Corporations; Other Entities (posted January 8, 2025) ABA Op. 514 (Jan. 8, 2025). In representing an entity, a lawyer must communicate with non-client persons. To whom does the lawyer for the entity owe duties of competence, confidentiality, loyalty, etc.? This wide-ranging opinion addresses many of these issues. Among the Model Rules discussed are 1.2, 1.2, 1.4, 1.6, 1.7, 2.1, 2.3, 2.4, 1.13, 4.1, & 4.3. From our perspective, it is key for the entity's lawyer to ensure non-clients understand they are not clients, and if they face personal exposure, they will need separate representation. It follows, as to anything the non-client tells the lawyer, the non-client is not protected by Rule 1.6 confidentiality or attorney-client privilege. There is more.

[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.

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

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APPEALABILITY (To read full article, click here.)

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

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BANKRUPTCY (To read full article, click here.)

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

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

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

(posted December 27, 2024) Savett v. SP Plus Corp., 2024 IL App (1st) 230931-U (Ill. App. Dec. 26, 2024). The trial court certified the class. In this opinion the appellate court affirmed. One objection was that Class Counsel had participated with Class Rep No. 1 as both class counsel and class representative in a "significant number of cases, switching roles back-and-forth." Another objection was that Class Counsel and Class Rep. No. 2 were friends and their children went to the same school. The appellate court rejected both objections.

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

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COMMERCIAL NEGOTIATIONS (To read full article, click .)

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CORPORATIONS (To read full article, click here.)

(posted January 8, 2025) ABA Op. 514 (Jan. 8, 2025). In representing an entity, a lawyer must communicate with non-client persons. To whom does the lawyer for the entity owe duties of competence, confidentiality, loyalty, etc.? This wide-ranging opinion addresses many of these issues. Among the Model Rules discussed are 1.2, 1.2, 1.4, 1.6, 1.7, 2.1, 2.3, 2.4, 1.13, 4.1, & 4.3. From our perspective, it is key for the entity's lawyer to ensure non-clients understand they are not clients, and if they face personal exposure, they will need separate representation. It follows, as to anything the non-client tells the lawyer, the non-client is not protected by Rule 1.6 confidentiality or attorney-client privilege. There is more.

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

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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.)

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

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

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

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

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

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

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

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

Passenger/Driver 

(posted January 2, 2025) Abreu v. Alvarez, No. 21 Civ. 1641 (RER)(VMS) (E.D.N.Y. Dec. 31, 2024). Auto accident case. This opinion by the magistrate judge involves Law Firm No. 1's attempt to represent Driver and two Passengers against the other vehicle's driver. Defendants filed a counterclaim against Driver. Law Firm No. 2 began defending Driver as counterclaim defendant. Passengers then retained Law Firm No. 3 to represent Passengers as plaintiffs. Law Firm No. 1 continued to represent only Driver and only as plaintiff. Passengers had, at the outset, signed waivers of Law Firm 1's conflict. Nevertheless, the magistrate ordered that Law Firm No. 1 be disqualified from representing Driver as plaintiff, as well as Passengers. The analysis is complicated by Defendants' claiming that Plaintiffs "staged" the accident. The opinion appears to be a pretty good review of New York state and federal court results in driver/passenger situations (there are a lot of them). Compare this result with the very recent Arcos v. Vee Bee Cooling Corp., No. 522644/2022 (N.Y. S. Ct. Kings County Nov. 25, 2024). There, the court denied a motion to disqualify the lawyer for the driver and passenger because the parties had signed waivers.

(posted December 31, 2024) S.E.C v. Thurlow, 2024 WL 5245008 (S.D.N.Y. Dec. 30, 2024). The S.E.C. sued a number of defendants who were involved in a scheme to set up a "shell company" for the purpose of fraudulently issuing debt, converting the debt to equity, and selling the equity shares without registering them. Lawyer, one of the defendants, is alleged to have been directly involved in many of these transactions. Lawyer appeared for himself and three other defendants. The court, sua sponte, raised the specter of Lawyer's conflict of interest. In response, the parties submitted letters discussing the conflict, and Lawyer submitted conflict waivers from his other clients. In this opinion the court disqualified Lawyer from representing his other clients. The court said given the obviousness of Lawyer's conflict under Rule 1.7, the court did not have to address Rule 3.7 issues.

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

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

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

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

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

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STANDING (To read full article, click here.)

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

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

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

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

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