.  The guardian of W, an incompetent, has sued two nephews of H and W, because H had defrauded W when he was alive by diverting assets from a joint account between H and W to the nephews.  The guardians of the nephews moved to disqualify the law firm for W's guardian ("Law Firm") because Law Firm also represents H's estate.  In this opinion the magistrate judge denied the motion, finding no conflict.  The court noted that Law Firm had never represented H and that H's estate is an entity separate from H.

        Raby v. Animal Welfare League, 2012 U.S. Dist. LEXIS 57023 (M.D. Fla. April 20, 2012).  In this opinion the magistrate judge recommended that the district judge approve the parties' settlement of a FLSA claim.  The court noted approvingly that the lawyer's fee was not negotiated until after the damages had been negotiated.

        Deboles v. Nat'l R.R. Passenger Corp., 2012 U.S. Dist. LEXIS 79102 (D. Nev. June 7, 2012).  Injury case.  An Amtrak passenger train occupying BNSF track hit the plaintiff.  In this opinion the court held that one law firm representing both Amtrak and the BNSF did not have a conflict of interest.

        LK Operating, LLC v. Collection Group, LLC, 2012 Wash. App. LEXIS 1435 (Wash. App. June 19, 2012).  In this opinion the court held that a lawyer's violation of Rule 1.7 in representing parties to a contract cannot be grounds for rescission of the contract.  However, the court held that a violation of Rule 1.8(a) could be grounds for rescission and upheld rescission in this case.

        Transperfect Global, Inc. v. Motionpoint Corp., 2012 U.S. Dist. LEXIS 85649 (N.D. Cal. June 20, 2012).  This is a patent infringement matter between Co. A and Co. B.  Co. B. is represented by Law Firm.  After this case began, Lawyer moved from a prior law firm to Law Firm.  While at Law Firm, Lawyer continued to do estate planning for the co-owners and co-CEOs of Co. A.  Co. A moved to disqualify Law Firm.  In this opinion the magistrate judge granted the motion.  The court said that Law Firm, in effect, was also representing Co. A, because Lawyer's services to the co-owners/co-CEOs of Co. A were inextricably related to Co. A.  Thus, Law Firm had a current client conflict and had to be disqualified.

        Pfizer, Inc. & Pharmacia Corp. v. Farr, 2012 Tenn. App. LEXIS 416 (Tenn. App. June 22, 2012).  This is a suit by two corporate taxpayers against the Tennessee Commissioner of Revenue for return of franchise and excise taxes.  The Commissioner sought to bring in, via a pro hac vici motion, a New Mexico in-house lawyer from the Multistate Tax Commission ("MTC").  The trial judge refused to admit the lawyer.  In this opinion the appellate court reversed, holding, in part, that there was no conflict of interest between the state and MTC.

        Steinhouse v. Lesser, 2012 N.Y. Misc. LEXIS 3704 (N.Y. Sup. Ct. Aug. 2, 2012).  Limited Partnership ("LP"), which owns some commercial property, is due to be liquidated at the end of 2012, pursuant to the terms of the partnership documents.  All but two limited partners wish to convert LP to an LLC, for reasons not reflected in the opinion.  This suit is to require the two hold-outs to consent to the conversion.  LP is being represented by an employee of the managing agent of LP ("Lawyer").  The hold-outs moved to disqualify Lawyer, contending that Lawyer's interest is to prevent the liquidation.  In this opinion the court denied the motion, holding that there is nothing inconsistent with converting LP to an LLC (the subject of this case) and the impending liquidation.

        Reese v. Virginia Int'l Terminals, 2012 U.S. Dist. LEXIS 109372 (E.D. Va. Aug. 2, 2012).  Reese hired Law Firm to represent him in two workers compensation matters.  While one of them was pending, Reese file this labor-related suit against his employer and his union.  Law Firm appeared for the union.  Eleven weeks later the workers compensation matter ended.  Reese moved to disqualify Law Firm in this case.  In this opinion the court found that Law Firm did violate Rule 1.7, but denied the motion.  The court quoted another court saying "disqualification is never automatic."  The matters were totally unrelated, and no harm would come to Reese if Law Firm remained in this case.  The court did order the clerk to mail the opinion to Legal Ethics Counsel at the Virginia State Bar.

        Liapis v. Second Jud. Dist. Ct., 2012 Nev. LEXIS 86 (Nev. Aug. 9, 2012).  Divorce proceeding.  Son appeared as lawyer for H.  W moved to disqualify Son.  The trial court granted the motion.  In this opinion the supreme court reversed (granted mandamus).  W argued that Son violated the material limitation provision of Rule 1.7.  The court rejected that ground because H had signed a waiver.  Moreover, the court noted that Son had never represented W.

        Fries v. Teaford Co., Inc., 2012 U.S. Dist. LEXIS 128748 (N.D. Fla. Sept. 11, 2012).  Two consolidated actions.  One is a wrongful death suit by a decedent's estate against Company.  Company had a liability insurance policy issued by InsCo.  The other action is a suit by InsCo against Company and the estate for a declaration that the death was subject to a policy exclusion.  In the latter action two lawyers ("Lawyers") are representing jointly Company and the estate.  InsCo moved to disqualify Lawyers because they have a conflict.  In this brief opinion the court granted the motion.

        Reeves v. City of Georgetown, 2012 U.S. Dist. LEXIS 127968 (E.D. Ky. Sept. 10, 2012).  Plaintiff, former police chief of City, in this case is suing City for wrongful discharge.  Law Firm represents City.  Plaintiff moved to disqualify Law Firm because Law Firm represents Plaintiff in his "official capacity" in a suit against Plaintiff in state court.  In this opinion the court denied the motion, noting that in the state court case Plaintiff has his own lawyer and Law Firm is really representing City.

        TransPerfect Global, Inc. v. MotionPoint Corp., 2012 U.S. Dist. LEXIS 129402 (N.D. Cal. Sept. 11, 2012).  Patent infringement case.  Owner A owns 50% of the plaintiff corporation.  Owner B owns 49%.  Owners A and B are co-CEOs of the plaintiff.  Law Firm represents the defendant.  After this suit was filed, Lawyer joined Law Firm.  She did estate planning work for Owners A and B before joining Law Firm and continued doing that work for them after joining Law Firm.  The plaintiff moved to disqualify Law Firm.  The magistrate judge granted the motion.  In this opinion the district judge affirmed.  First, the court held that by representing the defendant against the plaintiff corporation Law Firm was directly adverse to Owners A and B.  Second, the court held that it made no difference that the plaintiff corporation was the after-acquired client of Law Firm.

        Sibo v. Grey Oaks Country Club, Inc., 2012 U.S. Dist. LEXIS 129151 (M.D. Fla. Aug. 21, 2012).  Order approving the settlement of a FLSA claim.  The court noted with approval that the lawyer's fee was negotiated separately from  the amount payable to the plaintiff.

        Waithe v. Arrowhead Clinic, Inc., 2012 U.S. App. LEXIS 20161 (11th Cir. Sept. 26, 2012).  Plaintiffs were injured in an auto accident.  They were treated by a chiropractic clinic.  The clinic gave Plaintiffs forms, which had the effect of referring them to a law firm.  Plaintiffs hired that law firm to sue for their injuries.  The law firm achieved a settlement for Plaintiffs.  After the settlement Plaintiffs filed a class action against the clinic and the law firm.  The complaint included counts of negligence, fraud, and breach of fiduciary duty.  The trial court granted motions to dismiss several counts and granted summary judgment as to the remaining counts.  In this opinion the appellate court affirmed.  The arrangement between the clinic and law firm was fully disclosed.  Plaintiffs could not identify any specific wrongful conduct causing them harm.

        Berman v. Schwartz, 2012 ONSC 6851 (CanLII) (Ont. Super. Ct. Dec. 3, 2012).  We will try to keep this simple, perhaps overly so.  This case involves allegations of wrongful payments from a decedent's estate.  Ms. Garnet was litigation guardian for the decedent's widow.  Law Firm has represented Ms. Garnet for some years, both in her individual capacity and as litigation guardian.  Because there is a possible claim against Ms. Garnet's husband, the court held that she had a conflict and should be disqualified.  For the same reason the court held that Law Firm should be disqualified.  Because the motion to disqualify was brought by a defendant in this case, the court considered standing.  Because Law Firm was retained by decedent's widow when she lacked capacity to do so, the court side-stepped the standing issue.

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        Duran v. City of Porterville, 2013 U.S. Dist. LEXIS 6789 (E.D. Cal. Jan. 16, 2013).  City resident brought a First Amendment case against City.  City hired a local lawyer to defend.  The resident moved to disqualify the lawyer because the lawyer was being paid by taxpayer funds, to which the resident had contributed by paying taxes.  The court denied the motion noting that no court had ever sustained such a position.

        Parallel Iron, LLC v. Adobe Sys. Inc., 2013 U.S. Dist. LEXIS 29382 (D. Del. March 4, 2013).  Patent infringement case.  Defendant moved to disqualify Plaintiff's law firm ("Law Firm") because Law Firm had quite recently done a series of patent opinions for Defendant.  In this opinion the court granted the motion.  The court found that Defendant was a current client of Law Firm because neither Defendant nor Law Firm had definitively terminated the relationship.

        Northam v. Va. State Bar, 2013 Va. LEXIS 36 (Va. Feb. 28, 2013).  Disciplinary matter.  The disciplinary board found that Lawyer had violated Rule 1.10 (imputation rule).  On appeal the supreme court, in this opinion, reversed.  There was one dissent.  While the case was ultimately decided on state law evidence principles, the facts are interesting.  H and W were fighting over various divorce issues.  On April 7 W obtained an appointment with Partner A in Law Firm, but did not meet with Partner A until April 13. On April 9 Partner B (same firm) received a call from H, during which H described the situation "in some detail."  On April 13 during his interview with W, Partner A learned from W that H had already talked to Partner B.  When he confirmed this with B, A terminated his relationship with W.  B continued representing H, and W complained to Bar authorities.  The disciplinary board found that Partner B knew that Partner A was conflicted out and that continuing to represent H was a violation of Rule 1.10.  In reversing, the majority held there was not sufficient evidence that B "knew."

        Ferguson v. Patton, 2013 Ill. LEXIS 301 (Ill. March 21, 2013).  City adopted an ordinance providing for an inspector general ("IG").  In this case IG was attempting to discover documents from City's chief lawyer ("CorpCsl").  CorpCsl resisted.  In this opinion, construing state statutes and City's ordinances, the supreme court held that IG had no right to hire outside counsel to contest CorpCsl's refusal.  The court held that IG should have gone to the mayor for relief.  To get to that conclusion the court said that IG could not have gotten relief from CorpCsl because that would put CorpCsl in a conflict of interest under Ill. Rule "1.7(a)."  The court did not say which subsection of 1.7(a) was implicated.  (Illinois' Rule 1.7(a) has a (1) and a (2), just like the Model Rule.)

        Town of Cedar Lake v. Alessia, 2013 Ind. App. LEXIS 133 (Ind. App. March 21, 2013).  Town eliminated its park board.  Members of the board filed this action against Town challenging Town's authority to do so.  This opinion is largely a discussion of what the Town had authority to do.  However, the court addressed the fact that Law Firm, which represented the park board, was representing Town in this action.  Thus, the court found that Law Firm had a Rule 1.7(a)(1) "current client" conflict and could not continue to represent park board.  [Note: we thought that the park board no longer existed, and that park board members were no longer members.  So where does "current client" come from?  Second, it appears that Law Firm was not representing the park board or its members in connection with this case.  Last, the court mentioned the capacity in which the board members brought this action, surmising that capacity was relevant to the conflict issue.  We do not understand it.]

        CQS ABS Master Fund Ltd. v. MBIA Inc., 2013 U.S. Dist. LEXIS 91257 (S.D.N.Y. June 24, 2013).  InsCo, the defendant in this case, insured mortgage-backed securities.  Because of the residential market melt-down, InsCo restructured itself to minimize its exposure.  Plaintiff, which suffered melt-down losses, brought this case to challenge the restructuring and maximize its recovery from InsCo.  Law Firm represented Plaintiff in this case.  InsCo moved to disqualify Law Firm in part because Law Firm represented InsCo in other matters when Law Firm brought this case.  InsCo also claimed that Law Firm had previously represented InsCo in substantially related matters.  In this opinion the court granted the motion, both as to the current representation and as to the former representation.  Due to the complexity of the facts we will leave it to interested audience members to read the opinion.  One interesting aspect of the current representation claim is that Law Firm represented InsCo because another client ("Other Client") insisted that Law Firm represent Other Client and InsCo jointly.  Nevertheless, because InsCo believed Law Firm represented InsCo, and because Law Firm did actually advise InsCo, the court found that InsCo was a current client.  As to the former representations, they also related to the restructuring of InsCo.  Thus, the court found a substantial relationship.  Although Law Firm claimed the files from the earlier representation were "under lock and key," Law Firm had failed to offer, to the court's satisfaction, adequate evidence of a formal screen.

        Young v. Vrechek, 2013 U.S. Dist. LEXIS 117031 (D. Hawaii Aug. 19, 2013).  Plaintiff is a beneficiary of Trust, which was set up for his mother.  After his mother's death, Plaintiff filed this action against Defendant in Defendant's individual capacity.  The suit involves funds paid to third parties out of Trust prior to the mother's death.  Plaintiff moved to disqualify Defendant's lawyer ("Lawyer") claiming that Lawyer was somehow Plaintiff's lawyer.  In this opinion the court denied the motion, finding that there was no showing that Lawyer, sued only in his individual capacity, was, in any sense, Plaintiff's lawyer.

        D’Andrea v. Epstein, Becker, Green, Wickliff & Hall, P.C., 2013 Tex. App. LEXIS 13523 (Tex. App. Oct. 31, 2013).  General Counsel of Company, who suspected he was about to be fired, requested that Law Firm prepare a memorandum that was highly critical of the owner of Company.  At the time of preparing the memorandum, Law Firm was representing, not only Company, but also the owner on an unrelated bankruptcy matter.  Because of the memorandum, the owner sued Law Firm on various tort theories, including breach of fiduciary duty.  The trial court granted Law Firm a summary judgment because the only matter in which Law Firm represented the owner individually was not related to the memorandum.  (Recall, Texas is the only state allowing a law firm to be adverse to a current client on an unrelated matter.)  In this opinion the appellate court reversed on that point.  The court held that Law Firm could be liable for breach of fiduciary duty even though it did not violate the letter of Texas’ unique version of MR 1.7.  At D’Andrea v. Epstein, Becker, Green, Wickliff & Hall, P.C., 2013 Tex. App. LEXIS 14961 (Tex. App. Dec. 12, 2013), the court denied rehearing but wrote a new opinion.  It seems the same on the fiduciary duty part, but we cannot tell without doing a word-for-word comparison.

        N.Y. Op. 990 (Nov. 12, 2013).  Lawyer wishes to represent Client B in lending money to Client A (represented by another lawyer).  Lawyer may later wish to represent B in collecting the loan from A.  Lawyer may also wish to take stock from B in lieu of a fee.  The gist of this opinion is that Lawyer may do all of these things so long as Lawyer complies with Rules 1.5, 1.7 and various provisions of Rule 1.8, including 1.8(a).  The opinion leads the reader through the various steps necessary to accomplish these goals.

        Lasek v. Vermont Vapor, Inc., 2014 Vt. LEXIS 31 (Vt. April 11, 2014). Tenant leased commercial space from Owner. The space was in a fire, and Tenant sued Owner for negligence (this case). Law Firm P represents Tenant. Law Firm D represents Owner. Law Firm D, retained by Law Firm P’s malpractice carrier, represented Law Firm P in an unrelated malpractice case. Law Firm P had filed a lien against Owner’s property but said it would remove it. When Owner discovered the lien had not been removed, Law Firm D wrote a letter to Law Firm P saying failure to remove the lien might cause “significant personal injury” to Owner. Tenant moved to disqualify Law Firm D. The trial court denied the motion, and, in this opinion, the Vermont Supreme Court affirmed. The court seemed to be saying that the letter was a request, not a threat. Besides, in a footnote the court noted that Law Firm D had withdrawn as Law Firm P’s counsel in the unrelated malpractice case.

        Appsoft Dev., Inc. v. Diers, Inc., 2014 U.S. Dist. LEXIS 64982 (M.D. Fla. May 12, 2014). While at Law Firm A, Lawyer did work for Appsoft on a matter involving a breach by a former employee of his employment agreement (the “earlier case”). This is a case involving other players and the tortious appropriation of Appsoft’s software. Appsoft is being opposed by Law Firm B. Several years ago Lawyer left Law Firm A and joined Law Firm B. Appsoft moved to disqualify Law Firm B in this case, citing both Rules 1.7 and 1.9. In this opinion the court denied the motion. As to Rule 1.7, the court found that Lawyer no longer represented Appsoft. Lawyer made no attempt to bring Appsoft with her to Law Firm B, and Appsoft thought the earlier matter was completed. The fact that the earlier matter remained opened, and the fact that Lawyer’s appearance for Appsoft was inadvertently still on file, did not change the reality that Lawyer no longer represented Appsoft. As to Rule 1.9, the court ruled that Appsoft had not made a showing that the earlier matter and this case were substantially related. [Note: in a footnote the court said it did not follow the rule that doubts should be resolved in favor of disqualification because the Eleventh Circuit had not yet adopted that rule.]

        7102763 Canada Inc. v. 2242869 Ontario Inc., 2014 ONSC 3819 (CanLII) (Super. Ct. Ont. July 14, 2014). Suit on a note. Plaintiff’s lawyer (“Lawyer”) has represented Defendant on a number of minor matters not related to this suit. Defendant moved to disqualify Lawyer. In this opinion, noting that Lawyer continues to represent Defendant (but barely), the court said that this case is the exceptional one where it would not have been reasonable for Defendant to have expected Lawyer not to bring this case. The court denied the motion. The court acknowledged the “bright line” rule established by Neil and McKercher, and said exceptions such as this case would be rare.

        Hamilton v. City of Hayti, 2014 U.S. Dist. LEXIS 172575 (E.D. Mo. Dec. 15, 2014). This is a civil rights action against City relating to alleged improprieties in administering fines and sentences. Lawyer represents the plaintiffs. Lawyer also represents the mayor of City in a criminal case in another county. City moved to disqualify Lawyer in this case. Because the mayor would be privy to the City’s defenses and strategies in this case, and because there is an “irrefutable presumption” that the mayor would share confidences with Lawyer, the court, in this opinion granted the motion.

        Board of Trustees of Southern Ill. U. v. Jones, 2015 IL App (5th) 140046-U (Ill. App. Jan. 16, 2015). Two plaintiffs, professors at SIU, bought this action on behalf of SIU, under the Illinois False Claims Act, against Defendant, another professor, for charging travel expenses erroneously. The SIU administration disagreed with the plaintiffs’ claim and chose not to participate in the case. Among other things, the plaintiffs moved to disqualify Defendant’s lawyer because she was an SIU staff lawyer. The trial court denied the motion. In this opinion the appellate court affirmed. The court held there was no conflict and that, in any event, the plaintiffs had no standing to make the motion because they could not show that the conflict would affect the outcome or otherwise prejudice their case.

        Hershewe v. Givens, 2015 WL 777721 (M.D. Ala. Feb. 24, 2014). Lawyer A and Lawyer B proceeded to form a law firm (“VLO”). They had a falling-out. Lawyer A brought this suit against Lawyer B, VLO, and others. One of the claims is that Lawyer B defrauded VLO. Lawyer B appeared to defend all defendants, including VLO. Lawyer A moved to disqualify Lawyer B and Lawyer B’s partners. There were Rule 3.7 issues, which we do not write about, and which the court rejected. There was also a Rule 1.7 issue. The court denied the motion. The court said that “while it may be difficult” for Lawyer B to represent VLO, disqualification “is not required at this point.”

        Isuzu Motors Am., LLC v. Jackson, 2015 WL 1349619 (D. Haw. March 24, 2015). Law Firm did a loan transaction for Lender. Law Firm prepared loan documents for Borrower to sign. Pursuant to the deal documents, Law Firm billed, and was paid by, Borrower. This is a suit by Isuzu against Borrower, arising out of the loan. Law Firm represents Isuzu. Borrower moved to disqualify Law Firm. The magistrate judge denied the motion. On appeal the district judge affirmed (this opinion). The court held that the foregoing facts, without more, do not make Borrower Law Firm’s client.

        Milwaukee Elec. Tool Corp. v. Hilti, Inc., 2015 WL 1898393 (E.D. Wis. April 27, 2015). Plaintiffs filed simultaneously eight law suits involving alleged infringement of patents relating to cordless hand-tools. Law Firm filed seven of the eight. The eighth suit was against Snap-On Inc. Snap-On is a long-time client of Law Firm on other matters. Snap-On moved to intervene in the first seven cases to move to disqualify Law Firm, claiming Law Firm was being directly adverse to Snap-On. In this opinion the court denied the motion to disqualify. While conceding the case was close, the court found no direct adversity based, in part, on the following: (1) Law Firm was not attacking Snap-On’s products; (2) Law Firm did no work for Snap-On relating to the patents in question; and (3) Markman proceedings will not necessarily overlap. Last, the court noted the ways Defendants have sought to delay the cases in other respects as well as a three-month delay in bringing these motions.

        Wierzbicki v. County of Rensselaer, 2015 WL 4757755 (N.D.N.Y. Aug. 12, 2015). Lawyer represents Client A in this employment-related case against the county. Lawyer represents Clients B and B’s wife, C, in a different case against the county involving the county’s treatment of B. The county moved to disqualify Lawyer because C was employed by the county and participated in decision-making regarding A’s employment. In this opinion the court held that this relationship, without more, did not require disqualification.

        Bradshaw v. Gatterman, 2015 WL 5226275 (D. Kan. Sept. 8, 2015). Family squabble. Plaintiff, pro se, sued many people including lawyers and a judge. Lawyer, one of the defendants, appeared for himself and fifteen other defendants. Plaintiff moved to disqualify Lawyer. In this opinion the magistrate judge denied the motion, noting that, currently, those defendants’ interests were aligned.

        Woods v. Mich. Dep’t of Corr., 2015 WL 7075922 (E.D. Mich. Nov. 13, 2015). In January 2015 Woods brought this employment discrimination case against Agency and two Agency employees. One of the employees was named “Burton.” It turns out that Burton also went by the name, Swain. Law Firm represents Woods in this case. Earlier, also in January 2015, Swain retained Law Firm to file an unrelated accident case for her. In July 2015 Agency’s lawyer flagged the conflict and threatened to move to disqualify Law Firm. Agency subsequently did file a motion (date not in opinion). Shortly thereafter Law Firm terminated its representation in Swain’s accident case. In this opinion the court denied the motion to disqualify. First, the court held that because Law Firm had terminated its representation of Swain, the analysis should be under Rule 1.9, rather than Rule 1.7. Second, the court ruled that the accident case was not substantially related to this discrimination case. Next, the court found that there was no showing that Swain disclosed relevant confidences to Law Firm. Last, the court found that Law Firm’s sloppiness in not noting the conflict initially would not be a basis for disqualifying Law Firm.

        A Big Mobile Sign Co. Inc. v. Curbed Ltd., 2016 ONSC 2053 (CanLII) (Ont. Super. Ct. March 23, 2016). This is a suit by SignCo 1 against SignCo 2, its competitor, for business torts. An executive of SignCo 2 (“Exec”) is also a defendant. At a time when SignCo 1’s law firm (“Law Firm”) was preparing the claims against SignCo 2 and Exec, Exec retained a lawyer at Law Firm to handle two mortgage transactions having nothing to do with the claims in this case. Because of those representations SignCo 2 and Exec moved to disqualify Law Firm. In this opinion the court granted the motion. The opinion is interesting on several levels. First, the court noted several missed opportunities for Law Firm to have detected the conflict. Plus, Law Firm offered little in explanation for those failures. Second, the court noted that for some length of time Law Firm erected no screen between the mortgage lawyer and the lawyers in this case. Third, while noting that Exec had realized fairly early on that he was using the Law Firm that was suing him, his failure to raise it could be explained by his understandable inability to appreciate the subtleties of lawyer conflicts. While this holding turned on the “bright line” rule set forth in Neil, the court nevertheless seemed to factor in that Exec had given personal financial information to the mortgage lawyer that might have been used against him in this case.

        Shah v. May Oberfell Lorber, 2016 WL 1128259 (N.D. Ind. March 22, 2016). Fight among shareholders over management of several corporations. In this case the plaintiffs joined Law Firm as a co-defendant. Law Firm appeared for itself and the other defendants. The plaintiffs moved to disqualify Law Firm from representing the other defendants. In this opinion the magistrate judge denied the motion. The court said that a law firm representing itself and other defendants “without more” would not require disqualification.

        ABA Op. 474 (April 2016). This opinion deals with referral fees under MR 1.5(e). The opinion assumes that the referring lawyer will not work on the matter. Yet, the rule requires that the referring lawyer assume “joint responsibility” for the matter if the referring lawyer shares the fee. In that case the opinion holds that the referring lawyer must deal with conflicts just as if he were handling the matter. The opinion also discusses client consent requirements.

        Senior Business Advisor (posted May 10, 2016) Jennings v. Bazinet, 2016 QCCS 2067 (CanLII) (Super. Ct. Que. May 3, 2016). Defendant met with a “Senior Business Advisor” (“SBA”) employed by Law Firm (not a lawyer). They discussed disagreements within Company. They had several discussions. Law Firm then filed this suit against Defendant involving those disagreements. Defendant moved to disqualify Law Firm. In this opinion the court granted the motion. The court found that SBA’s position and function were sufficient to make Defendant a client of Law Firm. The court found the screen erected by Law Firm to be adequate and timely (delay of several weeks). At the end of the day the court justified disqualification because this suit was filed while Defendant was still a client, thus Law Firm breached its duty of loyalty to Defendant, thereby endangering the reputation of the legal system.

        Nustar Farms, LLC v. Zylstra, 2016 WL 2772186 (Ia. May 13, 2016). Manure easement case (our first). Lawyer filed this case for Nustar against the Zylstras to enforce a real estate contract, including a manure easement. The problem is that when Lawyer first decided to file this case, Lawyer had pending a small claims case on behalf of the Zylstras. The trial court denied the Zylstras motion to disqualify Lawyer in this case. In this opinion the Supreme Court reversed, finding that Lawyer had a current conflict of interest. The parties agreed that the small claims matter ended May 13, 2014. Lawyer’s representation of Nustar began in “early May” 2014. Thus, the duration of the conflict was at most two weeks.

        Bryan Corp. v. Abrano, 2016 WL 3245062 (Mass. June 14, 2016). Corp. is owned by A, B, and C. Law Firm represented Corp. in litigation against another company, until July 31, 2015 (“the Other Case”). In June 2015 A and B got into a dispute with C over compensation. A retained Law Firm to deal with this dispute. On July 21, 2016 Law Firm sent a demand letter to Corp. regarding A’s compensation. This litigation ensued with Law Firm representing A. Corp. moved to disqualify Law Firm. The trial court granted the motion. In this direct appeal the Supreme Judicial Court affirmed. The court held that Law Firm should have anticipated in June 2015 that it would be adverse to its client, Corp. and should not have written the demand letter to Corp. while still representing Corp. in the Other Case. Law Firm had attempted to cure the conflict by withdrawing from the Other Case on July 31, 2016, but the court held that withdrawal violated Rule 1.16. The court passed on the opportunity to apply the “hot potato” rule.

        State Comp. Ins. Fund v. Drobot, 2016 WL 3524330 (C.D. Cal. June 24, 2016). InsFund provides workers’ compensation benefits to employers. InsFund discovered that it was being defrauded by healthcare providers (“HCPs”) for over-billing and the like. InsFund, represented by Law Firm, brought civil suits against several dozen HCPs. One HCP InsFund did not sue was Paul Randall, although Randall did appear as a third-party defendant and in related civil proceedings. Randall had pleaded guilty in one of the criminal cases that arose out of the above fraud and is awaiting sentencing. Law Firm represents Randall in the criminal case. Several defendants moved to disqualify Law Firm from representing InsFund. The court granted the motion. In this very long opinion the court denied rehearing. The court rejected the standing argument given the way Law Firm’s conflict “infects the litigation.” The court describes all the ways Randall was being, or could be, whip-sawed (our word) by Law Firm in both the civil cases and in his criminal case (his upcoming “life-altering sentencing hearing”). The court also analyzed written waivers InsFund had obtained from InsFund and Randall, concluding in several instances that the waivers didn’t “cut it.” Last, the court picked apart the declarations of several ethics experts InsFund retained for purposes of the motion for rehearing.

        Willsee Holdings Ltd. v. Tim Seegmiller Holdings Inc., 2016 ONSC 4204 (CanLII) (Ont. Super. Ct. June 27, 2016). Patriarch owned 14 companies. He wanted his sons, Son 1 and Son 2 to take over. The sons could not get along, so the companies were ultimately distributed between them. Law Firm represented Son 1 and at various times represented a number of the companies. As a result of the division, Law Firm found itself with various adverse positions. So, Law Firm dropped some of the representations to remove the adversity. Son 2 moved to disqualify Law Firm in three different cases. In this opinion the court denied the motions, finding that all Law Firm’s actions, under the circumstances, were justifiable.

        Steel Workers Pension Trust v. The Renco Group, Inc., 2016 WL 3633079 (W.D. Pa. July 7, 2016). This case is a multi-employer pension plan (“MEPP”) making a withdrawal liability claim under ERISA. Law Firm represents the defendant employers in resisting the claim. The plaintiff MEPP, never a client of Law Firm, moved to disqualify Law Firm because Law Firm represents MEPPs in other cases and in other courts. Thus, Law Firm would be making arguments in this case that might adversely impact its own MEPP clients. In this opinion the magistrate judge denied the motion. First, the court held that the plaintiff had standing to make the motion under the court’s obligation to enforce lawyer ethics rules. On the merits, the court noted that this case is about waiver of defenses and adequacy of a withdrawal liability notice, issues not present in Law Firm’s cases for MEPPs. Thus, no conflict.

        Cohen v. Rogers, 2016 WL 3854885 (Ga. App. July 14, 2016). Aye Brindle was housekeeper for Joseph Rogers. Brindle made an unauthorized video of a sexual encounter between herself and Rogers. Rogers sued Brindle to enjoin her use of the video and for various other causes of action including for damages. David Cohen and John Butters appeared for Brindle. Rogers then, in another case, sued Cohen and Butters for various torts for their participation in the planning and making of the video. Rogers moved to disqualify Cohen and Rogers from representing Brindle. The trial court granted the motion, both under Rule 1.7 (conflict) and 3.7 (lawyer as witness). In this opinion the appellate court affirmed. The reasoning was lengthy and (to us) convoluted. Basically, the court was concerned that Brindle and the lawyers would ultimately have to point fingers at each other over the origin of the video. The opinion was very Georgia-centric, with citations to Georgia cases and statutes almost exclusively (one cite to the U.S. Supreme Court). Georgia lawyers may want to give it a look.

        Frontier Prop. Invs. Ltd. v. Wellworth Homes Ltd., 2016 BCSC 1591 (CanLII)(S. Ct. B.C. Aug. 29, 2016). Lawyer and Law Firm represented Wellworth for several years. This case is about a mortgage loan from Frontier to Wellworth. Lawyer represented Frontier and was a principal of Frontier. Lawyer told Wellworth to get its own lawyer for the mortgage transaction. The loan went south, and Frontier foreclosed. This litigation ensued. Part of it was the propriety of the foreclosure, given Law Firm’s conflict of interest. The other part is a claim by Wellworth against Frontier for Law Firm’s breach of fiduciary duty. A Master upheld the foreclosure notwithstanding the conflict. In this opinion the Supreme Court judge affirmed the Master and held further that Wellworth’s claim against Frontier could proceed.

        Reyes v. Golden Krust Carib. Bakery, Inc., 2016 WL 4708953 (S.D.N.Y. Sept. 1, 2016). Employee, member of Union, sued Employer for violation of the FMLA. Lawyer represents Employee. Lawyer is also Business Manager of Union. Employer moved to disqualify Lawyer. In this opinion the magistrate judge denied the motion. Employee stated she had no claim against Union. The court called Employer’s position that Employee might have a claim against Union a “baseless hypothetical.”

        Leach v. Leach, 2016 ONSC 6140 (CanLII) (Super. Ct. Ont. Sept. 30, 2016). Marital Litigation. In the course of spousal support negotiations, W began working full time as a receptionist in the law firm representing her. H moved to disqualify W’s lawyer. In this opinion the court denied the motion. The court said there was no showing of an “emotional tie” between W and her lawyer, such as might arise in a romantic relationship. The court discussed at length the extent to which W’s salary and other financial relationship with her law firm might influence a spousal support holding, finding nothing that would require disqualification.

        Antenuptial/Postnuptial Agreements. DeCurtis v. Visconti, Boren & Campbell, Ltd., 2017 WL 253164 (R.I. Jan. 20, 2017). This is a discovery dispute involving the attorney-client privilege. In resolving the dispute in favor of discovery, the court held that a lawyer may not ethically represent both the husband and wife in preparing an antenuptial (prenuptial) or postnuptial agreement. The court cited Ware v. Ware, 687 S.E.2d 382 (W. Va. 2009).

        United States v. Blue Lake Power,LLC, 2017 WL 713145 (N.D. Cal. Feb. 23, 2017). This is a case brought by Municipal District against Power Co. under the federal Clean Air Act. The parties sought entry of a consent decree. Indian Tribe objected. One objection was that District’s lawyer also represented City, which receives rent from Power Co. District’s lawyer responded that City has no enforcement authority relating to the Clean Air Act, that City has consented to the representation, and City has hired other counsel to look out after its interests regarding this matter. In this opinion the court overruled the Tribe’s objection.

        California Ass’n of Realtors, Inc. v. PDFfiller, Inc., 2017 WL 975945 (D. Mass. March 13, 2017). Law Firm handled litigation for Plaintiff until approximately 2010. The only work subsequently was under a “general advice account” executed in 2003. The work on this account trickled out in 2015. Law Firm showed up for Defendants in this case. Plaintiff moved to disqualify Law Firm. Law Firm set up a screen and all Plaintiff files were put in custody of the “General Counsel’s Office.” A lead lawyer for Plaintiff retired from Law Firm on January 1, 2017, The lead lawyer for Defendants in this case just joined Law Firm days before this case was filed. Based upon all the above circumstances, in this opinion, the court denied the motion to disqualify.

        Akagi v. Turin Hous. Dev. Fund Co., Inc., 2017 WL 1076345 (S.D.N.Y. March 22, 2017). This is a housing discrimination case brought against two groups of defendants. We will call them Owners and Managers. Law Firm started out representing both groups. Part way into the representation Law Firm filed a state court action for Owners against Managers. That case is related to this case. In the face of a motion to disqualify, Law Firm withdrew from representing Managers in this case. Nevertheless, certain parties have moved to disqualify Law Firm from representing Owners in this case. In this opinion the court granted the motion. The court viewed this as a current client conflict even though Law Firm had dropped Managers. The parties had signed a joint defense agreement and a conflict waiver. In parsing those, the court felt neither was an adequate waiver of this current client conflict.

        Belize Bank Ltd. v. Government of Belize, 2017 WL 1193700 (D.C. Cir. March 31, 2017). In this case Bank seeks to enforce an award under the Rules of the London Court of International Arbitration (“LCIA”), rendered in London. One of the issues raised was that a barrister in the case had a conflict because another member of barrister’s chambers had earlier represented a partial owner of Bank. In this opinion the court held that this ground did not succeed because English barristers are “sole practitioners” and their chambers are not “law firms.” Thus American-type imputation rules do not apply.

        Santander Sec. LLC v. Gamache, 2017 WL 1208066 (E.D. Pa. April 3, 2017). Gamache worked at Santander as a financial advisor until 2016. He then went to work for Citizens Securities. In this case Santander is suing Gamache for taking Santander customer lists and related wrongs. Citizens has not been sued. Law Firm is representing Santander. Because Law Firm had earlier represented Citizens in similar types of cases, Gamache moved to disqualify Law Firm in this case. First, after a thorough discussion of cases on standing, the court felt “inclined” to deny Gamache’s motion on that basis. However, because “the law in this area is less than clear,” the court moved on to whether Rule 1.9(a) was implicated. In part because Law Firm had ended work for Citizens before Gamache joined Citizens, the court held Law Firm’s work for Citizens on similar cases was not substantially related to this case. This was more or less a rejection of the “playbook” theory.

        Rodriguez v. Spartan Concrete Prods., LLC, 2017 WL 1508179 (D.V.I. April 25, 2017). Plaintiffs, former employees of Defendant, represented by Lawyer, bring this action under FLSA and related statutes. Lawyer also happens to represent a high-ranking employee (“Bressi”) of, and partial owner of, Defendant, against Defendant, on matters not related to this case. Bressi had a role in hiring at least one Plaintiff and had roles in how to compensate employees. Bressi would be key witness for Defendant in this case. Defendant moved to disqualify Lawyer in this case. In this opinion the judge granted the motion, saying it would be “inherently unfair” to Defendant for Lawyer to have “untrammeled access” to Bressi, who will be a “key witness” for Defendant. The court also held that Lawyer’s communications with Bressi would violate Rule 4.2. [Our note: We are not sure about this one. It would seem the only parties potentially harmed by this situation would be the Plaintiffs in this case, and they are not complaining.]

        Carter v. Va. Dep't of Game & Inland Fisheries, 2017 WL 4413192 (E.D. Va. Sept. 29, 2017). Employment race discrimination case against Employer. Four plaintiffs. One plaintiff is the former HR Director for Employer. Defendant moved to disqualify the plaintiffs' lawyer. In this opinion the court denied the motion. First, the court noted that all the plaintiffs signed conflict waivers and that no plaintiff was making a claim against any other plaintiff. Also, among other things, the plaintiffs' lawyer averred that he believed that the testimony of the former HR Director would be favorable to the other plaintiffs rather than unfavorable, as claimed by Employer.

        First NBC Bank v. Murex, LLC, 2017 WL 1536014 (S.D.N.Y. April 28, 2017). [Note: Because of our professional relationships, the following will be brief.] One of Law Firm’s offices did EPA lobbying work for Murex under an engagement letter, which said that Law Firm would not be doing “legal” work. Later, when EPA threatened legal action agains Murex, Law Firm began assisting Murex in a defense. Overlapping with this activity was this lawsuit in which Law Firm is representing Bank against Murex. Murex moved to disqualify Law Firm in this case. In this opinion the court granted the motion. [Additional note: In seventeen years of doing this site we have seen no other case discussing the extent to which lobbying has been involved in a conflict situation.]

        York Region Condo. Corp. v. Hendler, 2017 ONSC 3420 (CanLII) (Super. Ct. Ont. June 1, 2017). Law Firm commenced an assessment proceeding to collect fees from Client. Client brought this case against Law Firm alleging negligence. Law Firm is defending itself in this case. Client moved to disqualify Law Firm. The court characterized this case as an attempt to set off the fees claimed by Law Firm. The court also noted that law firms represent themselves in assessment proceedings all the time. Accordingly, the court denied the motion.

        In re Krishna, 2017 WL 3947405 (Ind. Sept. 8, 2017). Lawyer discipline. The facts were agreed to as were the rules violated, 1.7(a), 1.8(b), and 8.4(d). Still, an interesting case. Mother agreed that Couple No.1 could adopt her baby. Couple 1 then hired Lawyer to handle the adoption. Mother then told Lawyer that she might want to choose a different couple. Lawyer named several other couples that he represented. Mother chose Couple No. 2. Lawyer did not tell Couple No. 1 any of this until after Mother had chosen Couple No. 2. While Lawyer had Couple No. 2 sign conflict waivers, he did not do so for Couple No. 1. Bottom line, public reprimand.

        Victorinox AG v. B&F Sys., Inc., 2017 WL 4149288 (2d Cir. Sept. 19, 2017). Trademark case. Law Firm represents Plaintiff, which was victorious in the trial court. Among other things, Defendants claim that Law Firm should have been disqualified because for about one year, while this case was pending, Law Firm represented a defendant on another matter. Law Firm has withdrawn from that representation. The trial court denied the motion to disqualify. In this opinion the appellate court affirmed. Evidently, no screen had been erected, but the court noted that neither trial team at Law Firm had exchanged information.

        Guardant Health, Inc. v. Foundation Medicine, Inc., 2017 WL 5127733 (N.D. Cal. Nov. 6, 2017). This suit involves a Guardant patent for “liquid biopsy assay,” which facilitates the location of cancer tumors. Law Firm appeared for for the defendant FMI. Law Firm had earlier worked on the same technology for Guardant. Guardant moved to disqualify Law Firm in this case, contending that when Law Firm appeared for FMI, it was still representing Guardant. Because the Law Firm lawyer in charge of the Guardant work was leaving Law Firm, and because Law Firm was shedding its patent prosecution work, the Guardant relationship was clearly ending. But, whether that relationship had ended at the time Law Firm appeared for FMI, involved a very fact-intensive analysis of a messy set of circumstances. On balance, in this opinion, the magistrate judge concluded that Law Firm had a current client conflict when it appeared in this case and granted Guardant’s motion to disqualify.

        United States v. HealthSouth, 2017 WL 5346385 (D. Nev. Nov. 10, 2017). Law Firm filed this qui tam case in 2013. In 2017 Defendant hire d two Law Firm lawyers to do lobbying work in Georgia. As a result, Defendant moved to disqualify Law Firm in this case. The magistrate judge granted the motion. In this opinion the district judge affirmed. The court noted that while Georgia lawyers doing lobbying work in Georgia might not be subject to Georgia ethics rules, lawyers appearing in a Nevada case, are subject to Nevada rules. The court noted that Nev. Op. 52 holds that lobbying work is subject to Rule 1.7 (current client rule). Georgia’s version of Model Rule 5.7 appears to be contrary to the Nevada opinion.

        IPS Group, Inc. v. Duncan Solutions, Inc., 2017 WL 4654602 (S.D. Cal. Oct. 17, 2017). Patent infringement case. Law Firm has joined with other firms to defend it. Prior to this case Law Firm had done sporadic corporate work for Plaintiff. In this opinion the court denied Plaintiff's motion to disqualify Law Firm. In a fact-intensive analysis the court found that there was no current client relationship between Plaintiff and Law Firm.

        United States v. Emigration Improve. Dist., 2017 WL 5632398 (10th Cir. Nov. 22, 2017). Qui tam case. Plaintiff caused his law firm (“Law Firm”) to file a lis pendens against Defendants’ property. Defendants moved to have the lis pendens removed. The trial court granted the motion and awarded statutory costs and lawyers’ fees to Defendants. In one of its responses Law Firm made arguments to the effect that Law Firm should not have to pay, evidently “at the expense” of Plaintiff. The court found that Law Firm had a non-waivable conflict with Plaintiff and disqualified Law Firm. After Law Firm declared that it would pay all penalties, Plaintiff moved for reconsideration of the disqualification. The trial court denied reconsideration. In this opinion the Tenth Circuit reversed as to reconsideration and held that Law Firm could continue. The court noted that Plaintiff had tried, but failed, to find new counsel and said that no prejudice to the Plaintiff would result if Law Firm continued.

        The Owners, Strata Plan VR2122 v. Wake, 2017 BCSC 2386 (CanLII) (S. Ct. B.C. Dec. 22, 2017). A strata is a form of property ownership very similar to a condominium. It is unique to British Columbia and Australia. This case involves disputes over whether to terminate a strata so that the premises could be sold for more lucrative development. One of the issues became whether the law firm representing the strata corporation and working on (for) termination had a conflict of interest. Evidently, several dissenting owners believed the law firm represented them individually. The dissenting owners also pointed out that the law firm had, in other matters, represented developers bidding on the strata property. In this opinion the court, after considering the law firm's engagement letter and conduct, held that the dissenting owners' beliefs about the law firm's representation of them were not reasonable. Thus, the court held that the alleged conflicts should not be a bar to strata termination.

        N. Am. Fin. Grp. Inc. v. Ontario Sec. Comm'n, 2018 ONSC 136 (CanLII) (Ont. Super. Ct. Jan. 5, 2018). The Commission found Company had committed fraud and imposed monetary and other sanctions. One of the grounds of this appeal is that Company's counsel had conflicts. Company's lawyer's partner was concurrently representing the Commission on unrelated matters, and Company's lawyer had previously done so. Because Company could not demonstrate a miscarriage of justice from the alleged conflicts, the court in this opinion rejected that defense.

        Greenfield MHP Assocs., L.P. v. Ametek, Inc., 2018 WL 538961 (S.D. Cal. Jan. 24, 2018). This suit is one of several related suits involving pollution of soil and groundwater by an aircraft parts manufacturer. One group of plaintiffs own mobile homes on polluted property ("Residents"). Another group of plaintiffs are nearby landowners ("Other Owners"), some of whom sold property to Residents. Residents and Other Owners are represented by the same two law firms ("Law Firms"). Defendant moved to disqualify Law Firms because Residents may have claims against Other Owners for failure of Other Owners to warn Residents about the pollution when Residents purchased their properties. In this opinion the court denied the motion. First, the court looked at Defendant's standing to make the motion. After a lengthy discussion of Article III of the U.S. Constitution, the court held that Article III does not prevent the court from dealing with disqualification. Moving to the merits of the motion, the court seemed especially influenced by the fact that Residents signed declarations acknowledging the conflicts and agreeing to proceed after consulting with other counsel. Last, Defendant's waiting about six months to make the motion suggested "gamesmanship" by Defendant. [Our note: This is only the second standing case, out of scores, in the seventeen years of this site, that we can recall, that considered the impact of Article III of the Constitution. Usually, the court simply says it is not inclined to entertain a motion to disqualify by a party who was never represented by the target law firm. There are exceptions, of course, such as when the "fair administration of justice" is threatened, or where the court sees a need to enforce ethics rules.]

        McCoy v. Loveday, 2018 ONSC 3 (CanLII) (Super. Ct. Ont. Jan. 15, 2018). McCoy, injured in an car accident, sued the driver of the other car (this case). McCoy was a passenger. McCoy is a litigation lawyer. He and his firm are representing the driver of the car he was riding in a different case (other case). During the mediation of the other case, McCoy, while the parties were "filling time," chatted with a lawyer on the other side. Some of the chatter dealt with McCoy's own injuries and the parties' views of the driver's negligence. That lawyer's firm (other firm) is also defending this case. Because of McCoy's disclosures to lawyers at the other firm, while handling the other case, McCoy moved to disqualify the other firm. In this opinion the master denied the motion. Basically, after noting that the other firm did not represent McCoy, the master said that a litigation lawyer, such as McCoy, knowing the relationships of the other law firm, "should have kept his mouth shut" (our words).

        The Revolution FMO, LLC v. Mitchell, 2018 WL 583044 (E.D. Mo. Jan. 26, 2018). Plaintiff is suing Defendant for taking Plaintiff's trade secrets and sharing them with Plaintiff's competitor ("Competitor"). Lawyer represents both Defendant and Competitor. Plaintiff moved to disqualify Lawyer, alleging that Lawyer will share Plaintiff's secrets with Competitor. In this opinion the court denied the motion. The court quoted an elaborate "Protective Order" prohibiting Defendant from sharing certain information with Competitor during the pendency of this case. The court said any claim that Lawyer would misuse the information was "pure speculation."

        Jackson v. City of Sherman, 2018 WL 621259 (E.D. Tex. January 30, 2018). Law Firm represents Plaintiff in this federal ADA, unlawful termination, case. Law Firm also represents the former Human Resources Director of Defendant ("Former Director") in an "unrelated" matter. The decision to terminate Plaintiff was made by two other officials of Defendant. Former Director's only role in Plaintiff's matter was to write a letter to Plaintiff offering him another position consistent with his disability. Defendant moved to disqualify Law Firm. In this opinion the court denied the motion. Defendant invoked Texas' version of MR 4.2, but the court held that Former Director did not possess the kind of information about Plaintiff's matter that would prejudice Defendant. The court also rejected Defendant's claim that Law Firm's conduct created "an appearance of impropriety" under "Canon 9."

        In re Ace Real Prop. Invs., LP, 2018 WL 915192 (Tex. App. Feb. 15, 2018). Purchaser, represented by Lawyer, sued Seller for fraud in the sale of commercial real estate. Seller brought a third-party action against Broker. Lawyer appeared for Broker. Seller moved to disqualify Lawyer. Broker substituted another lawyer. The trial court disqualified Lawyer. In this opinion the appellate court reversed (granted mandamus), noting that Seller "neither alleged nor demonstrated any actual prejudice," and that Lawyer had stopped representing Broker by the time of the disqualification order.

        Doe v. Nielsen, 2018 WL 1044837 (7th Cir. Feb. 26, 2018). Doe sought permanent EB-5 residence based upon his business investments in the U.S. The USCIS denied that application. Doe, represented by Law Firm (an Ill. LLC), filed this action, seeking relief under the Administrative Procedure Act. The trial court granted summary judgment against Doe. During this appeal, the S.E.C. brought a civil action against the sole manager of Law Firm for defrauding a bunch of immigrant client/investors, including Doe, out of their U.S. investments. Based upon the S.E.C.'s action, the Seventh Circuit ordered the parties to submit briefs on Law Firm's "possible conflict of interest" in this case. Based upon the briefs, the court, in this opinion, ordered Law Firm disqualified. Basically, the court found that Law Firm's relationships fell squarely under Ill. Rule 1.7(a)(2) (material limitation), and that the conflict was not waivable.

        Cassels Brock & Blackwell LLP v. Trillium Motor World Ltd., No. 37767 (S. Ct. Can. March 29, 2018). In a one-liner, the Supreme Court of Canada denied leave to appeal in this closely-watched conflict-of-interest malpractice liability case. The case arose out of the "great recession" when General Motors of Canada Limited ("GMCL") nearly failed. The nub of the case is that Law Firm was representing the Canadian government and, at the same time, a collection of General Motors dealers, both representations involving the precarious financial condition of GMCL. The dealers brought a legal malpractice class action against Law Firm. After a trial the Ontario Superior Court found Law Firm Liable (2015 ONSC 3824), and, after reconsideration, awarded the dealers $45 million "subject to a calculation, and possible reduction" depending upon the results of an appeal (2016 ONSC 666). In 2017 the Court of Appeal for Ontario affirmed (2017 ONCA 544), leading to the March 29, 2018 denial in the Supreme Court. [Our comment: The case was very complex, involved multiple findings of mixed questions of law and fact, and very long opinions. We express no view of the correctness of the findings or the decision by the Supreme Court to deny an appeal. One hard-to-ignore fact was that, while Law Firm informed the government it was representing the dealers, it did not inform the dealers that it was representing the government.]

        FMS Inv. Corp. v. United States, 2018 WL 1559993 (Ct. Cl. March 29, 2018). This is a post-award bid protest involving the award of a student-loan debt collection contract by the Department of Education. The plaintiff (Company A) was represented by Law Firm. Law Firm has, since 2011, been doing a variety of corporate tasks for Company B. In this case Company B is adverse to Company A. A lawyer at Law Firm disparaged Company B regarding the bid award in a Washington Post interview. That alerted Company B to the conflict, and it moved to disqualify Law Firm in this case. In this opinion the court granted the motion. The disparagement did not help Law Firm. Moreover, Law Firm claimed that it missed the conflict because Company B changed its name. That did not help, either, because Law Firm had advised Company B on making the name change.

        Bartolini v. Mongolia, 2018 WL 2725417 (E.D.N.Y. June 5, 2018). Plaintiff brought this civil rights case against five defendants arising out of a state court probate proceeding. One of the defendants is Lawyer. Lawyer appeared in this case for himself and two other defendants. Plaintiff moved to disqualify Lawyer. In this opinion the court denied the motion. The court could not see how the Lawyer and his clients were not completely aligned and said that, absent a showing of a conflict, Lawyer could proceed in this case.

        Smith v. TFI Family Servs., Inc., 2018 WL 2926474 (D. Kan. June 8, 2018). In this case the father of two children sued a private foster care placement company ("TFI") claiming the children were abused by foster parents. Lawyer and Law Firm are representing TFI. Lawyer is representing Kansas State Department for Children and Families ("DCF") in another unrelated case. Lawyer has indicated that he may seek to implicate DCF's comparative fault in this case. Plaintiffs moved "to determine whether [Lawyer] and [Law Firm] have conflicts of interest . . . " In this opinion the court held that Law Firm had a conflict, but that the conflict was effectively waived. First, as to standing, the court held that Plaintiffs could bring the motion because of the public interest in child custody matters.  In a thorough discussion of the consent provisions of Rule 1.7(b), the court held that all the requirements of that rule had been met. The court also discussed duties to former clients, confidentiality, successive government and private employment, and Lawyer's service on the TFI board, but our discussing them here would add little to understanding this case.

        Doe v. St. Joseph Health Sys., Inc., 2018 WL 6600230 (Ky. App. Unpub. Dec. 14, 2018). In this case Plaintiff sued various medical providers for disclosing his HIV diagnosis at a cocktail party. One of the defendant providers, Conifer, employed Middleton, who became a suspect for this disclosure. Both Conifer and Middleton denied she made the disclosure. Conifer's lawyer represented Middleton at her deposition. Claiming this was a conflict, Plaintiff moved to disqualify that lawyer. The trial court denied the motion. In this opinion the appellate court affirmed. The court noted that the lawyer represented Middleton "at a single deposition" and that Conifer's and Middleton's positions are aligned because they both deny Middleton made the disclosure.

        Biomatrix Speciality Pharm., LLC v. Horizon Healthcare Servs., Inc., 2018 WL 6812842 (S.D. Fla. Dec. 27, 2018). Biomatrix markets drugs for conditions such as hemophilia. Horizon sells healthcare insurance. In July 2018 Biomatrix filed this suit (ERISA, in part) claiming Horizon was wrongfully denying claims for hemophilia patients who needed Biomatrix drugs. Law Firm filed this complaint for Biomatrix. Law Firm had represented Horizon for about ten years, until May 2018. This included about 30 cases, including several ERISA cases. Horizon moved to disqualify Law Firm in this case. In this opinion the magistrate judge granted the motion. In December 2017 Law Firm, seemingly on behalf of Biomatrix, initiated communications with Horizon seeking resolution of claims against Horizon involving Biomatrix drugs. After an evidentiary hearing, and in a fact-intensive analysis, the judge concluded that during the December 2017 communication initiated by Law Firm, Law Firm was representing Biomatrix, while Law Firm was representing Horizon on other matters. The court further noted that during those communications a Horizon in-house lawyer disclosed Horizon information to Law Firm. Last, the court noted that those communications involved some of the claims that are included in this case. In concluding, the court said that given Law Firm's violation of Florida "Rule 1-4.7(a)," the court need not consider "the alleged violation of Florida "Rule 1-4.9(a)." [Note: We believe the magistrate judge intended to cite Florida Rules 4-1.7(a)(1) (the direct adversity rule for current clients) and 4-1.9(a) (the former client rule).]

        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.]

        Hammer v. City of Sun Valley, 2019 WL 958360 (D. Ida. Feb. 26, 2019). This case is one of many in a "food fight" (our term) arising from the City's termination of Hammer as a City employee. In this case Plaintiff Hammer is being represented by her husband, Donoval. Donoval is also representing himself as a plaintiff in this case. Defendants moved to disqualify Donoval. In this opinion the magistrate judge denied the motion. First, the court held that the arrangement did not violate Rule 1.8(i), notwithstanding state community property laws. Further, the court found no violation of Rule 1.7(a)(2) (material limitation) because the two plaintiffs' interests were "generally aligned." Last, in the face of a Rule 3.7 objection, the court held merely that Donoval could handle pre-trial matters.

        Smith v. Smith, 2019 WL 1312867 (Ohio App. March 21, 2019). Divorce case. The court appointed GAL to look after the parties' minor child. H hired Lawyer. The problem is that Lawyer was already representing GAL in GAL's divorce case. W moved to disqualify Lawyer. The trial court granted the motion. In this case the appellate court affirmed. The court said that the possibility that Lawyer will have to cross-examine GAL in this case implicates Rule 1.7(a)(1) (direct adversity). The possibility that GAL will may make a recommendation adverse to H implicates Rule 1.7(a)(2) (material limitation).

        Hewlett v. Utah State Univ., 2019 WL 1358857 (D. Utah March 26, 2019). Plaintiff was beaten and raped at Fraternity. In this case she sues the alleged assailant, University, Fraternity, and entities related to Fraternity. All Fraternity-related entities are represented by two law firms ("Law Firms"). Plaintiff also filed a state-court action against "24 former members or Chapter Officers" of Fraternity. Both actions involve the same allegedly tortious conduct. None of the state court individuals are represented by Law Firms. During discovery in this case Law Firms identified 110 individuals possibly having knowledge of relevant events. Also in this case, the court entered an order identifying which individuals would be deemed in the "control group" of Fraternity-related entities for Rule 4.2 purposes (officers, etc.). Plaintiff moved to disqualify Law Firms in this case. In this opinion the magistrate judge denied the motion. Plaintiff made vague accusations about Law Firms' alleged contacts with certain individuals, for which the court could find no support in the record. Otherwise, in the court's view, nothing in the foregoing relationships constitutes a conflict.

        Blake Marine Group LLC v. Frenkel & Co., 2019 WL 1723567 (S.D.N.Y. April 18, 2019). Blake Marine, the plaintiff, performed services for Forward Marine in connection with a damaged barge in the Gulf of Mexico. Defendant, Frenkel is Forward's insurance broker. Frenkel admits it was supposed to obtain, but failed to obtain, an insurance policy for Forward that would cover Blake Marine's work. InsCo was the intended policy issuer. Forward Marine assigned its claims against Frenkel to Blake Marine. Blake moved to disqualify the law firm ("Law Firm") appearing for Frenkel. While Law Firm represents InsCo in other matters, there is no conflict here. Frenkel and InsCo are in alignment because they both agree that the policy did not issue. Moreover, InsCo, although not a party in this case, has hired other counsel in connection with this case.

        Trade Show Services, Ltd. v. Integrated Systems Improvement Servs., Inc., 2019 WL 1386374 (D. Nev. March 27, 2019). Trade Show provided security services to Integrated and is suing for payment. Law Firm appeared for Integrated. The problem is that Law Firm represents the sole owner of Trade Show. Thus, Trade Show moved to disqualify Law Firm. The magistrate judge denied the motion. The lawyer handling Integrated's defense ("Lawyer") then left Law Firm, taking Integrated with him. Notwithstanding Lawyer's leaving Law Firm, Trade Show appealed the denial to the district judge, who affirmed the denial with this opinion. [Our note: This opinion defies description. Here is just a taste: "Rule 1.7 governs a lawyer's responsibilities to current and former clients." (emphasis, the court's)]

        In re Thetford, 2019 WL 2237994 (Tex. May 24, 2019). Niece sought the appointment of a guardian for Aunt. Lawyer, who had represented Aunt, represented Niece in the proceeding. Aunt moved to disqualify Lawyer. The trial court denied the motion. The appellate court affirmed. In this 5-4 opinion the Texas Supreme Court denied mandamus (affirmed). The basic issue is whether a person's lawyer can represent someone seeking the appointment of a guardian for that person. The majority ruled that the rule should be flexible. The minority said the rule against such a representation should be "hard-and-fast." The minority pointed out that ABA Op. 96-404 (1996) and eleven states have such a rule. The case is complicated by the fact that Niece was Lawyer's sometime legal assistant and Niece was in default on a $350,000 note held by Aunt. The note had been paid off by the time the guardianship proceeding began. Both the majority and minority opinions were very thoughtful expositions on the rapidly increasing population of older people needing care and the legal framework for providing that care. Both opinions discussed, and compared Model Rule 1.14 and Texas Rule 1.02(g), which are "comparable."

        City & County Paving Corp. v. Titan Concrete, Inc., 2019 WL 2454819 (N.Y. App. Div. June 13, 2019). Defendant moved to disqualify plaintiff's lawyer because that lawyer had earlier represented Defendant on a matter unrelated to this one. The trial court denied the motion. In this opinion the appellate court reversed. The court noted that the earlier representation was still extant when Plaintiff brought this matter. Citing N.Y. Rule 1.7(a)(1), the court said the conflict "must be assessed as of that time."

        Quinn v. City of Vancouver (Wash.), 2019 WL 3530914 (W.D. Wash. Aug. 2, 2019). Quinn has been an Assistant City Attorney for Vancouver since 1993. In 2016 she filed a complaint with the EEOC. In 2017 she filed an "internal whistleblowing complaint with the City." She then filed this case alleging numerous state and federal discrimination claims against Vancouver and others. Vancouver moved to disqualify Quinn's lawyer in this case. In this brief opinion the court denied the motion. The court found that Vancouver's motion was based on conjecture and not fact. The court rejected the notion that a lawyer could never sue her employer for discrimination while representing that employer on non-employment matters.

        Edwards v. Vemma Nutrition, 2019 WL 3302825 (D. Ariz. July 23, 2019). Plaintiff's lawyer ("Lawyer") moved to withdraw, claiming he had a conflict. The defendants are seeking lawyers' fees under 18 U.S.C. §1927 and FRCP 11. Lawyer claims that these claims put him at odds with the plaintiff. In this opinion the court denied the motion. The court said that there is no authority for the proposition that a motion for sanctions against both a lawyer and the lawyer's client is, without more, a conflict. The court had invited Lawyer to file an affidavit describing the nature of the conflict, but Lawyer failed to do so. The court said that failure "speaks volumes." [Our comment: We are unable to tell from the opinion who wrote it or what kind of case this is.]

        S.E.C. v. Feng, 2019 WL 3977495 (9th Cir. Aug. 23, 2019). SEC sued Feng, an immigration lawyer, for failing to register as a "securities 'broker'" and for committing securities fraud. Feng is an immigration lawyer. He represents foreign nationals who wish to obtain legal permanent residency in the U.S. by investing substantial sums in new businesses in the U.S. (the "EB-5" program). These investments can be pooled through "regional centers" regulated by the government. Feng would receive fixed fees from his foreign clients and also received commissions from the regional centers. He did not disclose to his clients these commission payments. The trial court granted the SEC summary judgment. In this opinion the appellate court affirmed. First, the court held that the EB-5 transactions involved the sale of securities. Thus, Feng was a securities broker requiring him to register with the SEC. The court's fraud finding was based in substantial part on Feng's nondisclosure of the commissions, citing among other things, N.Y. Rules 1.4, 1.7, and 1.8.

        Estes v. ECMC Group., Inc., 2019 WL 5064645 (D.N.H. Oct. 9, 2019). ECMC collects student loans. Plaintiffs are suing ECMC for violating various laws in their collection efforts. Plaintiff moved to disqualify ECMC's law firm ("Law Firm") because a partner in Law Firm is trustee of a trust, in which one of Plaintiffs is a beneficiary. In this opinion the court denied the motion. Although Plaintiff had several communications with Law Firm about the trust, he is not a current client of Law Firm. Over the years Law Firm had done things for Plaintiff, but Plaintiff failed to show how those representations had anything to do with this case. Those former client claims are too trivial to discuss here.

        Ray v. Balestriere Fariello LLP, 2019 WL 5212359 (S.D.N.Y. Oct. 16, 2019). This is a suit by Ames Ray against his former law firm ("BF") for breach of fiduciary duty, violations of N.Y. Judiciary Law § 487, and conversion. In this opinion the court denies BF's Rule 12(b)(6) motion to dismiss, so it may not be a complete or accurate picture of where the case will end up. The principal claim arises out of BF's representation of Ray in state court, in which Ray accused his wife of making fraudulent conveyances. Before filing that case, BF warned Ray that the trial judge would most likely deny Ray's claim and enter sanctions against BF and Ray. The trial judge did just that. The gist of Ray's claim in this case is that BF had a conflict of interest and did not adequately disclose it or enable Ray to protect himself while BF was jockeying to protect itself. Given the preliminary status of the case, we do not see the value of describing Ray's allegations in detail.

        Troika Media Group, Inc. v. Stephenson, 2019 WL 5587009 (S.D.N.Y. Oct. 30, 2019). Troika purchased Mission Media from Nicola and James Stephenson in June 2018. Law Firm represented Mission in that deal. Law Firm continued representing Mission, including in October and November 2018. After the sale, the Stephensons became Troika employees. The relationship between the Stephensons and Troika soon soured, and Law Firm began planning strategy on behalf of the Stephensons. Troika and Mission brought this suit against the Stephensons in January 2019. Law Firm appeared for the Stephensons. Troika moved to disqualify Law Firm. In this opinion the court granted the motion. The decision was based on the fact that Law Firm, in October and November 2018, concurrently represented Mission while planning an exit strategy for the Stephensons. The court assumed, without discussion, that Law Firm's work for Mission, while Mission was a subsidiary of Troika, made Troika Law Firm's client.

        Gowdy v. Cook, 2020 WL 90720 (Wyo. Jan. 8, 2020). Dennis and Craig Cook are law partners in Cook and Associates, P.C. ("Cook Firm"). Marian Jackson retained Dennis to prepare her revocable living trust. Gerald Gowdy was to be a "primary beneficiary" after Marian's death. Marian was trustee while alive and appointed Dennis as her successor trustee and Craig has "trust protector." The trust instrument contained liability protections for the trustee. There was much more going on, but you get the idea. After Marian's death Gerald Gowdy sued Dennis, Craig, and Cook Firm essentially for malpractice and breach of fiduciary duty. The trial court granted the the defendants summary judgment. In this opinion the Wyoming Supreme Court affirmed. The gist of these findings was that Gowdy could show no damages from any of the Cooks' activities. Evidently, Gowdy was counting on alleged violations of ethics (i.e. conflicts) rules to carry the day. The court recognized the truism that violation of an ethics rule does not, without more, constitute a viable cause of action.

        Turner v. Hunt Hill Apts., LLC, 2020 WL 698604 (Super. Ct. N.C. Feb. 11, 2020). Turner, represented by Law Firm, brought this derivative action on behalf of Sweetwater Constr., LLC. The court found that he failed to show that he qualified as a derivative plaintiff. He then sought to add Sweetwater as a plaintiff "in its own right." Because Law Firm was representing Hunter in state court against Sweetwater in a related case, the court, in this opinion, granted the defendant's motion to disqualify Law Firm.

        Third-Party Action. Elpers Bros. Constr. & Supply, Inc. v. Smith, No. 19A-PL-1327 (Ind. App. Unpub. April 27, 2020). Homeowners, represented by Lawyer, sued Builder for screwing up Homeowners' drainage situation. Builder filed a third-party action against County. While this case was pending, County appointed Lawyer as County Attorney. A different lawyer appeared for County in this case. Builder moved to disqualify Lawyer. The trial court denied the motion. In this opinion the appellate court affirmed. The court noted that Lawyer was not representing County in this case. In any event, Lawyer produced to the court "a written consent and waiver," signed by Homeowners and the County's Commissioners. Lawyer also promised that if a "direct claim" against County would arise, he would withdraw.

        Bohm Wildish & Matsen, LLP v. Selfridge, No. G058327 (Cal. App. Unpub. Aug. 24, 2020). The Kenneth faction of the Sacher family ("Kenneth") was fighting with the Fred faction of the family ("Fred"). Kenneth was represented by Lewis Brisbois. Fred was represented by James Bohm and the Bohm Wildish law firm. In three related cases Kenneth and Lewis Brisbois were claiming that James Bohm exercised undue influence over Fred, and committed other ethical violations, in family trust matters. The problem was that Lewis Brisbois was representing the Bohm Wildish firm in an unrelated matter. Thus, Fred and James Bohm moved to disqualify Lewis Brisbois in the Sacher family cases. The trial court granted the motion, and the appellate court affirmed. That brings us to this case: Bohm Wildish is suing Lewis Brisbois for breaching its duty of loyalty to Bohm Wildish by accusing Bohm Wildish of misconduct in the Sacher family cases. Lewis Brisbois moved to strike the complaint under California's anti-SLAPP law. The trial court denied the motion. In this opinion the appellate court affirmed. [Our note: This opinion contains a lengthy discussion of California's anti-SLAPP law. In our many years of practice we have no familiarity with the origins or application of anti-SLAPP laws, especially including California's. Thus, we leave it to our California brethren to tease out the meaning and consequences of the appellate court's opinion.]

        Fregoso v. Eat Club, Inc., No. H046505 (Cal. App. Unpub. Sept. 14, 2020). This is a class action by food delivery employees against Eat Club for unpaid compensation and related claims. Law Firm represents the plaintiffs. In a separate action Law Firm represents two former HR employees against Eat Club, also on employment-related claims. Eat Club moved to disqualify Law Firm in this case because its representation of plaintiffs in this case will cause it to be adverse to their HR clients in the other case. The trial court denied the motion. In this very long unpublished opinion the appellate court affirmed. The court dissected all the ways a conflict could harm Law Firm's clients but concluded all the plaintiffs' interests were aligned. The opinion also discusses California's former current client rule at Rule 3-310 and how it compared to California's new Rule 1.7 and how the timing of the change to Rule 1.7 did, or did not, affect the outcome. The court also noted that the plaintiffs had consented to Law Firm's two representations.

        Relationship with Opposing Lawyer. ABA Op. 494 (Oct. 7, 2020). This opinion discusses a lawyer's obligation when the lawyer has a relationship with the lawyer on the other side of a matter. The committee considers three types of relationships: 1. sexual; 2. close friendship; and 3. occasional friendly encounters. The most relevant rule is MR 1.7(a)(2). In the case of sexual relationships the lawyer must disclose it to the client and get consent confirmed in writing. However, in most cases the relationship is nonconsentable. In the case of a close friendship, it must be disclosed and consent must be confirmed in writing. In the last case, disclosure may not even be required. ABA Op. 96-400 (1996) deals with opposing lawyers discussing or planning a practice merger, and the committee notes that the situation is analogous. We cover the merger situation at "Opposing Lawyers Negotiating a Practice Merger." See the Table of Contents at this site. ABA Op. 494 appears to be an excellent research tool, citing many state authorities.

        DelConte v. Monroe Twp. Bd. of Educ., Civil No. 19-13731 (RBK/JS) (D.N.J. Oct. 16, 2020). Lawyer represents Plaintiff, DelConte, against School Board in this employment discrimination case. At the same time Lawyer represents Yoder in another employment discrimination case against School Board. The cases involve the same schools at different times with slightly different claims. School Board moved to disqualify Lawyer in this case. In this opinion the magistrate judge denied the motion. The court, at some length, parsed the timing and juxtaposition of the two circumstances and found no direct conflict between the two representations. The court characterized School Board's claim of possible conflicts, such as Lawyer's having to cross-examine one client in the other's case, as "conjecture." The case contains an interesting twist regarding New Jersey's unique version of M.R. 1.7(b). It says that a "public entity" cannot consent to a conflict. DelConte and Yoder did sign consents to these representations. The court pointed out that the rule does not prevent DelConte and Yoder, as opposed to School Board, from consenting.

        Litigation Funding. N.Y. Op. 1206 (Nov.  2, 2020). Lawyer is a former partner of Law Firm. Lawyer remains listed on Law Firm's Web site as "retired" and "of counsel." Lawyer's wife owns a litigation funding company. In this opinion the committee holds that Law Firm may not ethically refer litigation clients to the wife's company.

        Paralegal Referring Broker Clients to Lawyer. N.Y. Op. 1208 (Nov. 16, 2020). Lawyer's paralegal is a real estate broker. Paralegal wishes to refer his broker clients to Lawyer. In this opinion the committee held that Lawyer may accept such referrals subject to several caveats. First, if the magnitude of that referral business becomes "significant," then Lawyer must consider Rule 1.7(a)(2) (material limitation) and the consent requirements of Rule 1.7(b). Second, Lawyer and the paralegal must comply with Rule 7.3(b) (solicitation). In brief, if the paralegal initiates the suggested referral, that violates Rule 7.3(b). If, however, the paralegal's client asks for a recommendation of a lawyer, the rule is not violated. The committee reminded readers that it has, for years, taken the position that a lawyer may not act as real estate broker and lawyer in the same transaction, even with client consent.

        N.Y.C. Op. 2020-5 (Dec. 2, 2020). In the face of COVID-19, a lawyer may be reluctant to appear in court for reason of the lawyer's health or the health of the lawyer's family. Yet, that reluctance may disadvantage the client in some ways. Thus, according to the City Bar's opinion the lawyer must consider application of New York's version of MR 1.7(a)(2) (lawyer's "other personal interests"). The opinion also discusses circumstances under which the conflict is, or is not, waivable, and the circumstances under which the lawyer may be required, or permitted, to withdraw.

        Van Ryn v. Goland, No. 530037 (N.Y. App. Div. 3d Dep't Dec. 3, 2020). In this divorce-related case H and W are contesting how H's pension should be divided. W's lawyer had drafted an earlier settlement agreement on that point. It now appears that the agreement was somewhat ambiguous, resulting in this disagreement. H moved to disqualify W's lawyer because the lawyer may be liable to W for malpractice, depending upon how the court finally rules on division of the pension. The trial court denied the motion to disqualify. In this opinion the appellate court affirmed, finding that the possibility of the lawyer's liability to W is, at this point, "entirely conjectural."

        Phox v. 21c Mgmt., LLC, No. 20-cv-00846-SRB (W.D. Mo. Dec. 21, 2020. Plaintiff is suing Employer for not being properly compensated. In a different case Plaintiff is suing Employer for violating food safety standards and for wrongful termination. Because the same law firm is representing Employer in both cases, Plaintiff has moved to disqualify that law firm. In this opinion the court denied the motion. The court said "this is a common situation and does not create a conflict."

        PsyBio Therapeutics v. Corbin, No. 20 C 3340 (N.D. Ill. Jan. 13, 2021). This opinion involves two cases, the facts of which are so complex, confusing, and poorly presented, that we will not attempt any detail. The court laid out the "fundamental question" involving the following: Law Firm is shareholder of a close corporation; a named partner was a director of the corporation; and, the shareholders of the corporation removed one of the directors. The issue: May Law Firm represent the corporation in a suit against the removed director. The court said yes.

        In re Bowen, No. 20-13 (Vt. Feb. 12, 2021). Disciplinary case opinion upholding a three-month suspension. Pure conflict-of-interest disciplinary cases are rare. This is one worth mentioning. It involves two married couples, H1 & W1, and H2 & W2. H1 and W1 divorced. In a post-decree dispute, Lawyer represented H1 against W1. The result favored W1. H1, unhappy with the result, refused to pay Lawyer's final invoice of $11,000. At the end of the day, H1 did wind up owning an undeveloped residential lot ("the Lot"). H2 & W2, owning a house next to the Lot, wished to buy it to enhance the value of their house. H2 & W2 hired Lawyer to represent them in purchasing the Lot from H1 (Recall, H1 is Lawyer's former client who owes Lawyer $11,000.). H1 had another lawyer ("New Lawyer") for the sale of the Lot. Lawyer told New Lawyer that Lawyer planned to withhold purchase funds to satisfy H1's $11,000 debt to Lawyer. New lawyer said Lawyer should not do that because there were no liens on the Lot. Lawyer immediately, without telling H2 & W2, or New Lawyer, obtained an ex parte writ of attachment on the future sale proceeds and recorded a lien on the Lot. Once everyone became aware of what Lawyer had done, all hell broke loose. H1 was furious that his former lawyer was "working him over" (our words) in the Lot sale transaction to secure the $11,000 fee. Lawyer's new clients, H2 & W2, were upset that the Lot purchase deal was jeopardized over Lawyer's ex parte proceeding, etc. At "the eleventh hour," just before closing, Lawyer agreed to accept one-half of the $11,000. As a result the deal closed and H2 & W2 got the Lot. During this disciplinary proceeding against Lawyer the hearing panel found that Lawyer had violated Rules 1.9(c)(2) and 1.8(b). Lawyer conceded that he violated Rule 1.9(c)(2) (revealing information about his issues with his former client, H1). In this appeal Lawyer contests the finding as to Rule 1.8(b) and the three-month suspension. In this opinion the court affirmed both. We are not sure about the court's analysis of the applicability of Rule 1.8(b). You should read the opinion if you are curious about that. We believe that Lawyer violated two rules not raised: Rule 1.7(a)(2) (protecting his own interests, jeopardizing sale of the Lot); and Rule 1.4 (failing to tell H2 & W2 about his dispute with H1, and his ex parte proceeding, which would inevitably complicate their ability to close on the Lot).

        Grant v. Aptim Environmental & Infrastructure, Inc., No. 1:19-cv-00025 (D.V.I. March 10, 2021). Grant was injured in an auto accident and, represented by Lawyer, brought this action against the employers of the responsible employees. The opinion does not say whether the employees are defendants in this case. Lawyer represents a bunch of plaintiffs in a superior court case. While this opinion does not describe that other case, it does say that two of the plaintiffs in that case are the two responsible employees in this case. Lawyer had missed the conflict early on and attempted to terminate the representation of the responsible employees in the other case. The defendants moved to disqualify lawyer in this case. In this opinion the magistrate judge granted the motion to disqualify. First, the court saw no evidence that the superior court representation had terminated. Second, the court noted that Lawyer might have to cross-examine Grant in the other case and the responsible employees in this case. Thus, lawyer would be materially limited in handling either case.

        Canfield v. SS&C Techs. Holdings, Inc., No. 1:18-cv-08913(ALC) (S.D.N.Y. March 17, 2021). This is one of four proceedings involving claims by current and former employees of SS&C for mismanagement of an SS&C ERISA plan. Thirty percent of the plan was invested in Valeant Pharmaceuticals, a huge failure to diversify. Moreover, Valeant had been suspected of dodgy accounting. The defendants include SS&C and "The Advisory Committee of the [SS&C ERISA] Plan." The Klamann Law Firm ("Klamann") represented the plaintiffs. The problem is that in the Western District of Missouri Klamann represented three former members of the Advisory Committee in a suit against an investment manager of part of the ERISA plan. Although "former members" of the Advisory Committee, they are, nevertheless, defendants in these cases. Several defendants in this case, and in related cases, moved to disqualify Klamann. In a July 2020 opinion the court granted the motion. In this opinion the court denied a motion for reconsideration of the disqualification. The grounds for reconsideration submitted by Klamann were unremarkable.

        Disability Servs. Corp. v. Butterfield, No. B303789 (Cal. App. Unpub. 2d Dist. April 20, 2021). This case involves feuding factions ("A" & "B") of the board of a non-profit corporation. Two cases involve this feud. In "Case 18" the corporation, represented by Lawyer, is suing Faction A. In "Case 19" the corporation is suing Faction B. Lawyer appeared for Faction B. The corporation moved to disqualify Lawyer from representing Faction B in Case 19. The trial court granted the motion to disqualify. In this opinion the appellate court affirmed. Given the opinion's "unpublished" status we will not explore the appellate court's reasoning, which is a little weak. At bottom, the court held that Lawyer may not represent the corporation in Case 18 and, and the same time, oppose the corporation in Case 19.

        State Farm Life Ins. Co. v. Youngs, 2021 WL 2562848 (D. Minn. June 23, 2021). Husband purchased a life insurance policy from State Farm, naming Wife as primary beneficiary and Nephew as secondary beneficiary. Later Husband executed a change-of-beneficiary form, which merely designated Nephew and Niece (a minor) as primary beneficiaries. Wife did not appear on that form, at all. Following Husband's death Wife claims she is the proper beneficiary, and Nephew claims that he and Niece are the only beneficiaries. State Farm filed this interpleader action naming Wife, Nephew, and Niece as defendants. Nancy Geib, Wife's sister, and mother of Niece, was appointed guardian ad litem of Niece. Here, it gets hairy. Geib was the State Farm agent who presided over execution of the change-of-beneficiary form. She claims that she erred in preparing the form, which Husband signed. She claims that Husband intended to keep Wife as the primary beneficiary and add Niece as a secondary beneficiary, along with Nephew. Nephew moved to disqualify Lawyer, who is representing both Geib, as guardian, and Wife in this case. In this opinion the court denied the motion. Both Geib and Wife want Wife to get the proceeds, so their interests are aligned. Another ruling will help clarify things. In that ruling the court held that Nephew's motion for appointment of an independent guardian for Niece should be denied. Geib, being Niece's mother, is an appropriate guardian ad litem, notwithstanding her role as the agent (and witness!) and her belief that Wife should get the proceeds. [Our note: We don't know enough about guardian ad litem matters to know whether Geib should be guardian, and, thus, whether she had a conflict with Wife.]

        Metzger v. Brotman, 2021 IL App (1st) 201218 (Ill. App. Aug. 27, 2021). The Illinois Supreme Court disbarred Metzger in 2013. Metzger brought this suit against various persons acting for, and with, the ARDC (the administrative agency answering to the Supreme Court on lawyer disciplinary matters). Two ARDC in-house lawyers appeared for all the defendants. Metzger moved to disqualify the ARDC lawyers. The trial court denied the motion. In this opinion -- in addition to affirming dismissal of the complaint -- the appellate court affirmed the trial court's denial of disqualification. The court noted that "the position of the ARDC and the individual defendants on the central issue in the case is the same."

        Hill v. Rutledge, No. 3:20-cv-00495-MMD-CSD (D. Nev. Feb. 24, 2022). Plaintiff moved to disqualify the lawyer for Defendants because Plaintiff is suing that lawyer in another case. In this opinion the magistrate judge denied the motion, holding that is not grounds for disqualification.

        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.

        6 Blackstone Valley Place, LLC v. Prime Healthcare Servs., C.A. Nos. PC-2019-4524 Consolidated with PC-2019-4999 (Super. Ct. R.I. Providence June 3, 2022). This is a state trial court decision, and we are not aware whether R.I. trial court decisions are given deference different from that in other states. But, it is very fact-specific, and for that reason alone, of doubtful precedential value. It is a wonderful 26-page exploration of facts and the R.I. Rules relating to conflicts of interest. Briefly, the case involves a series of disputes between Prime Healthcare (and related entities and individuals) and Dr. Abdul Barakat (and persons and entities related to him). Prime is a nationwide hospital chain (45 hospitals in 14 states). Dr. Barakat and those associated with him provide healthcare in R.I. In this opinion the court denied a motion to disqualify the law firm for Prime ("Law Firm"), because it had, from time-to-time, done work for persons and entities related to Dr. Barakat. The court considered the following rules, rejecting each one as a basis for disqualification: 1.7(a)(1) (direct adversity), 1.7(a)(2) (material limitation), 1.9(a) (substantial relationship), and, 1.9(c) (use of former client information). The court also took a look at the "hot potato" rule, but did not apply it, holding that the circumstances of Law Firm's termination of the adverse parties included non-payment of fees and failure of the clients to communicate, and not the desire to take on a more lucrative engagement.

        Manassa v. NCAA, 2022 WL 2176334 (S.D. Ind. June 16, 2022). NCAA moved to disqualify Law Firm for Plaintiff. In this opinion the magistrate judge denied the motion. In September 2020 Law Firm hired Lawyer to conduct document review for this case "remotely from his home in California." An e-discovery firm for NCAA hired Lawyer to review documents also for this case. Upon learning of this, Law Firm promptly fired Lawyer. The court found that Lawyer had violated Rule 1.7 and that the conflict was imputed to Law Firm. However, (1) because of Lawyer's failure to disclose these circumstances to either party, (2) because of Law Firm's completely up-and-up conduct relating to the hiring, and discharge, of Lawyer, and (3) because of the fact NCAA could show no prejudice from the situation, the court exercised its discretion in denying disqualification. We are skipping some detail because Lawyer's over-the-top misconduct, and the lack of prejudice to NCAA, made this result inevitable.

        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."

        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.

        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.

        Verein. RevoLaze LLC v. Dentons US L.L.P., No. 2022-0708 (Ohio Aug. 30, 2022). The Ohio Supreme Court has "not accepted for review" Dentons' appeal of the appellate court's decision at RevoLaze LLC v. Dentons US L.L.P., No. 109742 (Ohio App. 8th Dist. April 28, 2022). Here is our summary of the case below. 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 Law Firm's motion for JNOV. 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.

        Allen v. County of Nassau, 2022 WL 4468173 (E.D.N.Y. Sept. 26, 2022). This is a non-class action brought by a number of plaintiffs (predominately male) against Nassau County for violations of FLSA, involving overtime wages and breaks. Defendant moved to disqualify Plaintiffs' law firm ("Law Firm") because Law Firm was, in class actions against Nassau County, representing predominantly female parties, in claims of gender discrimination. The court said these cases are not "inherently" inconsistent, and any claims of conflict are merely hypothetical. Further, because this is not a class action, "there are no absent class members" needing special protection.

        Pagidipati v. Vyas, 2022 WL 15527900 (Fla. App. 2d Dist. Oct. 28, 2022). This case presents a stupifyingly complex set of facts arising out of the failure of a cryptocurrency investment club. Investors allegedly lost millions of dollars. The case involves a "liquidating agent" and a "recovery vehicle." (We know nothing about either of these "things.") One set of litigants moved to disqualify the law firm ("Law Firm") for another set of litigants. The trial court denied the motion. In this opinion the appellate court reversed and ordered Law Firm disqualified. At bottom, the court ruled that Law Firm was, in effect, representing and opposing the "recovery vehicle" at the same time in violation of Rule 1.7. There was also a standing discussion as well as consideration of when a lawyer-client relationship exists in absence of a formal retainer or payment of fees. [Our note: We are sorry for the lack of analysis here. There is too much to learn and explain, given the limitations of this site. If you get involved in the failure of a cryptocurrency investment club, you might want to read the opinion.]

        Verein. RevoLaze, L.L.C. v. Dentons US, L.L.P., No. 109742 (Ohio Nov. 8, 2022). In this entry the Ohio Supreme Court denied Dentons' motion to reconsider the Court's earlier decision not to hear an appeal of the appellate court's upholding a $32 million jury verdict against Dentons. This all had to do with whether a verein is one firm for conflict-of-interest purposes. The trial court and the appellate court held that it was. Without getting into the correctness of that conclusion, we can say that the appellate court's opinion is an excellent review of the facts and the issues. It is at RevoLaze LLC v. Dentons US LLP, No. 109742 (Ohio App. April 28, 2022). Our own summary appears just above.

        Caldwell v. United States, No. 2:22-CV-00153-SAB (E.D. Wash. Nov. 9, 2022). This is a medical malpractice case brought by Law Firm against the United States under the Federal Tort Claims Act. The case involves an alleged failure to diagnose by Doctor, although Doctor is not a defendant in this case. The problem is that at the time Law Firm was representing these plaintiffs, Law Firm was representing Doctor in an unrelated employment matter. That ended in December 2021. The United States moved to disqualify Law Firm in this case. In this opinion the court granted the motion. First, the court held that the relevant time for the conflict is when the conflict occurred, not when the motion to disqualify was filed. Second, the court held that the fact the plaintiffs were accusing Doctor of negligence was direct adversity under Rule 1.7(a)(1), even though Doctor was not a defendant and had no financial exposure from this case.

        In re Jackson, 2023 WL 3394129 (D. Conn. May 10, 2023) This opinion is by a Connecticut bankruptcy judge largely construing New York ethics rules. One's first reaction might be that it is, therefore, of limited precedential value. But, the opinion is long (37 pages, 280 footnotes) and very thoughtful. It also features noted New York ethics experts on both sides whose opinions appear to be reasonable. Their approaches to the evidence appear to be a primer on how  expert witnesses should deal with conflicting evidence, and how a thoughtful judge should balance their opposing views. The opinion decides whether the former law firm ("Law Firm") for Debtor (a rap music artist) should recover pre-petition fees. One issue is whether an engagement agreement between Debtor and Law Firm complied with New York Rules 5.1 and 5.2. In this opinion the bankruptcy judge ruled the letter was sufficient. The other issue involved whether Law Firm had a conflict that disqualified it from recovering the fees. The conflict involved Law Firm's relationship with co-counsel. Co-counsel, in addition to representing Debtor, represented another rap music artist, arguably Debtor's competitor. A sub issue was whether Law Firm should have called this other artist as an adverse witness, thereby creating a conflict for Law Firm. The experts took opposing (and reasonable) views of the evidence on this. The court found that there was no disqualifying conflict, and concluded that Law Firm should recover its fees.

        Foley v. Drexel Univ., Civ. No. 22-1777 (E.D. Pa. May 23, 2023). Plaintiff is suing Drexel for various employment-related violations. Plaintiff's husband ("Husband") is representing her. Drexel moved to disqualify Husband under Rule 3.7 and under Rule 1.7. The court denied the Rule 3.7 ground, finding that Drexel had not shown that Husband was a necessary witness, or that pre-trial was the stage to enforce the rule. Drexel also claimed a conflict because Husband is on Plaintiff's health insurance at Drexel, and because Husband's financial interests are otherwise intertwined with Plaintiff's. The court felt that it was not her, or defendant's, place to judge whether Plaintiff's choice of counsel was "a good, bad, or awkward one."

        Wheatley v. County of Orange, 2023 WL 4443011 (Cal. App. Unpub. July 10, 2023). The Wheatley law firm (“Wheatley”) had a contract with Orange County to defend workers’ compensation cases. The county terminated the contract, and, in this case against the county, Wheatley is claiming the contract termination was wrongful. The Lynberg law firm (“Lynberg”) is defending the county. As a result of the county’s termination, Wheatley let go one of its lawyers. That lawyer sued Wheatley for wrongful employment termination. Wheatley hired Lynberg to defend that case before this case went to court. For a time, Lynberg was representing the county in anticipation of this case against Wheatley and representing Wheatley in the employment case. The opinion does not reveal how Lynberg missed the conflict. In any event, Wheatley moved to disqualify Lynberg in this case. The trial court granted the motion to disqualify. In this unpublished opinion the appellate court affirmed.  Because this case involves a current client conflict, the court said rules relating to successive representation or screening are not applicable.

        In re Valentino, 2023 IL App (1st) 221155-U (Ill. App. 1st Dist. July 14, 2023). Son petitioned for guardianship for Son's 90-year-old father ("Father"), against Father's wishes. Lawyer represented Father. The case settled, and Lawyer petitioned for fees. Son objected. The trial court granted the fee request, and Son appealed. Son claimed that Lawyer had a conflict because Lawyer had done some things at Father's request that benefitted Father's lady-friend ("Ms. G"). An issue in the case is whether Ms. G had wrongfully taken money from Father. In this opinion the appellate court affirmed the fee order, holding that there was no evidence of a lawyer-client relationship between Lawyer and Ms. G, and that Lawyer's doing things at Father's request that benefitted Ms. G did not make Ms. G Lawyer's client.

        Martin v. Affordable Care, LLC, 2023 WL 4875878 (W.D. La. July 31, 2023). The facts here are extremely hard to follow (for us, anyway). So, we will shorten this discussion. Law Firm represents Dentist in this case against Dental Lab No. 1, Dentist's former provider, over contractual disagreements. In another case, Dental Lab No. 1 is suing a company currently providing dental lab services to Dentist ("Dental Lab No. 2") for, among other things, trade secret violations. Law Firm is representing Dentist in this case and Dental Lab No. 2 in the other case. Dental Lab No. 1 moved to disqualify Law Firm in this case. In this opinion the court denied the motion. After discussing the ins and outs of how Law Firm may have a conflict, the court concludes that Dentist's "interests" and Dental Lab No. 2's "interests are far from directly adverse and may even be aligned." If you want to know what those interests are, read the opinion.

        Hamed v. Diaz, No. 514433/2019 (N.Y. Sup. Ct. Kings County Sept. 6, 2023). In this medical malpractice case, involving a State of N.Y. facility, the Attorney General's Office ("OAG") is defending a doctor. In another case, involving the same events, Plaintiff is suing the State of New York. OAG is defending that case, as well. Plaintiff moved to disqualify OAG in this case, claiming both representations are in conflict. In this opinion the court denied the motion, holding that the doctor's and State's interests are aligned. A complication is that the doctor is suing the State for wrongful termination. The OAG is not in that case, however. Plus, the grounds for termination did not involve the alleged malpractice in this case.

        In re Realtek Semiconductor Corp., No. 2023-147 (Fed. Cir. Sept. 25, 2023). Realtek filed this complaint before the International Trade Commission claiming the importation of AMD chips infringe on Realtek's patents. A hearing is pending before an ALJ. Realtek intends to call a lawyer ("Lawyer A") as a witness because Lawyer A had represented Realtek in negotiating a relevant license agreement. AMD moved to strike Lawyer A as a witness. The ALJ granted that motion and denied reconsideration. Realtek filed this petition for mandamus to disqualify the lawyer ("Lawyer B") who made the motion to strike Lawyer A as a witness, because Lawyer B represents Lawyer A "in other litigation." In this opinion the D.C. Circuit denied the petition for mandamus, in part because Lawyer B would not be cross-examining Lawyer A in this proceeding, thus not violating ABA Rule 1.7(a). The other ground for denying the petition is that the ALJ's decision should not be subject to an interlocutory appeal, citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981).

        Shenzhen Long King Logistics Co., Ltd. v. Hop Wo Int'l Trading, Inc., 22-CV-10682 (VEC) (S.D.N.Y. Nov. 3, 2023). This is a breach of contract case involving Defendant's failure to pay shipping fees for nine containers shipped from China to New York. Law Firm represents Plaintiff. Defendant moved to disqualify Law Firm because Law Firm had earlier represented Defendant in analyzing individual warehouse leases. In this opinion the court denied the motion holding that Defendant was not a current client of Law Firm. The somewhat interesting aspect is the court's characterization of each lease review as individual representations that ended at the conclusion of each review. The court noted the absence of any written expression of a continuing representation. The court also said Defendant's subjective feeling that the representation was continuing did not make it so. As to the court's former-client analysis, it was too routine for additional comment here.

        City of Winnipeg v. 3177751 Man. Ltd, 2023 MBCA 100 (CanLII) (Ct. App. Man. Dec. 12, 2023). Expropriation proceeding by City against 317 Corp. Law Firm represents City. 317 moved to disqualify Law Firm because Law Firm has represented members of 317's corporate/entity family. One matter was still pending when City retained Law Firm for this case. The trial court denied ("dismissed") the motion to disqualify. In this opinion the appellate court affirmed ("dismissed" the appeal). The opinion contains an extended discussion of application of rules both as to current (the "bright line" rule) and former client conflicts ("sufficient relationship"). The analysis was very fact specific, and the need for brevity prevents us from discussing it further. The legal analysis of conflicts in Canada is comprehensive and one of the best overall discussions we have seen. The appellate court nicely pulls together the application of Supreme Court decisions in MacDonald Estate, Neil, Strother, and McKercher, with spot-on quotes from each.

        City of E. St. Louis v. Monsanto Co., 2024 WL 1072037 (S.D. Ill. March 12, 2024). City is suing Monsanto for industrial pollution, among other things. City's lawyers are working under contingent fee agreements. Monsanto, claiming that the lawyers have a conflict, moved to disqualify them. In this Order the court denied the motion. The court said that there is no general prohibition for lawyers representing public bodies under contingent fee agreements. Moreover, under the fee agreements, City retains final authority over the litigation. Last, City has hired "conflict counsel," not on a contingent fee basis, to oversee the litigation.

        Minor v. Greyhound Lines, Inc., No. 1:22-CV-00092-GNS-HBB (W.D. Ky. Bowling Green Div. March 28, 2024). A Greyhound bus was disabled. Bus passenger ("Minor") was behind the bus and was hit by a car driven by Estes. Minor hired Law Firm (Bowling Green office) to sue Greyhound. In this case, Law Firm sued Greyhound only, not bus driver ("Norman") or Estes. Norman has hired lawyers in Law Firm in its Birmingham office arising out of another accident while Norman was driving a Greyhound bus. Greyhound moved to disqualify Law Firm in this case. In this opinion the court denied the motion to disqualify. When learning of the conflict, Law Firm obtained waivers from both Minor and Norman. The court found that the conflict was consentable and that the waivers were adequate to avoid disqualification. The court held that Greyhound would not be prejudiced by Law Firm's conflict, including the fact that Greyhound had not shown that the two relevant parts of Law Firm had shared information about their respective cases.

        Bayerische Motoren Werke AG, v. Arigna Tech. Ltd., No.:23-1190 (RC) (D.D.C. June 6, 2024). BMW is suing Arigna for a declaratory judgment that BMW is not infringing an Arigna patent. In this opinion the court granted Arigna's law firm's ("Law Firm") motion, over Arigna's objection, to withdraw from this case. Law Firm believes it has a conflict with Arigna arising out of a different case, in which Law Firm has represented Arigna. In that case a dispute arose among Arigna, a litigation funding company, and Law Firm, about who owes what to whom, and whether Arigna has a duty to indemnify Law Firm. The court reasoned that even if Law Firm's motion is premature, "there is at least a serious risk" of a conflict. The opinion also contains a lengthy analysis of the grounds for withdrawal under Rule 1.16.

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