Bressler Risk Blog

Lexis offers: “Legal Ethics Rules To Watch In 2020” —

• “There is plenty happening in the world of lawyer regulation and ethics, from California’s radical access-to-justice initiative to the New York City bar’s look at litigation funding and the fee-splitting rule.”
• “Depending on your point of view, the Golden State’s ongoing ethics rule revamp is either a welcome evolution that will improve access to the justice system, or a misguided invitation for non-lawyers to provide low-quality legal services and undercut ethical standards. Either way, keep a close eye this year on California, where a bar task force is set to finalize a sweeping proposal aimed at reducing costs for consumers and making the justice system more accessible.”
• “Some 18 months ago, the venerable New York City Bar Association hit private legal investors — and a growing number of firms who use their money — with a broadside warning that funding deals in which the attorney’s repayments are tied directly to future fees or contingencies violate the fee-sharing ban under Rule 5.4. The advisory opinion was a direct challenge to so-called portfolio arrangements in which funders put up money to a firm to back a group of cases in return for a share of future profits.”
• “In Missouri, a state appeals court is expected to decide whether state prosecutors have the authority to help undo wrongful convictions in a case touching on state and national professional standards. The case involves Lamar Johnson, who was sentenced a quarter century ago to life in prison, without the possibility of parole, for a fatal shooting. Last summer, a conviction integrity unit of the St. Louis prosecutor’s office issued a scathing report about a litany of underlying police and prosecutorial misconduct in the Johnson case. That report described fabricated witness statements, secret payments made by prosecutors to a lone eyewitness and the presentation of false evidence to jurors that ‘rendered the result of the trial fundamentally unfair.'”
• “Considering the testiness of lawyer rule-making, the ABA’s revamp two years ago of attorney advertising regulations went off pretty smoothly… But since the ABA “black letter” changes were finalized, only Connecticut has actually adopted the newly streamlined rules, though two others — Virginia and Oregon — made related updates amid the run-up to the ABA updates. Was all that effort wasted? Maybe not. The high courts in Washington and Iowa are considering ad rule adoptions, while the bars in a handful of other states, including Colorado, Louisiana and Tennessee, are also considering revisions, according to the ABA.”

“Case a reminder law firms must have comprehensive conflicts system” —

• “A Federal Court judge, citing Lawson Lundell LLP’s failure to take adequate or timely measures to prevent information confidential to a dispute from being shared internally in the face of a conflict of interest, has disqualified the firm from acting on judicial review applications against the party to whom the information belonged.”
• “The twist in the case (GCT Canada Limited Partnership v. Vancouver Fraser Port Authority 2019 FC 1147), is that GCT Canada Limited Partnership, the party that successfully sought Lawson’s removal, was never a client of the firm.”
• “‘The case is a reminder that law firms must have a comprehensive conflicts system in place, one that records not only the names of clients but other parties from whom confidential information may have been derived,’ said Gavin Mackenzie of MacKenzie Barristers Professional Corporation in Toronto, a prominent expert on legal ethics. ‘And when a name comes up that could give rise to a conflict, the firm must ascertain whether it has confidential information and what can be done about it.'”
• “‘There is no dispute that GCT was never a ‘client’ of Lawson,’ Pentney wrote. ‘In this case, however, I find that the conflict rules do apply to Lawson because GCT imparted confidential information to Lawson in the context of a solicitor-client relationship between Lawson and BCI. Indeed, the very nature of the BCI retainer required Lawson to examine confidential and proprietary information about GCT in order to provide advice to its client. … I accept that the [conflicts] rules must be considered and applied with a degree of flexibility in view of the fact that this is a situation involving a non-client, but I find they do apply.'”
• “‘Lawson did not take adequate and timely steps to prevent any sharing of, or access to, this confidential information because it had not identified the situation of conflict,’ Pentney wrote.”

“Donziger Says Seward & Kissel May Have Chevron-Related Conflicts” —

• “Steven Donziger, the suspended lawyer who is facing criminal contempt charges stemming from his long fight with Chevron over environmental contamination in Ecuador, has asked a federal judge to force court-appointed prosecutors at Seward & Kissel to disclose any ties their firm has to the oil giant.”
• “In a Tuesday letter to U.S. District Judge Loretta Preska of the Southern District of New York, Donziger’s lawyer, Andrew Frisch, said his research led him to believe that an unnamed Seward & Kissel partner served on Chevron’s board and that the firm served clients who do business with Chevron or related entities. He said Glavin ‘has declined to answer my questions about Seward’s ties to Chevron.'”
• “In a response filed later Friday, Glavin said it was simply not true that any Seward partner had been on Chevron’s board. As to the allegation that its clients had done business with Chevron, she wrote, ‘even if true, this creates no conflict or conflicting loyalty for the prosecution team in this criminal case.'”

“O’Melveny defeats conflict allegations in trial court; trustee for ex-client vows appeal” —

• “A bankruptcy trustee for Aletheia, an investment manager once entrusted with more than $2 billion in assets, had brought malpractice and breach of duty claims against O’Melveny, asserting that the law firm failed Aletheia by simultaneously representing the company and its CEO in litigation alleging misconduct by the CEO.”
• “The trustee’s conflict allegation is at the heart of the case, although some coverage of the litigation in front of Judge Snyder has highlighted the easy-to-understand assertion that the arbitrator who exonerated O’Melveny, former federal judge Gary Feess, was biased because the case impacted the career prospects of his son. Feess’ son, a law student when the arbitration was under way, had signed up for on-campus interviews with O’Melveny and Gibson Dunn. When Aletheia’s trustee raised the issue of potential bias with Feess, both Gibson and O’Melveny told the arbitrator that they would refrain from hiring his son out of an abundance of caution.”
• “The trustee’s lawyers told Judge Snyder that the firms’ refusal to hire Feess’ son could only have exacerbated any bias because the arbitrator would hold the firms’ actions against the trustee. Judge Snyder swatted away those arguments, concluding that the original interviews didn’t require Feess to recuse himself and that the trustee’s subsequent assertion that the arbitrator held a grudge was ‘unpersuasive.'”
• “But the whole matter of the arbitrator’s son is a red herring. The more important issue in this case is whether O’Melveny betrayed Aletheia by representing both the company and its CEO in litigation in which another investment manager, Proctor, accused Aletheia of breaching a sales agreement.”
• “It’s important to remember as you consider the complicated facts of this dispute that Feess, a retired federal judge, sided entirely with O’Melveny after a three-week hearing. And Judge Snyder rejected the trustee’s argument that Feess’ arbitration decision manifestly disregarded the law or contravened the public policy against conflicted representations. That said, the case raises tough questions.”

“NYU Workers Say Judge Conflicted Out of Retirement Plan Suit” —

• “New York University workers told the Second Circuit that they’re entitled to a new trial in their case over the school’s retirement plans because the presiding judge’s ties to the school disqualified her from hearing the case.”
• “The workers, in addition to challenging Forrest’s legal analysis in her 2018 ruling in favor of NYU, argued that a conflict of interest disqualified Forrest from hearing the case. They pointed out that 43 days after ruling for NYU, Forrest left the bench and rejoined the law firm Cravath Swaine & Moore LLP, where firm chairman Evan Chesler is a key member of NYU’s board of directors.”

“Manhattan judge rules in favor of lawyers who donated to his campaign – and it’s all legal” —

• “The silver-maned lawyer announced the victory on his law firm’s website: A win saved his clients $130 million. Not included in that broadband boast was that the attorney, Marc Kasowitz, and his associate donated $10,000 to the presiding judge’s campaign eight years earlier.”
• “Now lawyers for Drexel-Billet’s former spouse, Bradford, are questioning why Manhattan Supreme Court Judge Michael Katz remained on the case.”
• “A spokesman for the state Office of Court Administration suggested Katz’s behavior was above board, noting that he followed state regulations dictating an ‘independent person’ handle contributions.”

“What to do when your adversary was the Judge’s clerk?” —

• “Most of the reported cases involving judges and former clerks deal with the situation where the clerk was employed while a matter was pending and later joins a firm involved in the same matter or representing one of the parties. That law is well-settled.”
• “But suppose the issue is not whether the case was in front of the judge in some fashion when your adversary was clerking; what if the issue is more thorny? Do they still have a close enough relationship to put your client at a perceived or actual disadvantage?”
• “After reading about In Re: Gizella Pozsgai, case number 19-3872 in the U.S. Court of Appeals for the Third Circuit, you have to consider raising the delicate issue before the judge and the adversary and hope for honest and complete answers.”
• “The scrutiny began because the judge gave an interview circulated on the internet describing her close personal and social relationships with former law clerks, including the AUSA. She had made similar comments in public remarks and in legal publications. She had pictures of events in her chambers of her and former clerks, including the AUSA, seen by counsel during a conference. In denying the first recusal motion along with deciding other motions, she simply inserted the denial in a footnote without analysis.”
• “The case is heading to the Third Circuit and bears watching. In the meantime, if you clerked and have a case assigned to your judge, promptly notify your adversary of the details of the clerkship and your present relationship with the judge.”
• “There is no hard and fast rule addressing the question of whether a judge should allow a former clerk to appear before the judge in any matter. Some judges wait 6 months, some wait a year, some wait two years before allowing a clerk to appear. Some districts or vicinages choose a time period by consensus.”

“Archer Beats Disqualification Bid in Litigation Over NJ Hotel Ownership” —

• “A federal judge has denied a motion to disqualify New Jersey-based law firm Archer Law from representing the defendants in a dispute among owners of a hotel.”
• “In his motion for disqualification in the present case, Sam argues that Archer’s past representation of EH Associates and Hospitality present a conflict of interest because Sam has brought derivative claims on behalf of EH Associates and Hospitality as an alleged minority member. He contends that Archer should be disqualified because their representation violates proscriptions in the Rules of Professional Conduct against representation involving a concurrent conflict of interest. He also contends the rules say representation of a client should not be followed by representation of another client with adverse interests in the same matter or a related matter.”
• “Sam does not claim to have been represented by Archer, but rather that Archer represents and has represented the entities on behalf of which he now seeks to assert derivative claims as an alleged minority member. He cited a 2014 ruling from the Appellate Division, Comando v. Nugiel, in which the court held that Norris McLaughlin could not represent the defendants in a suit brought by one co-owner of a business against the other co-owner.”
• “But Clark in his Nov. 1 ruling said that the Norris McLaughlin case could be distinguished from the present case because there, the plaintiff’s status as a member of the company on whose behalf she sought to bring derivative claims was established and uncontested. In the present case, the parties dispute whether Sam has any ownership interest in EH Associates through Hospitality, making his argument a disputed litigation position and thus not a basis for disqualifying Archer, Clark ruled, noting that the defendants claim Sam relinquished his interest in Management in 2015, before Archer represented any of the subject entities or individuals, and holds no interest in Hospitality now.”

“Texas Justices Won’t Toss Firm From Rodeo Owners’ Battle” —

• “The court found that Kelly Hart had no conflict of interest in representing both Billy Bob’s Texas Investments LLC and a group of its owners, even though the suit was filed by another owner, Murrin Brothers 1885 Ltd., on behalf of the company. The company is listed in the lawsuit as both a derivative plaintiff and a defendant.”
• “Justice James D. Blacklock, who wrote the court’s unanimous opinion, said Murrin Brothers didn’t prove it would be harmed by the decision to keep Kelly Hart in the lawsuit. He brushed aside concerns that allowing the law firm to represent both the company and group of owners would confuse the jurors, saying that could be avoided with the use of a jury instruction.”
• “‘Gone are the days when a family feud over a dance hall saloon in the Fort Worth Stockyards would be solved by six-shooters,’ Justice Blacklock said. ‘These days, we use lawyers instead of lead. Thank goodness for that. As complicated, expensive, and frustrating as litigation can be, it sure beats a shootout at the stockyards.'”

Yesterday we talked OCG pain. Now comes an interesting take from Ballard Spahr: “Outside Counsel Guidelines (OCGS) Are Your Friend.” Not only is the advice prudent, but points indeed for the firm using this as a marketing opportunity for itself, highlighting the measures it has taken to focus on efficiency and compliance:

• “Outside counsel guidelines (OCGs) are a way for clients to set expectations regarding processes, procedures, and handling of matters… The problem is that OCGs don’t always work the way they should. For one thing, clients are extremely busy and short-staffed. They often don’t have the time to implement, update, and enforce OCGs unless they have dedicated legal operations resources. Instead, clients use outdated OCGs that, in many cases, are inconsistent and unclear. In addition, law firms trying to follow the guidelines often find them complicated and difficult to comply with. The result is that OCGs frequently fail to accomplish their intended results.”
• “The solution to this problem is, we need to stop approaching OCGs as if they are non-negotiable requirements that clients and law firms need to rigidly follow. Instead, the parties should view the guidelines as a tool that promotes collaboration and deepens the relationship.”
• “When new or amended OCGs come out, clients should use them as an opportunity to talk with their law firms about goals and expectations. If law firms understand the reasons for guidelines, compliance may feel less burdensome. In addition, the law firm will have a better understanding of which guidelines are most important to the client, and make them a top priority.”
• “Clients should expect their law firms to focus on delivering value and efficiency, and should make this a part of their OCGs… Two major areas in which law firms can provide efficiencies are 1) developing client-focused technology and 2) using lower-cost resources, such as staff attorneys, contract lawyers, and third-party legal service providers.”
• “At Ballard Spahr, we’ve seen legal technology benefit our clients and legal teams firsthand. Last year, our Client Value and Innovation Team developed Ballard360, our client technology platform. Since then, the platform has saved our clients millions of dollars in legal spend. The technology has reduced the time spent on first drafts of transactional documents by over 7,120 hours in more than 890 transactions.”
• “Recently, after proposing a fee arrangement to a client, we received feedback that the price was too high. The client wanted more details about the assumptions we used to price the matter and how we came up with our proposed fee. We explained that, due to the nature of the transaction, the work would require more senior lawyer time but would take fewer hours under that scenario and cost less overall. We agreed to create a financial dashboard for the client that would allow them to see budget-to-actual spend in real time. The dashboard could help the client make proactive decisions about how the matter would be handled if issues arose. We won the work.”

Results of a survey commissioned by the Association of Legal Administrators (ALA): “Law Firms Feeling Headaches from Outside Counsel Guidelines, Struggling to Comply, Report Says” —

• “More than 80% of corporations reported they use some form of OCGs to manage the work and billing practices of their outside law firms… Legal departments view OCGs as one of the most effective tools they have for controlling their outside counsel spend, typically one of the largest budgetary line items that corporate legal departments face. OGCs are also a highly effective means of enforcing the kinds of change that legal departments have been asking for, but which many law firms have been slow to offer.”
• “There is no such thing as a standardized set of guidelines, nor are clients interested in trying to standardize them. OCGs will undoubtedly vary from client to client, and often even from matter to matter even with the same client. It’s the client’s chance to customize the kind of legal service they expect to receive; and not surprisingly, the clients want to take full advantage. This puts a large burden on law firms to read, interpret, clarify, implement and follow the guidelines for each individual matter. Consequences for failing to comply can range from delays in payment to legal action or even to being fired.”
• “Nearly every firm that is subject to OCGs experiences some degree of invoice rejection as a result of non-compliance. About 43% of law firms see between 5% and 10% of their invoices rejected due to compliance issues. Shockingly, almost 36% of firms see 20% or more of their invoices rejected or reduced due to compliance problems. This is staggering.”
• “Simply put, law firms need to get better at tracking, managing and complying with OGCs. Less than one-quarter of law firms report having a consistent process to review, analyze and document OCGs as they come in… Worse yet, some 23% of law firms do not communicate OCGs to their attorneys at all.”
• “Many law firms will point to the fact that they lack the staffing or the technological acumen to manage OCGs. But rather than providing an excuse, this highlights an area of needed investment. These firms have clearly identified a shortcoming in their service delivery model; therefore, the next step should be making plans to address this need. This should, at a minimum, consist of the following:
  • All OCGs are analyzed immediately upon receipt and checked for conflicting guidance from the same client on the same matter so clarification can be sought if needed.
  • OCGs are summarized and circulated to, at least, all partners working on the effected matter, especially the billing and/or relationship partner.
  • Partners are held accountable for acknowledging receipt of the OCGs and disseminating that information to their teams as appropriate.
  • Processes are implemented across the firm to ensure ongoing compliance with OCG terms.”
• “Building the staff, tech stack and procedures to effectively comply with OCGs is, without question, a burdensome task. But the alternative is untenable.”

“Miami-Dade Judge Removed From 3 Cases After Sanctioning Bilzin Sumberg” —

• “The Third District Court of Appeal has agreed to remove Miami-Dade Circuit Judge Beatrice Butchko from three cases over concerns from Miami firm Bilzin Sumberg Baena Price & Axelrod. Bilzin Sumberg raised concerns that some of the parties wouldn’t receive a fair trial, in light of a sanctions order against the firm in an unrelated case.”
• “But in a separate case, Butchko wrote a 51-page order in September, sanctioning Bilzin Sumberg attorney Jose M. Ferrer and his firm for allegedly using confidential information obtained via secret phone recordings without their opponents’ knowledge. Bilzin Sumberg has denied any wrongdoing.”
• “But according to the order, Ferrer and his team used the recordings to launch false and derogatory allegations against opposing counsel, Gunster shareholders Jonathan Kaskel and Angel Cortiñas. The ruling also implicated the firm’s general counsel, who is a witness in one of the cases at issue, according to Wednesday’s opinion.”
• “That, Bilzin Sumberg argued, meant Butchko wouldn’t be an impartial arbiter in the other three cases in which the firm was involved… On appeal, the Third DCA had to decide whether those fears about an unfair trial were well-founded. And they were, according to the opinion, which consolidated all three cases.”
• “The panel was careful to note that its ruling didn’t mean Butchko was biased, pointing to case law that said, ‘Such a fear rests in the mind of the litigant and if the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.'”

“All Minn. Federal Judges DQ’d From Whirlpool Defect Suit” —

• “Minnesota’s chief federal judge on Monday recused himself and all other district and magistrate judges in the state from hearing a proposed class action over allegedly defective Whirlpool cooktops because a retired Minnesota federal judge filed the suit.”
• “Rosenbaum filed suit Nov. 20, claiming that Whirlpool is well aware that its cooktops, sold under a number of its brands, pose a fire hazard… After the recall, Whirlpool told consumers to turn the cooktops off at the circuit breaker when not in use and to contact the company for replacements, Rosenbaum said… The retired judge said he has contacted Whirlpool multiple times since Sept. 6 to request a replacement, but the company has failed to provide a safe comparable cooktop.”
• “His suit claims Whirlpool violated the state’s Unlawful Trade Practices Act. Rosenbaum seeks to represent a nationwide class of consumers who bought the glass cooking surface, radiant and downdraft radiant models sold under the Whirlpool, KitchenAid and JennAir brands for household use, according to the suit.”

“VW Declined to Hire Louis Freeh for $15M. Now He’s on the Other Side—and VW Is Crying Foul” —

• “Four years ago, former FBI Director Louis Freeh was on the verge of being hired by Volkswagen to run its diesel emissions litigation—work for which he wanted a guaranteed $15 million over three years, plus 10% of the “savings the company and its subsidiaries yield and/or the costs saved by settlements,” according to a draft engagement letter. In the end, he didn’t get the job—nor did VW bite a year later when he suggested that the automaker ‘keep me in mind for any future role, such as a monitor.'”
• “Now, Freeh—founder and chairman of consulting firm Freeh Group International Solutions and senior managing partner of affiliated law firm Freeh Sporkin & Sullivan—has turned up on the other side. He’s serving as an expert witness for plaintiffs who opted out of VW’s overarching civil settlement in 2016 and are suing the company instead.”
• “In a motion to disqualify filed on Monday in San Francisco federal court, the VW team led by Robert Giuffra Jr., Sharon Nelles, William Monahan, John McCarthy and Michael Steinberg argue that ‘Mr. Freeh’s conflict of interest and receipt of confidential information disqualify him from serving as an expert adverse to defendants.'”
• “Freeh ‘engaged in extensive privileged and confidential discussions with Volkswagen’s senior-most executives and counsel about the same diesel matters underlying this lawsuit, including discussing key documents and legal strategy,’ they continued. ‘Mr. Freeh’s contemplated mandate would have included a role overseeing both this case and the exact same criminal matter that is the subject of his expert opinion.'”
• “‘The circumstances here go far beyond what other courts have found to be disqualifying,’ the Sullivan & Cromwell team wrote. ‘Here, the topics that Volkswagen discussed with Mr. Freeh are not only privileged, but squarely implicated by his proposed testimony. For instance, one of Mr. Freeh’s main conclusions—that there was executive-level wrongdoing that Volkswagen concealed from the court and the prosecutors—is primarily based on a document that Volkswagen’s counsel shared with Mr. Freeh to seek his legal advice on its implications.'”

“Miles & Stockbridge Hit With DQ Bid In Army Contract Case” —

• “Advanced Training Group Worldwide Inc., which has accused ProActive Technologies Inc. of illegally nixing it from a joint venture the pair formed to bid on the Special Operations Forces training contract deal, said Friday that Miles & Stockbridge should be disqualified from the case because the firm previously represented the joint venture.”
• “According to ATG, Miles & Stockbridge breached its obligations to the Ohio company by prioritizing ProActive’s interests over ATG’s, even though both parties owned shares of the joint venture. The firm also failed to obtain a conflicts waiver from ATG, the company said.”
• “ATG argued the case is related to the firm representing the joint venture because the company claims ProActive breached the deal that created the joint venture. In addition, ATG said that in representing the joint venture, the firm knew about confidential information from both companies that could be exploited in the case. Some of the documents the firm drafted are currently main pieces of evidence, ATG noted.”

“Harvey Weinstein’s legal team tries to get judge, attorney Gloria Allred removed from proceedings” —

• “Harvey Weinstein is trying to distance people from his trial before it even begins. Wednesday marked the third day of jury selection in the disgraced movie executive’s rape trial, and it’s already proving hard to keep anyone in the room. In addition to the dozens of potential jurors who’ve been disqualified from the case, Weinstein’s legal team has also tried to get well-known attorney Gloria Allred and the judge who’s overseeing it all barred from the courtroom altogether.”
• “Weinstein’s issue with New York Supreme Court Judge James Burke began Tuesday morning when he called out the defendant for using his phone in the courtroom ahead of the proceedings… Burke came out for the proceedings and asked Weinstein ‘Is this really the way you want to end up in jail for the rest of your life, by texting in violation of an order?’ ‘These comments reflect the court’s animus towards the defendant,’ Weinstein’s legal team argued in a letter calling for Burke’s removal from the case.”

These were rejected in the case of Allred:

• “Weinstein attorney Damon Cheronis expressed concern that her presence could potentially allow her to coach or influence witness testimony and that Allred herself may be called as an impeachment witness. “It’s not because I’m trying to attack Ms. Allred. I’m trying to protect Mr. Weinstein’s right to not have witnesses in this courtroom,” Cheronis said.”
• “On Wednesday, Justice James Burke denied the defense’s motion to eject her during the proceedings. ‘There would be no actual harm as to impeaching her simply for having observed the trial,” Burke said. “She may remain and she should certainly be on the witness list.'”

And in the case of the judge:

• “‘All I meant to do was scare him enough for him to discontinue use of his phones,’ Judge James Burke said in denying the defense’s motion for relief and recusal on Thursday. ‘I never actually meant that I was going to put your client in jail for life.'”
• “Burke said that Weinstein ‘was noncompliant and defiant and challenging to the court officers when asked to put away his phones.’ The judge reiterated multiple times that he has not made up his mind on the sexual abuse charges against Weinstein, despite the defense’s accusation of bias against the Hollywood producer.”