Derivative Action (posted April 18, 2025) In re Heiser, 2025 WL 1141275 (Tex. App. Austin April 18, 2025). This case is a dispute between business partners, Heiser and Loeffler. Loeffler sued Heiser first. Heiser's lawyer ("Lawyer") filed a counterclaim containing direct claims by Heiser against Loeffler and direct claims by their jointly owned LLCs against Loeffler. Loeffler filed a motion to disqualify Lawyer because the Heiser claim and the LLC direct claims conflict. In the face of that motion Heiser nonsuited the LLC direct claims and refiled identical allegations, but derivatively, on behalf of the LLCs. The trial court granted the motion to disqualify. In this opinion the appellate court reversed (granted mandamus). Lawyer's initial "pleading discrepancy" did not justify disqualification where Heiser's direct claim and the refiled LLCs' derivative claims are not inconsistent.

Miscellaneous; Confidentiality (posted April 17, 2025) Muslow v. [L.S.U.], No. 19-11793 Section M (2) (E.D. La. April 14, 2025). This is not really a conflicts case, although several conflict rules are discussed. It has to do with confidentiality and employment laws. So, we will keep it short. Katherine Muslow was a member of L.S.U.'s law department. The school informed Muslow she was subject to a re-organization of the law department. Muslow perceived she would be adversely affected by the re-organization. She sent to a senior member of the law department an email voicing her concerns. She attached to the email a "Market Study" she had obtained in the course of her duties in the law department. When she sued L.S.U. under Title 7 and the Equal Pay Act, she attached the Market Study. L.S.U. successfully moved to have the Market Study stricken on confidentiality grounds. L.S.U. moved for summary judgement, claiming Muslow's use of the Market Study caused her to "forfeit" her Title 7 and EPA claims. In this opinion the court denied the motion, holding Muslow's use of the Market Study, under the circumstances, did not amount to a forfeiture.

Former Client (posted April 17, 2025) FaceTec, Inc. v. Jumio Corp., No. 24-cv-03623-RFL (N.D. Cal. March 28, 2025). Patent infringement case. FaceTec moved to disqualify Jumio's law firm ("Law Firm") because Law Firm had earlier done IP and corporate work for FaceTec. In this opinion the court granted the motion to disqualify. The court did not base its ruling on the IP work because Law Firm had not worked on the patents at issue in this case. In a highly fact-specific analysis the court noted Law Firm advised FaceTec on its overall corporate and IP strategy and held this work would give Law Firm a leg up in opposing FaceTec in this case. Thus, it was substantially related to this case.

Former Client (posted April 17, 2025) Kreis v. Dollings, No.CT2024-0135 (Ohio App. April 14, 2025). Kreis (a man), represented by Lawyer, is fighting with Dollings (a woman) over custody of several of Dollings' kids. Lawyer had earlier represented Dollings in a divorce, not involving Kreis. Dollings moved to disqualify Lawyer in this case. The trial court granted the motion. In this opinion the appellate court affirmed. Dollings claimed she shared confidences with Lawyer but has not said what they were. The appellate court said that was understandable (and acceptable) because of Dollings' concern the specifics might be used against her in this case.

Joint Representation (posted April 15, 2025) Hall v. Warren, No. 21-CV-6296-FPG-MJP (W.D.N.Y. April 8, 2025). Plaintiffs moved to disqualify the Rochester Corporation Counsel from representing the city and two individuals. In this opinion the magistrate judge denied the motion. The opinion does not provide any background about who did what to whom. The gist of the analysis is that while, in certain respects, those three defendants have been at each other's throats (calling each other liars, etc.), they agree enough about this case to enable the Corporation to represent all of them. [Our note: We did a little research about the case. It involves an encounter between Rochester police and demonstrators resulting in the deaths of several Black men. Individuals and civil rights organizations brought this suit under 42 U.S.C. Sec. 1983. We are still unclear about the roles of the two mentioned individual defendants.]

Expert Witness (posted April 8, 2025) Brooklyn Union Gas Co. v. Century Indem. Co., Appeal No. 4033-4034 (N.Y. App. Div. 1st Dept. April 3, 2025). Gas Co. moved to disqualify two of Century's expert witnesses. The trial judge granted the motion. In this three paragraph opinion the appellate court, providing no background, affirmed. The key statement is, to succeed, the movant need not provide "specific disclosures made to the expert" that would be prejudicial to the movant. N.Y. cases cited.

Joint Representation (posted April 8, 2025) Chenn v. MTA-NYC Transit Auth., 2025 WL 1017535 (E.D.N.Y. April 4, 2025). Plaintiffs are two lawyers claiming that local government agencies ("Agencies") discriminated against them by failing to promote them. Agencies moved to disqualify the lawyer representing both Plaintiffs ("Lawyer") because there was only one position to fill. Thus, Lawyer had a conflict of interest. In this opinion the court denied the motion to disqualify. The court noted that Plaintiffs were "practicing lawyers who understand the possible risks of joint representation," and who had consented to the possible conflict in writing. Beyond that, the court's reasoning was not entirely clear to us, so given the unique circumstances of this case, we will leave it at that.

[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.

Confidentiality 

(posted April 17, 2025) Muslow v. [L.S.U.], No. 19-11793 Section M (2) (E.D. La. April 14, 2025). This is not really a conflicts case, although several conflict rules are discussed. It has to do with confidentiality and employment laws. So, we will keep it short. Katherine Muslow was a member of L.S.U.'s law department. The school informed Muslow she was subject to a re-organization of the law department. Muslow perceived she would be adversely affected by the re-organization. She sent to a senior member of the law department an email voicing her concerns. She attached to the email a "Market Study" she had obtained in the course of her duties in the law department. When she sued L.S.U. under Title 7 and the Equal Pay Act, she attached the Market Study. L.S.U. successfully moved to have the Market Study stricken on confidentiality grounds. L.S.U. moved for summary judgement, claiming Muslow's use of the Market Study caused her to "forfeit" her Title 7 and EPA claims. In this opinion the court denied the motion, holding Muslow's use of the Market Study, under the circumstances, did not amount to a forfeiture.

Privilege 

(posted March 20, 2025) Johnson v. Dep't of Transp., 2025 WL 829714 (Cal. App. 3d Dist. March 17, 2025). At some point, in this employment-related case, Defendant's lawyer sent to Plaintiff's supervisor at Defendant ("Supervisor") an email about the case. The opinion does not say what was in the email or why Defendant's lawyer sent it to Supervisor. Supervisor sent an image of the email to Plaintiff (the enemy, no less). Plaintiff gave it to his lawyer ("Lawyer"). Lawyer dutifully notified Defendant about receipt of the image. Lawyer then showed the email around to others, including three of Plaintiff's experts. When the smoke cleared, Defendant moved to disqualify Lawyer and Plaintiff's experts. The trial court granted the motion. In this opinion the appellate court affirmed. Among other things, the appellate court said that upon receipt of the email, Lawyer had a duty to ascertain whether it was privileged before disseminating it. [Our note: This is an exhaustive opinion on whether the email was privileged, whether the privilege was waived, the receiving lawyer's duties, and so forth. The appellate court's cites are numerous and almost all California cases. However, the reasoning would seem valid in any U.S. jurisdiction where authorities are relatively scarce.]

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

Litigation Funding 

(posted April 4, 2025) Missouri Partners Capital LLC v. Comm'ns Import-Export S.A., No. 659487/2024 (N.Y. Sup. Ct. N.Y. County March 20, 2025). This is a suit by a litigation funder to enforce a note and security agreement against the funded party ("Borrower"). The funder was partially owned/managed by Lawyer. Borrower moved for "summary judgment in lieu of a complaint." A primary defense by Borrower claims Lawyer represented Borrower in executing the funding documents, and, thus, had a conflict of interest, for which there was no waiver. This is part of Borrower's claim that funder committed fraud. In this opinion the court denied the motion, holding, in part, there was enough evidence to create "a triable issue of fact" of whether Lawyer had "an attorney-client relationship" with Borrower. Long opinion and very fact-intensive analysis.

Statute of Limitations 

(posted March 25, 2025) Sheldon-Lee v. Birch Horton Bittner, Inc., No. S-18214 (Alaska March 21, 2025). Legal malpractice case. The trial court granted summary judgment for the defendant law firm on statute of limitations grounds. In this opinion the Alaska Supreme Court reversed. The only issue of possible interest to this audience is the court noted the failure of a law firm to tell a client about the law firm's conflict of interest could toll the running of the statute.

APPEALABILITY (To read full article, click here.)

Nothing current.

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.)

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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.)

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

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

(posted March 28, 2025) Mauer v. State of New Jersey, 2025 WL 938092 (N.J. App. Div. March 28, 2025). Plaintiff has sued various state-related persons and entities for violation of a state whistle-blower statute. Law Firm is defending all Defendants. Plaintiff moved to disqualify Law Firm because one of its partners, listed as defending this case, had been indicted for a crime involving waterfront development. That lawyer withdrew from this case after the indictment. The trial court denied the motion to disqualify. In this opinion the appellate court affirmed. The opinion is a good review of Rules 1.7 and 1.9 and New Jersey cases on application of those rules. At bottom, no one could identify how either party would be prejudiced by Law Firm's defending Defendants.

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

(posted April 18, 2025) In re Heiser, 2025 WL 1141275 (Tex. App. Austin April 18, 2025). This case is a dispute between business partners, Heiser and Loeffler. Loeffler sued Heiser first. Heiser's lawyer ("Lawyer") filed a counterclaim containing direct claims by Heiser against Loeffler and direct claims by their jointly owned LLCs against Loeffler. Loeffler filed a motion to disqualify Lawyer because the Heiser claim and the LLC direct claims conflict. In the face of that motion Heiser nonsuited the LLC direct claims and refiled identical allegations, but derivatively, on behalf of the LLCs. The trial court granted the motion to disqualify. In this opinion the appellate court reversed (granted mandamus). Lawyer's initial "pleading discrepancy" did not justify disqualification where Heiser's direct claim and the refiled LLCs' derivative claims are not inconsistent.

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

Nothing current.

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

(posted April 8, 2025) Brooklyn Union Gas Co. v. Century Indem. Co., Appeal No. 4033-4034 (N.Y. App. Div. 1st Dept. April 3, 2025). Gas Co. moved to disqualify two of Century's expert witnesses. The trial judge granted the motion. In this three paragraph opinion the appellate court, providing no background, affirmed. The key statement is, to succeed, the movant need not provide "specific disclosures made to the expert" that would be prejudicial to the movant. N.Y. cases cited.

(posted April 1, 2025) Larball Publ'g Co., Inc. v. Dua Lipa, 2025 WL 936536 (S.D.N.Y. March 27, 2025). Copyright infringement action involving songs. We are limiting this discussion to one objection made to admission of two expert witnesses. One is a musicologist; the other is a composer. The composer/expert has a professional and personal relationship with the principal of one of the plaintiffs. The musicologist/expert has a relationship with the composer/expert. In this opinion the court held against exclusion because the relationships are "not so extraordinary" as to justify exclusion. The opinion contains a good, but brief, discussion of Second Circuit and Southern District cases on experts' relationships with the parties.

(posted March 25, 2025) Salerno v. Family Heritage Life Ins. Co., 2025 WL 843387 (N.D. Ohio March 18, 2025). Plaintiff is suing Defendant for compensation. Defendant offered the opinion of its own vice president ("Expert") to opine on the present value of Plaintiff's earnings. Plaintiff moved to disqualify Expert. In this opinion the court denied the motion. Expert was not involved in the periodic review of Plaintiff's work or in Defendant's decision regarding denial of Plaintiff's compensation. Thus, Expert's relationship with Defendant goes to the weight of his testimony and is grist for cross-examination.

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

(posted April 17, 2025) FaceTec, Inc. v. Jumio Corp., No. 24-cv-03623-RFL (N.D. Cal. March 28, 2025). Patent infringement case. FaceTec moved to disqualify Jumio's law firm ("Law Firm") because Law Firm had earlier done IP and corporate work for FaceTec. In this opinion the court granted the motion to disqualify. The court did not base its ruling on the IP work because Law Firm had not worked on the patents at issue in this case. In a highly fact-specific analysis the court noted Law Firm advised FaceTec on its overall corporate and IP strategy and held this work would give Law Firm a leg up in opposing FaceTec in this case. Thus, it was substantially related to this case.

(posted April 17, 2025) Kreis v. Dollings, No.CT2024-0135 (Ohio App. April 14, 2025). Kreis (a man), represented by Lawyer, is fighting with Dollings (a woman) over custody of several of Dollings' kids. Lawyer had earlier represented Dollings in a divorce, not involving Kreis. Dollings moved to disqualify Lawyer in this case. The trial court granted the motion. In this opinion the appellate court affirmed. Dollings claimed she shared confidences with Lawyer but has not said what they were. The appellate court said that was understandable (and acceptable) because of Dollings' concern the specifics might be used against her in this case.

(posted March 28, 2025) Mauer v. State of New Jersey, 2025 WL 938092 (N.J. App. Div. March 28, 2025). To read about the case, go to "Current Client," above.

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

Nothing current.

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

(posted April 5, 2025) Winter v. Menlo, No. B328474 (Cal. App. 2d Dist. April 2, 2025). In 2021 Plaintiff sought Lawyer's advice regarding Defendant's conduct, and they exchanged emails. Lawyer and Law Firm wound up not representing Plaintiff, but representing Defendant in this case. Plaintiff moved to disqualify Lawyer and Law Firm. The trial court granted the motion. In this opinion the appellate court affirmed. This is a lengthy opinion, which discusses all aspects of California's version of Model Rule 1.18. The reasoning and result are unremarkable, but the opinion will be handy, particularly in a California prospective client matter.

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

One Client, or Two 

(posted March 25, 2025) Gross v. Scottsdale Ins. Co., 2025 WL 885853 (N.D. Cal. March 21, 2025). This is a discovery dispute involving privilege and work-product. In the opinion the court acknowledged in California the insurer, absent a conflict, has two clients.

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

Nothing current.

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

(posted April 15, 2025) Hall v. Warren, No. 21-CV-6296-FPG-MJP (W.D.N.Y. April 8, 2025). Plaintiffs moved to disqualify the Rochester Corporation Counsel from representing the city and two individuals. In this opinion the magistrate judge denied the motion. The opinion does not provide any background about who did what to whom. The gist of the analysis is that while, in certain respects, those three defendants have been at each other's throats (calling each other liars, etc.), they agree enough about this case to enable the Corporation to represent all of them. [Our note: We did a little research about the case. It involves an encounter between Rochester police and demonstrators resulting in the deaths of several Black men. Individuals and civil rights organizations brought this suit under 42 U.S.C. Sec. 1983. We are still unclear about the roles of the two mentioned individual defendants.]

(posted April 8, 2025) Chenn v. MTA-NYC Transit Auth., 2025 WL 1017535 (E.D.N.Y. April 4, 2025). Plaintiffs are two lawyers claiming that local government agencies ("Agencies") discriminated against them by failing to promote them. Agencies moved to disqualify the lawyer representing both Plaintiffs ("Lawyer") because there was only one position to fill. Thus, Lawyer had a conflict of interest. In this opinion the court denied the motion to disqualify. The court noted that Plaintiffs were "practicing lawyers who understand the possible risks of joint representation," and who had consented to the possible conflict in writing. Beyond that, the court's reasoning was not entirely clear to us, so given the unique circumstances of this case, we will leave it at that.

LAWYER AS EXPERT WITNESS OR CONSULTANT (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.)

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

Nothing current.

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.)

Nothing current.

Nothing current.

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

(posted March 25, 2025) Lukoil Pan Ams. LLC v. Phoeninca Invs. LLC, No. 653336/2024 (N.Y. Sup. Ct. N.Y. County March 17, 2024). A global law firm ("Law Firm") represents Plaintiff. Defendant moved to disqualify Law Firm, claiming Law Firm represented Defendant in 2016-17. In this opinion the court denied the motion. First, the court noted Law Firm never represented Defendant; it represented one of the companies that formed Defendant ("Other Client"). Second, in the earlier matter, Other Client agreed to Law Firm's engagement terms, which provided only Other Client was a client. The engagement terms also included an advance waiver, which the court said applied here. Last, because the conduct complained of in this case occurred after the completion of Law Firm's earlier work for Other Client, the matters were not related.

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

Nothing current.

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

Nothing current.