Risk Update

OCG OD? — D.C. Court of Appeals Reshaping Reach of Outside Counsel Guidelines? A Look SRA Liability Limit Line

Posted on

DC Moves Toward Array Of Ethics Rules Reforms” —

  • “A submission now being readied for the D.C. Court of Appeals — the district’s final arbiter of lawyer discipline and ethics — to curb overreaching outside counsel guidelines also promises to jump-start similar reforms in other lawyer-heavy jurisdictions.”
  • “‘Collectively, I expect the changes will have a holistic impact across many rules and areas of practices,’ said Hope Todd, associate director for legal ethics and regulation counsel at the District of Columbia Bar. ‘Of course, one end result will be a big rules education push, which is something the D.C. bar is used to doing.'”
  • “It includes new guidance on the duty to tell clients about ‘outsourced’ legal work and the identities of contract attorneys. Another provision would strengthen Rule 1.6 on client confidentiality regarding the duty to safeguard clients’ electronic and other information.”
  • “Amy E. Richardson, who heads the legal ethics and malpractice practice at Wiltshire & Grannis LLP, said the city’s legal community should also be watching a still-in-the-works rule proposal aimed at curtailing some of the more extreme components of outside counsel guidelines.”
  • “Far-reaching corporate requirements on outside firms have been a simmering issue for the profession for years, as large clients have sought signed agreements that many lawyers believe force them to choose between adherence to ethics rules and signing new clients.”
  • “Depending on the OCG, some of the contracts define the firm’s ‘client’ as any and all affiliates and subsidiaries of the company, or even any future affiliates, creating a broad potential conflict problem for firms. Others contractually block outside firms from representing any competitor at any time, even if that hypothetical future work is unrelated.”]
  • “The most onerous OCG provisions require outside counsel to bear legal liability for any loss connected to the legal work, even in the absence of an error on the part of the lawyer.”
  • “Richardson said the OCG issue is of particular interest to the D.C. legal community. The bar has an especially high concentration of lawyers working with large corporations, and includes many smaller regulatory practices that tend to work with many companies in the same industry.”
  • “The bar’s draft report on OCGs from last November includes a long series of recommended rule changes meant to solidify lawyers’ independence and prevent attorneys from granting an ‘open-ended’ scope of conflicts of interest. A change to Rule 1.8 on specific conflicts would also prohibit lawyers from signing any indemnification provision that holds them responsible ‘for errors and omissions for which neither statutes nor common law impose liability.'”

A case of over-zealous prosecution: Solicitors fined for limiting liability in line with SRA guidance” —

  • “Inevitably, there is a little more to this than can be encapsulated in a headline but
    the issue is of major concern because it may apply to the terms of business commonly used by most large solicitors’ firms and many smaller firms.”
  • “It was alleged that on various dates between 2010 and 2014 the solicitor improperly sought to limit liability in respect of claims and/or limit the timeframe in which a claim could be made in breach numerous provisions of the Solicitors’ Code of Conduct 2007 (the 2007 Code) and the SRA Code of Conduct 2011 (the 2011 Code).”
  • “In any event, should the SRA, through conduct rules, prevent solicitors from limiting their liability to the mandatory insurance limit? There may be many circumstances in which that level of cover is not available to meet a claim, for example –
    • A) Multiple similar claims may be subject to a single limit of indemnity due to the operation of the aggregation clause, as the SRA will be only too well aware, having intervened in the leading case on the point in the Supreme Court, AIG Europe Ltd v Woodman [2017] UKSC 18 – and the facts of the present SDLT scheme case involved multiple similar instructions;
    • B) Other policy exclusions may apply – developments are currently awaited on the extent of any cyber exclusion;
    • C) A firm switches regulator after engaging the client – no other regulator’s compulsory insurance scheme is as extensive in policy limit or breadth of cover, and run off cover in particular is substantially less under other schemes;
    • D) Solicitors may be exposed to liability for many years, even beyond the 15 year period provided by section 15B of the Limitation Act 1980, but insurance cover does not continue indefinitely – and the SRA has been resolute until now that the Solicitors Indemnity Fund must close.
  • “By section 28 of the Legal Services Act 2007, the SRA is required to act in a manner which is proportionate. Can it be proportionate to prevent solicitors from limiting liability below the minimum insurance limit, when that figure is arbitrary because it may not in fact be available to meet a claim for any of a number of reasons, and adversely impacts a solicitor’s right to protection of property under Article 1 of the First Protocol of the European Convention on Human Rights? And no such provision applies to freelance solicitors, indeed no insurance is required at all unless they are conducting reserved legal activities, and even then it will not be on terms equivalent to the MTC. The time is now ripe for a review of the SRA restriction on limiting liability, and guidance on what is and is not considered appropriate.”
jobs

BRB Risk Jobs Board — Conflicts Analyst

Posted on

I was delighted to get an email from Lance Richards, Senior Manager, Conflicts & Business Intake at Baker Botts. We’ve collaborated a bit over the years on a few stories highlighting his firm’s strong investments in risk technology, policy, and process.

Now Lance is looking to add a conflicts analyst to his team, with a new position you can read more about here: “Conflicts Analyst” —

  • “This is a full-time, non-exempt Firmwide position with excellent benefits, resident in any of the Firm’s U.S. offices and reporting to the Senior Manager of Business Intake & Conflicts.”
  • “The work hour requirements for this position will be aligned with our California office business hours regardless of resident US office location.”
  • The firm’s US office locations are:
    • Austin, TX
    • Houston, TX
    • Dallas, TX
    • Palo Alto, CA
    • San Francisco, CA
    • New York, NY
    • Washington, D.C.

Job Duties and Responsibilities Include:

  • “Performing company research on all new & existing clients, all non-client parties associated with new matters, all lateral attorney and staff employment candidates, and potential vendors servicing the Firm.”
  • “Executing searches in the Firm’s conflicts database, analyzing results in order to identify potential issues that may affect compliance with Firm policies and the relevant Model Rules of Professional Conduct of the American Bar Association.”
  • “Generating accurate and succinct conflicts reports and supporting documentation in order to effectively communicate potential compliance issues to the Conflicts Review Lawyer and/or the requesting Firm lawyer.”
  • “Educating and providing guidance to internal customers regarding the policies and procedures of the Business Intake and Conflicts Department.”

Read more about this position and apply via their website job listing.

And if you’re interested in seeing your firm’s job listing as a sponsored post here and in the email digest, please feel free to reach out…

Risk Update

Client Conflicts Controversies — Extreme Accusation, Client Selection/SPAC Malpractice Risk

Posted on

The Lawyers Who Helped Build, and Bring Down, Carlos Ghosn” —

  • “In the three years since Carlos Ghosn was detained on a Tokyo airport tarmac, much has emerged about how forces within Nissan Motor Co. worked to remove him. Yet a key group has avoided close scrutiny of their role in the once-powerful car executive’s downfall: the lawyers.”
  • “A small clutch of attorneys from Latham & Watkins LLP, one of the world’s largest law firms, advised Nissan for years on how to compensate its then chairman and CEO. That included the remuneration package that would become the basis of the first charges against Ghosn, for concealing the full extent of his income. Then, as Ghosn’s pay became the subject of a criminal investigation in 2018, Latham & Watkins was enlisted to investigate his alleged wrongdoing, despite warnings to Nissan’s board that it posed a serious conflict of interest.”
  • “‘I was concerned right from the get-go about their involvement’ in the company-ordered probe, said Ravinder Passi, Nissan’s former global general counsel. Passi sued the carmaker last year for wrongful termination, saying that he was dismissed after questioning whether the law firm acted in Nissan’s best interests. ‘I was incredibly surprised, and shocked. How is this going to appear when you’ve got the same lawyers investigating things, including their own work? The situation was ripe for misbehavior.'”
  • “Despite what Passi, who reported to Nada, calls its deeply conflicted position, Latham & Watkins remains Nissan’s top legal adviser, as the carmaker continues to grapple with the fallout from Ghosn’s undoing — including in court. Nissan is facing a raft of lawsuits across the globe from disgruntled shareholders, business partners and former employees.”
  • “Azusa Momose, a Nissan spokeswoman, said that Latham & Watkins’s probe into Ghosn and Kelly was ‘robust, thorough and appropriate,’ and that its findings were corroborated by multiple government agencies in their own ‘thorough, independent investigations’ … ‘Latham & Watkins were not at any time conflicted in assisting Nissan to carry out its investigation,’ Momose said.
  • ‘Their client is, and always was, Nissan. Any suggestion that Latham & Watkins were conflicted, or that any potential conflict prevented them from assisting in the conduct of a robust investigation, is not supported by any facts.’
  • “In a statement provided to Bloomberg, Latham & Watkins said it ‘regularly discussed the firm’s engagement on the internal investigation with Nissan and its executives and employees — including Nissan’s former general counsel, Ravinder Passi — all of whom approved of and agreed to continue with the firm’s engagement.'”
  • “James Wareham, Kelly’s U.S. attorney, called Latham & Watkins the ‘most conflicted law firm on earth’ for leading the investigation into its own advice, and that it should never have agreed to take on the probe. Nissan’s board ‘must engage truly independent counsel to revisit the entire affair — Nada’s role, as well as the role of other conspirators; the role of the Ministry of Economy, Trade and Industry; and the role of the Japanese prosecutors,’ he said.”

And with thanks to Sean Ginty, Risk Control Director at CNA who sent in: “‘SPAC’ Clients Pose Unique Risks for Law Firms: Lessons Learned from Defending Lawyers in Malpractice Cases” —

  • “Representing the sponsor of a ‘Special Purpose Acquisition Company’ or ‘SPAC’ poses unique risks to law firms.”
  • “In this article, we explain what SPACs are and why representing their sponsors may pose risks for law firms and lawyers. We also offer suggestions—based upon experience defending law firms against malpractice and other claims after investments have gone bad—for reducing risks to law firms representing SPAC sponsors. Whether firms represent SPACs or other investment sponsors, these suggestions may make claims less likely. They also may reduce the disruption, expense, and embarrassment if claims arise.”
  • “Although all representations pose litigation risks, the sources of litigation risks for lawyers representing SPAC sponsors can differ from other types of investment-fund representations.”
  • “After the SPAC raises money, the risk of alleged conflicts- of-interests among the sponsor, the sponsor’s principals, and the SPAC becomes more prominent. With the benefit of hindsight, disgruntled individuals or entities also may criticize the adequacy of the law firm’s advice or other legal services in connection with merger target selection and vetting.”
  • “In addition, even if the sponsor and the SPAC elect not to sue the law firm, it is conceivable that the law firm may encounter a derivative claim brought by disgruntled SPAC share- holders alleging a conflict between their interests and those
    of the sponsor. See Padgett v. Mitchell, 2002 WL 991022, at *9 (Cal. Ct. App. May 15, 2002) (fiduciary duty claim in shareholder derivative suit targeting outside counsel for the corporation), as modified on denial of reh’g (June 12, 2002).”
Risk Update

Law Firm Risk Misc — Law Firm Disqualification Deferred, Contract Lawyer Remote Work Facial Recognition Risk Risk

Posted on

DLA Piper Withdraws From $30M Ga. Case Amid DQ Bid” —

  • “The firm’s attorneys Robert L. Crewdson and John S. Ducat are being replaced as lawyers for Westinghouse Electric Co. LLC by three attorneys from Kilpatrick Townsend & Stockton LLP.”
  • “Westinghouse’s notice of substitution of counsel gave no explanation for the change, which followed a Nov. 2 hearing in the Georgia State-wide Business Court on a motion by Curtiss-Wright Electro-Mechanical Corp. to disqualify DLA Piper from the case.”
  • “Curtiss-Wright, accused by Westinghouse of failing to timely deliver reactor coolant pumps for nuclear power plants in the Southeast, sought the firm’s disqualification on the basis that it was represented in a related case against Westinghouse by one of DLA Piper’s lawyers.”
  • “DLA Piper defended its involvement in the Georgia case, saying its representation was separate from a yearslong dispute between Westinghouse and Curtiss-Wright over the supply of reactor coolant pumps for nuclear power plants in China. That case is being arbitrated in Sweden.”
  • “On Nov. 11, the arbitral tribunal in that Swedish case dismissed DLA Piper’s Ducat and Crewdson from representing Westinghouse, at Curtiss-Wright’s request. The tribunal said in an order that Dalin was given confidential and sensitive information about Curtiss-Wright’s defenses and therefore had a conflict of interest… In the Georgia case, Judge Walter W. Davis has not yet ruled on Curtiss-Wright’s bid to disqualify DLA Piper. Curtiss-Wright has also filed a motion to dismiss the case, which is pending.”

Contract lawyers face a growing invasion of surveillance programs that monitor their work” —

  • “Facial recognition systems have become an increasingly common element of the rapid rise in work-from-home surveillance during the coronavirus pandemic. Employers argue that they offer a simple and secure way to monitor a scattered workforce.”
  • “Contract attorneys such as Anidi have become some of America’s first test subjects for this enhanced monitoring, and many are reporting frustrating results, saying the glitchy systems make them feel like a disposable cog with little workday privacy.”
  • “Contract attorneys sift through thousands of documents entered as potential evidence during a lawsuit, redacting sensitive information and highlighting relevant details lawyers may need while arguing a case, and they have become a backbone of the legal economy: Law firms hire them on an as-needed basis — such as when a complicated lawsuit involves lots of internal records or emails — and ditch them when they are no longer necessary.”
  • “The Washington Post spoke with 27 contract attorneys across the United States who had been asked to use facial recognition software while working remotely. The pandemic pushed many of them out of secure document-review offices and into remote work, and many expected some additional security, since they look at sensitive files for legal cases with strict confidentiality rules.”
  • “But most of them hadn’t expected anything like the facial recognition monitoring they’ve been asked to consent to. The software uses a worker’s webcam to record their facial movements and surroundings and will send an alert if the attorney takes photos of confidential documents, stops paying attention to the screen or allows unauthorized people into the room. The attorneys are expected to scan their face every morning so their identity can be reverified minute by minute to reduce potential fraud.”
  • “Attorneys of color also worried that the facial recognition systems’ varying performance on different skin tones left them disadvantaged from the start. One attorney said he filed a complaint with New York City’s Human Rights Commission last year, arguing that he was being denied the right to work by refusing to consent to being monitored. He worries that the facial recognition scans could threaten his legal license or livelihood if it falsely led to accusations that he had compromised client data.”
  • “The technology isn’t perfect, Fetgatter said: One law firm client recently complained that the number of false positives made it ‘honestly more of a nuisance than it was worth.’ But much of the attorney feedback about the system so far, she said, has ‘been positive because of how much attention we put on keeping the team engaged.’ Attorneys who are uncomfortable with that level of monitoring, she added, can decline the job.”
  • “But other lawyers said they felt infantilized or distrusted by monitoring software that gave no weight to their experience or careers. One attorney said the software treated ‘people who have taken oaths as if they are common criminals.’ Said another: ‘Didn’t my work record speak for itself that I had integrity?'”
Risk Update

Conflicts Allegations — Clyde Upsets UAE, Consultant McKinsey Comes Under Scrutiny

Posted on

Clyde & Co lawyers suspended in Dubai for ‘upsetting powerful Emirati’” —

  • “Four Clyde & Co lawyers working in the United Arab Emirates have been temporarily banned from working after they crossed paths with a powerful Emirati.”
  • “The solicitors have been suspended from practising law for three months by the Dubai Legal Affairs Department for a ‘breach of certain conflict of interest rules.'”
  • “Details are scant. Unlike legal regulators in the UK, the DLAD does not publish records of its proceedings, judgments and sanctions, nor does it identify lawyers against whom it has taken action. The DLAD did not respond to requests for comment.”
  • “RollOnFriday understands that the DLAD honed in on Clyde’s four lawyers, as well as local lawyers, after a powerful Emirati successfully overturned a judgment made in 2013 where Clyde & Co acted for the other side.”
  • “A source suggested the influential figure had pulled strings to ‘take revenge,’ and that ‘there appears very little in the way of any wrongdoing or negligence highlighted in the bringing of the sanction.'”
  • “In a statement, Clyde & Co told RollOnFriday, ‘We are aware of a decision by the Dubai Legal Affairs Department (DLAD) against a number of lawyers in the UAE. While we are pleased that two of the three allegations that were contained in the original complaint to the DLAD were dismissed, the DLAD has upheld the decision that there was a breach of certain conflict of interest rules. We maintain that our lawyers acted with integrity at all times and are exploring avenues to challenge the decision.'”

Advising both Chinese state companies and the Pentagon, McKinsey & Co. comes under scrutiny” —

  • “Global consulting giant McKinsey & Co.’s work with both the Pentagon and powerful Chinese state-owned enterprises poses a potential risk to national security that federal agencies can no longer ignore, lawmakers and critics say.”
  • “McKinsey’s consulting contracts with the federal government give it an insider’s view of U.S. military planning, intelligence and high-tech weapons programs. But the firm also advises Chinese state-run enterprises that have supported Beijing’s naval buildup in the Pacific and played a key role in China’s efforts to extend its influence around the world, according to an NBC News investigation.”
  • “Asked about its work in China and the United States, McKinsey told NBC News that it abides by U.S. laws on federal contracting and that it has extensive internal rules to prevent conflicts of interest and to protect clients’ information.”
  • “‘We follow strict protocols, including staffing restrictions and internal firewalls, to avoid conflicts of interest and to protect client confidential information in all of our work. When serving the public sector, we go further: in addition to managing potential staffing conflicts, we are subject to our Government clients’ organizational conflict of interest requirements and comply with these obligations accordingly,’ a company spokesperson, Neil Grace, said in an email.”
  • “The Pentagon and other federal government agencies rely on McKinsey to carry out often sensitive work touching on national security strategy, cybersecurity and cutting-edge technology, paying the firm hundreds of millions of dollars for its advice and data-crunching.”
  • “‘I can’t see how you could work in the areas they’re working in for the Defense Department and at the same time have the extensive connections in China, and not be compromised,’ said Marianne Jennings, a professor of legal and ethical studies in business at Arizona State University. ‘If you just step back objectively, there’s a great deal of risk here for the United States.'”
  • “In four federal contracts obtained by NBC News, including with the Defense Department and the Navy, McKinsey made no mention of its clients in China or any possible conflict of interest. Under federal law, contractors must disclose any possible conflicts of interest.”
  • “But McKinsey does not view its consulting for Chinese enterprises as a conflict, and experts say the federal government often doesn’t focus on a contractor’s foreign clients. Instead, federal officials usually look at whether a company has foreign ownership or control, and vet contractors’ employees for any security concerns. Still, the burden is on the contractor to divulge even the appearance of a potential conflict.”
  • “Lawmakers from both parties and critics of McKinsey worry its work with Chinese state-owned companies could allow Beijing access to valuable information associated with the firm’s extensive consulting with U.S. government agencies, possibly giving China an upper hand in its competition with the U.S. Even if no secret material was obtained by China, McKinsey could inadvertently provide Beijing with valuable insights into senior leadership and strategic thinking in the U.S. government, critics say.”
  • “Apart from its consulting in China, McKinsey has come under sharp criticism from lawmakers and faced legal challenges over alleged conflicts of interest in other fields.”
Risk Update

Survey Report — Law Firm Risk Management Staffing, Strategy & Trends

Posted on

I spent some time reviewing the 20-page 2021 Intapp risk staffing and trends report, which just hit the presses and is definitely worth a look: “2021 Risk Management Survey” —

  • “Law firm risk management continues to increase in complexity. A centralized risk management function can help firms achieve a consistent and scalable global application of risk policies and processes. But firms have taken a piecemeal approach to how they handle the various types of risk management activities. Intapp conducted a survey of law firms to understand how firms organize their risk teams and invest in technology across their offices globally.”
  • “Topics include:
    • Pandemic-driven impacts on risk-management activities and staffing
    • Increased range of dedicated risk-management staffs
    • Ongoing risk-management challenges
    • Key risk-management staffing and business-agility metrics”

One area I noted, given reader interest, was outside counsel guidelines, where the report notes:

  • “The survey data captured the total number of outside counsel guidelines (OCGs) and other client-tendered engagement terms reviewed by respondents’ firms. Although the data shows an expected increase based on firm size, firms with 1,000 or more lawyers are reviewing more than twice as many client terms compared to their large counterparts, and large firms are reviewing almost double the quantity as their midsize counterparts.”
  • “Survey data reveals a year-over-year increase in the number of OCGs and engagement terms reviewed across firm size, with enterprise firms outpacing midsize and large firms overall.”
  • “Further, the 2020 survey data shows that across firm size, firms are reviewing a range of 1 to 2 OCGs per lawyer annually.”
  • “For staff involved in the review of OCGs, the data shows that in-house counsel and risk lawyers are heavily involved across firm size; further, survey results reveal that members of accounting, IT, and finance teams also play significant roles.”
  • “When we drilled down into the data by firm size, we observed that large firms with 1,000 or more lawyers rely on a larger, more diverse set of reviewers compared to teams from small and midsize firms.”

See the complete survey report for more.

Risk Update

Conflicts Analysis — Client Clash, Company and Directors, Evolving Considerations

Posted on

Brad Risinger, partner at Fox Rothschild, shares analysis of recent conflicts matter: “One Law Firm. Two Clients. Three Times the Complexity.” —

  • “Counsel in North Carolina Derivative Actions can Represent Company, and Targeted Directors who do not Face ‘Serious Charges of Wrongdoing'”
  • “Amidst a “bitter family dispute” over future control of a closely held oil company, can the same law firm represent the directors paving the way for their son to take the reins and the company that minority shareholders seek to protect from the heir’s perceived shortcomings?”
  • “In Mauck v. Cherry Oil Co., Inc, 2021 NCBC 59, the Business Court took a first impression look and adopted a subjective standard that would disapprove of such dual representations only when allegations of ‘serious wrongdoing’ are made against the directors sued in a “derivative action.”
  • “Womble Bond Dickinson (US) was counsel for defendants Jay and Ann Cherry, and over the repeated objections of the plaintiffs, the firm subsequently was retained to represent Cherry Oil. As Judge Davis aptly noted, the plaintiffs drew little comfort from Womble Bond purporting to protect the interests of the majority shareholders and the company (id.¶¶ 13, 25): ‘In essence, the Plaintiffs’ argument is that an attorney cannot represent one client at the same time that it is investigating that client for potential wrongdoing against another client.'”
  • “The Business Court surveyed differing approaches from other jurisdictions, but ultimately settled on a rule that would allow the same law firm to represent both company and directors in a derivative action unless there are “serious charges of wrongdoing” against the directors.”
  • “There are, Mauck concludes, instances when a law firm should not represent both company and targeted directors in a derivative action but discerning them depends on a subjective determination of when alleged director misconduct amounts to ‘fraud, theft, self-dealing, or usurpation of corporate opportunities.'”
  • “Instead, the Court held, alleged efforts by the defendant directors to consolidate their power and lessen the influence of the minority shareholders was a debate about ‘current mismanagement and future direction,’ not the sort of ‘theft, fraud, or gross financial conflicts of interest that courts have found sufficient to constitute serious charges of wrongdoing.'”
jobs

BRB Risk Jobs Board — Conflicts Analyst & Conflicts Counsel Positions

Posted on

I’m pleased and curious to run another experiment, this time it’s a sponsored job post.

Patricia Gallardo, Associate General Counsel at Quarles & Brady astutely judged that the smartest, most driven law firm risk professionals read the Bressler Risk Blog. She’s looking to hire two positions:

Conflicts Analyst

Conflicts Counsel

These are remote-friendly positions, subject to mutual fit, open to residents in:

  • Arizona, California, Colorado, Washington D.C., Florida, Illinois, Indiana, Minnesota, Idaho, Massachusetts, Michigan, Missouri, Nevada, Oregon, Utah, and Wisconsin

Patty and I first crossed paths last year and have had a few engaging risk discussions. If I were conflicts-qualified and looking for work, I’d definitely explore joining her team.

And if you’re interested in seeing your firm’s listings here, please feel free to reach out…

Risk Update

Law Firm Disqualification News — Palpable Parental Puzzle & Potential Pyramid, Privilege Preserved

Posted on

“‘Palpable and Significant Risk’: Law Firm Disqualified From Federal Suit” —

  • “U.S. Magistrate Judge James Wicks of the Eastern District of New York on Wednesday took the unusual step of granting a motion to disqualify counsel in a case seeking damages from Nassau County and several law enforcement officers in a wrongful conviction case.”
  • “Wicks found that Sokoloff Stern, a firm representing the defendants, also represented a Nassau County assistant district attorney who raised concerns about the police conduct at issue in the case.”
  • “The plaintiff in the case, Josiah Galloway, was wrongfully convicted of shooting a taxi driver and spent 10 years in prison before the Nassau County District Attorney’s Office’s Conviction Integrity Unit in 2018 reinvestigated the case and moved to vacate the conviction and dismiss the indictment.”
  • “Wicks found that the Nassau ADA ‘is more aligned with plaintiff in this matter than with defendants,’ noting that she said in a deposition that she credited the testimony of an eyewitness that cut ‘directly’ against the defendants’ argument.”
  • “If the plaintiffs’ attorneys from Elefterakis, Elefterakis & Panek called the ADA at trial and confronted her with her testimony in the deposition, the defense counsel would be placed ‘in the impossible position of having represented a witness earlier in the proceedings who, now before a jury, is testifying directly against the defendants… Such circumstances would fly far beyond the mere image of impropriety and would instead pose a palpable and significant risk of taint to the trial,’ Wicks wrote.”

For anyone else who has watched the recent documentary “LuLaRich” (streaming free on Amazon Prime), here’s some recent related news: “Reed Smith Beats DQ Bid Over Privileged LuLaRoe Docs” —

  • “A California appellate panel has backed a lower court’s ruling that Reed Smith LLP shouldn’t be disqualified from a suit against clothing retailer LuLaRoe, agreeing that its attorneys followed the necessary privilege obligations when handling documents leaked to the firm anonymously by an opposing firm’s legal secretary.”
  • ” In a unanimous unpublished decision Friday, the three-judge panel declined to disqualify Reed Smith from representing Providence Industries LLC in the manufacturer’s contract dispute case against LuLaRoe LLC, finding that the attorneys’ decision to notify opposing counsel of the leaked documents was ‘exactly’ what the precedential privilege law instructs.”
  • “‘There is no evidence compelling the conclusion that Reed Smith has used or is likely to use the documents at any point in the litigation,’ the appellate panel said.”
  • “In 2019, Reed Smith began getting anonymous correspondence that seemed like “the musings of a disgruntled person who was following” the Providence v. LuLaRoe case, according to the panel. Given the public nature of the case, the documents did not raise eyebrows, the firm said, according to the panel. The letters were later determined to have been sent by a legal secretary at Floratos Loll & Devine PLC, which was serving as outside general counsel to LuLaRoe, the panel said.”
  • “‘Within days’ of the Sept. 19, 2019, receipt of the fourth letter, Houston and Rivas ran it by Reed Smith’s in-house counsel and the California State Bar’s ethics hotline, the panel said.”

And something else that caught my eye, for those inclined: “Lawyer Lies and Political Speech” —

  • “ABSTRACT. Lawyer lies designed to sabotage valid election results are not protected political speech under the First Amendment. Ethics rules governing candor and frivolous litigation require sanctions, if not disbarment. Moreover, the duty of candor should be extended from the courthouse to the public square when lawyer lies threaten our democracy. “Lawyer lies pervade politics regardless of party, though to be sure, they became more noticeable in the Trump Era. In the aftermath of the 2020 election, lawyers desperate to alter the outcome of validly cast votes spewed outrageous lies. Their election fraud lies stand apart from those made by lawyers earlier in President Trump’s Administration because of the consequences at stake.”
  • “This Essay contends that ethics rules governing candor in the courtroom and frivolous litigation require sanctions for lawyer lies designed to sabotage valid election results. Further, it makes the case for extending the duty of candor to the public square when those lies threaten extreme harm. Lies may be justifiable in political dealings and in the practice of law, but the legal profession should not tolerate them when pressed on behalf of government officials aiming to undo legitimate election results, whether in the courtroom or in the court of public opinion. While this Essay focuses on the lies told following the 2020 election, the analysis here similarly applies to past elections, and especially to future elections.”
  • “Despite pledges and promises to seek truth, lawyers sometimes must engage in dishonesty to fulfill duties to their clients. For example, ethics rules explicitly permit lawyers to obscure the truth during negotiations.”
  • “Lawyers acting in political roles, whether representing a government official or holding office themselves, frequently confront significant tensions surrounding honesty.”
  • “Lying occurs regularly in the practice of law, though perhaps not as often as it does in politics. The codes governing ‘ethics’ for lawyers allow communications that many would find dishonest and unethical in other contexts.”
  • “Professional conduct rules not only permit lawyer lies, but in some instances may require less than candid speech, if not outright lies. For example, bluffing in negotiations is expected and the failure to do so may risk violating the duty of competent representation. Lawyers are allowed to argue contrary positions in different jurisdictions at different times for different clients. A District of Columbia Bar Ethics Opinion authorizes lawyers working in an intelligence or national security capacity to
    ‘act deceitfully’ if required for engagement in clandestine activities.65 And the Colorado Supreme Court revised its rules to explicitly permit lawyers ‘to advise, direct, or supervise others, including clients, law enforcement or investigators’ in ‘engaging in investigative deceit.'”
Risk Update

Risk Roundup — Former Client Cross-Examined, Patent Judge Probed, Shadow IT

Posted on

Judge Warned Trial Lawyer Not to Cross-Examine Former Client, Laying Grounds for Appeal of $10M Verdict” —

  • “The jury found that Ugo Colombo and his company breached a contract, but only the company was held financially liable. A White & Case lawyer previously represented Colombo but cross-examined him despite a warning from the presiding judge that it could provide grounds for an appeal. The jury verdict amounted to $10 million, which nets to $1.9 million after application of escrow proceeds.”
  • “‘Lawyers who litigate against and cross-examine former clients should exercise restraint to avoid maligning their former clients in the press,’ Sean Burstyn, who is among the attorneys that represented Colombo, said on Monday. ‘The legal profession suffers enough from misperceptions about the loyalties of its members.'”
  • “As a result, the defense is likely to file an appeal over an ‘appearance of impropriety’ that Burstyn raised leading up to Robinson’s cross-examination of the White & Case partner’s former client, Colombo, court transcripts suggest.”
  • “Moving forward, the basis for a potential appeal lies in the cross-examination that Robinson conducted of his former client, Colombo. Miami-Dade Circuit Judge William Thomas previously suggested that Robinson could have been aware of confidential information due to his prior representation of Colombo.”
  • “The state court transcripts show that Thomas specifically advised Robinson against conducting the cross-examination, warning, ‘You’re proceeding at your own peril… In the 17 years on the bench, I haven’t had the occasion where the lawyer who previously represented the client was going to cross-examine the client, even though there was no motion for disqualification,’ Thomas said, according to the transcript.”

Gilstrap discloses potential Microsoft, Walmart conflicts in closed patent cases” —

  • “An East Texas federal court on Friday disclosed that a judge with one of the busiest patent dockets in the country had potential financial conflicts in dozens of closed patent cases involving Microsoft, Walmart, Target and others.”
  • “In letters on Friday to the parties in those cases, David O’Toole, the clerk of the court, said that it was brought to U.S. District Judge Rodney Gilstrap’s attention that ‘a trust in which his spouse has an interest’ held stock in the companies, which also include IBM, JP Morgan, Home Depot and many others, while he presided over cases brought between 2011 and 2018.”
  • “The letters come in the wake of a Wall Street Journal report last month highlighting certain federal judges’ alleged financial conflicts in disputes they oversaw. The report said Gilstrap had conflicts in 138 cases, more than any other of the 130 federal judges identified in the story.”
  • “Some of the letters also said Gilstrap himself owned stock in McDonald’s and Alcoa during cases in his Marshall, Texas, court, and that even though U.S. Magistrate Judge Roy Payne dismissed them before he took any action, the stock ownership would have required Gilstrap’s recusal.”
  • “The court asked the parties to respond to the possibility that Gilstrap should have disqualified himself from hearing the cases under the code of conduct for federal judges.”
  • “Lawmakers introduced legislation Monday in both houses of the U.S. Congress that would require judges to report stock trades over $1,000 within 45 days and post their financial disclosures online. The federal judiciary has said it would review its conflict-screening process, and the chair of the federal judiciary’s ethics committee said at a Tuesday hearing that it was developing a new electronic system for processing judges’ financial disclosures more quickly.”

How To Address The Shadow IT Problem” —

  • “Let me start with a story I heard recently. A law firm had in place a written policy that set forth a list of approved services, software and tech devices that could be used by staff and attorneys. During a network security assessment conducted by an outside vendor, the question ‘Does anyone at the firm use Dropbox’ was asked. The answer was ‘Absolutely not. Dropbox is not an approved service.’ This is when one of the security consultants informed the firm that over 80 email addresses of firm attorneys and staff were tied to individual Dropbox accounts. Such much for firm policies.”
  • “The concern over the 80+ individuals who were using Dropbox was that they would fail to take necessary steps to use it in a competent and secure way and that indeed was the case. Missteps would have included things like not enabling two factor authentication, failing to create a unique strong password for account access, and not responsibly using file permission settings to control file access, just for starters.”
  • “When staff and attorneys at any firm make unilateral decisions to not abide by a firm’s policies and procedures and just use any service, software, or device they like, unintended consequences can follow. Such decisions might be ‘justified’ by a belief that the rules don’t apply to them, the rules make no sense or are too difficult to follow, no one can tell them what they can or can’t do with their own devices, or even that doing so made their work easier or more efficient in their minds. Unfortunately, if the unintended consequence turns out to be a network security breach, which is the greatest concern, their reasoning matters not.”
  • “Truth be told, I believe completely eradicating the problem for any firm is going to be an unattainable goal. That said, the problem can be effectively managed. Before you can responsibly address the problem, however, it’s important to understand that shadow IT is often brought into play because there were tech needs that were unmet, associated risks that were not understood, and/or an apathy about existing policies.”