Bressler Risk Blog

Having spent about two years of my early career swimming in this area, this is a topic near and dear to my heart. Interesting related information risk issues to consider when it comes to addressing internal access management and confidentiality controls within the firm tied to these obligations. Perhaps we’ll see a future article on that. In the meantime, Dentons partners Shari L. Klevens and Alanna Clair share: “What to Know About Protective Orders” —

• “Protective orders are a tool used by litigators to help manage and prevent the public dissemination of sensitive documents and information a party receives during the course of litigation. Although such orders are very commonplace in commercial litigation, they are rarely ‘one size fits all.'”
• “Indeed, most protective orders or confidentiality agreements governing discovery will require some tailoring to the specific needs of the case and client. This article provides some tips for lawyers considering the use of protective orders.”
• “An effective protective order would typically be designed to protect financial information, trade secrets, or other proprietary information. To the extent the litigation is expected to involve production of documents or testimony that would otherwise be considered ‘confidential,’ a protective order will help minimize the risk of exposure.”
• “In addition to the specific subject matter of the litigation, most lawyers will also consider whether the case calls for two tiers of protection. Two-tiered protection generally involves designating a broad category of documents and information as confidential and then designating a more finite subset as ‘Attorneys’ Eyes Only.’ Typically ‘Attorneys’ Eyes Only’ information is not permitted to be shared with the actual parties to the litigation, but only their lawyers. That heightened designation may be appropriate for cases involving trade secrets, patent infringement or other competitive commercial disputes.”
• “If the client does not appreciate that it will not be permitted to access ‘Attorneys’ Eyes Only’ information, it could lead to some tension or even frustration on the part of the client. By taking time to explain the ramifications of that level of protection before the client agrees to the parameters of the protective order, lawyers could avoid such disputes.”
• “In addition, some protective orders will include provisions that impose obligations on the litigants after resolution of the lawsuit. This could include provisions governing the destruction or return of materials exchanged during discovery. Advising the client of those obligations could help reduce the risk of violating the agreement by failing to comply.”
• “Although many protective orders follow similar templates to protect confidential information, there are situations in which exceptions or carve-outs are appropriate. For example, most protective orders require the parties and their counsel to return or destroy confidential information after a lawsuit ends or settles. But what if the lawyer later receives a malpractice claim from the client involved in the suit?”
• “If the lawyer followed the terms of the protective order, the lawyer may no longer have access to documents or transcripts that would assist the lawyer in proving what happened in the case. Absent a carve-out in the protective order, the lawyer could be deprived of one of the best defenses available to a malpractice claim: the full and complete file. To mitigate such risks, some lawyers will include carve-out provisions in protective orders to allow the lawyers to retain a copy of the file for use in malpractice actions.”

“Judge Exits $1B Nigeria Award Case Over Chevron Stock” —

• “A New York federal judge who for almost four years presided over a lawsuit seeking to enforce a $1.1 billion arbitral award against Nigeria’s state-owned oil company has recused himself after discovering he owned stock in Chevron Corp., the parent company of one of the awardees.”
• “U.S. District Judge Richard M. Berman informed Ruby J. Krajick, court clerk of the Southern District of New York, on Thursday that he sold the stock he owned in Chevron’s Texaco Nigeria Outer Shelf Ltd. while overseeing the case, but he will no longer oversee the dispute. Krajick updated the parties in the case on Friday.”
• “The letter referenced Advisory Opinion 71 from the Judicial Conference’s Codes of Conduct Committee, which provides guidance for addressing disqualification that is not discovered until after a judge has participated in a case.”
• “The guidance also suggests the ‘parties may then determine what relief they may seek, and a court (without the disqualified judge) will decide the legal consequence, if any, arising from the participation of the disqualified judge in the entered decision.'”
• “The letter does not say how or when Judge Berman learned about his Texaco Nigeria Outer Shelf stockholding nor why he was not aware of his stockholder status.”
• “Judge Berman’s recusal comes amid congressional efforts for more stringent stock trading disclosure requirements from federal judges. It follows a recent Wall Street Journal report revealing that more than 130 federal judges failed to recuse themselves from cases in which they or an immediate family member held stock in a company involved in a dispute. Following the report, several judges across the country have stepped back from cases they were overseeing.”

“Ethics opinion addresses responding to online criticism from nonclients” —

• “Florida lawyers now have guidance on how to respond to negative online reviews posted by those who are not current or former clients — keep it brief, factual, and don’t reveal information concerning a client’s representation without the client’s informed consent.”
• “That’s the advice from recently approved Ethics Opinion 21-1 that was adopted by the Board of Governors in December.”
• “‘If accurate, the lawyer may state that the person who made the post is not a current client or former client,’ the opinion, put forth by the Professional Ethics Committee, reads. ‘The lawyer may generally note that the comments in the review are inaccurate but that the lawyer’s response is constrained by the lawyer’s ethical obligations.'”
• “The PEC had been asked by the Board of Governors to give an opinion on responding to negative online reviews posted by individuals that are not clients or former clients after the earlier adoption of Ethics Opinion 20-1, which discusses a lawyer’s response to a client or former client’s negative online review.”

“Hoboken Mayor Ravi Bhalla faces criticism over new law firm gig” —

• “A number of Hoboken council members have called on Mayor Ravi Bhalla to provide more transparency about his position at a law firm he joined at the end of last year, a firm in which the city’s assistant corporation counsel also serves.”
• “Bhalla joined Schenck, Price, Smith & King on Dec. 30, 2021, two days before he was sworn in for a second term as mayor. The firm issued a press release that day, but the news had not been publicized by either the mayor nor the city. The matter was brought up over the weekend by former City Council candidate Paul Presinzano.”
• “The firm said Bhalla will help them in diversity and inclusion efforts as a member of their Diversity & Inclusion Committee. He will earn a salary of $60,000 there, along with his current salary of $116,950 as mayor.”
• “When asked about why the mayor didn’t publicize his new role, Horowitz said that ‘since the fact that the mayor has been serving in the very limited role ‘of counsel’ to a law firm has been public for the past four years, the movement to a different firm in our view didn’t require a separate announcement from the mayor.'”
• “Schenck, Price, Smith & King is the law firm where Assistant Corporation Counsel John Allen, who was Bhalla’s former Chief of Staff, also serves, which the council members say is a potential conflict of interest.”
• “‘This once again reignites our long standing concern that Mayor Bhalla’s second job with a politically connected law firm will compromise the city’s interests in favor of his own,’ said the council members. ‘Mr. Allen may have solicited work for the firm in question, but the administration has blocked access to public records which would prove or disprove this accusation.'”
• “The council members had brought up past concerns over other previous conflicts of interest regarding Allen, where he had formerly served as an attorney for the city’s Alcohol Beverage Control board.”

“Shell Says Intra-Class Conflict Prevents Cert. In ERISA Suit” —

• “Shell Oil Co. urged a Texas federal court to block a group of retirement plan participants from bringing their lawsuit over alleged 401(k) mismanagement on behalf of a sprawling class, claiming the proposed class improperly includes members with contradictory interests.”
• “The oil and gas giant and its retirement plan trustees slammed a January motion for class certification lodged by three former Shell employees, pointing out in a filing Friday that the group contains members who the workers claim unfairly benefited from certain investments at the expense of putative class members who were harmed.”
• “‘Plaintiffs’ proposed class is riddled with irreconcilable conflicts. Indeed, plaintiffs actually feature those conflicts as a centerpiece of their theory of the case,’ Shell said Friday.”
• “The plan participants claimed in their January 2020 Employee Retirement Income Security Act lawsuit that Shell saddled its 401(k) plan with high fees and let Fidelity Investments Institutional Operations Co. Inc., the plan’s record-keeper, use participants’ personal information to market financial products.”
• “A key issue with the proposed class is that putative members who invested in a specific tier of funds wound up in a very different position from those who didn’t, since the plan’s record-keeper was only paid fees from certain funds in this tier, Shell argued.”
• “‘It is hard to imagine that absent class members, who did not invest in [this tier of funds], would (or could) be satisfied with being represented by a named plaintiff … who did, and whose counsel has maligned such absent members as free-riders,’ the oil and gas company continued.”
• “This discrepancy between class members would come into sharp relief if a potential settlement would need to be split up between participants, Shell said.”

“Leon Black drops racketeering claims against law firm Wigdor” —

• “Billionaire investor Leon Black has dropped the Wigdor law firm as a defendant against civil racketeering claims in his lawsuit against a former model who accused him of rape, and dropped the law firm Quinn Emanuel Urquhart & Sullivan after it identified a potential conflict.”
• “The changes were disclosed in Black’s amended complaint filed on Monday night in Manhattan federal court against Guzel Ganieva, with whom the former Apollo Global Management Inc chief executive has admitted to having had a consensual 6-1/2-year relationship, and the Wigdor firm.”
• “Black has forcefully denied Ganieva’s rape and sexual abuse claims, and accused her of extortion. He sued Ganieva last Oct. 28, four months after she sued him in a New York state court for alleged defamation and sexual violence.”
• “According to court records, Quinn Emanuel obtained the presiding judge’s permission to withdraw after partner John Quinn said the firm had identified a ‘potential conflict of interest’ that might implicate issues of privilege.”

“The curious case of the Quinn Emanuel partner and the alleged conspiracy against Leon Black” —

• “Quinn Emanuel Urquhart & Sullivan withdrew this week as counsel to Apollo Global Management Inc founder Leon Black in a lawsuit claiming that an ex-model who has accused Black of rape conspired with his business rival in a smear campaign to bring down the billionaire financier.”
• “Quinn’s withdrawal letter to U.S. District Judge Paul Engelmayer in Manhattan federal court cited a potential conflict of interest. The letter provided no additional details about the conflict.”
• “But Black’s amended complaint, filed at the same time as Quinn’s withdrawal request, contains some intriguing assertions about contacts between purported participants in the alleged anti-Black conspiracy and Quinn litigation partner Alex Spiro.”
• “There is a one big clue that the conflict is linked to Black’s conspiracy allegations: Quinn has not asked to withdraw as Black’s defense counsel in the New York state court sexual assault and defamation case brought by the ex-model, Guzel Ganieva. The firm’s email statement confirmed that Quinn continues to serve as Black’s counsel in the state case.”
• “And regardless of the reasons for Quinn’s withdrawal from the federal case, it’s notable that Black’s own complaint asserts unusual incidents involving Quinn partner Spiro – or, at least, people wielding his name – and purported participants in a vast conspiracy to defame and extort Black, who remains a client of Spiro’s firm.”
• “You need some background to understand those incidents. The lawsuit asserts that Black’s onetime protégé, Josh Harris, was incensed that Black spurned him as a successor to lead Apollo. The complaint claims that Harris orchestrated a retaliatory legal and media blitz against Black, conspiring with Ganieva and a public relations expert to ruin Black’s reputation with false claims of rape and kidnapping.”
• “In early 2021, Black’s complaint alleged, ‘confederates’ of Harris called Spiro to find out if Quinn Emanuel was interested in taking a case against Black. The amended complaint does not specify the identity of these purported confederates, except to describe them as ‘an unidentified shadowy internal faction at Apollo that was involved in ‘cagey business’ there.'”

“Widow Wants Lowenstein Sandler DQ’d From Estate Fight” —

• “A pharmaceutical executive’s widow has called on a New Jersey state appeals court to ban Lowenstein Sandler LLP from representing one of its attorneys as co-executor of her late husband’s estate in a probate matter, as she and the lawyer are battling over the handling of assets once valued at more than $170 million.”
• “Lowenstein Sandler previously represented Angela Krivulka as co-executor of the estate along with Lerner, her interests are ‘materially adverse’ to Lerner’s, and the firm never obtained her ‘informed consent’ to its prohibited representation of Lerner, according to Wright.”
• “With respect to such consent, the firm has pointed to a 2018 joint engagement letter that ‘at best seeks a future conflicts waiver, which is not enforceable,’ Wright said. As examples of their adversity, she noted that Lerner sued Krivulka in probate court to, among other things, remove her as a co-executor and to have the her marriage to Joseph declared invalid.”
• “‘It’s the same matter. They’re adverse. They did not obtain informed consent,’ Wright told the panel. ‘So they should be disqualified.'”
• “Lerner has countered that Krivulka consented in the engagement letter to Lowenstein Sandler continuing to represent him, court documents state. The letter included a provision stating that, if a conflict of interest arose between them, the firm may have to withdraw as counsel to one or both of them, court documents show.”
• “After the firm began representing Lerner and Krivulka as co-executors, she raised the issue of Lowenstein Sandler’s purported conflict of interest, and Cravath Swaine & Moore LLP stepped in to represent her, court documents state.”

“Bankrupt Brooklyn Hotel Gets to Keep Its lawyer” —

• “A bankruptcy judge overseeing the Williamsburg Hotel bankruptcy case Thursday opted not to rule on a motion filed by the U.S. Trustee, who urged the court to disqualify law firm Mayer Brown LLP from representing the hotel owner, 96 Wythe Acquisition.”
• “The U.S. Trustee argued in his motion that the law firm’s role in a separate bankruptcy case involving the same developers behind the hotel, Toby Moskovits and Michael Lichtenstein, poses a clear conflict of interest because a court-appointed examiner is now investigating fund transfers from the hotel to different entities owned by the developers.”
• “Judge Robert Drain said the motion, based on the current evidence, was premature. But he also didn’t dismiss it, leaving a chance for a future discussion.”