“Former Home Depot attorney can’t help sue it” —

• “A federal court in California granted Home Depot’s motion to disqualify an attorney and law firm as counsel of record for the customer who is suing the retail giant over an injury; the skid-steer loader he rented pitched forward and his seatbelt failed, so he hit his head against the vehicle.”
• “The attorney used to represent Home Depot in personal injury lawsuits, and she was privy to confidential information in a case similar to the current one.”
• Decision: here.

“Counselling Two Clients in the Same Matter: Trump/Blanche” —

• “President Donald Trump, obviously expecting loyalty—actually, obeisance—appointed several of his personal attorneys to high Justice Department positions… And, directly pertinent here, Todd Blanche, his former chief criminal attorney as Deputy Attorney General at the Justice Department. There can be little doubt as to why Trump would choose them for these particular roles.”
• “Blanche, however, holds the second highest Justice Department position and has presided over the Jeffrey Epstein investigation after serving as Trump’s criminal attorney in private practice. He, therefore, is the single Trump former attorney who has literally been presented directly with a direct conflict. That is, he has (undoubtedly) conferred with Trump about the Jeffrey Epstein matter as Trump’s private lawyer. And he has been the attorney responsible for the Epstein investigation on behalf of the Justice Department in which he, oddly, interviewed Ghislaine Maxwell.”
• “That said, Blanche’s relationship with Trump has been extremely unique. In private practice, Donald Trump was literally Blanche’s only client. And even if Trump hadn’t been Blanche’s only client, Blanche would have had a duty of undivided loyalty to him—a duty that would surely exist in futuro. Blanche would be required to demonstrate that ‘loyalty’—i.e., maintain any confidences that Mr. Trump had imparted to him, even after his representation of Mr. Trump as a private citizen was long ended—and particularly when later serving in a governmental capacity.”
• “So, where would Blanche stand concerning his attorney-client responsibilities if, during the Trump presidency, Trump, as one might easily suspect, has continued to confidentially discuss with the Deputy Attorney General conduct that Trump initially revealed to Blanche pre-presidency—say, for example, about any relationship he may have had with Jeffrey Epstein?”
• “Stated otherwise, suppose the president wants, now, to discuss with Blanche a personal subject unrelated to his presidency, what ethical obligation does Blanche have either to citizen (or president) Trump to alert him to the possible perils of discussing it with him? Meaning, the potential danger of Blanche being later compelled to disclose the confidence, inasmuch as Blanche cannot technically act in the capacity of citizen Trump’s lawyer any longer.”
• “Simply put, it would clearly be improper for Blanche to talk substantively about it to Trump while he, as the Justice Department’s lead attorney, is conducting a formal government investigation that potentially involves Trump’s prior conduct. However, if Blanche chose to do so (especially inasmuch as Trump, a layman, not truly knowledgeable about privilege restrictions), what would Blanche’s obligations be? At the very least, wouldn’t Blanche be obligated to give Trump so-called Upjohn Warnings?”
• “And what does that mean? Under the Supreme Court’s decision in Upjohn Co. v. United States, 449 U. S. 383 (1981) an Upjohn Warning is a statement that a corporate counsel (here, Blanche, as an attorney for the United States), would give to the employee of the ‘corporation’ (here, the president)—clarifying that the attorney-client privilege belongs to the company, not to the individual employee. It ensures that the employee understands that his statements can actually be disclosed to the company and potentially to third parties even without the employee’s consent.”
• “It basically tells the employee (here, Trump), that (1) the attorney represents the company, not the employee; (2) the attorney-client privilege belongs to the company, not the employee; (3) the company can waive the privilege and disclose the employee’s statements to others without the employee’s consent; and (4) that the employee may wish to seek other counsel.”
• “Now, given Trump’s inordinately close relationship with the Justice Department—and here, in particular, given that Mr Blanche was Trump’s single-client criminal lawyer—it seems highly unlikely that Blanche would even consider the rigamarole of Upjohn Warnings if Trump were on the verge of imparting his concerns about Epstein when and if the heat got hot.”
• “One would certainly have wanted to be a fly on the wall when/if Trump proposed talking to Deputy Attorney General Blanche about his relationship with Jeffrey Epstein. One might imagine that Blanche would have discouraged any such conversation. But, as we know, Trump doesn’t typically take ‘no’ for an answer lightly (and likely wouldn’t be especially concerned if Blanche even urgently tried to describe his ethical obligations when encouraging the President to simply keep his mouth shut).”
• “We may never know whether Trump himself demanded that Blanche himself conduct the infamous Ghislaine Maxwell interview in which she basically ‘acquitted’ Trump of any wrongdoing relating to Epstein. Either way, it’s hard to believe that Blanche conducted that interview without having in advance heard directly from Trump his side of the Epstein/Trump story (and, by the way, from Maxwell’s lawyer exactly what she would say, and wouldn’t say, about the President’s conduct when questioned).”
• “That said, what words of comfort—or were any really necessary?—did the ‘all in’ Blanche give Trump to make him comfortable that anything he told Blanche would remain confidential? We’ll probably have to wait for Trump’s book for at least his version. At bottom, can one possibly imagine a greater conflict than that which confronted Blanche—agreeing to head a spectacular government investigation focused in part on the president, after having separately represented him as an individual?”

“Abu Dhabi Fund Blocks $800 Million Private-Equity Asset Shuffle” —

• “A Houston-based private equity firm was stopped in its tracks when an investor cried foul as it tried to sell one of its assets to itself, one of the first times such a dispute has spilled into public view.”
• “Energy & Minerals Group had already lined up investors for a continuation fund of at least $800 million when Abu Dhabi Investment Council sued over the maneuver and halted the process, according to people with knowledge of the matter.”
• “The sovereign wealth fund — an independently run unit of Mubadala Investment Co. — last week sued to stop the private equity firm from shuffling natural gas producer Ascent Resources LLC into a different vehicle, court papers show.”
• “The fight is a rare public rebuke in the the world of private equity, where investor disputes are more often cordial and private. But as buyout shops increasingly turn to offbeat maneuvers like continuation funds to return capital, investor frustration is growing. Middle Eastern allocators in particular are becoming unhappy with some of the tactics used to prolong asset sales or delay distributions.”
• “The continuation fund would have allowed some Energy & Minerals Group investors to cash out of their stakes in Ascent Resources while bringing fresh money in. But ADIC’s lawsuit alleges the process was tainted by conflicts of interest and governance missteps.”
• “‘Defendants have made multiple material misstatements and omissions about the proposed transaction and employed a variety of coercive tactics,’ lawyers for ADIC wrote in court papers. ‘In so doing, EMG has placed its own self-interest above the interests of its investors,’ they added.”
• “Energy & Minerals Group has backed Ascent, the biggest natural gas producer in Ohio, for more than a decade. It has invested in the company through at least two funds along with a secondary fund it established in 2017, filings show.”
• “The continuation fund would have seen Energy & Minerals Group take a bigger stake in Ascent at a depressed valuation, lawyers for ADIC allege. The private equity firm dismissed exit alternatives like an initial public offering or a merger without fully exploring them, they argue.”
• “The case is Abu Dhabi Investment Council Company PJSC et. al. v. The Energy and Minerals Group, 25-1389, Delaware Chancery Court (Wilmington).”