Bressler Risk Blog

David Kluft asks: “If I know the judge should recuse herself, but I don’t want her to, can I keep my mouth shut?” —

• “Judges may be disqualified from a case for a number of reasons, including a personal relationship with a party, an economic interest implicated by the case, or extrajudicial knowledge of the underlying facts.”
• “ABA Opinion 522 addresses situations in which a lawyer knows about grounds for a judge’s disqualification, but for some reason the judge hasn’t raised it, perhaps because the conflict is not obvious or the judge’s memory has failed. Does the lawyer have an affirmative obligation to bring it up even though the judge doesn’t?”
• “The answer is yes, per Rule 8.4(d) (conduct prejudicial to the administration of justice). The ABA interprets Rule 8.4(d) as requiring officers of the court to speak up and disclose ‘procedural or jurisdictional information,’ that could impact the fairness of the proceedings, and that includes information that would get the judge recused. Note, however, that this duty may be limited by the duty of confidentiality under Rule 1.6.”
• Opinion: here.

“Alito bows out of blockbuster Supreme Court climate case” —

• “Supreme Court Justice Samuel Alito is stepping back from a major climate argument just a week before the court is scheduled to take up the case. Alito had faced calls to recuse himself from Suncor v. Boulder over his financial interests in energy companies. A Monday letter from Scott Harris, clerk of the court, informed the parties that Alito ‘has determined that he will not continue to participate in this case.’ The notice did not further explain his decision to sit out arguments Oct. 5, the first day of the court’s new term.”
• “In the case, Colorado localities are seeking damages under state tort laws related to the effects of climate change. The suit named Suncor and ExxonMobil. While Alito does not hold stock in those companies, he is invested in several other fossil fuel companies, including oil giants ConocoPhillips and Phillips 66. They are named in many lawsuits similar to Colorado’s that have been filed around the country. The future of those cases will be affected by the Supreme Court’s ruling in Suncor.”
• “A spokesperson for the court as recently as May had said that Alito wouldn’t recuse because he didn’t have a ‘financial interest in any party’
• involved in Suncor and that he was advised by the court’s legal counsel that ‘his recusal is not required.'”
  “Alito did recuse himself when the court turned away an appeal from the companies in the Colorado case in 2023. But that recusal came as the court on the same day rejected appeals in similar cases involving other companies, including ConocoPhillips and Phillips 66.”
• “The court spokesperson said earlier this year that Alito had ‘inadvertently recused’ himself in the earlier Colorado case ‘because it was considered at the same time as other cases where the justice did have a financial interest in the parties.'”
• “Alito had resisted calls to step aside from the upcoming climate argument, even as watchdog groups note that the entire oil industry is likely to be affected by the decision. California-based Consumer Watchdog has noted that both ConocoPhillips and Phillips 66 have warned shareholders multiple times over the past decade about the potential financial consequences of the litigation.”
• “‘The public should not have to wonder whether a justice’s personal investments could benefit from a ruling that shields the fossil-fuel industry from liability,’ said Organizing Director Alexandra Nagy.”

“NJ Justices Take On Atty DQ In Injury Cases After J&J Ruling” —

• “New Jersey’s Supreme Court has agreed to review the disqualification of an attorney from representing plaintiffs in several cases over injuries at Sky Zone trampoline parks after a trial court ruled the attorney’s retention of a former company safety official as an expert could prejudice proceedings.”
• “In June, the Superior Court’s Appellate Division affirmed a Superior Court disqualification ruling from April. Plaintiffs in the injury cases represented by Chazen then filed a motion for leave to appeal to the state’s high court.”
• “In a July brief, the plaintiffs argued that the Superior Court improperly relied on a February appellate decision that disqualified the Beasley Allen Law Firm from representing plaintiffs in multicounty litigation over Johnson & Johnson’s talc-based baby powder.”
• “In the J&J decision, an appellate panel said that the association of someone who had represented J&J as outside counsel in the talc litigation for two years with Beasley Allen and one of its attorneys had violated the state’s rules of professional conduct around nonlawyers association with lawyers and a lawyer’s duty to former clients.”
• “Chazen, as counsel for the plaintiffs in the Sky Zone injury cases and as an intervenor in the appeal, asserted in the July brief that the trial court ‘erroneously disqualified’ him based on the J&J decision.”
• “There are contradictions between the J&J disqualification decision and a prior Appellate Division ruling from 2001 regarding professional conduct rules that the state’s high court needs to clear up, Chazen said. The Supreme Court needs to weigh in on whether certain rules have been expanded to include conduct by individuals who were never attorneys, as well as if the J&J ruling should be applied retroactively to conduct before the decision was issued, he said.”
• “‘Resolution of these issues by this Court is necessary so that attorneys and litigants will have clear guidance as to what conduct is permitted under the Rules of Professional Conduct,’ the brief said.”
• “But in an opposition brief filed in July, the Sky Zone-affiliated defendants, including Rockin’ Jump Holdings LLC, argued plaintiffs in the injury cases misapprehended the Superior Court’s disqualification order and misunderstood ‘the underlying legal principles.'”
• “They say there are ‘no inconsistent rulings for which guidance is required,’ as the J&J ruling and the prior decision mentioned by the plaintiffs deal with different conduct and rules of professional conduct.”
• “The Sky Zone defendants assert their disqualification motion relates to ethical concerns that were dealt with in the J&J decision, saying that decision ‘governs disqualification arising from counsel’s association with a conflicted insider whose knowledge of adversary strategy is integrated into litigation efforts.'”
• “‘Plaintiffs’ attempt to conflate these frameworks is legally incorrect and was properly rejected by the trial court,’ they contend.”
• “At issue in the Superior Court’s April disqualification decision was Chazen’s retention of Rollin Gordon, who had been director of safety and risk management for Sky Zone from 2023 to 2024, according to court documents.”
• “In his April ruling, Superior Court Judge Gary K. Wolinetz raised concerns about Chazen’s dealings with Gordon, even though the former Sky Zone employee was barred as an expert by trial courts adjudicating the injury suits that Chazen’s clients filed.”
• “‘Clearly, as Mr. Chazen acknowledged at oral argument before me, he could have taken Gordon’s deposition and, thereafter, secured his own expert,’ Judge Wolinetz said. ‘In doing so, Mr. Chazen could have avoided the conundrum in which he now finds himself.'”
• “But Chazen ‘made a tactical decision to retain Gordon,’ the judge said, and Gordon ‘was in a position to provide confidential information to him’ that he obtained during the time he was employed at Sky Zone and related entities.”
• “‘What precise confidential and/or privileged information Gordon actually provided to Mr. Chazen and its value is not the determinative factor in this motion,’ the judge said.”
• “The judge added: ‘While Gordon was repeatedly barred by courts in this Litigation from serving as an expert witness against Sky Zone, I find that this entire situation is prejudicial to the administration of justice.'”

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“Law firm Seyfarth says breach exposed client documents” —

• “Law firm Seyfarth Shaw said in new disclosures to officials in at least two US states that it suffered a data security breach that exposed documents containing personal information, ​the latest cybersecurity incident to hit the legal industry.”
• “Seyfarth notified the ‌Texas attorney general this week about the data security incident, saying it involved names and Social Security numbers.”
• “The firm in a statement to Reuters said the breach stemmed from a ‘targeted social engineering attack in which someone impersonating our IT ​help desk deceived an employee into emailing a limited number of client documents to an unauthorized ​outside email account.’ The firm said the incident was isolated to a single ⁠employee, and that the firm’s security controls prevented access to the firm’s network or systems.”
• “Seyfarth last week reported the incident ​to the attorney general’s office in California. In a draft notice to a victim, the firm said it ‘identified unauthorized acquisition of a limited number of documents containing personal information.’ It also said that it obtained the person’s information ‘in the course ​of certain legal services performed by the firm.'”
• “The notice said an investigation of the circumstances ‘confirmed that ​there was no evidence of unauthorized access to Seyfarth’s network and that the event was limited to a small number ‌of ⁠documents sent by email to an unauthorized recipient.'”
• “Cyber incidents involving law firms are on the rise. Law firm ​BakerHostetler said in a ​report in March that ⁠its digital assets and data management groups responded to nearly 60 law firm incidents last year, almost double the number reported the previous year.”
• “Other law firms including, Quinn Emanuel, McDermott, Goodwin Procter and Herbert Smith, have disclosed data breaches in recent weeks. Law firm WilmerHale was sued in ⁠federal court ​in Washington in July following an alleged data-security breach.”

“Biglaw Firm’s Cybersecurity Headache Just Got Even Worse” —

• “Law firms have spent years warning clients about the dangers of cyberattacks. Unfortunately, hackers seem to have decided that the firms themselves make far more interesting targets.”
• “As reported by Reuters, Greenberg Traurig is now facing two proposed class actions following its disclosure that sensitive personal information was exposed in a recent data breach. The lawsuits are the latest legal fallout from an escalating wave of cyberattacks against Biglaw firms.”
• “Earlier this month, Greenberg Traurig said that an unauthorized actor had accessed a ‘limited’ number of documents and posted them on the dark web. The firm maintained that its systems were not compromised and said that only a small number of clients were affected, but a regulatory notice revealed that Social Security information had been exposed.”
• “Greenberg Traurig joins WilmerHale among the major firms that have been sued after recent breaches, while Quinn Emanuel, McDermott, HSF Kramer, and Goodwin have also disclosed cyber incidents.”
• “Biglaw may be great at protecting client confidences in court, but protecting them from hackers is becoming another matter entirely. “

“Tarter Krinsky Data Breach May Have Affected Health Info” —

• “Tarter Krinsky & Drogin LLP said in a letter this month that a data breach last year may have compromised protected health information the firm possessed due to its representation of an unnamed healthcare provider.”
• “The partially redacted Sept. 4 letter published by the California Attorney General’s Office said Tarter Krinsky became aware of suspicious activity on Sept. 10, 2025, and has recently completed its review of the materials affected by the breach. The types of information found in the potentially affected files include medical record numbers, dates of birth and treatment information.”
• “According to the letter, an investigation found that someone accessed Tarter Krinsky’s servers at various points between July 9, 2025, and Sept. 9, 2025. The firm said it isn’t aware of any identity theft, fraud or misuse of personal information stemming from the incident.”
• “‘Late last year, we identified suspicious activity on our network and immediately took steps to secure our systems and investigate the matter with the assistance of external cybersecurity professionals,’ a firm spokesperson told Law360 Pulse in an email Wednesday. ‘We have used the findings of that investigation to identify who was affected, and we’ve notified affected individuals and clients directly.'”
• “‘Unauthorized access to systems or files maintained by a law firm can create significant privacy and security concerns,’ Federman & Sherwood said. ‘Federman & Sherwood is investigating whether Tarter Krinsky & Drogin LLP implemented reasonable cybersecurity safeguards to protect sensitive information and whether additional security measures could have prevented or reduced the impact of the data breach.'”

“RICO Lawsuits Are Taking Aim at Lawyers” —

• “A series of cases are testing whether racketeering claims can serve as a counteroffensive against opposing counsel. The lawsuits assert that alleged misconduct surrounding the business of building litigation can itself become the basis for racketeering cases against attorneys.”
• “Defendants have primarily deployed the tactic against personal injury and mass tort attorneys, with litigation from Uber Technologies Inc. emerging as one of the most prominent examples of the approach. The jury is still out on whether these claims can stick, with courts issuing mixed results as they begin weighing the legal theory.”
• “Uber has also hit several attorneys filing collision cases with suits alleging that they violated the federal Racketeer Influenced and Corrupt Organizations Act, or RICO Act, by collaborating with health care professionals to inflate medical costs and expand damages claims. In recent months, several judges have started testing the viability and limits of that strategy.”
• “Last month, U.S. District Judge Orelia Merchant of the Eastern District of New York dismissed Uber’s case against Wingate, Russotti, Shapiro, Moses & Halperin, finding deficiencies in Uber’s allegations of a RICO enterprise, conspiracy and injury. Merchant also concluded that Uber had not plausibly alleged that the defendants shared the necessary ‘common purpose.'”
• “‘At best,’ Merchant wrote, the allegations showed the doctors ‘received benefits incidental to an ordinary and lawful client-referral relationship and third-party litigation financing of medical treatment …’ rather than sharing a common purpose of fraudulent conduct.”
• “A California judge, however, reached the opposite conclusion over Uber’s allegations against another group of plaintiffs firms. U.S. District Judge Sherilyn Peace Garnett of the Central District of California found that Uber had plausibly alleged a relationship that went beyond an ordinary commercial relationship between attorneys and a spine surgeon. Garnett pointed to allegations suggesting the defendants acted in furtherance of a ‘common purpose’ of generating inflated medical bills to extract higher settlements from plaintiff.'”
• “Meanwhile, in an Aug. 27 ruling, U.S. District Judge Mark A. Kearney of the Eastern District of Pennsylvania rejected personal injury firm Simon & Simon’s counterclaims that RICO litigation from Uber and FedEx constituted sham litigation, among other claims.”
• “Still, the first sentences of Kearney’s ruling acknowledged the stakes for the defendants in these cases. ‘We appreciate experienced personal injury lawyers and doctors do not like reading their names in federal court complaints alleging their specific roles in alleged racketeering conduct,’ he wrote. ‘Especially when those allegations are made by companies Uber and FedEx whom they often sue in Philadelphia County seeking to recover for alleged personal injury losses subject to the state court judge’s and jury’s scrutiny. And then these allegations show up in press reports.'”
• “Simon & Simon is now claiming that Uber does not have sufficient financial stake in the underlying litigation, arguing its insurer Farmers Insurance Exchange has covered all settlement and defense costs in the litigation.”
• “‘This is a full stop,’ wrote the firm’s Blank Rome attorneys. ‘Discovery definitively shows that Uber has paid nothing and has no harm. Precedent is clear that a RICO lawsuit cannot be sustained where a secondary source, like Farmers, is paying the alleged damages. There is no caselaw in any jurisdiction that would support allowing Uber to continue with a RICO case in light of this admitted lack of standing. Only Farmers has standing to bring this RICO action.'”
• “The emerging litigation tactic is a response to so-called nuclear verdicts and high-volume litigation in certain jurisdictions, according to some experts.”
• “Regardless of how federal RICO claims against attorneys fare, they are unlikely to be the last attempt by corporations and their defense counsel to turn litigation against the lawyers who regularly sue them.”
• “In Georgia, for instance, the state Supreme Court is considering a case that could clarify when attorneys can pursue competing lawyers under the Georgia RICO Act. The case involves a plaintiffs attorney who alleges a competing firm engages in case running, or illegally obtaining accident victim data to solicit them before other lawyers can.”
• “Companies are already testing alternatives when RICO claims fail. After Ford’s racketeering case against Los Angeles Lemon Law attorneys was dismissed, the company’s Kasowitz counsel filed a complaint in June alleging plaintiffs’ firm Quill & Arrow lures customers through fraudulent advertising and convinces them not to participate in its repurchasing offer.”
• “As the financial stakes surrounding personal injury and mass tort litigation rise, plaintiffs attorneys could increasingly find themselves on the other side of the ‘v.’ RICO may be only one theory corporations and their defense counsel test in litigation aimed not merely at defeating individual claims, but at challenging the conduct of the lawyers bringing them.”

“Womble Bond Can’t Quit Dutch Client With TM Trial Looming” —

• “Womble Bond Dickinson can’t withdraw from a trademark feud that’s dragged on for more than five years between U.S. and Dutch software companies, a North Carolina federal judge ruled, saying the firm’s exit at this late stage ‘would be completely disruptive.'”
• “U.S. District Judge Martin Reidinger on Monday denied Womble Bond’s request to pull its representation of Dutch software company DMARC Advisor BV, in which the firm claimed withdrawal was necessary because of a ‘fundamental disagreement about the conduct of this litigation.’ According to Judge Reidinger, Womble Bond declined to provide the particulars of its rift with the client, even for in camera review.”
• “‘In short, counsel has left the court in the dark as to whether there is good cause for their withdrawal. Counsel’s assertion that the court should simply trust their word is simply unavailing,’ the judge wrote.”
• “‘It is counsel’s obligation to demonstrate cause. A bare assertion of a ‘fundamental disagreement’ might be sufficient if it were very early in the case and such withdrawal would work no prejudice to any party,’ he continued. ‘But here, 5½ years into a case and upon the doorstep of trial, such a bare assertion is simply insufficient.'”
• “Judge Reidinger also called out the paradox of the firm’s request given the events that preceded it. Previously, DMARC Advisor and one of its attorneys at Womble Bond were held in civil contempt for failing to correct misrepresentations allegedly made to a court in the Netherlands in a parallel lawsuit.”
• “As punishment, Judge Reidinger suspended the attorney, Pressly Millen, from practicing in the Western District of North Carolina until the case was resolved or he apologized to the foreign tribunal. The Fourth Circuit reversed his order on appeal this summer, finding it to be ‘overtly punitive.'”
• “In Monday’s opinion, Judge Reidinger said it is ‘ironic’ that DMARC Advisor’s counsel appealed the suspension ‘on the grounds that the defendant would be unduly prejudiced by being deprived of an attorney so knowledgeable of the case.'”
• “‘Now, upon the Court of Appeals reversing the court’s sanction and reinstating that attorney, that same attorney and his firm now move to withdraw,’ the judge wrote.”
• “The case dates to 2021, when North Carolina-based software company Dmarcian Inc. first sued DMARC Advisor over the ownership, licensing and use of certain source code.”