With our thanks, as always, here are some of the latest findings of Bill Freivogel:

Changing Firms; Law Clerk (posted August 19, 2025) Moreno v. Bosholm, 2025 WL 2371118 (4th Cir. Aug. 15, 2025).

• This is the appeal of a North Carolina district court medical malpractice case. 95+ percent of the opinion deals with liability and evidentiary issues. The defendant-doctor moved, in the appellate court, to disqualify the plaintiff’s lead appellate lawyer because she belatedly learned the appellate lawyer clerked for the trial court judge while this case was being litigated below.
• In opposition, the appellate lawyer averred she had no role whatever in, and learned nothing about, this case when it was before the trial judge. In this opinion the appellate court denied the motion to disqualify, noting the “personally and substantially” language in North Carolina’s Rule 1.12(a). The court noted several other jurisdictions had broader rules flatly preventing the subsequent representation regardless of what the clerk learned.

Derivative Action (posted August 15, 2025) Boyd v. Lopez-Vidal, 2025 WL 2322439 (D.P.R. Aug. 12, 2025).

• Plaintiffs Boyd and Lassers (“Plaintiffs”) filed this case against various individuals and entities seeking relief for themselves as well as derivatively for companies Biomass and GFC (“Companies”). The Becker firm (“Becker”) represents Plaintiffs. Lawyer Abesada (“Abesada”) represents Companies. Becker seeks an order allowing it to represent Companies as well as Plaintiffs and removing Abesada as lawyer for Companies. Other parties, including Companies, objected.
• In this order the court denied Becker’s requests. First, the court noted Becker would have a conflict of interest because Companies had been taking positions adverse to Plaintiffs. Second, Becker could not get adequate conflict waivers from Companies because of the terms of a controlling Operating Agreement and the alignment of the corporate officials needed to consent.
• [Our [Bill’s] note: We are not certain we completely grasp what is happening here. The most frequently recurring conflict issue in derivative actions is whether the lawyer for the accused wrong-doers can also represent the corporate entity involved. If you have a derivative case where the companies involved are speaking for themselves, apart for the other defendants and plaintiff(s), you might want to check it out.]

Joint Representation; Standing (posted August 15, 2025) Alomran v. Marriott Corp., 2025 WL 2337082 (S.D. Fla. Aug. 13, 2025).

• Plaintiff moved to disqualify Lawyer because Lawyer was representing both Mariott and its current and former employees. In this opinion the magistrate judge denied the motion to disqualify. Other than conjecture, Plaintiff could not show how any of the defendants were adverse to each other. Moreover, Plaintiff lacked standing to bring the motion, because “the fair administration of justice” was not in question.

Current Client; Lawyer’s Personal Involvement (posted August 14, 2025) Hipes v. Lozano, 2025 IL App (1st) 240601 (Ill. App. Aug. 5, 2025).

• Divorce case. This opinion has to do with the terms of a daughter’s custody. It also deals with disqualification of one of H’s lawyers, H’s mother (“Mother”). The trial court disqualified Mother. In this opinion the appellate court affirmed the disqualification. One basis of disqualification was Rule 3.7 (lawyer as witness). We rarely write about Rule 3.7, but note Mother was involved in the lot of H’s conduct. Another basis of disqualification was Rule 1.7 (material limitation). H’s success, or lack of success, in the case would affect Mother financially. Mother’s ability to interact with her granddaughter was also at play.

Joint Representation; Third-Party Action (“Cross Claim”) (posted August 14, 2025) Gilliland v. Venepally, 2025 WL 2306883 (D.N.M. Aug. 11, 2025)

• Plaintiff is suing on a note executed by Borrowers 1, 2, and 3. Plaintiff is suing only Nos. 1 and 2. Nos. 1 and 2 have filed a cross-claim against No. 3. Lawyer is representing Plaintiff and No. 3. Nos. 1 and 2 have moved to disqualify Lawyer. In this opinion the court denied the motion to disqualify. First, the court held Nos. 1 and 2 lack standing because they were never clients of Lawyer. Second, Plaintiff and No. 3 have executed waivers of any conflict Lawyer may have. Last, the court noted Lawyer and No. 3 were friends and Lawyer is not necessarily adverse to No. 3, given the circumstances of the parties here.

“Client’s Ex-Employee Sues Kelley Drye Over Data Breach Notice” —

• “Kelley Drye & Warren has been hit with a proposed class action in New York state court by one of its clients’ ex-employees, after the firm allegedly suffered a data breach in March. The complaint alleges the firm sent an ‘intentionally confusing’ notice to those whose information was exposed to hackers to downplay the severity of the incident.”
• “Ratna Kanhai said in her Tuesday complaint in Manhattan Supreme Court that she has received ‘a dramatic increase in scam and phishing texts and calls’ since the firm discovered an unauthorized and unknown party was accessing its network. But she did not receive notice of the breach until May 27. That notice was insufficient, Kanhai said in her complaint, adding the proposed class is ‘several thousand’ members.”
• “‘Defendant’s breach notice obfuscated the nature of the breach and the threat it posted—refusing to tell its current and former clients, employees and others how many people were impacted, how the breach happened, when it was discovered, or why defendant delayed notifying victims that cybercriminals had gained access to their highly private information,’ the complaint states.”
  Representatives for Kelley Drye did not immediately return requests for comment about the suit.”
• “Kanhai’s complaint doesn’t identify the Kelley Drye client where she worked or her role there.”
  An attorney for Kanhai, Linda Joseph of Schroder, Joseph & Associates, declined to comment and referred Law.com to her co-counsel on the case, Raina Borrelli of Strauss Borrelli, who did not immediately return requests for comment.”
• “On March 21, new amendments to New York’s Shield Act, also known as N.Y. General Business Law Section 899-aa, took effect and modified the Empire State’s disclosure requirements for data breaches. Those new amendments in part set the requirement that persons or business owners who suffer breaches must notify New York residents like Kanhai within 30 days of when the breach was discovered.”
• “According to Kanhai’s suit, Kelley Drye discovered its breach in March but did not send notices until May 27. The suit does not specify what day in March the breach was purportedly discovered. The suit does not make claims under the shield law.”
• “The complaint asserts six claims against Kelley Drye on behalf of a proposed class comprised of all United States residents whose information was exposed in the March breach. Those claims are for negligence, negligence per se, breach of implied contract, unjust enrichment, invasion of privacy and breach of fiduciary duty.”
• “All of the claims arise from Kelley Drye’s use, storage and allegedly improper protection of the personal information it collects as part of its course of business, according to the complaint. Kanhai seeks damages in an unspecified amount along with pre- and post-judgment interest, attorney fees, and injunctive relief against the firm.”