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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 Important Note on Web Security Since April 2023, this Web site is "secure." This means we have obtained "SSL Certificates" for www.freivogel.com and www.freivogelonconflicts.com. If IT personnel in your organization have either cautioned you about use of this site, or restricted your access to it, you should call this change in status to their attention. Joint/Multiple Representation (posted September 6, 2024) S.E.C vs. Thurlow, 2024 WL 4068881 (S.D.N.Y. Sept. 5, 2024). The S.E.C. brought this securities fraud case against seven defendants. One of the defendants is a lawyer ("Lawyer"). Lawyer purports to represent himself and all the other defendants. In this opinion the court denied the defendants' motion to dismiss. At the end of the opinion the court addressed Lawyer's possible conflicts, saying that it is "foreseeable" that Lawyer's interests "may diverge" from Lawyer's clients. The court ordered the defendants to provide assurances they understand the conflicts issues, provide appropriate waivers, and seek "independent counsel" if needed. 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. Privilege (posted August 22, 2024) Youngblood v. Menard, Inc., No.
3:22-cv-02822-SMY-GCS (S.D. Ill. Aug. 19, 2024). Plaintiff fell in
Menard's store and is suing Menard for negligence. While Plaintiff's
lawyer was deposing a Menard employee/witness, Menard's lawyer objected
to any questions about the witness's communication's with Menard's
lawyer. Plaintiff moved to require answers to those questions. In this
opinion the magistrate judge denied the motion because the
communications were privileged. The court found Menard's lawyer
represented the witness individually, so there was no need for a
control-group analysis. [Note: These, too, will appear at the This and That pages.] (posted August 14, 2024) Bennett v. Gentile, 2024 WL 3747969 (Md.
Aug. 12, 2024). Lawyer drafted a trust instrument for Settlor.
Plaintiff is a beneficiary of the trust. Part of this case is
Plaintiff's claim that Lawyer was negligent in drafting the trust in a
way that disadvantaged Plaintiff. Lawyer at no time represented
Plaintiff. In this opinion the Maryland Supreme Court confirmed
Maryland's adherence to the strict privity rule, which means a
beneficiary cannot make a negligence claim against a settlor's lawyer.
Part of the rationale for that rule is it avoids conflicts of
interest between settlors and beneficiaries. The one exception (in
Maryland, anyway) is the third-party beneficiary exception. The court held, based on the facts here, that exception was not applicable. The
opinion contains a pretty good explanation of when the third-party
beneficiary exception might apply. 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.) Nothing current. CLASS ACTIONS (To read full article, click here.) Litigation Funding Agreement (posted August 23, 2024) Burkhart v. Genworth Fin., Inc.,
C.A. No. 2018-0691-NAC (Del. Ch. Aug. 21, 2024). In this opinion the
court ruled that Defendants may discover Plaintiffs' unredacted
contingent fee agreements and the litigation funding agreement between
class counsel and the funder. First, the court held the documents
were relevant largely because of the potential for a conflict of
interest; that is, where class counsel might be tempted to favor the
funder over Plaintiffs. Second, the court ruled the work product
doctrine does not apply to the documents. 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 August 7, 2024) Griffin v. County of Suffolk, No.
23-CV-5032 (NJC) (JMW) (E.D.N.Y. Aug. 6, 2024). Plaintiff has sued
County and Deputy Sheriff, Jay Kaufman, for injuring Plaintiff while she
was in jail. The County Attorney's office is defending County. An
"outside law firm" is defending Kaufman. Plaintiff has moved to
disqualify the County Attorney's office in this case because that office
is representing Kaufman in another, unrelated, case. In this opinion
the magistrate judge denied the motion to disqualify. [Our note: We
had trouble following the magistrate judge's reasoning; that may be our limitation. Given the questionable precedential value of the opinion, we
decided to leave it to the reader to sort through the opinion. The
magistrate judge covers a lot of Second Circuit and New York district
court pronouncements about representing municipalities and municipal
employees in tort cases.] 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 August 14, 2024) Lecker v. Lecker, 2024 ONSC 4413 (CanLII) (Ont. Super. Ct. Aug.
6, 2024). This opinion discusses an expert witness ("Expert") changing
employers during this case. He moved from RSM Canada LLP to MNP LLP.
Both firms provide accounting and related services, including business
valuations. Expert had prepared a valuation report for Rennie Lecker
("Rennie") while at RSM. After he joined MNP he learned that MNP was
performing services for Bram Lecker ("Bram"), Rennie's opponent in this
case. He then told Rennie's lawyers he had a conflict of interest and
could not proceed for Rennie. MNP also took that position. Rennie then
moved this court to require Expert to testify for Rennie. In this
opinion the court granted that motion. When Expert arrived at MNP, MNP
had erected a screen between Expert and this case. Expert had already
cost Rennie $175,000, and RSM said Rennie would have to incur that cost
again with a replacement witness. The only information Expert had
regarding Bram was from a court-ordered conference with MNP's expert.
The court said Expert would have to testify even though doing so "may
conflict with" the CPA Ontario Code of Professional Responsibility and
its Guidance. 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. Nothing current. INITIAL INTERVIEW - HEARING TOO MUCH (To read full article, click here.) (posted August 22, 2024) Syre v. Douglas, 2024 WL 3856794 (Cal.
App. 4th Dist. Aug. 19, 2024). This is a suit involving ownership and
use of certain real estate. Plaintiff approached Law Firm about
representation. Because Law Firm was publicly funded, it could not
represent Plaintiff. Using another lawyer, Plaintiff sued Defendant.
Defendant did succeed in hiring Law Firm. Plaintiff moved to disqualify
Law Firm under Rule 1.18. The trial court denied the motion. In this
opinion the appellate court affirmed. Plaintiff's only contact with Law
Firm was with the firm's non-lawyer "intake advocate," who is no longer
with Law Firm. In a fact-intensive analysis the court said Plaintiff had
not shown that Law Firm had the kind of information protected by Rule
1.18. Moreover, the court noted "public law firms" have more slack
on conflict-of-interest matters. Thus, the trial court did not abuse its
discretion in denying disqualification. INSURANCE DEFENSE (To read full article, click here.) Nothing current. INVESTING IN CLIENTS/STOCK FOR FEES (To read full article, click here.) Nothing current. Nothing current. JOINT/MULTIPLE REPRESENTATION (To read full article, click here.) (posted September 6, 2024) S.E.C vs. Thurlow, 2024 WL 4068881
(S.D.N.Y. Sept. 5, 2024). The S.E.C. brought this securities fraud case
against seven defendants. One of the defendants is a lawyer ("Lawyer").
Lawyer purports to represent himself and all the other defendants. In
this opinion the court denied the defendants' motion to dismiss. At the
end of the opinion the court addressed Lawyer's possible conflicts,
saying that it is "foreseeable" that Lawyer's interests "may diverge"
from Lawyer's clients. The court ordered the defendants to provide
assurances they understand the conflicts issues, provide appropriate
waivers, and seek "independent counsel" if needed. (posted August 22, 2024) Youngblood v. Menard, Inc., No.
3:22-cv-02822-SMY-GCS (S.D. Ill. Aug. 19, 2024). To read about the case, go to "Miscellaneous-Privilege," above. (posted August 16, 2024) O.H. v. Secret Harbor, No. 2:23-cv-60
(W.D. Wash. Aug. 14, 2024). To read about the case, go to "Standing," below. LAWYER AS EXPERT WITNESS OR CONSULTANT (To read full article, click here.) Nothing current. Nothing current. MALPRACTICE LIABILITY/FEE FORFEITURES (To read full article, click here.) Nothing current. OF COUNSEL (To read full article, click here.) Nothing current. OPPOSING LAWYERS NEGOTIATING A LAW PRACTICE MERGER (To read full article, click here.) (posted Aug. 23, 2024) Foran v. Dotson, No. 7:23-cv-00556 (W.D.
Va. Aug. 16, 2024). Darius Foran petitioned for a writ of habeas corpus
following his child pornography conviction. One claim is Foran's
lawyer was ineffective because he was seeking a prosecutor job in one
county while defending this case in another county. In this opinion the
court held without more this "conclusory allegation" did not render
his lawyer ineffective. 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 August 16, 2024) O.H. v. Secret Harbor, No. 2:23-cv-60
(W.D. Wash. Aug. 14, 2024). Secret Harbor ("Harbor") is a "group home
for 'troubled boys.'" C.D. and O.H. were residents of Harbor.
Represented by Law Firm, they are suing Harbor for physical, emotional,
and sexual abuse. Harbor moved to disqualify Law Firm under Rules 1.7
and 1.9. In this opinion the court denied the motion. First, the court
held Harbor had no standing to make the motion because Law Firm had
never represented Harbor. Harbor had not shown how Law Firm's alleged
conflict injured Harbor's interests. The court looked at Harbor's 1.7
and 1.9 arguments anyway. The court noted that C.D. and O.H. may have
been involved in unseemly ways with one another at Harbor. However, the
overriding issue in this case is whether Harbor enabled misconduct by
the staff toward residents, and by the residents toward each other.
Thus, whether C.D. and O.H. might have claims against each other was
beside the point. 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 Website powered by Network Solutions® |
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