Bressler Risk Blog

David Kluft asks: “If Clients A & B are related, can I reveal Client A’s Confidential Information To Defend Myself Against Client B’s Malpractice Suit?” —

• “A WA attorney separately represented a Father and Son various legal matters. At some point, the lawyer also borrowed money from the Father and the loan was forgiven. After the Father died, the Father’s estate sued the lawyer for breach of fiduciary duty, presumably with the goal of winding back the loan forgiveness.”
• “The lawyer wanted to prove that the attorney client relationship with the Father ended before the loan, but in order to do that he needed to produce confidential information from the Son’s file, over the objection of the Son, who along with other relatives was supporting the estate’s case.”
• “The lawyer claimed disclosing the Son’s files qualified for the self-defense exception in Rule 1.6(b)(5), which allows a lawyer to disclose confidential information ‘to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client… or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.'”
• “The WA Ct. of Appeals disagreed, holding that disclosure of the Son’s confidential information was not covered by the exception because the relevant “client” for purposes of the exception was the estate, not the Son, and there technically was no controversy with the Son.”
• Decision: here.

“Using Military Lawyers as Immigration Judges is Ill-Advised and Potentially Illegal” —

• “It violates individual rights and is an inappropriate use of the military. The Trump administration’s reported authorization of 600 military lawyers to act as temporary immigration judges would deprive immigrants of a fair hearing and further erode the line between the military and civilian government.”
• “This is true regardless of the professionalism of the military lawyers. Immigration judges are specially trained administrative judges in the Department of Justice who oversee deportation hearings. In late August, the DOJ issued a rule allowing ‘any attorney’ to be selected as a temporary immigration judge, eliminating the previous requirement that temporary judges have years of adjudicatory, litigation, or immigration experience. Multiple news reports on the Trump administration’s authorization of the use of military lawyers followed in early September.”
• “In addition, ethical rules are fundamental to the rule of law, but the legal and ethical obligations of military lawyers and immigration judges are in tension. By regulation and guidelines, immigration judges are obligated to be impartial. Military lawyers would be bound by those same rules while serving as immigration judges, but even when sent to the DOJ, JAGs remain bound to follow the Uniform Code of Military Justice which requires JAGs to obey a lawful order. Failing to do so risks career consequences or even court martial. That obligation raises questions about whether JAGs would be placed in a position where it would be impossible to be truly impartial.”
• “Moreover, under military ethics rules, JAGs can’t act in a way that is prejudicial to the administration of justice, nor can they represent clients with a conflict of interest. If a military attorney’s usual job is to represent the military as a prosecutor or adviser, simultaneously working for a temporary period as a judge — who does not represent the government — potentially puts the officer in a precarious ethical bind.”
• “A JAG’s legal and ethical obligations to follow orders make it challenging to provide a truly fair hearing to the immigrants in their courtroom, a conundrum with constitutional implications.”

“Lawyers reject ‘high risk’ rating for money laundering” —

• “Classifying legal services providers as ‘high risk’ for money laundering is wrong, anti-money laundering specialists told the Law Society’s economic crime conference last week – amid concern over HM Treasury proposals to bolster the AML regime.”
• “Legal services providers were assessed as high risk for money laundering in the 2017, 2020 and 2025 national risk assessments published by the Home Office and HM Treasury. The latest assessment states that law firms are attractive to criminals ‘due to perceptions of the sector’s integrity’.”
• “However, at this week’s conference, Marcus Thompson, a partner at Kirkland & Ellis International who assists corporate clients on anti-money laundering, said he disagreed with the rating. ‘The whole point of becoming a lawyer is the rest of society rightly regards lawyers as people of integrity… who act at a standard above most people in society,’ Thompson said.”
• “Thompson acknowledged that some sectors of the legal economy are more vulnerable than others, but ‘that does not justify the National Risk Assessment of lawyers being at highest risk of money laundering. I think that’s too simplistic’.”
• “Amy Bell, chair of the Society’s economic crime taskforce, said law enforcement agencies have been asked to share examples of where they believe solicitors could have prevented criminals from using their services. ‘Until we have seen that data, it is difficult to say, ‘Watch out for this’,’ Bell said.”
• “Meanwhile, the Society is expected to push back on Treasury proposals that would require banks to take ‘reasonable measures’ to understand the purpose of the pooled client account, gather sufficient information about each client’s business and assess the risk associated with the account.”
• “Simmons & Simmons partner Amasis Saba, a member of the Society’s taskforce, said the onus will fall on banks to be comfortable about who the beneficial owners are, which could include counterparties. ‘This is an area the Law Society will be pushing back on… Your teams are going to get battered by requests. If you have multiple banks, [that means] multiple requests,’ Saba said.”