Risk Update

Disqualifications (Potential Witness Edition) — Boies Booted, Timeshare Time’s Up

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Attys Disqualified From Wyndham’s Timeshare Exit Suit” —

  • “Magistrate Judge Jeffery S. Frensley on Monday granted Wyndham’s motion to disqualify Aubrey Givens and Kristin Fecteau Mosher from representing Mortgage Wellness Solutions LLC, which does business as Legal Timeshare Aid, and its owner, Charles Simerka. The case accuses Legal Timeshare and Simerka of running a scheme in which they falsely claimed they could help Wyndham timeshare owners terminate their purchase contracts.”
  • “A Tennessee magistrate judge has disqualified two attorneys representing a timeshare exit company in a false advertising suit brought by Wyndham Vacation Ownership Inc., saying both are necessary witnesses in the suit and must be available to testify.”
  • “‘Both Mr. Givens and Ms. Mosher are likely to be called as witnesses; indeed, plaintiffs have stated that they will be,’ Judge Frensley wrote in his 27-page order detailing evidence showing why both lawyers need to testify. ‘The Simerka defendants have pointed to no authority, and the court has found none, that supports the contention that a lawyer who is a necessary witness may nevertheless continue as an advocate in the proceeding because another lawyer who is also a necessary witness will testify.'”

Boies Schiller Attorneys Disqualified in Dershowitz Defamation Case” —

  • “A Jeffrey Epstein accuser who said she was forced to have sex with Alan Dershowitz may proceed with a defamation suit against the famed law professor, but she would have to do so without the representation of her longtime attorneys, a Manhattan federal judge ruled on Wednesday.”
  • “U.S. District Judge Loretta A. Preska of the Southern District of New York said Boies Schiller’s disqualification was “clearly required” under the witness-advocate rule, which bars attorneys from participating in cases where other lawyers in their firm might be called as witnesses.”
  • “Dershowitz’s attorneys said last month that he possessed a recording of name partner David Boies supposedly disparaging Giuffre’s account of her interactions with Dershowitz as untrue and said he intended to call Boies and other attorneys from the firm to testify at trial.”
  • “Preska said that position likely set up a situation in which the firm’s other partners and associates may be forced to offer testimony discrediting their boss’ allegedly prejudicial statements and raised the possibility that they would lack the independence to do so.”
  • “The ruling did, however, reject Dershowitz’ motion to dismiss the case on the grounds that it was time-barred under New York defamation law.”
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Risk Update

Disqualifications — Tales of Two Motions (One Survived, One Strategic, Judicial Scolding)

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Brief Introductory Call with a Law Firm is Not Enough to Disqualify It From Representing Another Party in the Lawsuit” —

  • “Lawyers often get phone calls from prospective clients seeking guidance on various issues – general legal inquiries, asking a variety of general questions about laws, codes, regulations, and statutes, or questions concerning a pending or anticipated litigation. But a brief introductory conversation with a prospective client regarding an issue cannot disqualify the attorney from representing another party in that litigation. Or can it? Stay tuned to see how Justice Andrea Masley recently ruled on this very issue.”
  • “Plaintiff moved pursuant to 22 NYCRR § 1200.00, Rules of Professional Conduct 1.18 to disqualify defendant’s counsel, Herrick Feinstein LLP (“Herrick”) based upon the fact that plaintiff had an initial consultation with Herrick, which consisted of two brief telephone calls and the exchange of documents, all of which were provided to the defendant by plaintiff . Rule 1.18, entitled “duties to prospective clients” governs this initial interview process. New York law requires disqualification for disclosure of information that “embrace[s] substantive issues related to the” action and that was “made in confidence” to facilitate the provision of legal services, as the Court of Appeals long held in Seeley v. Seeley.”
  • “Following the brief introductory call, plaintiff sent the Herrick partner a follow up email containing information pertaining to the project and providing a list of potentially adverse parties so Herrick can run a conflict check. Plaintiff also attached a three page document, which consisted of a letter from plaintiff to defendant, enclosing surveys of the structure.”
  • “In her Decision and Order, Justice Masley determined that plaintiff “has a heavy burden of showing that disqualification is warranted.” Justice Masley determined that the documentary evidence corroborates the Court’s conclusion that plaintiff’s evidence was insufficient to warrant Herrick’s disqualification due to conflict. The Court held that plaintiff failed to establish that Herrick received any confidential information from plaintiff that could be significantly harmful to plaintiff in the pending litigation. In fact, the Court reasoned that the alleged documents that were provided to Herrick were not confidential because they were intended for and sent to Fortis by plaintiff.”

Kane Kessler Scolded By Judge For DQ Bid Against Storch” —

  • “A New York federal judge on Monday slapped Kane Kessler PC and its counsel for a bid ‘clearly devoid of merit’ to disqualify its opposing counsel in litigation where a New Jersey-based nonprofit organization accuses the firm of engaging in attorney misconduct.”
  • “U.S. District Judge Paul A. Engelmayer wrote Monday that Kane Kessler’s disqualification bid against Storch Amini PC is ‘transparently strategically motivated,’ as Kane Kessler and its counsel, Furman Kornfield & Brennan LLP, fail to establish that the lawyers for Oorah Inc. would need to be disqualified because they may need to testify over their knowledge of the underlying matter to an extent that would implicate their ability to serve as advocates for their client.”
    The judge also wrote that he was ‘constrained to admonish’ Furman Kornfield, holding that he expects the firm to ‘aspire to rigorous accuracy and a high level of professionalism and care.'”
  • “‘At various points, the court found statements of fact in defendants’ briefs inexact and incomplete, if not misleading,’ Judge Engelmayer wrote. ‘Particularly in a litigation in which the defendant is a law firm accused of making false and misleading statements to a court and opposing counsel, defense counsel’s factual imprecision ill behooves its client’s interests.'”
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