Freivogel on Conflicts

FREIVOGEL ON CONFLICTS

WHAT'S NEW

Items posted here during the past thirty days will also appear on this What's New page. Items posted within the past ten days will appear In Ten Day Bulletin immediately below. Items older than ten days but less than 30 days will be posted in the Thirty-Day Holding Area, which follows.

Ten Day Bulletin

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Current Client (posted December 20, 2024) R.I. Op. 2024-11 (Nov. 14, 2024) (quoted material from opinion). Lawyer "represents a client (“Client 1”) in a divorce proceeding. The lawyer for the opposing party in the divorce proceeding is also a probate judge before whom [Lawyer] represents a different client (“Client 2”) as an heir against a surviving spouse in an unrelated contested matter." In this opinion the Panel ruled that Lawyer may continue representing Clients 1 & 2.

Changing Firms (posted December 10, 2024) Mir v. Nadeem, 2024 WL 5001747 (N.J. App. Div. Dec. 6, 2024). The defendants have moved to disqualify the plaintiffs' lawyer ("Lawyer"). Lawyer, at Firm 1, handled a number of transactions for several pharmacies. She moved to Firm 2 while this case was pending and has left Firm 2. Firm 2 represents the defendants in this case. She did minimal work at Firm 2 during her brief time there, and no work on this case. This case involves the alleged breach of a settlement agreement among the parties. Lawyer did not work on the settlement agreement. The defendants moved to disqualify Lawyer. The trial court denied the motion. In this opinion the appellate court affirmed the denial. The key point is, while Lawyer did substantial corporate work for the pharmacies, this case is about a dispute between two businessmen for control of the pharmacies. Thus, Lawyer is not being adverse to her former pharmacy clients.

Joint Representation (posted December 10, 2024) Arcos v. Vee Bee Cooling Corp., No. 522644/2022 (N.Y. S. Ct. Kings County Nov. 25, 2024). "Vehicle" collision. Driver and Passenger of one "vehicle" "No. 1"), represented by Law Firm, sued the driver and owner of the other "vehicle" ("No. 2"). The defendants moved to disqualify Law Firm. In this opinion the court denied the motion to disqualify. Driver and Passenger had signed elaborate waivers of the conflict, which contained disclosures of the nature of the conflict and the advice Driver and Passenger were free to get separate counsel.

Thirty Day Holding Area

MISCELLANEOUS ETHICS AND LIABILITY NEWS

[Note: Items that do not fit under the conflicts categories below, but which we believe will be of interest to this audience will appear here at This and That.

Liability - not Conflicts Related

(posted December 3, 2024) Cottonwood Dev. Corp. v. Preston Hollow Capital, LLC, 2024 WL 4906771 (Tex. App. 3rd Dist. Nov. 27, 2024). The only aspect of this case of arguable interest to this audience involves possible liability of a lender's law firm to the borrower. The trial court granted summary judgment to the law firm. In this opinion the appellate court affirmed. Both courts found that the law firm enjoyed "attorney immunity." That is, in an arms-length transaction, a law firm for one party, which does what law firms normally do in such matters, will not, normally, be held liable to the other party. The matters here were much too complex to justify further discussion.

CONFLICTS - UNCATEGORIZED

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

(posted December 4, 2024) R. v. Gagne, 2024 BCSC 2183 (S. Ct. B.C. Nov. 26, 2024). We almost never discuss criminal cases. Here, however, we see something that may have application in civil cases. After trial, a jury found Defendant guilty. Defendant moved for a mistrial. In this opinion the court granted the motion. The problem was the defense lawyer was being assisted throughout the trial by a non-lawyer member of the lawyer's staff who was "dating" the lawyer prosecuting this case. The prosecutor did not disclose the relationship to the court, and the defense lawyer did not disclose it to Defendant -- until after the verdict. Defendant avers he would have changed lawyers had he known of the relationship. Would these circumstances be relevant in a motion for new trial of a civil case?

Notary Public

(posted November 27, 2024) Net-Brunet v. Private Equity Solutions, LLC, 2024 WL 4891930 (D.P.R. Nov. 26, 2024). To read about the case, go to "Of Counsel," below.

Patent Agents

(posted November 26, 2024) Amatech Group Ltd. v. Fed. Card Servs., 2024 WL 4866420 (S.D. Ohio Nov. 22, 2024). This opinion accompanied an order defaulting Defendant. The only thing we found of possible interest to this audience concerns Defendant's services to Plaintiffs, both as a lawyer and as a patent agent. The court said although Defendant may have appeared for Plaintiffs before the USPTO as patent agent rather than as lawyer, Defendant's fiduciary duties to Plaintiffs are the same. Among other things, the USPTO ethics rules are "very similar" to the Ohio Rules.

(posted November 25, 2024) Johnson v. Iverson, No. 55,946-CA (La. App. 2d Cir. Nov. 20, 2024). Uncle conveyed ("donated") real estate to Nephew. The operative document said it was "irrevocable." In this case Uncle seeks return of the property. The trial court ruled against Uncle. In this opinion the appellate court affirmed. On appeal, Uncle suggested the lawyer preparing the donation ("Lawyer") had a conflict of interest. The evidence was Lawyer represented Nephew in the donation and did not represent Uncle. Although the conflict argument had not been made below, the appellate court said a conflict would not have made a difference. "Signatures to obligations are not mere ornaments." If Uncle had not read it, tough.

(posted November 25, 2024) Bermudez v. World Fresh Market, 2024 WL 4844628 (V.I. Super. Nov. 18, 2024). Lawyer 1 represents Plaintiff, Bermudez. Defendant, World Fresh Market ("WFM") moved to disqualify Lawyer 1 because Lawyer 1 had earlier represented another lawyer ("Lawyer 2"). The problem was Lawyer 2 had once represented WFM. However, that representation did not involve this case. In this opinion the court denied the motion to disqualify. To us, the key to the denial is Lawyers 1 and 2 were never associated in practice, so no rule imputes Lawyer 2's knowledge about WFM to Lawyer 1. Moreover, there was no showing Lawyer 2 violated Lawyer 2's duty of confidentiality to WFM by saying anything about WFM to Lawyer 1.

APPEALABILITY (To read full article, click here.)

Nothing current.

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

Nothing current.

BANKRUPTCY (To read full article, click here.)

Nothing current.

BANKS/TRUST DEPARTMENTS (To read full article, click here.)

Nothing current.

BOARD POSITIONS (To read full article, click here

Nothing current.

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

(posted December 10, 2024) Mir v. Nadeem, 2024 WL 5001747 (N.J. App. Div. Dec. 6, 2024). The defendants have moved to disqualify the plaintiffs' lawyer ("Lawyer"). Lawyer, at Firm 1, handled a number of transactions for several pharmacies. She moved to Firm 2 while this case was pending and has left Firm 2. Firm 2 represents the defendants in this case. She did minimal work at Firm 2 during her brief time there, and no work on this case. This case involves the alleged breach of a settlement agreement among the parties. Lawyer did not work on the settlement agreement. The defendants moved to disqualify Lawyer. The trial court denied the motion. In this opinion the appellate court affirmed the denial. The key point is, while Lawyer did substantial corporate work for the pharmacies, this case is about a dispute between two businessmen for control of the pharmacies. Thus, Lawyer is not being adverse to her former pharmacy clients.

(posted November 25, 2024) Google LLC v. Nao Tsargrad Media, 2024 WL 4844799 (N.D. Cal. Nov. 19, 2024). In this opinion the court denied Plaintiff's motion to disqualify Defendants' law firm ("Law Firm"). Law Firm employed, for a short time, a Russian lawyer ("Lawyer"), not admitted in California, who had done work for Plaintiff in Russian litigation related to this. Law Firm created a screen and terminated Lawyer soon after the problem arose. The court found none of Law Firm's actions to be ideal, but found Law Firm to have been in good faith. The case is unique, involving a small law firm with Russian and American lawyers located in Russia and the U.S. and involving related litigation in Russian and California courts.

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

(posted December 7, 2024) Mendoza v. West Coast Quartz Corp., No. A170409 (Cal. App. 1st Dist. Unpub. Dec. 3, 2024). This class action by Employees against Employer involves overtime pay, meal breaks, and other working conditions. The defendant moved to disqualify class counsel (“Law Firm”) because the class included supervisory and non-supervisory employees. In this unpublished opinion the court denied the motion to disqualify. While the details in this particular situation make the opinion of questionable precedential value, the opinion does a nice job of discussing cases where the supervisory vs. non-supervisory distinctions might have made a difference as to class counsel’s ability to represent both categories.

(posted November 25, 2024) Belanger v. Allstate Fire & Cas. Ins. Co., 2024 WL 4850334 (D.N.M. Nov. 21, 2024). This class action has settled. The district judge directed the magistrate judge to rule on Class Counsels' fees. Conflicts of interest play no role in this opinion; however, the discussion does describe nicely the relevance of the "clear sailing" and "kicker" provisions in the settlement agreement.

CLIENT MERGERS/ASSET SALES (To read full article, click here.)

Nothing current.

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

Nothing current.

COMMERCIAL NEGOTIATIONS (To read full article, click .)

Nothing current.

CORPORATIONS (To read full article, click here.)

Nothing current.

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

Nothing current.

CRIMINAL PRACTICE (To read full article, click here.)

Nothing current.

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

(posted December 20, 2024) R.I. Op. 2024-11 (Nov. 14, 2024) (quoted material from opinion). Lawyer "represents a client (“Client 1”) in a divorce proceeding. The lawyer for the opposing party in the divorce proceeding is also a probate judge before whom [Lawyer] represents a different client (“Client 2”) as an heir against a surviving spouse in an unrelated contested matter." In this opinion the Panel ruled that Lawyer may continue representing Clients 1 & 2.

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

Nothing current.

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

Nothing current.

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

(posted December 4, 2024) Vineyard Investigations v. E. & J. Gallo Winery, 2024 WL 4931961 (E.D. Cal. Dec. 2, 2024). Patent infringement case involving wine-making. Defendant moved to disqualify the expert witness ("Expert") because Expert formerly worked for Defendant. In this opinion the magistrate judge denied the motion because the only information relevant to this case would be discoverable technical information.

(posted December 4, 2024) Mordhorst Cleaning, LLC v. Am. Strategic Ins. Corp., 2024 WL 4932505 (D. Col. Dec. 2, 2024). Insured is suing InsCo for failure to cover Insured's water damage. InsCo moved to exclude the testimony of Insured's expert on the cost of repairs, replacements, etc. In this opinion the court granted the motion because the expert's compensation would be 10% of whatever Insured recovers from InsCo. That formula "greatly diminishes [Expert's] impartiality and, in turn, the reliability of his opinions."

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

Nothing current.

GOVERNMENT ENTITIES - SUING ONE PART/REPRESENTING ANOTHER PART (To read full article, click here.)

Nothing current.

HOT POTATO DOCTRINE (To read full article, click here.)

Nothing current.

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

Nothing current.

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

One Client, or Two

(posted November 27, 2024) New York Marine & Gen. Ins. Co. v. Heard, 2024 WL 4879471 (9th Cir. Nov. 25, 2024). The issue was whether InsCo had an obligation to reimburse Insured for Insured's retained independent counsel. The trial court said no, and in this opinion the appellate court affirmed. The court said that because Insured had Virginia lawyers approved by InsCo, and because those lawyers had only one client (Virginia being a one-client state), the lawyers had no conflict justifying Insured's hiring independent counsel.

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

Nothing current.

ISSUE OR POSITIONAL CONFLICTS (To read full article, click

Nothing current.

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

(posted December 10, 2024) Arcos v. Vee Bee Cooling Corp., No. 522644/2022 (N.Y. S. Ct. Kings County Nov. 25, 2024). "Vehicle" collision. Driver and Passenger of one "vehicle" "No. 1"), represented by Law Firm, sued the driver and owner of the other "vehicle" ("No. 2"). The defendants moved to disqualify Law Firm. In this opinion the court denied the motion to disqualify. Driver and Passenger had signed elaborate waivers of the conflict, which contained disclosures of the nature of the conflict and the advice Driver and Passenger were free to get separate counsel.

LAWYER AS EXPERT WITNESS OR CONSULTANT (To read full article, click here.)

Nothing current.

LAWYERS REPRESENTING LAWYERS (To read full article, click here.)

Nothing current.

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

Nothing current.

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

"Advisor"

(posted November 27, 2024) Net-Brunet v. Private Equity Solutions, LLC, 2024 WL 4891930 (D.P.R. Nov. 26, 2024). Defendant moved to disqualify Plaintiffs' lawyer ("Lawyer"), on two different grounds. The first was Lawyer had earlier been an "advisor" to the law firm that represented Defendant in the creation of the contract, which is the subject of this case. While "advisor" was listed on the firm's letterhead, "advisor" was not defined. The second ground was Lawyer acted as notary public at the execution of that same contract. In this opinion the court denied the motion to disqualify. As to the "advisor" point, the court noted that Lawyer had never represented Defendant, and learned nothing about Defendant in her advisor role. As to the notary point, Lawyer learned nothing about the case, but merely certified the identity of the signatory.

OPPOSING LAWYERS NEGOTIATING A LAW PRACTICE MERGER (To read full article, click here.)

Nothing current.

PARTNERSHIPS (INCLUDING LIMITED PARTNERSHIPS) (To read full article, click here.)

Nothing current.

SETTLEMENT AGREEMENTS (To read full article, click here.)

Nothing current.

STANDING (To read full article, click here.)

(posted December 3, 2024) Van Damme v. U.S. Bank N.A., No. 2:24-cv-01287-JAD-BNW (D. Nev. Nov. 26, 2024). Plaintiff is suing U.S. Bank to prevent it from foreclosing on Plaintiff's property. Plaintiff moved to disqualify U.S. Bank's law firm ("Law Firm") because Law Firm is representing Wells Fargo in a similar case against Plaintiff. In this opinion the court denied the motion because Plaintiff lacks standing to make it. Plaintiff has never been a client of Law Firm, and cannot point to any exception for avoiding the standing requirement.

TRADE (AND OTHER) ASSOCIATIONS (To read full article, click here.)

Nothing current.

UNDERLYING WORK PROBLEM (To read full article, click here.)

Nothing current.

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

Nothing current.

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

Nothing current.

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

Nothing current.

Home/Table of Contents

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Home

Tobacco

Appealability

Arbitratrion of Malpractice Claims

Changing Firms - Screening - Part I

Changing Firms - Screening - Part II

Client Mergers/Asset Sales

Co-Counsel/Common Interest

Commercial Negotiations

Corporations

Corporate Families

Criminal Practice

Current Client - Part I

Current Client - Part II

Derivative Actions

Enjoining Conflicts

Expert Witness

Former Client - Part II

Government Entities

Hot Potato

Initial Interview

Insurance Defense

Investing in Clients/Stock for Fees

Issue/Positional Conflicts

Joint/Multiple Representation

Lawyer as Expert Witness

Lawyers Representing Lawyers

Malpractice Liability/Fee Forfeitures

Of Counsel

Opposing Lawyers Merge

Partnerships

Settlement Agreements

Standing

Trade Associations

Underlying Work

Waivers/Consents

Waiver/Consent Forms

Witness - Adverse - Current/Former Client

This & That - Part I

This & That - Part II

This & That - Part III

Consulting Services

Bibliography

Guidelines

Board Positions

New Content

Banks/Trust Departments

Zero Sum Games

What's New Current

Resume

Former Client I

Bankruptcy New

New Class Action

Home

Tobacco

Appealability

Arbitratrion of Malpractice Claims

Changing Firms - Screening - Part I

Changing Firms - Screening - Part II

Client Mergers/Asset Sales

Co-Counsel/Common Interest

Commercial Negotiations

Corporations

Corporate Families

Criminal Practice

Current Client - Part I

Current Client - Part II

Derivative Actions

Enjoining Conflicts

Expert Witness

Former Client - Part II

Government Entities

Hot Potato

Initial Interview

Insurance Defense

Investing in Clients/Stock for Fees

Issue/Positional Conflicts

Joint/Multiple Representation

Lawyer as Expert Witness

Lawyers Representing Lawyers