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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.

[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.

(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.)

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.

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.

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.

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.

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.

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

Nothing current.

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

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.

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.

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.