Bressler Risk Blog

David Kluft asks: “Can I represent co-conspirators in a drug distribution criminal case?” —

• “A VA attorney was appointed to represent Defendant A, who was alleged to have traveled to WV to purchase illegal drugs from Defendant B, with whom he has a close relationship. The same attorney later agreed to also represent Defendant B.”
• “The Court was concerned about this because ‘[e]ach co-conspirator likely has confidential information about other co-conspirators, which a lawyer cannot advise a client to reveal if that information is adverse to another client.'”
• “The lawyer argued that there was no real conflict because both his clients were refusing to cooperate with the government so revealing information was not an issue.”
• “But the Court stated that ‘[t]he obligation to advise a client of their legal options does not end when a client decides not to cooperate,’ and continues through the length of the case into sentencing. Because the clients’ interests were inherently antagonistic, the court doubted any lawyer’s ‘ability to advise both fully without violating his duties to the other.’ ‘Because of these conflicting duties,’ the court concluded, ‘lawyers do not undertake the representation of co-conspirators.’ The lawyer was disqualified from both representations.”
• Decision: here.

“Judge’s Use of Divorce Mediator Requires 2-Year Recusal From Mediator’s Cases, Subject to Remittal: Judicial Ethics Opinion 25-200” —

• “Facts/Issue: A judge and his/her spouse retained a mediator to prepare the papers for their recent uncontested divorce, including a previously-negotiated separation agreement. The judge’s ex-spouse paid the mediator once the papers were filed; the divorce was granted shortly thereafter. The judge asks if he/she may review and approve other uncontested divorces where the papers are submitted by that same mediator, or if there is a two-year waiting period.”
• “Discussion: We have previously addressed a scenario where a judge and his/her spouse hire a law firm to mediate their divorce negotiations. Because the topics and information foreseeably shared during a divorce mediation may be highly sensitive and confidential, we concluded that during the mediation and for two years after the mediation relationship completely terminates and all fees are paid, the inquiring judge must disqualify from all cases in which the law firm appears. In our view, this applies equally to uncontested matters.”
• “Since disqualification on this basis is subject to remittal, we also include a brief reminder of the applicable principles: Remittal requires both full disclosure on the record of the basis for disqualification and the voluntary, affirmative consent on the record of all parties and their attorneys, if represented, to waive or remit the judge’s disqualification. Thereafter, provided the judge concludes he/she can be fair and impartial and is willing to preside, the judge may participate in the proceeding.”
• “Conclusion: Where a judge and his/her spouse retain a mediator to prepare the papers for their uncontested divorce, the judge is disqualified, subject to remittal, in all matters where the mediator appears, including uncontested matters. This obligation lasts while the mediation relationship is ongoing and for two years after the mediation relationship completely ends and all fees are paid.”

“Law Firm’s Arbitration Clauses Voided Over Conflict Disclosure” —

• “McGrath Kavinoky LLP, which represents hundreds of sexual abuse victims, forfeited its right to compel arbitration on two clients when it failed to disclose conflicts of interest in cases involving a UCLA gynecologist convicted of sexual abuse, a California appeals court ruled.”
• “The law firm can’t force the clients into arbitration since McGrath’s engagement agreements violate California public policy, Justice John L. Segal said in an opinion on Monday. The California Courts of Appeal affirmed a trial court ruling that the firm can’t enforce its arbitration agreement on two Jane Doe plaintiffs.”
• Decision: here.

“Louisiana Court DQs Baker Donelson in Suit Against Governor, Calling Waiver ‘Stale’” —

• “A Louisiana state judge Monday ordered Baker Donelson Bearman Caldwell & Berkowitz to be disqualified from representing a group suing to stop Louisiana Gov. Jeff Landry’s planned school funding cuts because the firm also represented the governor in a separate case.”
• “Baker Donelson maintained in a court filing in the case in Baton Rouge that a waiver signed by Landry when he served as state attorney general in 2023 had allowed the firm to defend the state in one case while representing clients taking legal action against the state in unrelated cases.”
• “But Judge Richard ‘Chip’ Moore of Louisiana’s 19th Judicial District Court granted Attorney General Elizabeth Murrill’s emergency motion to disqualify Baker Donelson from the case and lift a June 18 temporary restraining order on the funding cuts designed to provide money to give teachers raises.”
• “Moore agreed that Baker Donelson needed a new waiver from Landry and couldn’t use a ‘stale’ waiver signed by a previous attorney general to litigate against the state.”
• “He also ordered Baker Donelson to ‘forfeit the fees it billed the state during the period of conflict’ in an amount to be determined at a future hearing—though a spokesperson said the plaintiffs had voluntarily dismissed the suit against Landry ‘ending this case.'”
• “In addition, the state canceled all its contracts with the firm so it is no longer representing Louisiana in any cases in state or federal courts.”
• “When the 2023 waiver was signed, the firm was representing the state of Louisiana in some pharmaceutical companies’ legal challenges to a new state law that required drugmakers not to interfere with deliveries to pharmacies serving low-income residents—for which Baker Donelson earned $350,000 in Fiscal Year 2025, according to state records.”
• “Baker Donelson then began representing Louisiana in 2024 in a federal class-action lawsuit—in which it filed a motion June 12—alleging the state’s foster care system has been deficient in caring for children in its care, according to the motion by state attorneys to disqualify the firm.”
• “On June 18, clients represented by Baker Donelson sought a restraining order to stop Landry’s executive order that proposed school funding cuts to provide money to give teachers raises.”
• “In a court filing seeking the firm’s disqualification, Principal Deputy Solicitor General Zachary Faircloth stated that the firm failed to tell Landry it was representing a group challenging his order until 15 days after it was first contacted to do so.”

David Kluft asks: “Can I represent a criminal defendant if I previously represented his wife in divorcing him?” —

• “A MI lawyer was appointed to represent a client charged with possession of methamphetamine. After conviction, the client claimed ineffective assistance on the grounds that the lawyer had represented the client’s wife in divorcing him years before.”
• “The client speculated that the lawyer tanked his criminal case because he made her ‘look bad in court’ during the divorce. The lawyer claimed she hadn’t even remember him from the divorce (because he had defaulted and all she did was file a motion for default judgment).”
• “The Court found that the divorce matter and the criminal matter were not substantially related, and therefore not a conflict. The client also claimed that the lawyer was ineffective for failing to strike the client’s former accountant from the jury (she was the foreperson), but the lawyer credibly testified that the client never told her about this issue during the trial.”
• Decision: here.