Bressler Risk Blog

“Pandora Papers Unleash A Lot Of Biglaw Evils On The World” —

• “But the Pandora Papers also have the side effect of revealing which Biglaw firms are neck deep in assisting these clients in moving this money… for whatever reasons. After all, you can’t set up a bunch of dummy corporations and funnel resources into novel, difficult to pierce, ‘trust-like’ instruments without lawyers and The New Republic took a look at which law firms have turned up in the data dump.”
• “How do law firms think they can get into this sort of work? Especially in an environment where working as a functional lobbyist is fraught with risk. It all depends on what you call yourself. From the TNR report:
  • “Some lawyers now combine legal services with P.R. representation—thus taking skillful advantage of foreign lobbying exemptions that remain wide open. (One of the first hires the Jordanian king-cum-kleptocrat made after his offshore holdings were revealed was American firm DLA Piper, which will now help him with ‘media matters.’)”

“After WSJ’s Explosive Exposé on Judges’ Financial Conflicts, Free Law Project Posts the Data For All to See” —

• “In an explosive exposé last week, The Wall Street Journal reported that 131 federal judges broke the law by hearing cases where they had a financial interest.”
• “Now, the Free Law Project is making that data available to all, creating the first online database of federal judges’ financial disclosures.”
• “The database is a collection of over 250,000 pages of financial records gathered since 2017 through requests to the federal judiciary, Michael Lissner, executive director and CTO, said in a blog post today.”
• “The files contain the disclosure records for every federal judge, justice and magistrate from 2011 to 2018, with the 2019 disclosures coming soon. It also has some files from 2003 to 2010, gathered from other sources.”
• “Until 2017, federal judges’ financial disclosures could be obtained only by requesting them individually by fax. That changed in 2017, when the Judicial Conference authorized disclosures to be released on ‘electronic storage devices … at no cost to the requestor.'”

“Facing Backlash, Mayer Brown Dumps Client” —

• “Last week, the Biglaw firm Mayer Brown came under fire for its most recent representation of the University of Hong Kong. The university is trying to get a work of art — the Pillar of Shame sculpture by Danish artist Jens Galschiøt designed to commemorate the victims of the 1989 Tiananmen Square protests and massacre in Beijing — removed from its campus. The play is being called an ‘attack on art’ and reportedly shows the firm is ‘complicit in the suppression of human rights.'”
• “Not a good look for the firm. Particularly one that likes that like to tout its human rights expertise. So, maybe it really wasn’t a surprise that the firm has backed away from its client in this particular representation.”
• “But proving you can’t please all the people all the time, there’s now backlash to the backlash. In a social media post, former Hong Kong chief executive Chun-ying Leung said Mayer Brown caved to political pressure in withdrawing its representation, calling for a ‘China-wide boycott’ and saying: ‘From here on, no client in Hong Kong or Mainland China, particularly those with Chinese government connections, will find Mayer Brown dependable.'”

If you’re like me and haven’t budgeted for the always interesting but market-priced annual ILTA technology survey, it’s always nice to gain visibility into the risk issues it explores. So it was great spot this article in Legal I&T Today by ILTA’s publications director, Beth Anne Stuebe: “LegalTech Security Starts and Ends with Education” —

• “There are many facets to security in legal tech. We see article after article about trends in security, and about how legal is slow to grow or adapt to change. When I started at ILTA, I heard someone casually mention that ‘Law firms were all in a race to be second.’ This implies that not only is adoption of any new tech, product, or service slow, but it’s looked at through binoculars; other firms looking at each other to see what succeeds… and what fails. Akin to not buying a car in the first year, most firms implement change slowly, and security changes even more cautiously, if at all.”
• Said Christopher Hunt, Director of Technology and Operations at Sugarman Rogers:
  • “The legal industry is a high-profile target for bad actors. Law firms house troves of sensitive and confidential data from their clients, along with information about the employees of the firm, and one bad decision risks exposure to the public and eroding the trust of clients.
  • “Security is crucial to the protection of both data and trust. The industry needs to continue to focus on strategies to ensure partners and employees are operating safely and to lower the risks to clients and colleagues.
  • “This is even more important, and the risks magnified, as organizations manage a hybrid and remote workforce, and balance the security of information against the experience of employees and clients accessing and working with that information.”
• “Security awareness efforts ted to focus on lawyers and other knowledge workers. This potentially leaves a gap for the specialized security education that may be required for those supporting technology rather than using it. Thus, we must supplement legaltech educational opportunities for those who want to continue to learn and grow their skill sets.”

For more detail, including charts showing perspectives on priorities, user attitudes, cloud adoption priorities and more, see the complete article.

“Denied lead in Facebook derivative suit, Block & Leviton cries conflict, seeks appeal” —

• “The shareholder firm Block & Leviton is refusing to walk away quietly from a high-profile derivative suit against Facebook Inc board members. The firm has asked a Delaware Chancery Court judge for permission to appeal his Oct. 5 order appointing three other plaintiffs firm to lead the breach-of-duty case, which accuses Facebook directors of protecting CEO Mark Zuckerberg at the company’s expense in a $5 billion settlement with the U.S. Federal Trade Commission in 2019.”
• “Block & Leviton contends that rival shareholder lawyers from Scott + Scott, Kaplan Fox & Kilsheimer and Prickett, Jones & Elliott cannot represent Facebook’s interests in the derivative suit because Scott + Scott is also representing plaintiffs in two antitrust cases seeking big-money damages from the company.”
• “Block & Leviton’s request to bring an appeal at the Delaware Supreme Court argues that no Delaware court has previously allowed a shareholder firm to pursue derivative claims on behalf of a corporation while simultaneously representing different clients asserting direct claims against the company. ‘This is an exceptional matter,’ the filing said. ‘The Court of Chancery affirming that lawyers can act as fiduciaries for a Delaware corporation in derivative litigation while simultaneously representing other clients in other actions … is a statement that will have dramatic implications for the way that the stockholder-plaintiff bar operates.'”
• “The judge gave considerable attention to the conflicts issue, acknowledging that other Delaware courts – most notably in transcript orders from then-vice chancellor Leo Strine in 2012’s In re Duke Energy and then-vice chancellor Tamika Montgomery-Reeves in 2018’s In re Towers Watson & Co. – have expressed reservations about shareholder firms suing derivatively on behalf of a corporation while also suing the corporation directly.”
• “But Slights cited two other Delaware Chancery Court decisions – former vice chancellor John Noble’s ruling in 2014’s In re Ebix Inc and his own 2018 opinion in In re Tesla Motors Inc – holding that a lead shareholder can pursue simultaneous derivative and direct claims against board members.”

“Activision Loses Bid to Halt Bias Suit Over Ethics Claims” —

• “Activision Blizzard Inc. failed to convince a California court on Friday to temporarily halt an ongoing sexual harassment and discrimination case filed by the state’s Department of Fair Employment and Housing.”
• “Activision asked the court on Oct. 19 to pause the case to give it time to investigate ethics allegations against the agency, and to potentially bring a motion to disqualify certain attorneys.”
• “The state agency said its lawsuit followed a two-year investigation which found company leadership consistently failed to take steps to prevent discrimination in terms compensation, promotion, and termination, among other areas. It later accused Activision of suppressing and destroying evidence, which the game maker vehemently denied.”
• “The company’s request to halt the case stemmed from a parallel federal lawsuit against Activision involving the U.S. Equal Employment Opportunity Commission. That federal agency reached a proposed $18 million settlement with Activision in September to resolve discrimination and retaliation claims, but DFEH objected, arguing the deal includes a procedure to release Activision from state claims that the EEOC lacks standing to prosecute.”
• “The EEOC asked the federal court to block DFEH’s bid to intervene in the case, claiming its investigation of Activision was directed by two lawyers who later joined DFEH and hold leadership roles in the state agency. ‘After being informed of this conflict, DFEH retained new counsel but appears to have filed the present intervention motion just hours after this counsel was retained, strongly suggesting that the motion is a product of the prohibited representation,’ the EEOC said in a brief.”

Okay, I’m quite pleased to share the report summarizing the OCG poll from last week. I’m running an experiment (publishing the full report publicly) on top of an experiment (the quick poll exercise itself). What I mean by that is instead of sharing all the interesting details with just those who took the time to contribute, I’m making this available to everyone.

The caveat is that there’s an implied pinky promise that next time I run one of these, folks will still take the poll and not just sit on the sidelines… Hopefully even more of you will — I know you’re out there! (There’s nothing like creating incentives to keep folks participating in future exercises. But it’s a risk I’m willing to take. I trust you.)

With that — my sincere thanks to the two dozen of you who participated! And for those who added commentary (including on the questions themselves, which I took a few notes on for next time). Speaking of next time, at least a few readers suggested some follow up questions… So maybe we’ll run OCG Poll #2 soon enough…

In the meantime, please feel free to download: “Bressler Risk Blog OCG Quick Poll (October 2021).“

“PwC advised DWS on sustainability while investigating greenwashing claims” —

• “PwC was advising DWS [the mutual fund arm of Deutsche Asset Management] on sustainability at the same time as the accounting firm was investigating and dismissing whistleblower allegations of large-scale greenwashing at the asset manager, raising questions over the independence of the probe.”
• “The allegations were made in mid-March by DWS’ former head of sustainability Desiree Fixler. Shortly after being sacked, she accused DWS of misrepresenting how it used environmental, social and governance metrics to analyse companies across its investment platform.”
• “DWS denies all wrongdoing and mandated PwC to investigate the allegations days after the firm received the dossier.”
• “At the same time, a different PwC team led by partner Nicole Röttmer was advising the asset manager on how to meet its goal of net zero emissions by at least 2050. DWS paid about €300,000 for PwC’s net-zero consulting, which has been concluded, according to people with direct knowledge of the matter.”
• “Fixler told the FT she ‘would like to know how PwC managed the potential conflict of interest between its commercial ESG engagement and the audit in the same area’ and pointed out that she was not contacted at any point during the investigation.”
• “In an executive summary of the investigation, PwC on May 21 stated that ‘no further data collection (eg via outreach to Ms Fixler) is necessary at this point”, arguing the “context and facts related to her allegations can be established in our view by available data items provided by DWS.'”

“McKinsey Never Told the FDA It Was Working for Opioid Makers While Also Working for the Agency” —

• “Since 2008, McKinsey & Company has regularly advised the Food and Drug Administration’s drug-regulation division, according to agency records. The consulting giant has had its hand in a range of important FDA projects, from revamping drug-approval processes to implementing new tools for monitoring the pharmaceutical industry.”
• “Yet McKinsey, which is famously secretive about its clientele, never disclosed its pharmaceutical company clients to the FDA, according to the agency. This year ProPublica submitted a Freedom of Information Act request to the FDA seeking records showing that McKinsey had disclosed possible conflicts of interest to the agency’s drug-regulation division as part of contracts spanning more than a decade and worth tens of millions of dollars. The agency responded recently that ‘after a diligent search of our files, we were unable to locate any records responsive to your request.'”
• “Federal procurement rules require U.S. government agencies to determine whether a contractor has any conflicts of interest. If serious enough, a conflict can disqualify the contractor from working on a given project. McKinsey’s contracts with the FDA, which ProPublica obtained after filing a FOIA lawsuit, contained a standard provision obligating the firm to disclose to agency officials any possible organizational conflicts. One passage reads: ‘the Contractor agrees it shall make an immediate and full disclosure, in writing, to the Contracting Officer of any potential or actual organizational conflict of interest or the existence of any facts that may cause a reasonably prudent person to question the contractor’s impartiality because of the appearance or existence of bias.'”
• “Asked for comment, McKinsey did not assert that it disclosed potential conflicts to the FDA. But a spokesperson for the firm, Neil Grace, nonetheless maintained that ‘across more than a decade of service to the FDA, we have been fully transparent that we serve pharmaceutical and medical device companies. McKinsey’s work with the FDA helped improve the agency’s effectiveness through organizational, resourcing, business process, operational, digital, and technology improvements. To achieve its mission, the government regularly seeks support from additional experts who understand both the government’s mission and the industries’ practices. We take seriously our commitment to avoid conflicts and to serve the best interests of the FDA.'”

“Alleging Conflict of Interest, DOJ Seeks to Disqualify Ex-Trump Official From Texas Immigration Lawsuit” —

• “The U.S. Attorney’s Office for the Northern District of Texas filed a motion Wednesday asking a federal judge to disqualify Gene Hamilton, a former counsel to the attorney general in the Trump administration, from the case. Hamilton now works for a conservative legal group, America First Legal, which was founded by former Trump senior adviser Stephen Miller in an attempt to stymie the Biden administration’s agenda in the courts.”
• “The DOJ alleges Hamilton’s participation in the case presents a conflict of interest and violates ethics rules designed to prevent lawyers from ‘switching sides’ and using information gleaned from their government service to benefit private clients.”
• “‘Hamilton’s prior work in his capacity as a U.S. Department of Justice (DOJ) attorney creates a conflict of interest that precludes him from representing Texas in this action in a position adverse to the government on those same issues,’ the motion states. ‘The government has discussed this matter with Mr. Hamilton and other counsel for Texas in this lawsuit, but he and his firm have declined to withdraw from the case.'”
• “The Justice Department is also seeking to have Hamilton’s group, America First Legal, booted from the case because it alleges that the conflict implicates other attorneys at the organization. Another attorney for the group, former Acting Attorney General Matthew Whitaker, is also representing Texas in the case.”
• “The motion, signed by assistant U.S. attorney Brian Stoltz, alleges that Hamilton’s involvement in the case violates two Texas bar rules: one that prevents attorneys from representing private clients in matters that they were personally involved with while in government, unless they get permission from their former agency. The second bars attorneys who obtain ‘confidential information’ about a person or legal entity while working in government from representing a client adverse to the same person or legal entity.”
• “While working as counsel to the attorney general, Hamilton was sent several documents, some of which were marked ‘law enforcement sensitive’ about the implementation and enforcement of the CDC’s order, according to the motion.”
• “The DOJ also alleges that Hamilton, while in government, was involved in discussions about legal strategy to fend off lawsuits challenging the legality of the restrictions. He was given copies of CDC documents discussing the ‘pros’ and ‘cons’ of continuing the order and was sent draft copies of legal briefs that were to be used by the Trump administration in defense of the order, according to the motion.”

Via Ballard Spahr: “The ENABLERS Act Seeks to Impose BSA/AML Requirements on an Array of ‘Middlemen’ Professionals” —

• “Motivated by revelations contained in the recently-released Pandora Papers, on October 6, 2021, four U.S. Representatives – Tom Malinowski (D-NJ), Maria Elvira Salazar (R-FL), Steve Cohen (D-TN), and Joe Wilson (R-SC) – introduced House Resolution 5525, named the Establishing New Authorities for Business Laundering and Enabling Risks to Security (“Enablers”) Act.”
• “The Enablers Act targets the so-called ‘middlemen’ in the United States who allegedly assist with those bad acts. In a press release, Representative Wilson stated bluntly who he believed to be the ‘U.S. enablers of kleptocracy’: “unscrupulous lawyers, accountants, and others” that allegedly fail to conduct adequate due diligence in international transactions.”
• “The Act, if passed, would amend the Bank Secrecy Act (“BSA”) to require the Treasury Department to promulgate due diligence requirements for the “middlemen,” which include investment advisors, art dealers, attorneys involved in financial activity, accountants, third-party payment providers, and others.”
• “The Act is nascent proposed legislation that is still subject to refinement as it winds its way through the House Financial Services Committee. Suffice to say, however, there are some initial questions about the bill’s scope and function that give us pause. The details are catalogued below.”
• “The Act amends the BSA’s definition of financial institutions to add seven new types of businesses and individuals: (1) investment advisors; (2) art and antiquities dealers; (3) an attorney, law firm or notary involved in financial activity or related administrative activity on behalf of another person;”
• “The nature of two of the newly proposed professions, attorneys and CPAs, could make compliance with the BSA/AML remarkably difficult. Those professionals hold fiduciary relationships with their clients, and attorneys are also bound by the attorney-client privilege. he Act’s proposed imposition of SAR reporting requirements on attorneys places attorneys in an untenable position: they must maintain client confidences, but the Act would require them to report to the federal government suspicious transactions. Further, the proposed definition of attorneys covered by the Act – attorneys and law firms ‘involved in financial activity or related administrative activity on behalf of another person’ – is both exceedingly broad and vague. Conversely, the Act makes no distinctions regarding CPAs, who perform a broad array of different functions and services.”

SRA AML Report and Commentary: “Our anti-money laundering work” —

• “As the gatekeepers to purchasing property, setting up companies, providing tax advice and other key activities, the solicitors and firms we regulate have an essential role in making sure the proceeds of crime are kept out of our economy. There is no doubt, in my view, that the legal sector plays a key part in this fight against crime.”
• “I know from our discussions with local law societies this year that meeting their anti-money laundering (AML) obligations is something that matters a lot to the profession. The overwhelming majority want to do the right thing, but there is still a small but nonetheless significant proportion of firms that are just not doing enough to prevent money laundering. As well as allowing criminals to profit from their actions, they undermine the trust consumers place in the profession, damaging confidence in the rule of law and the administration of justice.”
• “The additional resources have allowed us to step up our supervision in this area to directly engage with more firms through 85 visits and 168 desk-based reviews. This increased engagement allowed us greater insight into how firms we supervise are working to prevent money laundering and meant we could bring more firms into compliance. Of those 85 firms visited, 45 were initially only partially compliant.”
• “Solicitors and law firms are attractive to criminals because they process large amounts of money, are trusted, and can make the transfer of money or assets appear legitimate. Most law firms work hard to prevent and to spot money laundering and take necessary action, but some get involved unknowingly. A very small number may even knowingly cooperate or work with criminals to launder money.”
• “In this report we have set out some findings from our supervisory work by theme, such as customer due diligence, and the steps we have taken. We often identify more than one issue at a firm, so some firms are included in the figures for several themes throughout the report. This is particularly relevant for matters referred for disciplinary investigations where firms are often referred for investigation due to multiple breaches.”
• “We have seen some deficiencies in CDD and broken this down into specific requirements that make up CDD, such as matter risk assessments and source of funds checks. We have addressed these elements of CDD separately and provided statistics on what we are seeing below.”
• “We continue to see firms struggling with independent audit and screening requirements with 49 out of 69 firms not carrying out an independent audit, and the same number requiring steps to be taken by the AML team to bring firms into compliance. In addition, 60% of policies, controls and procedures reviewed under our new process were either not compliant or only partially compliant. More detail on these areas is provided below.”
• “Fifty-five per cent of the policies we reviewed required steps to be taken. After the implementation of the 2019 amendment regulations, we found nearly half of the policies we reviewed (29) had not been updated to reflect the changes this required.”
• “The number of firms failing to implement an independent audit function remains high (49 out of 69 firms visited in the period). We continue to engage with firms where an audit is required due to their size and nature, to ensure they implement an independent audit function and review the results once it has been carried out.”
• “Overall, our analysis shows firms are better at screening new employees, but still falling short in relation to ongoing screening measures for existing employees. We are starting to see an improvement in this area and our refined approach enables us to better capture the types of checks being carried out.”

Time for another BRB experiment. This time I’m conducting a quick (5 minute) reader poll on everyone’s favorite topic: OCGs.

Last week an old friend and director of risk at an Am Law 100 firm reached out, looking for insight into law firm trends on managing outside counsel guidelines. Specifically, he wanted to understand how many firms have created a dedicated position on their NBI/conflicts teams (or on another team) to manage OCGs.

I pointed him at a few examples I’ve seen in the wild, but it sparked a discussion resulting in this quick poll.

So if you have a role like this at your firm – or if you’re planning or hoping to create one – please take five minutes to: Take the survey here. [Ed: Survey Now Concluded] (And if you don’t have one and care to share why, that would be helpful context to collect as well.)

Let’s see what we learn…

“Hogan Lovells Accused Of Conflict Of Interest In Tycoon’s Suit” —

• “Lawyers for Vadim Shulman [bio, via Organized Crime and Corruption Reporting Project, noting Paradise Papers] alleged in the High Court that breaches by Hogan Lovells International LLP cost him the chance of securing a settlement against Igor Kolomoisky and Gennadiy Bogolyubov in London in connection with an allegedly fraudulent loan scheme concerning a defunct Ohio steel plant… Shulman says Hogan Lovells was actively pursuing a retainer with Ukrainian-based PrivatBank while still contracted to him.”
• “Shulman and PrivatBank were racing for ‘the same pool of assets’ belonging to Kolomoisky and Bogolyubov, said Jonathan Marks QC, counsel for Shulman. Hogan Lovells owed Shulman a ‘duty of undivided loyalty,’ which would have been breached by the law firm’s discussion with the lender, he added.”
• “Marks told the court that Hogan Lovells “preferred the interests” of PrivatBank, helping the bank obtain its own $2.6 billion freezing order against the two men in December 2017. Shulman wants to add claims that the law firm must have begun work on the order before their relationship ended. Hogan Lovells says it did not begin working for PrivatBank until August 2017. By this time, Shulman’s $500 million fraud suit had been dismissed. An English court ruled it did not have jurisdiction on the claims in April 2017.”
• “But Shulman now alleges that Hogan Lovells’ discussions with PrivatBank about its much larger claim overlapped with its obligations to him. Shulman’s lawyers also want to be able to cross-examine partners at the law firm over evidence concerning the retainer date.”

“SRA wants to see evidence gathered from Pandora papers leak” —

• “The Solicitors Regulation Authority has said it wants to see documents released as part of the Pandora papers to establish whether any law firm has breached anti-money laundering rules.”
• “Several firms have been named this week as part of the ongoing coverage from leaked files of companies that specialise in creating offshore companies and trusts. The Guardian reports today that London firm Farrer & Co took instructions from a client called Abubakar Bagadu, a Nigerian politician accused of involvement with a corruption scheme through which billions of dollars were stolen from the state.”
• “Farrer & Co, renowned as legal advisers to the Royal Family, told the newspaper it carried out extensive due diligence on Bagadu and there is no suggestion of wrongdoing on the firm’s part.”
• “The SRA has specific requirements of firms to carry out proper checks on clients before taking them on, as part of regulations to prevent money laundering. Firms need to risk assess relevant clients, identify and verify their identities and identify their sources of funds and wealth. Where relevant to the size and nature of the business, firms must also undertake an independent audit, screen their staff and appoint a money laundering compliance officer.”
• “There is no suggestion that any firm named in the Pandora papers is in breach of these rules, but the SRA wants to see details of what information has been released to check if it needs to be involved.”