Bressler Risk Blog

Former President of the Association of Professional Responsibility Lawyers, and current member of the ABA Standing Committee on Ethics and Professional Responsibility Brian Faughnan writes on: “Conflicts beyond lawyers” —

• “I have written in the past about the perhaps ‘unique’ approach that Tennessee has to the question of allowing non-consensual screens to cure conflicts arising from lateral movement of lawyers. That approach can make lateral movement of lawyers both less and more complicated.”
• “What a lot of lawyers and firms in Tennessee do not grasp, though, is that the same structure and approach under our rules can apply to staff when they move from working for one lawyer or law firm to another.”
• “A recent report about a Texas lawsuit where there is now the threat of disqualification after years of litigation because of an undisclosed conflict of interest stemming from a paralegal who moved between law firms has reminded me that I’ve been meaning to elaborate on the risks, complications, and further inequities of Tennessee’s approach when it is applied to people who are not lawyers.”
• “Tennessee’s RPC 1.10(c) generally allows the creation of a screen to cure imputed disqualification that would otherwise occur when a lawyer moves between firms. It includes certain requirements about making sure there has not already been any flow of information in addition to promptly establishing the screen. Importantly, it also requires that a notice be sent to the former client about what has caused the need for the screen and what actions have been taken.”
• “But Tennessee’s rules treat litigation differently from non-litigation matters such that the entire approach above is not available when: (a) the lawyer moving firms was ‘substantially involved’ in the representation of the former client; (b) that past representation involved litigation where the former client is directly adverse to a current client of the firm that lawyer is now joining; and (c) the litigation is still pending when the lawyer makes the switch.”
• “In those situations, the firm wanting to hire the lawyer can only do so if it is able to get full conflict waivers from both sets (former and current) of clients fighting with each other in the litigation or if it is willing to drop the current client.”
• “The additional wrinkle that gets added to the mix in Tennessee is that Comment [10a] to our RPC 1.10 states: ‘The requirements set forth in this rule include law clerks, paralegals, secretaries, and other staff employed by a firm, with due regard to their levels of responsibility in the matter.'”
• “Now what ‘with due regard to their levels of responsibility in the matter’ really means is subject to much debate. But that debate is not a widespread one because of the reality of things on the ground in Tennessee.”
  Based on my experience, the reality in Tennessee is that a small minority of law firms grasp that this comment to RPC 1.10 means that they need to be concerned about the potential for being disqualified as a result of hiring paralegals and legal assistants who are working at other law firms. Within that small minority, a majority of firms will make necessary efforts to try to deal with the issue when the matter involves litigation and, thus, would require a full conflict waiver. Only a minority of the firms within that small minority of overall firms make the effort to provide the notice that is required in order comply fully with the rule when nonconsensual screening can provide a solution to avoid imputation.”
• “The entire situation is one that certainly creates a looming risk for law firms in Tennessee. But it also raises questions about whether, as a matter of public policy, the kinds of barriers to employment of people without law licenses that the rule erects are really justifiable.”

And David Kluft asks: “If a judge is a crime victim, can a prosecutor who appears before the judge in other cases prosecute the judge’s case too?” —

• “An incarcerated individual in MN sent a letter threatening to kill a district court judge. When the state pressed charges, the defendant moved to disqualify. He argued that it was a conflict for the prosecutor to prosecute his case at the same time he was appearing before the judge/victim in other matters, because the prosecutor would be incentivized to be more vigorous than in other similar cases (as evidenced by a 21-month plea offer). The defendant was convicted and sentenced to 18 months.”
• “The MN Ct. of Appeals affirmed and disagreed there was a disqualifying conflict because (1) a victim is not the client, the state is, and the state’s interest does not conflict with the interest in prosecuting the case; (2) even assuming the prosecutor would handle the case more vigorously than others, this is not a ‘material limitation’ that conflicts with a duty the client because the states wants cases handled vigorously and justly; (3) a plea offer can’t sustain a conflict of interest claim, and if it could this plea offer was not crazy based on the egregiousness of the charge; and (4) there was no traditional conflict, such as a personal relationship with the judge or financial stake in the case.
• Decision: here.

“Uthmeier’s brief tenure at GrayRobinson raises potential ethical issues” —

• “When James Uthmeier took a leave of absence from Gov. Ron DeSantis’ administration so he could run the governor’s flailing presidential campaign in 2023, he also signed on with one of the state’s most powerful and politically connected law firms, which regularly lobbies the state of Florida on behalf of its clients.”
• “His time at the law firm was brief. What he did there and what he got paid are not publicly known. But Uthmeier’s stint at the private practice — reported for the first time here — raises ethical and legal questions about the Republican attorney now running for the job of Florida’s top prosecutor.”
• “Financial disclosure forms filed by Uthmeier show he worked for GrayRobinson from September 2023 to January 2024. The law firm’s lobbying clients include Meta Platforms, Walt Disney World and Uber, and GrayRobinson also has provided legal services to the state, racking up more than $140 million in billings over the last five years.”
• “Uthmeier returned to his job as DeSantis’ chief of staff after the GOP governor suspended his presidential campaign in early 2024 following a resounding defeat by Donald Trump in the Iowa caucus. DeSantis this year appointed Uthmeier to fill the remaining term of former Attorney General Ashley Moody, whom he’d appointed to the U.S. Senate.”
• “This revolving-door arrangement between the state’s top office and a high-powered law firm that lobbies for its clients in Tallahassee and has made millions doing business with the state opens a gate to potential conflicts of interest, political experts said. More broadly, it illustrates powerfully the incestuous nature of politics and influence in Florida, where the lines between public servants and special interests are often blurred.”
• “Those possibilities are magnified as Uthmeier now campaigns for attorney general in the 2026 election and has become a key figure in the Hope Florida scandal. One of GrayRobinson’s longtime clients is Centene, a national healthcare provider whose $67 million Medicaid settlement is at the center of that controversy.”
• “As the state’s top criminal prosecutor and a member of the Florida Cabinet, which along with the governor votes on land deals, insurance regulation and other state business, Uthmeier could have a conflict in cases or business involving GrayRobinson or its clients, experts said. And if his employment at the law firm was an arrangement made with the governor’s presidential campaign, there could be a breach of election laws.”
• “But there are no clear guidelines restricting state employees from going to a private law firm and then back on the public payroll.”
• “‘This is something that’s done all the time because the Florida Bar and Supreme Court never said anything critical about it,’ said Bob Jarvis, a law professor at Nova Southeastern University. ‘That’s the problem here. The lines are very messy and very blurry.'”
• “More than a year later, it is still not clear what Uthmeier did while at GrayRobinson or how he landed the job. He hasn’t answered repeated requests for comment, and neither has Dean Cannon, the former Republican Speaker of the House who currently runs GrayRobinson. The firm’s PAC, however, has donated $3,000 to Uthmeier’s 2026 campaign.”
• “GrayRobinson was no doubt reaping ‘the ancillary benefits of having someone listed on their law firm roster who was working on the campaign of a rising star at the time,’ agreed Aubrey Jewett, a political science professor at the University of Central Florida.”
• “Whether it is good for the public, from both an economic and ethical standpoint, depends on whether Uthmeier participated in cases for GrayRobinson clients doing business with the state and then continued to help them once he was back in the governor’s office, Jewett said.”
• “But the financial disclosure forms that shows Uthmeier worked for GrayRobinson do not require him to list any cases or clients, making it hard to determine if he had conflicts.”
• “‘To the extent that the current Attorney General worked for a lobbying firm raises ethical constraints about what companies he interacts with as attorney general,’ said Gregory Koger, a political science professor at the University of Miami. ‘He should be careful to avoid making decisions about those clients the firm represented during that time he worked there.'”
• “Theoretically Uthmeier could have a full-time job with the law firm and work on a campaign on the side, Koger said. ‘But if he is drawing a salary and not doing any work for GrayRobinson that could be construed as a campaign contribution,’ he added.”
• “Around the same time Uthmeier began to work for GrayRobinson, the firm was engaged to represent DeSantis in a lawsuit filed by Monique Worrell, a Democrat whom DeSantis removed from the state attorney’s job in Orange and Osceola counties. He claimed she was failing to do her job. She denied the charges and was re-elected last year. Uthmeier has been relentless in his criticism of her performance ever since.”
• “Moreover, Uthmeier had financial connections to each of the opposing sides in the Medicaid settlement agreement with Centene — to the state of Florida, as the governor’s top staffer for policy and administrative decisions, and to the company, through its employment of GrayRobinson.”
• “Records show Uthmeier set up meetings between state officials and lawyers for Centene in 2022, about a year before he began working for GrayRobinson. Those negotiations broke off in 2023 after the state fired the outside law firm it had originally hired to negotiate the original agreement.”
• “Negotiations resumed in 2024 after Uthmeier came back to the state and concluded that September, with the state agreeing to give $10 million of that settlement money to Hope Florida.”
• “Uthmeier has denied playing any role in the settlement agreement negotiations but has said as far as he could tell it all looked legal. He also has defended spending the money fighting the medical marijuana initiative as in the state’s best interests. DeSantis’ committee spent millions of dollars on advertising and the amendment fell short of the 60% approval it needed to pass.”

“P.E.I. Land Regulator’s Past Ties to Law Firm Representing Buddhist Groups Raise Questions” —

• “As Prince Edward Island calls for an RCMP investigation into allegedly suspicious foreign land acquisitions, The Bureau has learned that the prominent lawyer now chairing the province’s land regulator — the Island Regulatory and Appeals Commission (IRAC) — previously spent more than 20 years with the same P.E.I. law firm that represented Buddhist organizations IRAC was mandated to investigate.”
• “The Bureau’s review, based on legal correspondence and public records, sheds light on a growing political firestorm in Prince Edward Island, where lawmakers and citizens alike are questioning whether the province’s tightly knit legal and political community has prevented necessary scrutiny of land dealings that could threaten Canadian sovereignty — according to explosive allegations aired at an Ottawa press conference last week.”
• “Former Canadian solicitor general Wayne Easter, joined by authors Garry Clement and Dean Baxendale and former MP Kevin Vuong, told reporters that the situation requires independent federal intervention.”
• “‘There are too many interconnections within Prince Edward Island to really get to the bottom of the issue,’ Easter said. ‘You need a federal public inquiry that can subpoena witnesses, trace bank accounts, and bring in people internationally to get to the bottom of this.'”
• “The core question, according to Easter and a growing community of concerned citizens, is whether allegations from Clement and Baxendale’s investigation — that Chinese Communist Party entities appear to be entwined with major land acquisitions through a network of Buddhist groups with an increasing footprint in eastern P.E.I. — are accurate, and whether provincial or federal authorities have for some reason turned a blind eye. Their claims echo findings raised in a significant Canadian Broadcasting Corporation investigation earlier this year.”
• “In response to that CBC report, representatives of the Buddhist groups strongly denied allegations of ties to the Chinese Communist Party or any improper dealings. In a related controversy, CBC later issued a controversial correction to its explosive story — a move that, according to a statement from the government of Taiwan, occurred under pressure from Chinese officials. That development, in itself, underscores how the situation in Prince Edward Island has resonated internationally, even as most Canadians remain largely unaware.”
• “Documents reviewed by The Bureau — and a 2016–2018 IRAC file that was supposed to probe the Buddhist land dealings but, following a subpoenaed response from P.E.I. lawmakers, was revealed last week to have been quietly ended without explanation — raise new questions about oversight and governance in the province’s land regulator.”
• “Proof of IRAC leadership’s former ties to the law firm that represented the Buddhist groups while they were supposedly under IRAC review comes from public documents and private legal letters on the matter obtained by The Bureau.”

“Law firm deals with government have ethical implications, DC Bar ethics opinion says” —

• “Law firms that enter into agreements with the government that may limit or shape their law practices should consider the ethical implications, according to an October ethics opinion by the District of Columbia Bar.”
• “The D.C. Bar’s Ethics Opinion 391 doesn’t directly reference deals made by nine firms with President Donald Trump to avoid punitive executive orders. The agreements require them to provide $940 million altogether in pro bono help to causes supported by Trump.”
• “But those kind of deals are among those covered by the opinion, Bloomberg Law reports.”
• “The issues include:
  • Potential conflicts of interest for representation that is adverse to the government. ‘A lawyer must represent her clients ‘zealously and diligently,’’ the opinion said. ‘This includes the right of each client to conflict-free representation because a conflicted lawyer may be tempted, consciously or otherwise, to pull her punches in advocating for or otherwise representing her client.'”
  • To continue the representation, the lawyer must disclose the conflict and obtain informed consent from the client. But a firm may not be able to give full disclosure of the conflict if it doesn’t know which of its actions might trigger adverse government action. ‘Obtaining a valid waiver may be difficult,’ the opinion said.”
  • Restrictions on a lawyer’s right to practice. Lawyers are prohibited from making agreements in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy.”
  • Professional independence. Lawyers improperly limit the exercise of their professional judgment if they take third-party direction on whether to accept or decline a certain client or direction on the services to be provided.”
• “Lawyers who agree to such deals aren’t the only ones who should consider the ethical issues, the opinion said. Ethics rules regarding restricting the right to practice and professional independence also apply to lawyers negotiating such deals on behalf of the government, the opinion said.”

NYT goes into more detail: “After Law Firm Deals With Trump, D.C. Bar Warns of Ethical Jeopardy” —

• “Even though the committee’s opinions are not legally binding, they are considered authoritative and are often cited in disciplinary proceedings brought by the office that prosecutes legal ethics violations, which is overseen by the District of Columbia Court of Appeals. Allegations of a conflict can also be important if a law firm is sued for malpractice.”
• “An earlier draft of the ethics opinion, a copy of which was seen in recent months by some outside lawyers, explicitly discussed Mr. Trump’s deals with law firms, according to people who described it on the condition that they not be named.”
• “But at least nine struck deals with him, agreeing to provide millions of dollars in free legal services to causes he favors. The exact details of the arrangements are murky. Mr. Trump announced them on social media, but it is not clear whether those are formal written deals that detail the scope of the obligations the firms have agreed to, as opposed to vague handshake agreements.”
• “At least two of those firms, Paul, Weiss, Rifkind, Wharton & Garrison and Kirkland & Ellis, are now working on a range of matters for the Commerce Department, The New York Times has reported. A personal lawyer to Mr. Trump has also connected a third, Skadden Arps, with the department about working on trade deals for the Trump administration.”
• “In the spring, a group of legal ethics professors filed a friend-of-the-court brief in the lawsuits by a firm challenging the order, Perkins Coie, flagging the ‘intractable ethical issues’ raised by law firms that reach agreements with Mr. Trump.”
• “‘A firm that can survive only by staying in the president’s good graces has incentives that conflict with its lawyers’ stringent fiduciary duties to remain loyal to the interests of their clients, exercise independent judgment, and be truthful and candid in all dealings with the courts,’ it said.”
• “The brief also argued: ‘Lawyers who fail to fulfill their professional legal obligations to their clients and to the courts could be subject to bar disciplinary proceedings. They may potentially also be civilly liable to clients for breach of fiduciary duty if they accept a representation burdened by a conflict of interest.'”
• “The opinion by the D.C. Bar legal ethics committee was styled as forward-looking, offering considerations for firms that may be weighing a deal with a government.”
• “And if a firm that made a deal with the government and is trying to stay in the government’s good graces but also represents a client whose position is contrary to any of the government’s programs or policies, the deal would call into question whether the firm might pull its punches instead of zealously advocating its client’s interests, according to the opinion.”
• “To avoid an ethics problem, the opinion said, such a firm must drop the client, pull out of its agreement with the government or obtain a conflict-of-interest waiver from the client. But, the opinion also stated, to validly consent to such a waiver, the client must be fully informed of all the ways in which a firm’s deal with the government might create a conflict and the potential consequences.”

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.'”