Bressler Risk Blog

David Kluft asks: “Can I advise a defendant on a pre-trial plea deal if a former client may be an adverse witness later at trial?” —

• “Multiple defendants were arrested as part of a drug distribution ring in CO. One defendant (the Witness) pled guilty right away and planned to testify against the others. A CO lawyer who had previously represented the Witness in an unrelated matter appeared for one of the other defendants (the Defendant) against whom the Witness might testify at trial.The lawyer had confidential info about the Witness that would help the Defendant, so he had a potential conflict if the Witness testified.”
• “However, it never came to that because Defendant took a plea deal before trial. Defendant later moved to withdraw the plea, arguing that her counsel had a conflict while advising her on the plea. The trial court denied the motion because, although the lawyer didn’t consult with Defendant about the possible conflict, the conflict was never realized because there was no testimony, and the lawyer claimed it didn’t affect the advice he gave her on the plea.”
• “This decision was reversed on appeal: because the lawyer was unable to disclose to the Defendant the confidential info he had about a witness, he was operating under a conflict that was not waived by either client, and he failed to discuss with his client alternative strategies such as withdrawing from the case in favor of successor counsel, who may be able to discover and use info against the Witness that he could not use.”
• Decision: here.

“Seyfarth Beats DQ Bid In Amazon COVID Screening Case” —

• “A Colorado federal judge Monday [9/29] denied Amazon warehouse workers’ bid to disqualify Seyfarth Shaw LLP from representing the e-commerce giant in a proposed wage class action, rejecting arguments that Amazon wrongly represented former managers who may be class members since the firm immediately withdrew from that representation once informed of the possible conflict.”
• “Seyfarth Shaw LLP is representing Amazon in a proposed class action, filed in 2021, alleging that the online retailer violated Colorado wage law by failing to pay employees for the time they spent undergoing COVID-19 screenings before clocking in for work. (Courtesy of JKing Images)”
• “In a seven-page ruling, U.S. District Judge Raymond P. Moore denied a Sept. 13, 2024, motion to disqualify Seyfarth and sanction Amazon. The motion accused Seyfarth of violating ethics rules by representing former Amazon managers who had previously been hourly workers and were therefore possible class members in the lawsuit over unpaid COVID-19 screenings done off-the-clock.”
• “The former employees who held managerial roles at issue are Kierra Howlett, Kristi Adkins, Eric Girard and Kevin Copeland. The plaintiffs argued Seyfarth reached out to these individuals after Amazon was sued, agreed to represent them at their depositions as third-party witnesses, and entered agreements with them.”
• “The plaintiffs further accused the firm of soliciting direct representation of these individuals, with Amazon footing the bill, adding there are ‘obvious conflicts’ associated with simultaneously representing absent proposed class members and a defendant in a case, according to their motion to disqualify. “
• “On Oct. 30, 2024, Seyfarth opposed the disqualification bid, arguing there was no real harm since its attorneys quickly ended their representation of these former employees, after discovering some of them could qualify as class members since they previously worked as hourly employees at Amazon.”
• “However, even if those individuals are putative class members, they’re not parties to the instant action, Seyfarth had said, pointing out there’s no class certification motion pending in the case.”
• “On Monday, Judge Moore rejected the sanctions bid and the motion to disqualify, ruling that the plaintiffs’ claims aren’t enough to show that Seyfarth’s brief representation of the possible class members adversely impacted the integrity of the judicial process, let alone that any impact superseded Amazon’s right to pick its attorneys.”
• “Regarding Colorado Rules of Professional Conduct Rule 1.7, which the plaintiffs relied on to push their argument that Seyfarth’s representation of Howlett and Girard created a conflict of interest, Judge Moore noted that rule only applies to representation that involves a concurrent conflict.”
• “The judge continued: ‘And, in the absence of even a motion for class certification, plaintiffs’ suggestion that Seyfarth would need to be ‘actively fighting class certification’ is premature.'”
• “Seyfarth’s representation of these individuals didn’t violate any law, and the plaintiffs do not show Seyfarth had any reason to think it couldn’t competently and diligently represent these individuals’ interests, the order added.”
• “‘Nor have plaintiffs shown that by conducting pre-disposition meetings with these individuals, Seyfarth obtained confidential information that Defendant might use to their disadvantage,’ Judge Moore said. ‘Plaintiffs have not established that Seyfarth violated any duty it owed to its former clients or that any potential conflict of interests tainted the fairness of these proceedings.'”