Bressler Risk Blog

“Lateral Partner Moves: Ethical Obligations of Lawyers and Law Firms” —

• “This article explains the ethical issues faced by laterally moving partners and their firms in light of recent guidance by the New York State Bar Association and the New York City Bar Association. See New York RPC 1.4 comments 7b-7g; New York City Bar Association Eth. Op. 2023-1, ‘Ethical Obligations of Lawyers and Law Firms Relating to Attorney Departures’ (June 20, 2022).”
• “What Confidential Material Can Be Shared With the New Firm Prior to Resignation? As noted above, unauthorized pre-resignation disclosure of confidential information to a suitor firm can be a breach of fiduciary duty. But a recruiting firm requires disclosure of certain information prior to making an offer. Recruiting firms have an obligation to run conflict checks before hiring lateral lawyers.”
  The New York State Bar Association has provided a road map of sorts as to what information may ethically be disclosed to the suitor firm. According to the NYSBA, a laterally moving partner may disclose:
  • (i) the identities of clients or other parties involved in a matter; (ii) a brief summary of the status and nature of a particular matter, including the general issues involved; (iii) information that is publicly available; (iv) the lawyer’s total book of business; (v) the financial terms of each lawyer-client relationship; and (vi) information about aggregate current and historical payment of fees (such as realization rates, average receivables, and aggregate timeliness of payments).
• “What Files May the Departing Partner Take? Departing partners may not take firm documents or files which do not belong to them. And the departing partner needs client permission to remove client files.”
  “In Gibbs, the departing partners were permitted to take copies of their chronological correspondence files and other documents that they own. Gibbs v. Breed Abbot & Morgan, 271 A.D.2nd 180 (1st Dept., 2000). However, the same lawyers breached their fiduciary duties by sharing with their suitor firm confidential firm records about associate compensation, billable hours, hourly rates and bonuses.”
  “Lawyers may take with them ‘contact information for clients and others with whom the departing lawyer worked.’ NYC Bar. Ass. Eth. Op. 2023-1. Accord, ABA Eth. Op. 489. These ‘should be provided as these are critical for conflict purposes and consistent with the departing attorney’s rights to move and continue to practice law and obligation to contact such clients.’ According to the American Bar Association, ‘a departing lawyer [may] retain names and contact information for clients for whom the departing lawyer worked while at the firm, in order to determine conflicts of interests at the departing lawyer’s new firm and comply with other applicable ethical or legal requirements.’ ABA Eth. Op._489 at 4.”
  “According to the City Bar a lawyer may bring with them: ‘the lawyer’s personal records, address/contact file, research materials and copies of transactional and litigation publicly filed documents.’ NYC Bar Ass. Eth. Op. 2023-1. In addition, lawyers may remove copies of ‘their personal (as opposed to firm) form files, copies of litigation and transactional documents that have not been publicly filed.'”

“Bradley Arant Faces DQ Bid In Georgia Mall Rent Dispute” —

• “A mall has urged a Georgia federal judge to disqualify Bradley Arant Boult Cummings LLP from representing a tenant in an unpaid rent dispute, arguing that the law firm has a conflict of interest because it has represented the mall’s sister corporation in similar litigation.”
• “‘The decision makers, decision processes, policies, goals, and strategies for Oxford, Hull, and Racine overlap and are intermingled and in many instances are identical,’ the mall said.”
• “The mall said that disqualification would ‘protect the integrity of the judicial process, maintain public confidence in the legal profession, and safeguard the confidences of plaintiff.’ In the current matter, the mall has argued in its complaint that its tenant, a sports chain, owes it about $389,378 in unpaid rent.”
• “‘The continued representation of defendant by Bradley Arant in the instant case creates a substantial risk that confidential information obtained during the prior representation has been or will be used in the instant action to the disadvantage of plaintiff, against whom Bradley Arant’s current client is adverse,’ the mall said.”
• “The mall also asked the court to ban Bradley Arant from ‘disclosing any confidential information obtained during its prior representation of plaintiff’ and said it had access to and made records of confidential information in the prior litigation. The mall said that information included ‘the structure of Hull and its affiliate companies, confidential information from witnesses… all three of whom are likely witness[es] in the instant matter.'”

Rachel Wasserman, principal of Wasserman Business Law in Toronto and an economic policy fellow at the Canadian Anti-Monopoly Project and Social Capital Partners, writes: “Letting Private Equity Buy Law Firms May Stifle Service, Mobility” —

• “Private equity firms are quietly buying up and consolidating dental, accounting, medical, and veterinary practices, turning smaller independent firms into corporate chains. These firms offer professionals handsome payouts in exchange for ownership of their practice. Law firms are the final frontier for these consolidators. Recent developments in Arizona may finally give private equity the door into the legal industry that it’s been waiting for.”
• “If we allow for private equity ownership of law firms, it isn’t unreasonable to expect a similar result as we are seeing in other professions—lower quality of service and work for clients and lower job satisfaction for lawyers. As these firms consolidate, it will be even harder for independent lawyers to compete against the economies of scale of these corporate behemoths.”
• “In the longer term, this could mean less upward mobility for future generations of lawyers. It isn’t impossible for equity participation to disappear entirely if these corporate chains take over the market, which could also lead to the commodification of our profession. On the bright side, at least a handful of already rich partners and investors will have gotten even richer.”
• “The scale advantage that once insulated big law is disappearing. Thanks to AI and legal technology, large-scale projects such as due diligence and discovery no longer require armies of associates. Boutique firms, with lower overhead and without the burden of luxury offices and top-heavy compensation structures, are now able to compete, offering sophisticated legal services at a fraction of the price. We don’t need investment capital or consolidation to make law firms more efficient—the future lies in decentralization.”
  Firm Ownership Matters”
• “Legal regulatory bodies have largely prohibited nonlawyers from owning law firms, but these protections are starting to erode. Regulatory rollbacks often operate under the guise of altruism, purporting to promote access to justice. But maybe large multinationals and investors who have been shut out from this high-margin industry are just looking for access to more profits?”
• “Once law firms are controlled by private equity, such firms will be required to juggle fiduciary duties to both their investors and their clients. Private equity’s interest in owning law firms is merely a means to an end. Whether it’s practicing law or manufacturing widgets, these firms seek out the most lucrative investment opportunities for their investors and themselves.”
• “To understand the impact private equity ownership could have on the legal profession, we don’t have to look far. There are countless examples of PE firms’ impact on other professions that have already undergone significant PE consolidation.”
• “A study published in the Journal of the American Veterinary Medical Association found that veterinarians working for large corporations reported more pressure to generate revenue than independent practices. An employee at two different corporate vets recounted that one of them had five price increases in one year, each between 3% and 6%, with no justification provided.”
• “Medical care also has suffered under private equity ownership. When private equity buys a hospital or physician practice, costs usually rise, as do the number of costly procedures and serious medical errors.”
• “Thinking law firms wouldn’t be faced with similar issues would be naive. Lawyers are no more virtuous than the countless veterinarians, doctors, and other professionals who have sold their practices to investors. Many senior partners have already built immense personal wealth, and if private equity begins consolidating law firms, they’ll undoubtedly be enticed by the same kinds of lucrative offers that younger lawyers will be unable to match.”
• “Clients come to us for independent, expert advice—not guidance shaped by firm profitability. We can’t allow the legal profession to be stripped of its integrity and independence in the name of efficiency and returns.”
• “Lawyers must not only resist private equity control within our own profession—we must also stand alongside other professionals facing the same threat. Our skills, our judgment, and our commitment to the public trust are needed now more than ever.”

“This lawyer was counsel to El Chapo — and could soon be one of Mexico’s judges” —

• “When the Mexican government announced it was holding the world’s largest judicial election — with voters electing thousands of magistrates and an entirely new Supreme Court — it hoped to bring fresh faces into the legal system.”
• “What it didn’t expect was El Chapo’s lawyer.”
• “Yet here is Silvia Delgado, 51, in a snug black minidress and four-inch heels, handing out leaflets and smiling brightly at vendors at a Sunday flea market. Eight years ago, she was counsel to Joaquín ‘El Chapo’ Guzmán when he was extradited from this city’s fortresslike prison to New York. She accompanied his beauty queen wife, Emma Coronel, during the U.S. trial that ended with his life sentence. Now Delgado hopes to be a criminal-court judge, in a state where El Chapo’s Sinaloa cartel remains powerful. ‘I hope I can count on your vote!’ she calls to bargain-hunters.”
• “The June 1 judicial election, intended as a radical exercise in democracy, has increasingly been overshadowed by concerns about penetration by drug-trafficking groups. The Catholic Church and the U.S. government have warned that narcos may try to put their own candidates on the bench. There has been a string of startling revelations about the candidates. One used to be an attorney for a leader of the Zetas — a cartel that ‘disappeared’ thousands of people. Another candidate served six years in a Texas jail for possession of methamphetamine.”
• “President Claudia Sheinbaum has pointed out that the scandals involve only a small number of candidates. Legal scholars have cautioned that it’s no crime to defend an accused trafficker; Delgado said she provided ‘the same kind of defense as in any other job’ to El Chapo, a legendary drug lord whose exploits were chronicled in two Netflix series.”
• “Yet legal analysts say the reports about questionable candidates underscore the inadequate screening by Mexico’s government, which set few requirements for those running. Until now, most judges were selected through a civil-service system based on exams and experience. Under the new rules, legal scholars fear, candidates will owe their election not to the judicial system, but to groups that can round up votes for them — including from organized crime.”
• “Sheinbaum’s government, stung by the revelations, is now moving to exclude at least 18 judicial candidates. But analysts say the threat goes beyond the handful of ‘narco lawyers’ highlighted in media reports. Drug traffickers have already shown their political clout by installing scores of mayors in Mexican towns in recent years. Why wouldn’t they try to quietly impose their own judges?”
• “The new judicial system is the brainchild of former president Andrés Manuel López Obrador. Like President Donald Trump, the Mexican leader attacked judges who blocked his actions, calling them corrupt and politically biased. He also shared Trump’s enthusiasm for big, bold changes in government. If the judicial system wasn’t working, why not create a new one? When his Morena party swept elections last year, and Sheinbaum became his successor, they did just that.”
• “Now, the entire Supreme Court and half of federal judges — roughly 850 — will be chosen by voters. The other half will be replaced in 2027. Mexicans will also select about 1,800 state magistrates. The requirements to run are minimal: as little as three years’ legal experience, letters of recommendation from colleagues or neighbors, and lack of a criminal record. More than 50,000 candidates were screened in a few weeks by the federal and state governments.”
• “Meza’s group labeled Delgado a ‘highly risky’ candidate. ‘The minimum risk in these cases is conflict of interest,’ Meza said in a cafe in the capital’s trendy Roma neighborhood, where indie pop mixed with the hissing of milk being steamed for lattes. ‘You can’t one day be defending the Sinaloa cartel, and the next day be in a job where you’re judging a lot of people who belong to the Sinaloa cartel.'”
• “Delgado, who’s running for state judge, notes that drug trafficking is a federal crime, so she wouldn’t handle such cases. Still, she could face Sinaloa cartel members accused of homicide, extortion, car theft or small-scale drug sales.”
• “She dismisses the concerns raised by Defensorxs. ‘They don’t understand that when lawyers defend a person, what you defend are his individual rights. You defend his right to an appropriate technical defense.'”

“Private Equity Has Its Eye on US Law Firms” —

• “Law firms have long prided themselves on independence and tradition, but the reality is shifting. Smart money is eyeing firms as scalable, under-optimized businesses ripe for investment. A new wave of capital is coming—and it promises management expertise, technology upgrades, and demands for growth.”
• “But this isn’t just about who cuts the check. It’s about regulation, culture, and control. Before you crack the door open to outside capital, you need to know the rules of the game and the risks of letting the wrong partner in.”
• “After years of saturation in tech and healthcare, private equity investors are looking for new frontiers. Law firms offer exactly what they’re hunting for: recurring revenue, strong client relationships, and plenty of room for operational improvement. In a world obsessed with ‘platform plays,’ law firms represent untapped potential. They are inherently relationship driven, increasingly technology enabled, and capable of building cross-selling opportunities across service lines. The right investment could transform a regional player into a national powerhouse.”
• “Still, there’s a catch—and it’s a big one. ABA Model Rule 5.4 bars non-lawyers from sharing in legal fees or owning interests in law firms. It’s designed to protect attorney independence, ensuring that the duty to clients remains paramount. For private equity, that means the usual playbook of majority ownership and profit-sharing is off-limits. Ownership must stay firmly with licensed attorneys.”
• “In the U.S., without widespread reform, firms and investors are getting creative. Some spin up affiliated companies in tech or consulting where PE can invest. Others create management companies that own the operational backbone but leave the legal practice untouched. And some are partnering with ALSPs (alternative legal service providers) where private equity can take a more traditional stake.”
• “These models are innovative, but they’re not without risk. Ethical landmines are everywhere.”
• “Because here’s the hard truth: the firms that chase growth at all costs will find themselves answering to new masters who care more about quarterly returns than client outcomes. In other words: be careful what you wish for.”

David Kluft notes: “Can I represent a client whose culture I don’t understand?” —

• “Oregon Opinion 2024-3 addresses situations in which a lawyer is representing clients from another country, whose language and culture the lawyer does not share, and the lawyer therefore may not be aware of ‘cultural taboos, expectations, family norms, or communication and conflict resolution styles, factors that could significantly affect the quality or usefulness of the lawyer’s representation and advice.'”
• “Turning to the rarely discussed Rule 2.1, the opinion states that the duty of competency includes not just knowledge of the law, but an awareness of the ‘moral, economic, social and political factors, that may be relevant to the client’s situation.'”
• “A lawyer who may not understand these factors does not have to turn down the representation but can gain the necessary competence through independent study, discussions with their clients, or associating with other competent assistance.”

“Ex-Eversheds employee barred after invoicing for pro bono work” —

• “According to the Solicitors Regulation Authority (SRA), Thomas Elliott was a non-legally qualified project coordinator at the firm and also served as club secretary for a local football team. When a footballer was investigated by a local sports association for disciplinary proceedings, Elliott introduced the player to the firm as a pro bono client.”
• “However, after the matter was resolved, Elliott created two invoices on the billing system seeking to recover costs associated with defending the footballer — even though the firm had worked on the matter on a pro bono basis.”
• “The first invoice, dated 2 August, totalled £79,926.95 and the amount sought was £39,963.47. A second invoice, issued two days later, totalled nearly £96,000. After these invoices came to the firm’s attention, he was subjected to an internal investigation.”
• “When interviewed, Elliott initially denied creating the second invoice. He later admitted to fabricating it using information from the firm’s system. Elliott resigned from the firm in October 2023.”
• “The SRA found that Elliott’s conduct was dishonest, involved misuse of confidential information, and was done without the firm’s knowledge or consent. Though the invoices were never paid, the regulator said Elliott’s actions made it ‘undesirable’ for him to be employed in legal practice.”
• “In mitigation, Elliott told the SRA that he acted not for personal gain but out of frustration over how the footballer and his family had been treated. He also wanted the firm to recover some costs. Elliott described his own behaviour as ‘hot-headed’.”
• “Whilst the SRA acknowledged his admission, remorse, cooperation, and lack of financial benefit — it nonetheless found the misconduct serious enough to warrant a ban. The regulator concluded: ‘a person willing to do this is not suitable to work in legal practice. If such conduct were to be repeated in future, it would pose a risk to clients and public trust.'”

“Judge disqualifies chief deputy clerk from practicing in her court” —

• “Mahoning County [Pennsylvania] Domestic Relations Court Judge Beth Smith issued three judgment entries Tuesday and Wednesday disqualifying Mahoning County Chief Deputy Clerk of Courts Jennifer Ciccone from acting as an attorney in Mahoning County Domestic Relations Court. The entries were filed in divorce cases Ciccone was handling as an attorney.”
• “All three cases were filed in 2024, with one of them filed in March 2024, one in July 2024 and one in August 2024.”
• “In her judgment entry, Smith cited a section of Ohio law stating that ‘no clerk of the supreme court or court of common pleas, or the deputy of either, shall practice in the particular court of which that person is clerk or deputy.'”
• “The entries each state that, ‘In light of such provision, attorney Jennifer Ciccone, serving in the capacity of chief deputy clerk of the Mahoning County Clerk of Courts, is no longer permitted to act as an attorney within this court.’ The entries each state that Ciccone is also ‘immediately disqualified to act as an attorney on behalf of the plaintiff in this case. The trial in this matter shall be (postponed) in order to give the Plaintiff a reasonable period of time to retain substitute legal counsel.'”
• “The case filed in August had several pretrial hearings last year followed by additional court dates set in January and February and then a hearing March 26. The case had trial dates Monday and Tuesday starting at 1 p.m. each day, but the case was not resolved.”
• “Don Hepfner, Domestic Relations Court administrator and magistrate, said Wednesday that because the three cases did not get resolved early this week, Judge Smith could not wait any longer and dismissed them. ‘The parties are going to be given the opportunity to find substitute counsel,’ Hepfner said Wednesday.”
• “Smith said last week she did not allow Ciccone to file any new divorce cases in her court and set strict deadlines for when the last three cases had to be completed.”

David Kluft notes: “If my client accuses me of ineffective assistance, can I use his confidential information to defend myself?” —

• “A RI lawyer’s former client was convicted of several criminal charges, and the former client claims the lawyer gave him ineffective assistance of counsel. The former client subpoenaed the lawyer to give testimony about his own alleged ineffective assistance.”
• “The lawyer wants to testify and defend himself, but doesn’t want to violate Rule 1.9(c), which prohibits the use of client information to the lawyer’s advantage.”
• “The RI Ethics Advisory Panel opines that the lawyer may testify without violating confidentiality rules, because responding to a client’s allegations about the lawyer’s representation is one of the express exceptions to Rule 1.6.”
• Text of the opinion: here.

“Turkey Leg Hut owner wants charges tossed, claims former lawyer helped secure indictment against him” —

• “Indicted Turkey Leg Hut owner Lyndell Price asked a federal judge to throw out arson charges brought against him last month, arguing his former defense attorney and the FBI violated his civil rights by working together to secure a plea deal with one of his co-defendants.”
• “In a motion to dismiss filed May 9, Price argued the attorney, Letitia Quinones-Hollins, has a conflict of interest that should quash the entire indictment. Quinones-Hollins didn’t respond to a request for comment Monday. “
• “The motion is based around Quinones-Hollins, Price and a third man, John Lee Price, whose cooperation with the FBI was central to bringing charges against the restaurateur. John Lee Price was a former employee of Lyndell Price. The men aren’t related.”
• “Last month, Lynn Price, John Lee Price and two other men were indicted in federal court on charges related to a 2020 fire at Bar 5015, a business down the street from the former Turkey Leg Hut. Lynn Price is accused of hiring a group of men to burn down the bar, which was owned by a business partner with whom he was feuding. John Lee Price and the other men were accused of setting the fire.”
• “The arson went unsolved for years, until John Lee Price was arrested in Mississippi in 2023 and accused of distributing more than 500 grams of fentanyl.”
• “After his arrest, John Lee Price spoke to federal agents and told them about his involvement in the arson and its connection to Lynn Price, an FBI agent testified on May 1. John Lee Price pleaded guilty to the drug charge in January and signed an agreement saying he would not ‘knowingly withhold evidence’ and be truthful to the United States.”
  Lynn Price’s challenge to his own indictment likens the plea to a cooperation agreement, and argues that Quinones-Hollins shouldn’t have been a part of it.”
• “According to Lynn Price, Quinones-Hollins represented him in 2020, on a matter related to ending his probation related to a 2016 tax crime conviction. Federal court records from that case list Quinones-Hollins as Lynn Price’s lead attorney.”
• “Lynn Price said Quinones-Hollins also acted at his representative some time in 2022 or early 2023, when the FBI attempted to contact him as part of their investigation into the arson. “
• “Quinones-Hollins began representing John Lee Price on his Mississippi drug charge in January 2024, according to court records. John Lee Price also retained Carl Moore, Quinones-Hollins’ law partner, and one of the former co-owners of the Turkey Leg Hut.”
• “Lynn Price argued Quinones-Hollins facilitated meetings between the FBI and John Lee Price, which were used to indict and indefinitely detain Lynn Price until a trial.”
• “‘Attorney Quinones-Hollins failed to protect Mr. Price’s rights when she was made aware of his desire to cooperate against Mr. Price and contacted the government to facilitate a proffer session implicating Mr. Price,’ Lynn Price’s current lawyers wrote.”
• “Both Quinones-Hollins and the government should have recognized the conflict and tried to avoid it, they wrote. “
• “Lynn Price’s attorney argued that Quinones-Hollins ‘owed a duty’ to him and violated his rights to effective counsel by favoring one client over another and that her actions led to him being indicted and detained. “
• “‘Both Mr. Price and John Lee Price paid Attorney Quinones-Hollins to represent them,’ the lawyers wrote. ‘There is no world where anyone can credibly state that Attorney Quinones-Hollins remained loyal to Mr. Price by representing the very person that implicated him in a federal investigation who agreed to cooperate against him at trial.'”

“FaceTec objects to Jumio’s replacement law firm in liveness IP dispute” —

• “FaceTec is not saying Jumio can’t have legal representation in a dispute over IP for biometric liveness detection, just not the firm it had before, or the replacement it has chosen. The 3D face biometrics developer has filed a motion opposing Jumio’s selection of a replacement for Perkins Coie, after the law firm was disqualified and Jumio was ordered by the court to replace it.”
• “Jumio has requested a status conference to name Morrison Foerster as its representation.”
• “But the firm is not ‘new,’ FaceTec argues. Instead, FaceTec describes Morrison Foerster in the motion as ‘Perkins previous co-counsel,’ alleging it represented Jumio in the same case for ‘approximately two months.'”
• “Morrison Foerster Partner Kenneth Kuwayti approached FaceTec’s representation in June, 2024 in his capacity as Jumio’s lead counsel in arbitration. He told FaceTec’s lawyer that he was representing Jumio in requesting an extension to respond to the litigation, and that his firm was awaiting a decision from Jumio on whether it would represent the biometrics provider at trial. Two other attorneys with Morrison Foerster also appeared as Jumio counsel before Perkins arrived on the scene in August.”
• “The Answer and Counterclaims filed by Jumio on August 23, 2024 listed both law firms.”
• “FaceTec says Jumio did not meet or confer with it prior to filing its administrative motion, according to the court document, and has not complied with the court order.”
• “‘Jumio here plainly seeks to rely on the abbreviated administrative motion procedures to improperly hamstring FaceTec’s ability to properly raise this issue to the Court through a properly noticed motion and supporting briefing,’ the filing by FaceTec (shared by Bloomberg Law) states.”
• “FaceTec is seeking a ‘properly briefed motion’ and an extension of the disqualification to include Morrison Foerster.”

“J&J Renews Bid to Remove Beasley Allen From Talc Leadership” —

• “Johnson & Johnson has filed a new motion to remove Beasley Allen from leadership of the talcum powder litigation, citing ‘serious ethical lapses.'”
• “Johnson & Johnson failed in a previous attempt to disqualify Birchfield and his Montgomery, Alabama-based firm on the grounds of a partnership he struck with one of its former lawyers to resolve the talc litigation. Judge John Porto, in New Jersey’s Atlantic County Superior Court, denied Johnson & Johnson’s motion last year. “
• “Now, in an April 16 motion, Johnson & Johnson wants to remove Beasley Allen from the plaintiffs’ steering committee in the talc multidistrict litigation, citing an April 10 letter to Chief Legal Officer Liz Forminard and Erik Haas, vice president of worldwide litigation, in which Birchfield offered to set up a meeting to restart settlement negotiations. In a letter the next day, Forminard called Birchfield’s communication with her ‘inappropriate and unethical’ and accused him of ‘ethical breaches.'”
• “‘It is unfathomable that you would expect us to disregard such dishonest behavior and engage with you in any negotiation, having acted in such an ethically vacuous manner,’ she wrote in an April 11 letter to Birchfield. ‘In the event we were to engage in settlement negotiations with counsel on behalf of the talc claimants writ large, we would certainly not do so with you or your firm, but rather with one of the other counsel and firms that have not evidenced such lack of credibility, integrity and ethics.'”
• “Johnson & Johnson’s new motion also cited Birchfield’s testimony during a key hearing earlier this year that focused on confirmation of its subsidiary Red River Talc’s $10 billion bankruptcy plan to resolve the talc litigation. Birchfield, who represented 11,000 talc clients, falsely testified that he had the consent of his clients when voting ‘no’ on their behalf, according to Johnson & Johnson’s motion.”
• ‘There is simply no way that a firm that has engaged in such conduct can sit in a leadership position in this litigation,’ Johnson & Johnson’s lawyers, O’Melveny & Myers partner Steve Brody, in Washington, D.C., and Jessica Brennan, of Barnes & Thornburg in Morristown, New Jersey, wrote. ‘Beasley Allen has demonstrated itself unfit to represent its own clients’ interests, let alone the interests of clients represented by other firms. Its continued presence on the PSC would be an intractable impediment to the fair progression of this litigation.'”
• “Birchfield and Beasley Allen, in a Tuesday response, denied the allegations. ‘J&J’s effort to remove Beasley Allen from leadership is nothing more than a calculated attempt to eliminate a firm that has repeatedly worked to block its bad-faith bankruptcy schemes,’ wrote their lawyer, Jeffrey Pollock, of Pollock Law in Trenton, New Jersey.”
• “He wrote that Birchfield had informed his clients about the bankruptcy plan and that he would vote ‘no’ if he didn’t hear from them. He also noted that U.S. Bankruptcy Judge Christopher Lopez, of the Southern District of Texas, in his March 31 order dismissing the talc bankruptcy due to ‘significant voting and solicitation irregularities,’ concluded that Birchfield did not act in bad faith. As to the letter to Forminard, Pollock said Birchfield never discussed the merits of the litigation.”

“Biglaw Firms Surrendering To Trump Furiously Backpedaling: ‘LOL, What Pro Bono Deals?’” —

• “Remember when a handful of Biglaw firms committed tens of millions of dollars in pro bono promises to the Trump administration causes hoping to trade some benign charitable work for a reprieve from potentially devastating White House retaliation? BECAUSE THE FIRMS SURE DON’T!”
• “The firms involved — Paul Weiss, Skadden, Willkie Farr, Milbank, Kirkland, Latham, Simpson, A&O Shearman, and Cadwalader — thought they were so clever: do some free legal work for veterans, avoid a potentially insurmountable executive order and protect their bottom lines. In reality, the executive order proved almost comically simple to defeat, the Trump administration publicly explained that the pro bono deal would include representing police in brutality cases, and deep-pocketed clients started dumping the firms to avoid the stench of cowardice.”
• “If only someone had predicted this from the start!”
• “Add in law school students pledging not to work with capitulating firms and law school administrations openly encouraging interviewees to consider these deals when making job decisions, and you can understand why the firms might be trying to get out from the mess they’ve created for themselves.”
• “It turns out, they might be. Congressional Democrats wrote the firms asking some pointed questions about the nature of the deals and firms basically responded ‘What deals?’ Sam Stein at The Bulwark has seen the responses and it seems the hot new trend this summer is claiming that those upwards of $125 million deals didn’t really mean anything at all:”
• “In fairness, you’ve got to appreciate the work here. As Homer Simpson would say, ‘weaseling out of stuff is what separates us from the animals… except the weasel.'”
• “‘Complete independence’ is just an outright lie. Assuming arguendo that the firm does not agree with the Trump administration’s repeated assertions that the deals functionally deputized the firms to make tariff deals or negotiate coal leases, the firms at the very least agreed to do some pro bono work that they otherwise hadn’t formally committed to perform. Not to get too pedantic about it, but that means the firm no longer has ‘complete independence.'”
  “Anyone who did not, in fact, fall violently from the back of a turnip truck this morning can see through these sniveling responses. If they didn’t want to sign over the power to dictate or restrict pro bono matters, then they could have not made any pro bono commitments at all. Of course they intended to sign over their freedom to dictate what pro bono matters they take on! Granting them the benefit of the doubt, they presumably did so in a limited, negotiated fashion that the administration has shown zero interest in respecting, but it was a sacrifice of flexibility in any event. While technically true that there’s no indication that they agreed to ‘restrict’ any pro bono matters, Biglaw firms aren’t made of money (regardless of how it may seem when reading the Am Law 100 numbers) and when they commit $125 million in free services to bucket A, they are necessarily restricting it from bucket B.”
• ” The letter from A&O Shearman was perhaps the most detailed. It notes that ‘the Agreement’ requires the firm to provide $125 million pro bono and other free legal services to ‘three specified areas’ (emphasis ours). Those areas are assisting veterans and other public servants, ensuring fairness in our justice system, and combatting [sic] antisemitism. ‘The Agreement does not call for, or permit, the administration or any other person or entity to determine what clients and matters the Firm takes on, whether they be pro bono matters or otherwise,’ the letter reads.”
• “It might seem nice that these firms are willing to put in writing that they don’t agree with the promises the White House very clearly thinks they made, but if none of these firms really believed they were giving any skin off their nose in these deals it’s actually worse. It means that they willingly agreed to be used as props for the administration to deploy to strongarm even more firms that resistance was futile and that they needed to swear fealty fast to get the best terms. As each firm gave in, they made it just a little bit harder for the next firm to stand up.”
• “And now that they’re willing to say they don’t believe in the deals, what happens if they actually try to act that way. ‘It doesn’t take much to imagine Trump going nuclear after the firms he browbeat start declining to take on cases like police officers accused of excessive force or ICE officials sued for not following proper procedures,’ Stein writes. When that happens, the firms making up the Order of Obsequious will just have to hope Perkins Coie and Jenner & Block have done all the necessary work to protect them from a future retaliatory order.”

More from David Kluft: “Can the federal government order government contractors to disclose whether they hired a law firm the President doesn’t like?”

• “A portion of an executive order required government contractors to disclose if they did business with a certain law firm, with the aim of punishing and intimidating the firm and its clients to satisfy the President’s personal grudge.”
• “D.D.C. Judge Beryl Howell found that this order impinged the firm clients’ First Amendment right to engage in private association, and thus needed to be narrowly tailored to support a substantial government interest.”
• “Judge Howell found that the government attorneys ‘misrepresented’ the scope of this provision, ‘confusingly … ignored’ the government’s burden, and made “zero effort” to explain a substantial interest. The provision was enjoined.”
• Decision: here.

“Conflict of interest – State legislator – Attorney” —

• “Where an attorney who is a member of the Rhode Island House of Representatives has asked whether he is prohibited by the Code of Ethics from participating in General Assembly discussions and voting on proposed legislation that seeks to establish procedures that would make certain larger parcels of land available for subdivision, he may do so even though he previously represented a client for whom the legislation, if passed, could potentially create opportunities for development.”
• “‘It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving as a member of the Rhode Island House of Representatives, a state elected position, who in his private capacity is an attorney licensed to practice law in Rhode Island, is not prohibited by the Code of Ethics from participating in General Assembly discussions and voting on proposed legislation that seeks to establish procedures that would make certain larger parcels of land available for subdivision in order to increase the availability of housing in Rhode Island, subject to conformance with applicable local municipal requirements, notwithstanding that he previously represented a client for whom the legislation, if passed, could potentially create opportunities for development on land owned by the former client…”
• “‘Here, the business associate relationship between the Petitioner and his former law client has ended for purposes of the Code of Ethics. The Petitioner states that he represented the former client in 2021 for about one year, that the former client paid his legal fees in full, and that there is no future business relationship anticipated between them. Accordingly, based on the facts as represented, the applicable provisions of the Code of Ethics, and prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from participating in General Assembly discussions and voting on the proposed legislation described herein, notwithstanding that his former client could potentially be impacted by the passage of the legislation.'”
• Text of full opinion: here.

“Jackson Walker Rejected PR Firm’s Advice on ‘Highest Standards’” —

• “Jackson Walker LLP pushed back on a crisis public relations firm’s advice to tout its ethical standards following allegations that one of its lawyers was in a secret relationship with a top bankruptcy judge, according to an updated complaint.”
• “The previously undisclosed communications between the Texas law firm and Androvett Legal Media & Marketing were made public in an amended complaint Thursday by the plan administrator for JCPenney’s 2020 bankruptcy. The complaint, filed in the US Bankruptcy Court for the Southern District of Texas, accuses Jackson Walker of a deliberate cover-up of the romance between its onetime partner, Elizabeth Freeman, and ex-bankruptcy judge David R. Jones, who oversaw many of the firm’s bankruptcy cases.”
• “The Androvett communications show Jackson Walker resisted suggestions that it publicly affirm adherence to the ‘highest’ ethical standards and that it sought to support Freeman against March 2021 allegations that she was in a live-in relationship with Jones.”
• “‘I would avoid holding us to higher than applicable standards and requirements (i.e., no ‘highest standards’),’ Jackson Walker’s then-general counsel Patrick Cowlishaw told Androvett at the time. ‘Maybe something along the lines of ‘For more than 100 years, Jackson Walker has served its clients with skill, commitment, and in compliance with ethical and professional requirements.’'”
• “The relationship was eventually revealed publicly in October 2023, prompting Jones’ resignation and sparking civil litigation and a criminal investigation. Jackson Walker is battling litigation from the government’s bankruptcy watchdog, the US Trustee, over millions in fees it earned in cases involving Jones.”
• “Cowlishaw’s objections came in the days following the initial allegations that Freeman was romantically involved with Jones, which arrived on March 6, 2021, from Michael Van Deelen, a shareholder of then-bankrupt engineering firm McDermott International. Facing a March 10 court hearing on Van Deelen’s motion for Jones to recuse himself from the McDermott case, the firm moved quickly.”
• “By March 8, Jackson Walker marketing director Barbara Malin emailed Androvett’s Mark Annick seeking advice, according to the complaint. The firm needed talking points and statements for two scenarios: whether a relationship was found to exist or not.”
• “Annick prepared a draft statement by the next day saying Jackson Walker and its lawyers adhered to ‘the highest standards of ethics and professionalism’ and noted an internal investigation was underway. It added that the firm would take necessary steps to maintain those standards as facts emerged.”
• “But Cowlishaw balked at language about ‘highest standards’ and an ‘internal probe,’ according to the complaint. He also wanted to support Freeman, suggesting Jackson Walker say it knew her to be ‘an extraordinary lawyer and a person of integrity’ without commenting on the propriety of her conduct.”
• “Malin, however, had concerns about supporting Freeman, saying it ‘might be a strategic mistake.’ But she also worried the firm may be ‘perceived as throwing Liz to the sharks at the first opportunity.'”
• “Cowlishaw also wanted to avoid the word ‘investigation,’ instead framing it as a review to ensure court filings complied with legal and ethical standards, according to the complaint.”
• “Annick warned Jackson Walker that if it couldn’t ‘affirm a commitment to the highest ethical standards, an outside observer or reader may wonder what sort of mid-level standards we do follow.'”
• “‘We also feel an obligation—as your advocates in the PR and media space—to say that reporters and others encountering this are bound to see it as a clear conflict of interest, at the very least,’ Annick said.”
• “Cowlishaw acknowledged Androvett’s advice, but said its ‘judgment, for better or worse, is that we need to stay away from that or like phrases.'”

Another find from David Kluft: “Can a law firm fire a lawyer to avoid a disqualifying conflict?” —

• “A NY lawyer represented a defendant in a civil action through discovery. He then got a new job with the plaintiff’s firm. The Court held that the new hire created an unwaivable conflict of interest, and imputation of the conflict to the rest of the firm could not be cured by mere screening, per Rule 1.10(c) (presumably because the lawyer substantially participated in the litigation while on the defendant’s side).”
• “The firm argued that the new lawyer didn’t stick around long at the new firm, and in fact had departed even before a motion to disqualify had been filed (not clear if he quit or was let go). The Court rejected this argument – any employment during the litigation served to impute the conflict.”
• Decision here: “Hotel 237, LLC v G.M. Canmar Residence Corp.“

“Microsoft drops law firm that made a deal with Donald Trump from a case” —

• “When big law firms attacked by President Donald Trump decided to make a deal with him rather than fight, many did so because their leaders feared that clients would abandon a firm caught on the administration’s bad side.”
• “Now, that logic may be getting less compelling. A major company, Microsoft, has dropped a law firm that settled with the administration in favor of one that is fighting it.”
• “Large companies such as Microsoft often farm out legal work to dozens or even hundreds of firms and may move business depending on circumstances, such as pricing, expertise and potential conflicts. Microsoft declined to comment on why it changed law firms in a significant case last week, but the switch suggests that a firm that chose to fight the Trump administration could still attract an important client.”
• “On April 22, several attorneys at law firm Simpson Thacher & Bartlett informed the Delaware Court of Chancery that they would no longer be representing Microsoft in a case related to the company’s 2023 acquisition of video game giant Activision Blizzard, according to court filings.”
• “Simpson Thacher reached a deal with the White House last month in which the firm committed to perform $125 million in free legal work for causes acceptable to the Trump administration. In a joint statement with other firms making similar agreements, Simpson Thacher said the pro bono work would be on behalf of ‘a wide range of underserved populations.'”
• “On the same day that the Simpson Thacher lawyers filed paperwork withdrawing from the Microsoft case, at least three partners at firm Jenner & Block informed the court that they would be representing Microsoft in the case. Jenner is fighting in court to permanently block a Trump administration executive order targeting its business.”
• “In some cases, a client may worry that a law firm that has reached a deal with the White House has a conflict of interest that prevents it from aggressively representing the client. For example, the client may be a defendant in a lawsuit brought by the federal government and worry that a settling law firm would be reluctant to stand up to the administration.”
• “Other clients may have broader concerns. A senior partner at another firm that does not have an agreement with the White House said his firm was beginning to attract clients from firms that had settled with the administration. The partner, who was not authorized to discuss client matters publicly, said prospective clients had indicated that they had lost confidence in settling firms for not standing up to an attack on the rule of law.”

“Hegseth attorney’s dual roles trip conflict of interest alarms” —

• “Tim Parlatore is a personal attorney and top adviser to Defense Secretary Pete Hegseth. At the same time, he’s suing the Navy and defending private clients against the U.S. government.”
• “Parlatore, who represented Donald Trump in a criminal case two years ago and rejoined the Navy Reserve in March to aid Hegseth, was recently tapped to coordinate the leak investigation that led to chaos at the Pentagon. The probe was publicly tied to the firings of top advisers and preceded further revelations that Hegseth was careless with classified information. Parlatore was also reportedly in the Signal group with Hegseth’s wife and brother in which the Defense secretary shared details of a strike on Yemen.”
• “But despite Parlatore’s deep involvement at the Pentagon, he is pursuing litigation against the Navy. A review of federal court records shows Parlatore listed as an attorney on 11 cases — though a few appear to be dormant and not all involve the U.S. government. Often his clients are retired military personnel.”
• “The business of Washington is built on government officials leaving their jobs to trade access for private clients and using their connections to achieve client goals. While Parlatore insists his arrangement is above board, it’s highly unusual for a sitting top adviser for a Cabinet secretary to be working in the government while at the same time representing clients suing the government, or working for clients as they fight off the feds.”
• “That tension will be on display in federal court in Washington next week, as Parlatore — wearing his private lawyer hat — leads the defense of retired four-star Adm. Robert Burke against corruption charges. At the trial set to open Tuesday, the Justice Department will seek to prove that Burke, once the Navy’s second-highest-ranking officer, arranged a lucrative contract for a workforce training firm in exchange for a job he took at the company after leaving the Navy.”
• “That means Parlatore is likely to be cross-examining high-level Navy witnesses who know of his close ties with Hegseth and in-uniform responsibility for legal matters of keen interest to the secretary.”
• “And while Parlatore signed up Burke before Trump won last fall’s election, Parlatore’s new, dual role could allow him to capitalize on his ties to Hegseth and his role in the secretary’s office, legal experts say.”
• “‘It’s a great advertising possibility that Parlatore has: Take me to be your attorney because I’ve got unusual access,’ said former Air Force lawyer and judge Joshua Kastenberg, now a law professor at the University of New Mexico.”
• “‘Tim’s business is built around representing service members who are in the military justice system,’ said a person who has worked with Parlatore at the Pentagon. ‘So being close to the secretary and being in his front office provides him an advantage in that business.’ This person and two others — one who has worked with Parlatore, as well as a former defense official — were granted anonymity for fear of retribution.”
• “During a hearing last month in the Burke case, a prosecutor raised Parlatore’s ongoing work for the Defense Department as a ‘potential conflict’ and asked the judge to make sure Burke understood the two hats his attorney is wearing.”
• “‘We just need to make sure the defendant is aware … that his attorney has a job with the Navy and this trial will involve multiple witnesses from the Navy and involves allegations of criminal conduct while [Burke] was employed by the Navy,’ Assistant U.S. Attorney Rebecca Ross told U.S. District Judge Trevor McFadden, according to a court transcript. ‘We’d like to make sure that the defendant won’t raise it, to preserve everything on appeal.'”
• “Parlatore said he saw no issue. ‘I don’t know what the conflict would be. I’m in the Navy Reserves, as many attorneys are,’ the lawyer said. ‘I’ve tried many cases back when I was a Navy reservist before, including … in military courts, where I cross-examined people who were very much higher-ranking than me at the time.'”

From the website swineweb.com, comes: “Pork Industry Defendants Seek Judge’s Recusal Amid Allegations of Law Clerk Conflict” —

• “Several of the largest players in the U.S. pork industry—including Tyson Foods, Smithfield Foods, Seaboard Foods, and Agri Stats—have filed a motion to vacate recent court rulings and called for the recusal of U.S. District Judge John R. Tunheim. The motion, submitted April 28, 2025, cites a conflict of interest involving a judicial law clerk as grounds for both the recusal and the reversal of the Court’s March 31 summary judgment decisions.”
• “The defendants argue that the law clerk, who allegedly performed substantive work on critical motions in the case, has both prior and pending ties to entities suing protein producers in similar antitrust cases. According to the motion, the clerk previously worked for multiple firms involved in parallel litigation targeting Agri Stats and currently holds a job offer from Robins Kaplan LLP—a lead plaintiffs’ firm in the ongoing suit. Additionally, the clerk reportedly interacted with plaintiffs’ attorneys on social media and in the courtroom, which defendants argue creates at least an appearance of impropriety.”
• “At the center of this high-stakes litigation is the accusation that Agri Stats facilitated the exchange of sensitive competitive data between major meat producers, contributing to inflated pork prices through coordinated production strategies. Judge Tunheim’s March 31 rulings leaned heavily on the plaintiffs’ expert testimony, characterizing Agri Stats as ‘the most suspicious and suggestive element in this case,’ while allowing the core antitrust claims to proceed and dismissing Hormel Foods due to its limited involvement in the Agri Stats system.”
• “The defendants insist that the structural fairness of the proceedings has been compromised and are urging the court to set aside its recent decisions, regardless of whether actual bias can be proven.”

Cynthia Godsoe, professor at Brooklyn Law School and Evan Davis senior counsel with Cleary Gottlieb Steen & Hamilton write: “Ethical Issues Raised by Agreements Between Certain Law Firms and Donald Trump” —

• “Do the legal services provided under the agreements qualify as pro bono?”
• “No. These services are being provided for significant consideration and therefore can’t qualify as pro bono work. The consideration includes withdrawal of sanctions imposed or threatened pursuant to executive orders as well as termination of EEOC investigation into activities related to DEI and in all cases confirmation of the firm’s good standing with Trump and his administration.”
• “This consideration is of substantial value to the firms. The sanctions imposed or threatened to be imposed were severe and called into question the firms’ ability effectively to represent their clients. For example, the directive to limit access to federal buildings and federal employees had a severe threatened adverse effect on the firms’ regulatory practice. Also the imposed or threatened Executive Orders branded the firms as persona non grata with the Trump administration, a classification which would likely influence some clients not to choose the firms to represent them in matters involving the federal government.”
• “Do the agreements raise conflict of interest issues?”
• “Yes. These issues arise both with respect to the free legal services to be provided under the agreements as well as services provided to the firm’s paying and pro bono clients while the agreements are in effect.”
• “The first conflict of interest rule is that a law firm may not take on a representation that would cause the firm to be representing differing interests. Differing interest are interests that will ‘adversely affect the independent judgment’ of the lawyer in considering, recommending or carrying out an appropriate course of action for a client. Through required imputation, the entire law firm owes a duty of independent judgment to all of its current clients.”
• “The second conflict of interest rule is that a lawyer may not represent a client where there is a significant risk that the lawyer’s independent judgment will be impaired by a lawyer’s personal interest. Personal interest includes animosity to the client or personal hostility to the nature of the work being undertaken unless the lawyer reasonably believes that there is no significant risk that these views will adversely affect their professional judgment.”
• “Under the agreements the firms will provide free legal services to clients approved by both Trump and the firms. Any proposed representation must be declined if there is a conflict with a current client unless both Trump and the current client provide informed consent. If there is a significant risk that independent judgment on behalf of a Trump approved client will be impaired by work for a new paying or pro bono client, that work must be declined unless the Trump approved client consents. If the Trump-approved client is the federal government or a private entity that would seek Trump’s approval before consenting to a conflict, then Trump could decline consent for any reason or no reason. To avoid this risk the firms should not commence any work under the agreements without a written advance conflict waiver from both the Trump-approved client and Trump himself.”
• “Lawyers at the firms may be reluctant to work on Trump-approved matters either because of concerns about the circumstances under which the agreements arose, strong disagreement with aiding Trump in advancing his policy agenda or the specific substance of the Trump-approved matter. Because very strong feelings about these matters are ubiquitous and within the range of reasonable opinion, the firms should take special steps to make clear that a partner or associate with such reservations should not work on the Trump-approved matter unless they reasonably believe that their independent judgment will not be impaired by their personal views. The firms should also make clear that a lawyer’s conclusion that they cannot ethically work on a Trump-approved matter will not have any adverse impact on their treatment by the firm.”
• “Are the agreements unethical because they are the result of illegal extortion under color of official authority?”
• “Yes. Bribery and extortion are separate but closely related crimes. Bribery is giving a benefit to receive favorable treatment. Extortion is giving a demanded benefit to avoid threatened unfavorable treatment. An example of extortion is what is commonly called a protection racket where payments or other benefits are paid to those demanding them in return for protection against the carrying out of threats of harm.”
• “Here, the Trump administration obtained property—the free legal services—under color of official authority. Coercion need not be shown. Instead, the coercion flows from the government power, from the holding of public office itself. Nor is it relevant that the services may be provided to the Trump administration or to third parties—any quid pro quo understanding for any recipient satisfies the statutory elements.”
• “The best outcome here is obvious. The agreements are not enforceable and therefore can be repudiated. The nine firms that have made these agreements should all agree to effectuate their termination. If all the targets of a protection scheme refuse to comply for ethical reasons, the scheme losses much of its force.”
• “Failing that, the New York Rules of Professional Conduct should be enforced. Hearings need to be held to provide due process and establish the facts and circumstances more fully. Mitigating factors need to be considered in determining the appropriate sanction. As noted above, victimhood is one such factor. It may well be that public censure is the appropriate sanction. This sanction is by no means a slap on the wrist because the Firms would be required to transmit the order of public censure to all of their clients and personnel.”

“Judge strikes down Trump executive order punishing prominent law firm” —

• “President Donald Trump’s executive order that sought to punish the law firm Perkins Coie for working with Hillary Clinton and other Democrats is unconstitutional, ‘motivated by retaliation’ and cannot be enforced, a federal judge ruled late Friday.”
• “The ruling marks the biggest setback so far for Trump’s campaign against law firms that have represented his political enemies — though key provisions of the orders have been blocked as four firms challenged them in court.”
• “‘Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and publish certain viewpoints, however, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with ‘tolerance, not coercion,’’ Judge Beryl Howell wrote in the 102-page decision.”
• “‘In purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers,’’ Howell wrote. ‘Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.'”
• “Perkins Coie issued a statement welcoming the decision. ‘This ruling affirms core constitutional freedoms all Americans hold dear, including free speech, due process, and the right to select counsel without the fear of retribution,’ it said. ‘We are pleased with this decision and are immensely grateful to those who spoke up in support of our positions.'”
• “In a lengthy footnote, Howell took aim at other law firms that decided to make deals with the White House to avoid being targeted by the president — including nine that have agreed to contribute nearly $1 billion in free legal services to causes favored by the administration.”
• “‘Only when lawyers make the choice to challenge rather than back down when confronted with government action raising non-trivial constitutional issues can a case be brought to court for judicial review of the legal merits,’ Howell wrote. ‘If the founding history of his country is any guide, those who stood up in court to vindicate constitutional rights and, by so doing, served to promote the rule of law, will be the models lauded when this period of American history is written.'”

David Kluft finds great stuff: “Can a judge decide whether a firm’s fees are reasonable if he argued they were unreasonable before taking the bench?” —

• “Before taking the bench, a TN judge was an expert adverse to a law firm, opining that the firm’s fees were ‘outrageous.’ In 2022, the judge was assigned to an unrelated case involving the same firm in which the firm’s rates would be at issue.”
• “The TN Supreme Court held that a judge is not required to recuse simply because he advocated or made public statements against a party while in private practice.”
• Decision: here.

“Buchanan Ingersoll Faces DQ Bid Over Former GC’s Role” —

• “Buchanan Ingersoll & Rooney PC attorneys defending Amerilife should be disqualified for allegedly running ‘roughshod’ over ethical rules by using a former general counsel of a retirement planning agency to gain an upper hand in a dispute in a Florida federal court, according to a bid to boot the firm from the case.”
• “Investment adviser Joshua Mellberg alleges that attorney Dan Morgan is advising Buchanan Ingersoll and acting as a corporate representative for Amerilife despite having previously served as general counsel to Joshua David Mellberg LLC, including during a 2020 sale in which Amerilife acquired a majority interest in the business.”
• “‘Instead of collaborating with plaintiffs to avoid the conflict, defendants’ counsel continued to run roughshod over the applicable ethical rules, refusing to remove Morgan as its corporate representative and purposely continuing to rely on Morgan’s assistance due to Morgan’s intimate knowledge of the substance of the case,’ Mellberg said in a motion to disqualify on Thursday.”
• “Mellberg sued Amerilife last April but said he was not aware of Morgan’s involvement in the case until December. Mellberg said the court conducted an in camera review of notes Morgan took during a deposition of Mellberg, and said, ‘there’s no question that Morgan is facially in violation of the rules’ during a hearing in December.”
• “‘As the court further explained, that the notes reference to ‘things that were in place before the transaction’ is ‘why lawyers are not allowed to represent other parties adverse to the interests of their former client without the former client’s consent,’ and only if such consent would be appropriate under the circumstances,’ Mellberg said, purportedly quoting the court.”
• “‘Defendants’ counsel remain impervious to their and Morgan’s ethical violations and continue to refuse to acknowledge that Morgan’s involvement presents a conflict,’ Mellberg said.”
• “Mellberg stayed on with Joshua David Mellberg LLC after the sale to Amerilife as an employee of subsidiary Independent Administrative Services LLC, or IAS, according to an amended complaint filed in October. Morgan also remained with IAS as Joshua David Mellberg LLC’s chief compliance and legal officer, the complaint states.”
• “‘Plaintiffs only took this drastic step after consulting multiple legal ethics experts including Scott Tozian in Tampa and the prior General Counsel of the Georgia State Bar, Paula Frederick, to determine that AmeriLife and defense counsel’s conduct is egregious warranting disqualification,’ Steffenson [counsel for Mellberg] said. ‘Defense counsel at Buchannon Ingersol and AmerilLife’s prior in-house counsel, Robert Nathan Hightower, fought to keep Mr. Morgan as AmeriLife’s corporate representative where he could continue using his prior clients’ confidential information to help AmeriLife this litigation to the detriment of the former client.'”
• “Steffenson added, ‘Under the Eleventh Circuit’s irrebuttable presumption, legal counsel cannot associate with someone who has confidential information about your opposing party and expect not to be conflicted out. Even after being made aware of the conflict, AmeriLife and its counsel refused to acknowledge a potential problem.'”

David Kluft, Assistant Bar Counsel at Massachusetts Office of Bar Counsel, consistently spots interesting stories: “Can a judge order me to stay in a case despite a clear conflict of interest?” —

• “A NE court appointed a public defender’s office to represent a client on a drug charge. The client sought a lighter sentence by cooperating and becoming a confidential informant, purchasing illegal drugs at the police’s behest from a drug dealer.”
• “The court later appointed the same public defender’s office to represent the drug dealer. The public defender tried to refuse the case, but the judge would not let them withdraw.”
• “The NE Ethics Advisory Committee opined that this was a non-waivable conflict of interest because one client will be testifying against the other, and it would normally require withdrawal from both matters. However, under Nebraska’s version of Rule 1.16(c) (which is the same as the ABA Model rule), the public defender was required to keep both cases despite the conflict if the judge ordered it.”
• “The Committee opined that the public defender must be especially mindful of its confidentiality obligations in this unfortunate scenario, including that it was not allowed to warn the drug dealer about any information learned about him as the result of its work on the informant’s case.”

“Attorneys cautioned not to read too much into cooling of ‘hot potato doctrine’” —

• “Though a recent American Bar Association ethics opinion arguably weakens the so-called ‘hot potato doctrine,’ attorneys should not take false comfort that withdrawal from an ongoing representation has become any easier, lawyers who handle professional discipline cases say.”
• “In issuing Formal Opinion 516 on April 2, the ABA’s Standing Committee on Ethics and Professional Responsibility sought to provide additional guidance on what Model Rule of Professional Conduct 1.16(b)(1), governing the voluntary termination of a client relationship, means when it says withdrawal is allowed when it ‘can be accomplished without material adverse effect on the interests of the client.’ “
• “Whether the opinion achieves that goal is open to debate. Indeed, two members of the standing committee, Brian Faughnan, a former president of the Association of Professional Responsibility Lawyers based in Memphis, and Wendy J. Muchman, a Northwestern University law professor, wrote a dissent, which acknowledges the majority’s helpful guidance to lawyers on many of the situations it addresses.”
• “‘However, the portion seeking to argue why the ethics rules do not prohibit a lawyer from firing one client in order to sue another client is something that we fear will prove more harmful than helpful to lawyers,’ they write.”
• “Missing from the majority opinion but incorporated into the hot potato doctrine is the principle that loyalty to the client is an essential part of the withdrawal equation, said Boston attorney Thomas F. Maffei. In his view, the ethics opinion is a nod toward a worrisome trend of viewing the law as more of an industry than a profession.”
• “‘What’s clear from this opinion is that loyalty alone does not protect the integrity of the attorney-client relationship,’ Maffei said.”
• “When a client hires a lawyer, he added, ‘the client makes the judgment and assumes that the lawyer is going to stick with the client through thick and thin, through the end, and only withdraw if I don’t pay him or he’s getting sick or some other reason, but not because [the lawyer] just wants to go with some other more lucrative client.'”
• “The ‘good news’ is that it is and will remain hard to terminate a matter — especially a litigation matter — without causing ‘significant adverse effect’ on the client, Maffei said. ‘Nothing in this ABA opinion should cause lawyers to think it is now easier to withdraw,’ he said.”
• “The ABA opinion offers several examples of circumstances in which withdrawal will likely have a ‘materially adverse effect.'”
• “‘In some transactional representations, for example, delay caused in the search for substitute counsel may result in scuttling a deal or reducing its value,’ the opinion notes. That example illustrates one question a lawyer considering withdrawal should be asking: Does timing matter to the client?”
• “‘Where timing is objectively important to the client, significant delay can itself be a material adverse effect even if the representation can otherwise be completed successfully,’ the opinion notes.”
• “Material adverse effects may also result from the original lawyer having unique abilities or knowledge, or the significant additional expense of getting successor counsel ‘up to speed,’ the opinion notes. It adds that a lawyer ‘may be able to remediate these adverse effects and withdraw in a manner that avoids the harm the Rule seeks to prevent.'”
• “It offers the examples of the withdrawing counsel helping the client find and then working with the new lawyer and/or returning or forgoing legal fees for work that will have to be duplicated.”
• “‘None of that’s realistic,’ Maffei commented.”
• “On the other side, the ABA highlights circumstances unlikely to have a ‘material adverse effect,’ such as ‘where the representation has barely gotten off the ground’ or ‘where co-counsel can successfully complete the remaining work.’ Those are obvious, attorneys say.”
  “Nonetheless, the standing committee thought it was important to stress that Rule 1.16(b)(1) does not protect a client’s interest simply in maintaining an ongoing client-lawyer relationship, protect against the client’s disappointment in losing the lawyer’s services, or prohibit withdrawal based on the client’s perception that the lawyer is acting disloyally.”
• “Rossi also cautioned that, as helpful as the guidance may be for lawyers in analyzing the potential adverse effects of a withdrawal on a client’s interest, the ABA opinion also provides a roadmap for clients to oppose a lawyer’s withdrawal.”
• “‘It is hard to envision many scenarios in which a lawyer’s withdrawal would not result in additional costs and delays for clients, and now there is authority indicating that this is problematic and may be a basis to prevent an attorney from withdrawing,’ he said.”
• “To the extent that Formal Opinion 516 has made news, it is through its attempt to weaken the ‘hot potato’ doctrine, attorneys said.”
• “‘A majority of the committee takes the view that dropping a current client to represent a more favored client is not in itself a violation of the ethical rules,’ Rossi said.”
  “But he was quick to note that the opinion only addresses the issue in the rules context. ‘A court dealing with a disqualification motion or a breach of fiduciary duty claim against a lawyer may apply a different standard,’ Rossi said.”
• “The ABA opinion allows that, ‘[i]n the context of litigation, some courts have held that without the client’s consent, a lawyer may not withdraw from a representation to litigate against the now-former client. Lawyers who end a representation for this reason have sometimes been disqualified from representing the new client.'”
• “The dissenters call that portion of the majority’s opinion ‘incomplete.'”
• “‘The opinion fails to address the breadth of precedent on the ‘hot potato’ doctrine, and we are concerned that by seeming to dismiss this judicial doctrine as involving a handful of outlier cases, the opinion may mislead lawyers about the law,’ Faughnan and Muchman write.”
• “The ABA opinion dodges the real reason the courts adopted the hot potato doctrine — the allure of a bigger payday that incentivizes lawyers to ditch one client in favor of another, according to Maffei.”
• “Rossi added the ABA opinion also reinforces the importance of closing files.”
• “‘One way to avoid the ‘hot potato’ problem altogether is to distinguish between current clients and former clients,’ he said. ‘Just as we have certain administrative steps we follow when we take on clients, we also need to be sure to take steps necessary to close files when our work on a matter is complete.'”
• “That could be as simple as sending a disengagement letter and providing a final bill, he said.”

“Judge DQs Atty Suing FIFA Over Antitrust Allegations” —

• “A Puerto Rican federal judge on Thursday disqualified an attorney suing FIFA and local affiliates over allegedly blocking rival soccer leagues, saying the lawyer cannot simultaneously be a plaintiff, counsel and factual witness.”
• “The order by U.S. District Judge Raúl M. Arias-Marxuach said that, while hybrid representation is sometimes allowed, it is not guaranteed and should happen sparingly.”
• “José R. Olmo-Rodríguez of Olmo & Rodriguez Matias Law Office PSC was representing several plaintiffs in the suit, including the now-shuttered Puerto Rico Soccer League NFP Corp., and is also listed as a plaintiff himself.”
• “‘While disqualification should not be granted lightly, the court finds that Mr. Olmo should not be an exception to the general rule against hybrid representation,’ the order said. ‘Mr. Olmo is a named plaintiff and is identified as one of plaintiffs’ factual witnesses in the joint case management memorandum.'”
• “Olmo and co-counsel Ibrahim Reyes-Gándara of Reyes Lawyers PA found themselves in hot water recently after appearing to use artificial intelligence to help write briefs — including one fighting FIFA’s disqualification bid — that included nonexistent cases. Judge Arias-Marxuach threatened sanctions against the men after verifying multiple incorrect citations, saying while AI is not forbidden, attorneys ‘have a duty of competence to their clients and a duty of candor to the tribunal.'”
• “Meanwhile, the judge stopped short on Thursday of disqualifying Reyes, as well. The defense had argued the court should disqualify the attorney because he had served as co-chair, chief operating officer and general counsel of PRSL, and may also be a witness in the lawsuit.”
• “‘Unlike Mr. Olmo, Mr. Reyes is not identified as a factual witness by plaintiffs. Although Mr. Reyes may have personal knowledge of key factual allegations, as alleged by defendants, that does not mean he is a ‘necessary witness’…,’ Judge Arias-Marxuach said.”
• “The order went on to say that the defendants have not articulated a conflict of interest between PRSL and Reyes, and they appear to be on common ground.”
• “Olmo and other plaintiffs had in turn filed a motion to disqualify the Adsuar Muñiz Goyco Seda & Pérez-Ochoa PSC law firm, which is counsel for defendant Federacion Puertorriquena de Futbol and its directors. The plaintiffs argued it was a conflict of interest to represent the organization and its director, but Judge Arias-Marxuach did not agree. He denied the motion on Thursday, ruling there was no conflict.”

“Pera Publishes ‘The Playbook’ on Expanding the Geographic Reach of an Arizona ABS” —

• “Adams & Reese Partner Lucian Pera, one of the nation’s leading legal ethics practitioners, has published “The Playbook: How to Extend the Reach of an Arizona ABS Law Firm to the Entire United States.” Pera provides a practical survey of tools and models now used by innovators to deliver legal services and extend the reach of ABSs – short for Alternative Business Structures.”
• “The primary roadblock for ABSs is the prevailing interpretation of ABA ethics rules. ABA Formal Ethics Op. 91-360 (1991) found that nonlawyer-owned law firms cannot establish branch offices in jurisdictions that prohibit nonlawyer ownership. And lawyers licensed in jurisdictions that prohibit nonlawyer ownership cannot practice with ABSs. Every jurisdiction that has addressed this issue has followed these principles. Arizona ABSs are essentially ‘landlocked.'”
• “Still, despite this restriction, Pera says at least four techniques allow ABSs to expand their work beyond Arizona, including a fifth technique to allow nonlawyer support of a law firm without implicating ABSs at all. Pera discusses approaches that include:
  • The Co-Counsel and Referral-Fee Model;
  • The Pro Hac Vice Admission Model;
  • The Temporary Practice Model;
  • The Staffing Company Model; and
  • The Two-Company Law Firm Model.”
• “These techniques are explored in more detail in Pera’s “The Playbook” – a 36-page guide that discusses how to extend the reach and operations of an Arizona ABS to other U.S. jurisdictions, while acting within current U.S. law and ethics rules. Click here to download the full version.”

“McCarter & English Fights DQ Bid In NJ Food Biz Quarrel” —

• “McCarter & English LLP pushed back on a disqualification bid from a New Jersey food industry executive in federal court this week, arguing that the plaintiff is attempting to ‘fabricate’ a previous attorney-client relationship to demand disqualification.”
• “Samil Ozavar told the New Jersey federal court in March that McCarter & English previously represented him around 2018 in a business negotiation and therefore should not now be allowed to represent his former business partner’s estate, which Ozavar is suing.”
• “However, McCarter & English told the court in a brief Monday that its engagement letter for its work on the previous deal made clear that its only clients were Ozavar’s business partner and his company – not Ozavar.”
• “‘Ozavar was never sent an engagement letter, he never executed one with the firm, and no legal services were rendered for him personally,’ McCarter & English said. ‘Ozavar points to no contrary evidence because it does not exist.'”
• “Ozavar is suing the estate of William Louttit and a company that he alleges he and Louttit shared ownership of, WAL & Associates, for over $3 million, with McCarter & English’s legal work at the heart of the dispute.”
• “Ozavar owned 15% and Louttit 85% of WAL, according to Ozavar’s lawsuit, and the two were also employees of New Jersey consumer food company Cibo Vita. In November 2018, Louttit reached out to McCarter & English about negotiating a deal for WAL to buy Cibo Vita, and signed an engagement letter with the firm for that work. The deal went through in May 2020.”
• “Cibo Vita was later sold again to a third party, which Ozavar claims should have entitled him to 15% of the proceeds under the agreement McCarter & English negotiated. Ozavar has said he was denied that money and he sued WAL and the estate of Louttit, who died in 2023, in December 2024.”
• “Ozavar moved to have McCarter & English dismissed as counsel for Louttit’s estate on the basis that it was representing him when it negotiated the deal for WAL to buy Cibo Vita. McCarter & English, however, poked several holes in that argument in Monday’s brief.”
• “The firm told the court that Louttit owned 100% of WAL, not 85%, and that therefore Ozavar did not receive any benefit from the legal work McCarter & English did per the agreement letter. The firm also did not bill Ozavar for its services, and Ozavar did not pay anything for the firm’s work, McCarter & English argued.”
• “Ozavar claimed that he was included on hundreds of emails and took part in dozens of conversations about the deal with counsel from McCarter & English. The firm did not dispute that, but maintained to the court that that did not change the fact that Louttit, not Ozavar, was its client.”
• “McCarter & English also told the court that Ozavar left out a relevant exchange in his disqualification motion: Ozavar at one point submitted an unsolicited proposal for the Cibo Vita deal to the McCarter & English attorney on the deal, but the attorney refused to review the proposal or discuss it because Ozavar was not his client.”

Board Of Professional Responsibility of the Supreme Court Of Tennessee: “FORMAL ETHICS OPINION 2025-F-171” —

• “The Board of Professional Responsibility has been requested to issue a Formal Ethics Opinion regarding the ethical propriety, in a products liability case, of a non-disparagement clause in a settlement agreement which makes the lawyers in Firm A parties to the settlement agreement proposed by Firm B.”
• “The inquiring lawyer has encountered a condition to settlement, in a product liability case against a certain defendant, which makes lawyers from the inquiring lawyer’s law firm parties to the Settlement Agreement which includes a non-disparagement clause prohibiting them from taking any action or making any statements, verbal or written, to any third party that disparage or defame Defendants.”
• “It has long been held in Tennessee that the attorney’s signature on a release should vouch only for the fact that the client releases the defendant. A requirement that a plaintiff’s attorney become a party to a release might cause a conflict of interest between the plaintiff’s attorney and the plaintiff in violation of DR 5-l0l(a), [Now RPC 1.7]. Therefore, these clauses are prohibited except in cases where the plaintiff’s attorney releases a claim for attorney fees.”
• “Notwithstanding the earlier Tennessee Formal Ethics Opinion’s guidance on this issue, there is also a basis in the Rules of Professional Conduct to find non-disparagement clauses improper in a products liability case. Tennessee Rule of Professional Conduct 5.6 (b) says “A lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”
• “A non-disparagement clause as part of a settlement agreement requiring the firm’s lawyers to become parties would restrict the plaintiffs firm from using or discussing any information learned during the case that sheds a negative light on the Defendants, thereby indirectly restricting the plaintiffs’ counsel from informing potential clients of their experience and expertise, making it difficult for future clients to identify well-qualified counsel.”
• “Requiring a plaintiff’s attorney to become a party entering into a settlement agreement containing a non-disparagement clause in a products liability case raises ethical concerns and creates a conflict between the interests of the plaintiff’s attorney and those of their client. Consistent the Tennessee Rules of Professional Conduct and with Tennessee Formal Ethics Opinions 97-F-141 and 2010-F-154, an attorney cannot ethically agree to become a party to such agreements or clauses.”

“Irwin Mitchell ditches asset management arm after judge’s conflict criticism” —

• “National firm Irwin Mitchell has shed its asset management business one year after a damning ruling on a potential conflict of interest.”
• “Financial adviser Shackleton today announced it had set up its own personal injury and Court of Protection division after acquiring IM Asset Management (IMAM) from the Irwin Mitchell Group. The deal is subject to approval by the Financial Conduct Authority.”
• “The legal group sold the business notwithstanding the outcome of a directions hearing in Irwin Mitchell Trust Corporation v PW & Anor which was held in October. Her Honour Judge Hilder had scheduled the hearing to determine whether the appointment of IMAM to handle client PW’s affairs could be ratified.”
• “PW, a mother of four, developed permanent brain damage after contracting viral encephalitis in hospital and settled a claim with the NHS trust for £1.85m and £151,000 per year in periodical payments. Irwin Mitchell Trust Corporation, a wholly owned subsidiary of Irwin Mitchell LLP, was appointed as property and affairs deputy for PW. The deputy then determined to appoint IMAM as investment manager for a significant part of PW’s damages award.”
• “IMAM was wholly owned by Irwin Mitchell Holdings Ltd, which was also the controlling member of Irwin Mitchell LLP.”
• “IMAM told the Court of Protection at a hearing in January 2024 that the conflict of interest rule did not apply on the facts of the case. IMTC invited the court to have regard to the fact that it was a highly experienced deputy used to taking decisions about the investment of assets and appointment of advisers.”
• “Deputies from other firms gave evidence to the court about how financial advisers were appointed, but the judge said it was striking how none of them supported instructing a related investment manager. She concluded the appointment by IMTC of IMAM to manage PW’s assets ‘clearly conflicts’ with rules against self-dealing, and there was an actual conflict of interest in that the Irwin Mitchell group gained financially. This amounted to a ‘beauty parade in which a family member of a protected person participates’, and none of the processed adopted by IMTC could extinguish that conflict.”
• “Irwin Mitchell today said the sale of IMAM was not related to the case, where a ratification judgment is awaited, and was instead part of its strategy to focus and invest on its existing services.”
  “Craig Marshall, group chief executive at Irwin Mitchell, said: ‘This deal aligns with our strategy to simplify our structure and allows us to invest further to grow our core offer as a full-service law firm. We’re the leading complex personal injury firm, we have one of the largest national private client practices in the UK, and we provide comprehensive legal advice for mid-market corporate businesses.’”
  “Irwin Mitchell said the asset management sale was a continuation of a strategy showcased in 2021 when it sold its low-value volume PI business to focus on more complex cases. The firm, which exceeded £300m in annual revenue for the first time in 2024, has expanded in the past four years with office openings in Brighton, Cardiff, Liverpool and Nottingham.”
  “IM Asset Management Limited has performed well, according to accounts for the year ended 30 April 2024, with revenue just below £10m and pre-tax profits rising slightly to £3.48m. “