In the final moments of the recent Democratic presidential debates, I found myself pausing the broadcast. (And, I confess, engaging in a conflicts discussion with my very patient and understanding wife, just moments form the conclusion of the entire evening.)
You see, the following story was spun by candidate Julián Castro — an interesting conflict involving a lawyer serving as a public official and the business interests of a client. You can watch the relevant ~minute snippet of the debate video here, or read the transcript:
- “Eventually, my brother Joaquin and I became the first in our family to become professionals. And when I got home, I took a job at the biggest law firm in town. I was making $100,000 a year in the year 2000. A few months later, I got elected to the San Antonio City Council and the city council at the time was only paying a $1040 a year. So everybody had another job. And my job was at the law firm. Well a few months after I got elected, the law firm got a client and the client wanted those of us on the city council to vote for a land deal.”
- “The land deal was that they wanted to build a golf course over our water supply, because we relied on an underground aquifer. I didn’t think the environmental protection plan was strong enough. So I wanted to vote against it and my constituents wanted me to vote against it. But under the ethics rules for lawyers in Texas, because believe it or not, lawyers have ethics rules. You can’t just go against the interests of a client. So I was stuck. On the one hand I wanted to do the right thing. On the other hand, my livelihood, my student loans, my new house payment, my car payment depended on me shutting up, being conflicted out. So one day I walked into my law firm and I quit my job and then I went and I voted against that land deal on the city council.”
So I consulted the Conflicts Oracle, Bill Freivogel, who returned a relevant decision:
- Possible Liability of Board Member to other Client of Firm. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) A lawyer (Joe) was the member of the city council. His partner represented a local real estate developer. Joe sponsored an ordinance that imposed a moratorium on apartment development. Because of the moratorium the developer was unable to develop some of his property as he wished. He sued Joe and his law firm. The trial court granted summary judgment. The appellate court reversed, essentially calling this a conflict of interest. Among other things the court said more should have been disclosed to the developer so that he could have adopted a strategy to avoid the effects of the moratorium. In this opinion the Texas Supreme Court reversed the appellate court, holding, in part, that telling the developer about the council proceedings was not within the firm’s scope of representation. The court also made rulings about legislative immunity under Texas law.
- Click here for full text of decision
Next I found myself digging into the fact pattern of the large issue. For those curious about this particular rabbit hole, I found a pretty extensive historical summary.
“The Perils of Sharing Privileged Communications with Third-Party Vendors” —
- “On May 6, 2019, Magistrate Judge Gorenstein issued an order that should be a wake-up call for attorneys contemplating hiring and sharing privileged communications with an outside public relations firm. This decision also has wider implications, especially for companies engaging a forensic consultant to assist in responding to a cyber incident or data breach.”
- “The issue in Universal Standard Inc. v. Target Corp., 331 F.R.D. 80 (S.D.N.Y. 2019), a trademark dispute, was whether sharing attorney-client privileged communications with a public relations firm waived the privilege.”
- “Universal Standard argued that the emails were privileged and communications with the public relations firm did not constitute a waiver because: (1) the public relations firm was necessary to allow attorney-client communication; (2) the public relations firm was the ‘functional equivalent’ of a corporate employee; and (3) the public relations firm was a consultant used by lawyers to assist in certain tasks that ‘promote broader public interests in the observance of law and the administration of justice.’ The court found none of the exceptions applicable and the privilege had been waived.”
- “As relevant here, the first exception applies where the disclosure is made to a third-party whose specialized knowledge and services aid the attorney in providing legal advice. This exception to waiver is narrowly construed…The second exception did not apply because the public relations consultant was not a de facto corporate employee and lacked the hallmarks of a ‘functional equivalent.'”
- “Moreover, application of the privilege to confidential communications with a forensic consultant is not a foregone conclusion and there are no guarantees that a court will uphold the privilege. To help preserve the privilege and fend off such a claim, the guidance we previously provided with regard to public relations firms applies here: 1. The forensic firm should be engaged directly by outside counsel, not the client. 2. The engagement letter should be carefully written by outside counsel to make clear that: [read on for the whole list]”
“Using Mandatory Arbitration to Resolve Fee Disputes” —
- “Many states, including California, have recognized the benefits of resolving attorney-client fee disputes through the use of arbitration by enacting statutes providing for arbitrations often conducted through local or state bar associations. However, because such arbitrations are often non-binding and may not be mandatory in all circumstances, attorneys and clients wishing to avoid any doubt regarding the proper forum for fee disputes may choose to include mandatory arbitration clauses in engagement letters or by other agreements.”
- “While such state law provisions may apply, courts have recognized that the use of mandatory arbitration clauses in engagement letters may be subject to federal law, specifically the Federal Arbitration Act (FAA).”
- “However, although the FAA may govern an arbitration clause absent any restriction by the parties, a state’s rules of professional conduct may still impact whether an arbitration provision violates public policy, such as to the extent such clauses infringe on a client’s right to be informed about the scope of the representation and the potential waiver of rights. Indeed, separate from the requirements of federal law, attorneys have certain duties to clients that can be reflected in the use of an arbitration provision in an engagement letter.”
- “Considering those issues is consistent with the guidance provided by the ABA in Formal Opinion 02-425. There, the ABA recognized that it is generally ethically permissible for attorneys to include mandatory arbitration provisions in their engagement letters. However, Formal Opinion 02-425 recommends ensuring that the client has been ‘fully apprised of the advantages and disadvantages of arbitration and has given her informed consent to the inclusion of the arbitration provision in the retainer agreement.'”
“Debtor entitled to order sealing engagement letter containing commercially sensitive information” —
- “As result of judgment from Quebec Court of Appeal, debtor and four others were found liable to pay damages of $13.5 billion.”
- “Appointment of proposed restructuring officer, on terms set out in engagement letter, was approved. Debtor was entitled to order sealing engagement letter, which contained commercially sensitive information. Debtor was granted permission to continue application for leave to appeal to Supreme Court of Canada.”
“The Engagement Letter Defeat’s Legal Malpractice Claim” —
- “An engagement letter can be very important in that it sets limits on the attorney-client relationship. A good engagement letter defines what the lawyer will do and what the lawyer will not do. In the case captioned, Attallah v. Milbank Tweed, Hadley & McCloy, 168 A.D.3d 1026 (2019), 93 N.Y.S.3d 353, the Appellate Division of the Supreme Court of New York affirmed the dismissal of a legal malpractice case based on the precise terms of the engagement letter.”
- “The law firm agreed to represent Attallah on a pro bono basis to investigate whether or not he could be reinstated by a school that had expelled him. The engagement letter made it clear that the law firm’s engagement did not include litigation with the professional school.”
- “The professional school did not reconsider its decision to expel the plaintiff. The law firm refused to commence litigation or take further action. Plaintiff sued for legal malpractice (and other causes of action) but his case was dismissed because the engagement letter limited the terms of the engagement.”
For a good “head to tail” exploration of a prudent engagement letter, see: “Engagement Letters for Litigators.”
And, for an interesting example, we have a PDF surfaced by law.com, as part of a larger story tracking firm billing rates — an engagement letter from Jones Day representing a client before the Supreme Court in a pro bono matter.
“Conflicts May Lurk in Social Media; Think Before Posting” —
- “An attorney shares an article about a high-profile lawsuit against a construction company on his personal Facebook page with a comment: ‘It’s pretty obvious this company is in some big trouble!’ The next day, that attorney receives a furious phone call from his law firm’s managing partner, saying that the firm was pitching to represent that construction company in the lawsuit. Now, the law firm has lost the opportunity because the company’s owner discovered the public social media posting.”
- “Even if the lawyer doesn’t identify their firm name in their personal social media, others may be able to find them online and deduce their affiliation. Because of this, it can be hard for attorneys to disassociate from their profession on social media, even for ‘personal accounts.'”
- “One issue implicated by the pervasive use of social media is the possibility that the attorney’s social media posts could be seen as creating a ‘positional’ conflict. A positional conflict is one that may exist, for example, if an attorney argues for a certain interpretation of a statute in one lawsuit because it is in the best interests of one client, but then at the same time argues for the opposite interpretation of the same statute in another lawsuit on behalf of a different client. Typically, such conflicting representations are not per se inappropriate unless one representation has an adverse impact on the other, but the bar rules suggest that pursuing conflicting issues before an appellate court could be improper.”
- “Social media is generally not a place for balanced, well-reasoned and detailed assessments of issues.”
“Doing Business with a Client – Rule 1.8 Conflicts Arising from Transactions with Clients – Enforceability of the Transaction” —
- “Calvert v. Mayberry, 2019 CO 23. On the facts of Calvert v. Mayberry, the plaintiff-attorney (“Calvert”) was unable to rebut the presumption and summary judgment was entered against him, voiding the contract he sought to enforce. In this case, the Supreme Court of Colorado held that a contract between a lawyer and a client that violates Rule 1.8 is presumptively void, although an attorney can rebut the presumption.”
- “Mayberry initially engaged Calvert to help secure title to her home in her name, which Calvert successfully accomplished. Later, Calvert gave Mayberry approximately $193,000 in various increments to help renovate the house. Calvert then attempted to secure the loan using Mayberry’s house as collateral. The repayment and security agreement were never put into writing and Calvert never advised Mayberry to seek independent legal counsel in connection with the transaction. The Colorado Supreme Court found Calvert’s conduct to be a violation of Rule 1.8 and disbarred him before this case commenced.”
- “Violation of a Rule of Professional Conduct can have both expected and unexpected consequences. In Colorado, violation of a Rule can result not only in disciplinary action, but may also void a contract. This is not true in all jurisdictions, so lawyers should consult the law of the state in which they’re licensed. In any event, a lawyer should take great care when entering into any business relationship with a client. Such arrangements carry multiple risks for claims of conflicts, breaches of duty, and claims of undue influence by the lawyer, which can give rise to civil liability or disciplinary consequences, or both.”
Definitely eye catching: “Solicitors’ fury as insurer abruptly quits PII market” —
- “Sole practitioners and principals of small firms have reacted with shock and bewilderment to letters notifying them that their insurer has pulled out of the professional indemnity market. The letters, from broker Aon, state that its Maven MGA scheme can no longer offer cover. With most policies still lapsing on the old 30 September renewal date, this leaves them with little time to agree alternative cover.”
- “[Andrew Lucas of AG Lucas and Co] told the Gazette: ‘No explanation is provided by Aon in the letter that they have effectively exited the professional indemnity insurance market and the reader is left with the impression that the inability to obtain a renewal quotation may be the firm’s fault. I telephoned Aon persistently yesterday to try and find out what was going on however, the direct line number provided at the foot of the letter was unobtainable whilst the main switchboard number was continuously engaged. I now have to try and find cover with another insurer and start the renewal process very late in the day.'”
- “In a statement this morning, Aon said: ‘Aon UK Ltd provides professional indemnity insurance broking and advisory services to solicitors firms of all sizes. A number of insurers are withdrawing from the solicitors PI market including Maven Underwriters. A number of Lloyd’s capacity providers who have previously supported the Maven MGA have withdrawn their capacity as part of the Lloyds profitability review.”
- Plenty of additional commentary and consternation in the Law Society Gazette comments.
“Law Firm Gets Partial Win Over Insurer In Coverage Dispute” —
- “A Massachusetts federal judge on Tuesday granted a partial win to a Boston law firm in its coverage dispute with Allied World Insurance Co., saying the insurer should have defended the firm against a counterclaim in a trade secret dispute with former employees.”
- “In a court order, U.S. District Judge Richard G. Stearns said Allied World was responsible for partly defending Governo Law Firm LLC in an underlying state matter dealing with a group of attorneys who left the firm and created a new Boston-based shop.”
- “According to a second counterclaim by the departing attorneys, the lawyers accused Governo Law of, among other things, interfering with clients who wanted to continue working with them at their new firm. Governo Law argued that Allied World breached the insurance policy when it refused to defend the firm.”
- “Allied World argued that Governo Law’s claim wasn’t covered under the insurance policy because the counterclaims brought by the attorneys in the underlying state court action ‘are either excluded from coverage or do not concern legal malpractice, and instead amount to a business dispute between plaintiffs and their former employees,’ according to court documents.”
“Calif. Appeals Court Reverses Atty DQ In Car Dealer Bias Suit” —
- “A California appeals court said Monday a law firm founded by a former luxury auto group executive can keep representing a former worker in a bias suit against the group, distinguishing the suit from other pending litigation the firm was booted from.”
- “‘Here, in contrast, the declarations in support of the motion to disqualify Richie Litigation … do not identify any communications with counsel regarding investigation of Loera’s claims of unlawful employment practices, issues relating to his discharge or the company’s strategy in defending against Loera’s lawsuit,’ the panel said, denying O’Gara’s bid to disqualify Richie Litigation from representing Loera.
- “O’Gara asked the court to disqualify Lu as Loera’s attorney, arguing his involvement in the case was unethical because Richie was an executive for the dealership before he launched the firm. The trial court sided with O’Gara, finding that Richie was privy to the development of the employment policies at issue in Loera’s case. Loera then appealed.”
- “But the appeals court on Monday said the company offered no such evidence to back up its bid to remove Richie’s firm from the Loera suit. It found Richie only has ‘playbook information’ relevant to Loera’s case, using a term for general confidential information, such as settlement strategy or philosophy, obtained during previous work for a client. And California law does not preclude firms from representing a client when ‘one of its attorneys possesses information concerning an adversary’s general business practices or litigation philosophy acquired during the attorney’s previous relationship with the adversary,’ the panel said.”
And from Bill “Always on the Ball” Freivogel: Wu v. O’Gara Coach Co. LLC, 2019 WL 3955761 (Cal. App. Aug. 22, 2019).
- “In this case Thomas Wu sued O’Gara Coach (“O’Gara”) for race discrimination and related wrongs. Wu worked for O’Gara from 2010 to 2016. Darren Richie was President of O’Gara from 2014 to 2016. After leaving O’Gara, Richie passed the California Bar and formed a law firm, Richie Litigation. Richie Litigation represents Wu in this case. O’Gara moved to disqualify Richie Litigation.”
- “In this opinion, distinguishing O’Gara Coach Co., LLC v. Ra, 30 Cal. App. 5th 1115 (2019), the court denied the motion to disqualify. Ra involved a similar claim. Richie, while at O’Gara, had worked on Ra’s situation. The court in Ra found that Richie possessed privileged information of O’Gara relating to Ra. In the case of Wu, Richie had no involvement and, thus, no privileged information.”
- “However, Wu was impacted by the work Richie had done at O’Gara on employment practices. Nevertheless, analyzing the “playbook” approach, the court found that Richie’s role was not specific enough as to Wu to be disqualifying. Shortly after deciding Wu, the appellate court in Loera v. O’Gara Coach Co., LLC, 2019 WL 4014086 (Cal. App. Unpub. Aug. 26, 2019) also reversed an order of disqualification because Darren Richie had no confidential O’Gara information relating to the employment of the plaintiff, Jorge Loera. Loera is alleging wrongful termination and related causes of action.”
“2 Firms Duck DQ Bid In Insurance Fraud Case” —
- “Katten Muchin Rosenman LLP and Miller Canfield Paddock & Stone PLC have survived a bid to disqualify them from an insurance fraud case in which they represent State Farm, as several defendant health centers lack standing to bring the challenge, a Michigan federal court has held.”
- “U.S. District Judge Avern Cohn declined to disturb a magistrate judge’s ruling that tossed the bid by Elite Health Centers Inc. and several related entities to disqualify Katten Muchin and Miller Canfield because the firms purportedly obtained information about the clinics through a relationship with a client who is not a party to the case. Because the defendants were alleging that a nonparty was the entity that had a relationship with the firms, they lack standing to seek to disqualify the firms, according to Monday’s ruling in the Eastern District of Michigan.”
- “Judge Patti determined in June that Elite and the other entities failed to submit sufficient evidence that went beyond ‘speculat[ion]’ in trying to establish that the evidence in question was obtained through improper disclosure, according to court documents.”
“Former DA Disqualified From Representing Criminal Defendant” —
- “Former Bexar County Criminal District Attorney Nico LaHood and his law firm should be disqualified from representing a criminal defendant whose case started while LaHood was still San Antonio’s top prosecutor, an appellate court has ruled.”
- “‘This ruling affirms our belief that the integrity of the justice system is paramount and must be protected. This decision has state-wide implications, as the issue of prosecutor disqualifications has been left unclear for several years. It is our hope this ruling will serve as a guiding light to the other courts,’ said a statement by the current district attorney, Joe Gonzales.”
- “In June, the district attorney’s office moved to disqualify the law firm, because back when he was district attorney, LaHood ‘was privy to the state’s entire case against Stovall.’ At a disqualification hearing, an assistant district attorney testified that in December 2018, LaHood called her to his office and looked at photos of the complainant’s injuries, reviewed 911 calls, and discussed the strengths and weaknesses of the Stovall case.”
- “The court found that when LaHood talked about Stovall’s case with the assistant district attorney, reviewed the case and commented on his thoughts and opinions, he was participating in the preparation or investigation of the case. Texas law mandates his disqualification, the opinion said. Because his firm is so small, the entire firm must be disqualified.”
Certainly seem to be seeing more stories about judges. Starting with: “NY judge resigns after conflict of interest in divorce case” —
- “A respected long-time upstate judge agreed to resign after he was caught dishing out orders from the bench that helped him in a divorce case he was working privately as a lawyer.”
- “New Paltz Justice Jonathan Katz was asked by authorities in late 2017 to sign an arrest warrant and order of protection — against the husband of a woman he was representing in their divorce. But rather than declare a conflict of interest, the part-time justice signed the documents — and continued representing the man’s wife in the contentious split, according to authorities.”
- “The protection order had been made without proving good cause and forced the husband out of the couple’s New Paltz home, a key thing Katz had been fighting for in the divorce, documents show.”
“In Stanford University fraud case, allegations of conflicts of interest and biases by San Francisco Judges” —
- “In ongoing fraud case between technology startup MedWhat and its CEO Arturo Devesa against its investor Stanford-StartX Fund LLC, as well as Stanford University, Stanford General Counsel Debra Zumwalt, and Stanford endowment CEO Robert Wallace, Cross-Complainant Arturo Devesa filed in San Francisco Court an Ex Parte application to recuse and remove part-time Pro Tem Judge Jeff Wohl. Temporary Judge Wohl is assisting full-time Judge Ethan Schulman as a subcontractor in making Motion to Compel recommendations in case.”
- “According to Ex parte application Judge Wohl has serious conflicts of interests in the case with his employer and with Stanford University, questioning his impartiality as a Judge. Mr. Wohl’s is not a full-time judge at the court or appointed by ballot, only a temporary one defined as Pro Tem used by Hon Ethan Schulman. Mr. Wohl’s full-time employer is private equity law firm Paul Hastings which has deep relationships to Cross-Defendant Stanford University and its Trustees, relationship to Stanford University’s Counsel Bahram Seyedin-Noor, financial interests in the proceeding and conflicts of interest in private equity. Upon Wohl’s refusal to remove himself from case given the conflicts of interest, Ex Parte asked Judge Ethan Schulman to recuse his part-time Judge assistant Wohl.”
More context on this drama here.
“How judicial conflicts of interest are denying poor Texans their right to an effective lawyer” —
- “For decades, Texans who can’t afford a lawyer have gotten caught in a criminal justice system that’s crippled by inadequate funding and overloaded attorneys. A growing body of caseload data — and a recent lawsuit — point to an even more fundamental hazard: the unchecked power of Texas judges.”
- “However, the problem goes beyond money. In Texas, the crisis is exacerbated by a key structural flaw: Indigent defense is largely overseen by judges. Contrary to the American Bar Association’s principles of public defense, which call for defense lawyers to be independent of the judiciary, judges in most Texas counties decide which lawyers get cases, how much they are paid and whether their motions — say, to reduce bail or test DNA — have merit. (Counties do have fee schedules for lawyers, but judges set the schedules and retain discretion over payment.)”
- “Given that judges are elected based, in part, on the efficiency of their courts, this is an inherent conflict of interest. ‘Whatever the judge wants to do, it’s probably not acquit your client,’ said Charlie Gerstein, a lawyer for Civil Rights Corps, a Washington, D.C., nonprofit that has spent the past several years challenging criminal justice abuses around the country. ‘The judge wants to move the docket. The judge wants to get reelected.’ (Civil Rights Corps filed the class-action lawsuit against the bail system of Harris County in 2016.) Lawyers trying to work a case properly — by devoting more time or requesting an investigator — face a quandary: Why make the effort if a judge can retaliate by appointing them to fewer cases or cutting their pay?”
For those of you, like your intrepid editor, who did not make it to the land of Disney the other week for the annual ILTA conference, I’m pleased to present several session recordings that caught my that, which those folks have been kind enough to post online.
Client Security Audits: I Get Them All the Time. How Can I Make Responding to Them Easier?
- Client security audits can be overwhelming and time consuming. Join us as we share best practices and methods to help manage client demands and how to leverage your client’s concerns to gain internal buy-in for enforcing optimal security changes in your organization.
- More efficient and effective ways to respond to client audits
- Learn what clients are really looking for in audits
- Identify what questions you can say no to in an audit
- Learn the current trends in client audits
Data Privacy – Everyone’s Getting In On It – Privacy From Europe to California and Beyond
- HIPAA, DFS, GDPR…data privacy regulations keep evolving. The implementation of the California Consumer Privacy Act (CCPA) is next on the horizon. Other states and the federal government are also considering similar laws.
- How will your existing procedures need to be revised in order to comply with the latest regulations? What lessons learned from other data privacy requirements can be applied as you navigate the ever changing landscape?
- What do I have to do to prepare for the future?
- What has been effective in the past that will help in the future?
Landscape of Information Governance for Small Firms
- As the number of requirements from clients and regulatory agencies increase, the need for an Information Governance program is becoming more important in firms of all sizes. In this session we will discuss how you can develop and implement a program that is right-sized for you.
- Areas of discussion –
- What is information governance?
- Who is responsible for managing the availability, usability and security within the firm?
- Developing a program for managing data
- How can technology assist?
- Pain points
- Managing change within the firm
- Tips and tricks for doing simple things that make a difference
- How to argue for more resources in this area
- How to manage with no resources
- How to convince firm that IG is important
- How and what can be outsourced here?
- How do you determine what is required?
- What are the big firms doing that you can implement?
- How do you get started?
Hidden Benefits of ISO Certification
- In this session you will learn the hidden benefits of becoming ISO certified. We’ll discuss how becoming ISO certified has helped firms clean up their own internal processes and apply the ISO methodologies to other areas of IT. We’ll also discuss how having the certification has helped firms with client audits and talk to other areas where they have gotten a return on their investment in the certification.
- Improving internal processes/policies
- Benefits to BD/Marketing
- Identifying cost-free improvements
- Return on investment