Bressler Risk Blog

“Alaska fires law firm Motley Rice in opioid litigation, joining Utah” —

• “The state of Alaska has terminated a contract with a national plaintiffs law firm it hired eight years ago to pursue a lawsuit over opioid painkillers, claiming it violated confidentiality and conflict-of-interest provisions. Law firm Motley Rice failed to disclose that it was representing other clients in separate opioid litigation at the same time it represented the state, Republican Alaska Attorney General Stephen Cox’s office said in an October 23 letter to the firm.”
• “Alaska has ‘reason to believe that the firm may have shared confidential information obtained through its representation of the state,’ Cox’s office said. The letter, obtained by Reuters through a records request, said the state would hire new counsel.”
• “Alaska’s move is the latest setback for Motley Rice, after Utah’s attorney general terminated a similar contract with the firm on October 16. Motley Rice had been representing the states in lawsuits alleging that pharmacy benefits managers prioritized opioid access for patients despite the drugs’ high risk of addiction and harm.”
• “Motley Rice in a statement said it had represented Alaska in opioid litigation for nearly a decade and helped the state recover tens of millions of dollars to benefit Alaskans. It said it was proud of its work for the state.”

“Stocks, Recusal, and Copycats- ‘No problem’ on APJ Conflict” —

• “The US Court of Appeals for the Federal Circuit found that an administrative patent judge’s (APJ) recusal in an inter partes review (IPR) based on ownership of stock in one of the defendant’s corporations in an amount below the statutory monetary threshold was not erroneous but remanded the case for further consideration of the copying evidence. Centripetal Networks, LLC v. Palo Alto Networks, Inc., Case No. 23-2027 (Fed. Cir. Oct. 22, 2025) (Moore, Hughes, Cunningham, JJ.)”
• “In September 2022, Centripetal learned that a member of the Board panel owned stock in Cisco. However, Centripetal did not move for recusal until December 30, 2022, when
• it sought recusal of the entire panel and vacatur of the institution decision.”
  “In January 2023, the Board panel denied Centripetal’s rehearing request and granted Cisco’s joinder motion. Nevertheless, two of the three members of the panel withdrew to narrow the issues before the Board. The reconstituted panel then denied Centripetal’s motion for vacatur and held that the recusal motion was untimely, because Centripetal
• had been aware of the potential conflict since September 2022.”
  “In May 2023, the Board found certain claims of Centripetal’s patent to be unpatentable as obvious. Centripetal appealed to the Federal Circuit, arguing that the Board’s decision should be vacated because the allegedly conflicted APJ recused himself only after institution and because the Board failed to address Centripetal’s copying arguments.”
• “The Federal Circuit determined that it had jurisdiction to hear the appeal, noting that the case turned on the interpretation of ethics rules and was not the first instance in which the Court reviewed a conflict-of-interest challenge involving an institution decision. The Court concluded that the Board did not abuse its discretion in determining that Centripetal’s recusal motion was untimely, as Centripetal had been aware of the potential conflict for three months before its filing.”
• “The Federal Circuit also addressed the substance of the recusal motion and explained that the APJ’s stock holding in Cisco was less than the statutory $15,000 threshold at all times. Although Centripetal argued that different statutory provisions applied to APJs, the Court concluded that those provisions did not govern a federal employee’s personal financial holdings. Under the applicable statute, which requires recusal only when an employee owns more than $15,000 in a party, the Court found that the APJ was not required to recuse himself.”
• “The Federal Circuit further found that Centripetal’s due process rights were not violated. The Court explained that ethics rules for Article III judges do not apply to administrative proceedings before APJs. The Court further noted that a recent (USPTO) memorandum directing the Board to avoid empaneling judges with any stock ownership in a party was not intended to apply retroactively and therefore did not affect Centripetal’s case.”

“Judge Disqualifies Attorney From Malpractice Trial He’s Implicated In” —

• “A magistrate judge for the U.S. District Court for the Southern District of Florida disqualified a Boca Raton attorney from trying his client’s legal malpractice case after finding he will be a key witness for the defendant — who is also his former co-counsel — when the case goes to trial.”
• “Judge Lisette M. Reid kicked Andre G. Raikhelson off trial portion of the case in a Tuesday order, noting her decision was backed by legal precedent which holds that attorneys cannot represent clients in cases in which they are ‘central figures’ or when there is risk the client’s representation will be limited ‘by a personal interest of the lawyer.'”
  ‘Here, Mr. Raikhelson arguably has a personal stake in the outcome of this litigation, namely avoiding liability for Plaintiff’s damages himself,’ Reid opined.”
• “At the heart of the case is a 2020 civil complaint filed by the Securities and Exchange Commission against Joseph Cole Barleta for seven violations of the Securities Exchange Act while participating in a ‘fraud scheme’ that deceived investors of the Philadelphia-based financing firm Par Funding.”
• “Barleta tapped New York-based attorney Bettina Schein to represent him, with Raikhelson soon joining his legal team as local co-counsel. Schein advised Barleta to sign a consent agreement she described as a ‘no admit — no deny’ agreement. Per Reid’s order, Schein warned Barleta that should he refuse to sign, he was likely to be found liable of at least one count and that a lengthy, costly trial would ensue.”
• “Barleta signed the consent agreement in November 2021, effectively waiving his right to appeal, consenting to the entry of a disgorgement and acknowledging the allegations lodged against him by the SEC to be true. At a disgorgement hearing in October 2022, Barleta was ordered to pay $10.8 million in disgorgement damages and a civil penalty of more than $1.3 million.”
• “Represented by Raikhelson, Barleta filed a more than $12 million legal malpractice suit against Schein in September 2023, alleging she misrepresented the effect of the consent decree.”
• “But Schein argues it wasn’t her fault Barleta was left with such a large bill, but rather Raikhelson’s.”
• “By the time of the disgorgement hearing, Schein had withdrawn from the case, leaving Raikhelson as the sole counsel. Despite having attended every other hearing in the case, Raikhelson was not there to represent Barleta at the disgorgement hearing, telling the Daily Business Review Friday that he missed it for ‘personal reasons.'”
• “‘Our position is that though I wasn’t present at the hearing, for personal reasons, the argument that (Barleta) had at that hearing was carried on by other members of the joint defense team,’ Raikhelson said.”
• “Bob Jarvis, law professor at Nova Southeastern University, said Raikhelson’s absence at the disgorgement hearing was ‘mind-boggling.’ ‘To not show up at that hearing, and to essentially have other lawyers say that he was resting on his brief, I mean, that’s just mind-boggling … It’s like leaving a play right before they reveal who the murderer is,’ Jarvis said.”
• “He added that had Barleta approached a different lawyer, it’s likely they would have advised him to file the malpractice suit against both Schein and Raikhelson.”
  ‘Raikhelson has every reason to convince Barleta, ‘Oh, it’s Schein’s fault,’ whereas a conflict-free lawyer would have said ‘We’ll sue both of them and then the court or the jury can decide how much responsibility each one of them has,’’ Jarvis said.”

“Attorney in Judge Romance Scandal to Exit GWG Bankruptcy Role” —

• “An attorney facing scrutiny over her once-secret romance with a former federal judge said she’ll resign from her role in the bankruptcy of life insurance bond seller GWG Holdings Inc. Elizabeth Freeman will exit her post as wind-down trustee for a GWG trust after a new trustee is appointed, she told the US Bankruptcy Court for the Southern District of Texas in a notice Wednesday. Former GWG bondholders called for her departure due to her failure to disclose her romance with onetime judge David R. Jones, who mediated the Chapter 11 case.”
• “The announcement comes two days after a prominent Houston bankruptcy judge, Marvin Isgur, was forced off the case as a result of his connection with Jones.”
• “The GWG bondholders said Freeman’s lack of disclosure allowed Jones, in his mediator role, to appoint her as trustee. Jackson Walker LLP, where she was a partner before resigning from the firm in December 2022, represented GWG in the Chapter 11 case as local counsel.”
• “Freeman, in addition to her work while she was with Jackson Walker, continued to work as a contract attorney on the case after she left the firm, according to court filings.”
• “Jones was tapped by GWG and a special committee in November 2022 to mediate the case, as his romance with Freeman remained under wraps.”
• “Freeman, representing GWG at the time, told Isgur during a Dec. 16, 2022, hearing that she would take ‘comfort’ if Jones were appointed as mediator. It was the same month she left Jackson Walker. Freeman was later appointed as a trustee in the case.”
• “Former GWG bondholders in June sued Freeman, Jones, Jackson Walker and others, arguing they deliberately kept the long-term relationship quiet because it allowed them to manipulate the company’s Chapter 11 case, secure lucrative appointments and fees, deplete GWG’s assets, and render bondholder investments nearly worthless.”
• “The bondholders said Freeman was paid $100,000 a month for the first six months as trustee and $50,000 per month afterward. She’s collected more than $1 million as counsel either for GWG or as the trustee, and was slated to collect about $665,000 in future fees, the motion said.”
• “Freeman in August said the bondholders’ bid to oust her was part of a ‘scheme’ to benefit themselves and an attempt to rewrite GWG’s confirmed Chapter 11 plan and replace her and the litigation trustee with ‘collaborators.'”

“Law Firm Ownership Could Be Opened to Non-Lawyers in Tennessee” —

• “Tennessee is looking at non-lawyer ownership of law firms, a possibility that would create rare access to the profession for investors and corporations. The state Supreme Court, which says it is worried about an insufficient supply of legal services, is taking comments on whether it should loosen ownership rules. The goal is ‘to ensure that all Tennesseans have access to affordable quality legal services,’ the court said in an order last month.”
• “The state Supreme Court may be taking a cue from the health care industry, which has loosened regulations on physician ownership, Reed said. That’s ‘a pretty obvious comparison,’ she added. ‘How could we do something like that within the legal industry?'”
• “Every state sets its own legal ethics standards, and the vast majority hew closely to the model rules of professional conduct from the American Bar Association, which declined to comment for this story. The ABA’s rules prohibit non-lawyer ownership of firms in the name of professional independence.”
• “Large states including Florida and California have rejected proposals to liberalize law firm ownership rules and decided to stick with the ABA standard. Brandon Bass, a Brentwood, Tennessee lawyer who is president of the Tennessee Trial Lawyers Association, said he hopes his state follows their lead.”
• “The nightmare scenario is that the state loosens its rules and then a law firm’s corporate owners encourage lawyers to prematurely settle a case, or discourage them from even taking on an unprofitable matter, said Bass, who is with personal injury firm John Day PC.”
• “‘We would not see Brown v. Board of Education and the desegregation of American schools if the lawyers that undertook that case were one hundred percent beholden to profits for shareholders,’ he said.”
• “Liberalization would benefit larger law firms focused on transactional work at the expense of litigators such as himself, Bass said. ‘There are some at larger law firms, and particularly multi-state law firms, that view outside investment as a way to grow even larger and consolidate even more,’ he said.”
• “While its order spoke about the need for legal services broadly, ‘there is a growing concern regarding the lack of access to legal services in rural areas,’ the court said.”
• “The panel will accept comments through March 16. There’s no timeline after that as to when it will make a decision, a court spokesperson said.”
• “Expanding ownership would supercharge law firm growth by boosting efficiency and providing access to capital and technology, said Brian Faughnan, a solo practitioner in Memphis. Keeping investors out ‘prevents people with different skill sets from helping firms run themselves better, with skills that lawyers don’t get taught in law school,’ he said.”

New Jersey: “Advisory Committee on Professional Ethics (ACPE) Opinion 749 – Conflict of Interest: Corporation Counsel for a Municipality Concurrently Serving as General Counsel for a Regional Fire and Rescue Organization that Serves that Municipality” —

• “Inquirer asks whether an attorney may concurrently serve as corporation counsel for a municipality and as general counsel for a regional fire and rescue (RFR) organization that serves that municipality and several neighboring municipalities. The Committee finds that a per se conflict of interest arises when an attorney concurrently serves as corporation counsel for a municipality and as general counsel for a RFR of which that municipality is a member.”
• “Corporation counsel is retained by the municipality, which is organized under the Walsh Act form of government, run by a mayor and a Board of Commissioners, to act as its attorney of record. N.J.S.A. 40:70-1 et seq. The duties of corporation counsel are defined by local ordinance and include supervision of the execution, preparation and enforcement of all contracts, deeds, documents, statutes, ordinances, resolutions or legal correspondence for the municipality as well as the duty to prosecute and defend all legal matters for or against the municipality or any of its officials, departments, employees or personnel.”
• “The RFR was formed pursuant to the Uniform Shared Services and Consolidation Act, which provides for agreement between local governmental units and other entities for the provision of shared services. N.J.S.A. 40A:65-1 et seq. The Act authorizes the governing bodies of two or more local units to contract for the formation of a regional service agency for the provision of public services, including police, fire, and rescue services. The Inquirer explained that the member municipalities share the cost of fire and rescue services in accordance with agreements signed by the member municipalities. The agreements detail how the annual costs and expenses of operating the RFR will be allocated between each participating municipality. The RFR is governed by a ‘Management Committee’ comprised of representatives of each of the constituent municipalities, which oversees budgetary decisions, personnel matters, operational policies and strategic planning.”
• “The question before the Committee is whether inherent aspects of the lawyer’s anticipated dual role would create a per se structural conflict of interest that would pose a substantial risk that the lawyer could not provide independent advice or diligent representation to one or both entities. Absent per se conflict, the dual representation must comply with RPC 1.7(a)(2) and RPC 1.8(k).”
• “The New Jersey Supreme Court, in In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697, 188 N.J. 549 (2006), held that an attorney who ‘plenarily represents a municipal governing body’ is ‘barred from representing private clients before that governmental entity’s governing body and all of its subsidiary boards and agencies, including its courts.’ Id. at 569. In contrast, an attorney who ‘plenarily represents an agency subsidiary to the governmental entity’s governing body’ is ‘barred from representing private clients before that subsidiary agency only.’ Ibid. Lastly, ‘if the scope of an attorney’s engagement by a governmental entity is limited and not plenary,’ the attorney may not represent a private client before or against the governing body but may represent a private client before the boards, agencies, or municipal court of the municipality. Id. at 567-69. An attorney who represents a municipality in a limited, not plenary, way must still comply with the provisions of RPC 1.7, RPC 1.9, and RPC 1.8(k). Id. at 568.”
• “While Opinion 697 addressed conflicts concerning the representation of private clients before a subsidiary board or agency, its holding was expanded to conflicts concerning representation of the board or agency itself by the Committee in Opinion 736 ‘Lawyer May Concurrently Serve as Municipal Prosecutor and Planning Board Attorney in Same Municipality; Superseding Opinions 452 and 366’ (June 25, 2019). There, the Committee reviewed an inquiry asking whether a lawyer may concurrently serve as municipal prosecutor and planning board attorney in the same borough. The Committee determined that if the municipal prosecutor was permitted to represent private clients in matters before the subsidiary agency in question, it follows that the municipal prosecutor may also concurrently serve as attorney for a subsidiary board or agency itself.”
• “When analyzing local governmental conflicts of interest, the Committee noted that the appearance of impropriety doctrine was removed from the Rules of Professional Conduct in 2004. Prior Committee Opinions resolved primarily by reference to that doctrine are of little continued relevance. Instead, the Committee noted that the conflict should be examined under the three tiers of per se conflicts identified by the Court in Opinion 697. If the lawyer is found to plenarily represent the municipality, the ‘member of the municipal family’ doctrine is applied. If the lawyer is found to provide legal services to the municipality in a lesser role, they are no longer subject to broad, per se restrictions on their practice. Those lawyers are still subject to case-by-case restrictions and recusals under RPC 1.7(a)(2) and RPC 1.8(k).”
• “In practice, where ‘membership’ in the ‘municipal family’ establishes a ‘substantial risk that the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client,’ a per se conflict of interest will be inferred. Opinion 697, 188 N.J. at 566 (citing RPC 1.8(k)).”
• “In Opinion 722, ‘Conflict of Interest: Concurrently Serving as County Counsel and Mayor of a Constituent Faulkner Act ‘Strong Mayor’ Entity’ (June 27, 2011), the Committee concluded that the lawyer could not concurrently serve as both county counsel and mayor of a constituent municipality. The Committee noted that Faulkner Act ‘strong mayor’ municipalities concentrate substantial power in the hands of the chief executive. Mayors in these municipalities prepare budgets, supervise all municipal property, negotiate contracts for the municipality, appoint the heads of administrative departments, along with other duties which include acting in the best interest of the municipality. County counsel is generally considered the ‘chief legal officer or advisor of the governing body of the county’ and heads the county’s legal department. The Committee found a per se conflict in holding both positions.”
• “Unlike the assistant county counsel in Opinion 706 ‘Conflict of Interest: Concurrently Serving as Assistant County Counsel And Council Member in Municipality in Same County’ (July 3, 2006), who the Committee concluded could concurrently serve as a member of the municipal council in a municipality in the same county, the structural organization of county counsel’s office would not permit the same opportunity for case-by-case recusal for county counsel who sought to concurrently serve as mayor of a constituent municipality.”
• “Here, corporation counsel is the chief legal officer for the municipality and thus owes a duty of loyalty to promote the individual interests of that municipality above other competing interests. General counsel for the RFR, however, would serve as chief legal counsel for a consortium that serves all constituent municipalities, and its general counsel would owe a duty of loyalty to promote the collective interests of the consortium as a whole and not only that one constituent member. The Committee concludes that these competing loyalties present an inherent and unavoidable conflict of interests that would preclude a lawyer from serving in both roles concurrently.”
• “In some ways the RFR is analogous to a subsidiary agency to each constituent municipality. On the other hand, it is also possible to conceptualize each municipality as a subsidiary to the RFR, in that any decision made by the consortium is necessarily a collective decision with ramifications for each funding entity. But unlike typical subsidiary agencies that are subjected to the control of the municipal governing body, each participating municipality is an autonomous and independent entity not subject to the ultimate authority of the RFR except to the extent it has contractually agreed to abide by collective decisions. It nevertheless still exercises its independent authority by participating in the governance through its role in the RFR Management Committee.”
• “In order to achieve the efficiencies of shared services, each municipality has agreed to abide by the compromise resource allocation decisions made by the Management Committee of the RFR, even if those decisions do not maximize the interests of one of the constituent municipalities. In advising either the RFR or the municipality on how to exercise its authority to allocate resources in any particular situation, a lawyer attempting to act as counsel for both entities would regularly confront the reality that their interests not only are not coterminous but often will conflict.”
• “For example, how could the lawyer advise the RFR on which firehouses may be closed when he or she is also tasked as corporation counsel to the municipality with a duty to advocate for keeping the firehouses within its borders open? The Committee finds that a lawyer cannot serve as corporation counsel to a single funding entity while concurrently serving as general counsel to the entity being funded without creating a per se structural conflict of interest, not remediable by case-by-case recusal, that cannot be waived.”
• “We recognize that per se conflicts of interest have become disfavored since the Pollock Commission report recommended, and the Supreme Court enacted, the abolition of the appearance of impropriety rule. Nevertheless, we think this is one of the relatively rare situations in which individual recusals would be insufficient to permit a lawyer to provide competent representation to two entities whose interests would actually overlap with such regularity. We therefore answer the inquiry in the negative and conclude that a lawyer may not concurrently represent plenarily both a municipality and a RFR in which that municipality is a constituent member.”

“Eleventh Circuit Splits Single Lawsuit into Multiple ‘Claims’ When Applying Misappropriation Exclusion and Determining Duty to Defend” —

• “The United States Court of Appeals for the Eleventh Circuit, applying Georgia law, has held that a single lawsuit constitutes multiple ‘claims’ and some of those ‘claims’ fell outside the misappropriation exclusion in a lawyers professional liability policy, thereby triggering the insurer’s duty to defend. Medmarc Cas. Ins. Co. v. Fellows Labriola LLP, 2025 WL 2886733 (11th Cir. Oct. 10, 2025).“
• “A lawyer and law firm represented a husband and wife and their respective companies in a RICO case that settled. Pursuant to the consent order, a receiver was directed to distribute cash from the companies’ bank accounts to the law firm’s IOLTA account for distribution to both companies and to auction off some of the clients’ assets. However, the lawyer and law firm allegedly distributed the funds and auction proceeds only to the husband, who had filed for divorce, and to his company. The ex-wife and her company sued the lawyer and law firm for legal malpractice, breach of fiduciary duty, and breach of contract based on the disbursements and undisclosed conflicts of interest.”
• “The lawyer and law firm sought coverage for the malpractice lawsuit under their lawyers professional liability policy. The insurer denied coverage under the misappropriation exclusion, which barred coverage for ‘any claim[s] or other request[s] involving or relating to any conversion, improper commingling, or misappropriation, whether by an Insured or any other person, and whether intentionally or not, of client funds or trust account funds or funds of any other person held by any Insured in any capacity.’ The policy defined ‘claim’ to include ‘a demand or suit for damages received by the Insured.'”
• “In the ensuing coverage litigation, the district court held that the insurer had a duty to defend the entire lawsuit and the duty to indemnify was not yet ripe. On appeal, the insurer argued that it did not have a duty to defend because the entire malpractice lawsuit was one ‘claim’ and that single ‘claim’ fell under the misappropriation exclusion. In so arguing, the insurer relied, in part, on the ‘When a Claim is Made’ provision, which stated ‘all claims … involving a single act, error, or omission or series of related act, errors, or omissions shall be deemed to be one claim and to be first made when the first of such claims is made.’ The Eleventh Circuit found this argument unpersuasive because ‘an insured would expect that the sentence in question impacts only when a claim is first made and would not expect it to inform the meaning of ‘claim’ beyond that.'”
• “Instead, the Eleventh Circuit held that ‘[t]here are multiple claims in this suit’ and ‘of those multiple claims, at least some fall outside the misappropriation exclusion.’ In particular, the Eleventh Circuit determined that ‘the conflict of interest allegations … have nothing to do with misappropriation, conversion, or improper commingling.’ The Eleventh Circuit refused to construe ‘involving or relating to’ so broadly to include ‘claims [that] simply involve the same parties and are brought in the same lawsuit.’ Affirming the decision below, the Eleventh Circuit held that the insurer had a duty to defend the entire malpractice lawsuit because certain ‘claims’ fell outside the misappropriation exclusion. The Eleventh Circuit also determined that the insurer’s duty to indemnify is not ripe until the underlying malpractice lawsuit is resolved.”

“Ethical Challenges in New York Trust and Estate Practice: Conflicts, Confidentiality and Client Capacity” —

• “In a trust and estate practice, attorneys constantly encounter ethical dilemmas. These challenges often arise because of the ways in which the complex nature of the practice intersects with attorneys’ ethical obligations to their clients.”
• “Trust and estate attorneys often represent multiple family members in the estate planning process, which can quickly lead to conflicts of interest. While oftentimes a couple’s interests are aligned, their ideas about inheritance or end-of-life care very well may diverge. For example, by offering joint representation of a married couple, the attorney may need to navigate differing interests regarding the distribution of assets or care of their children. If a trust and estate attorney’s core client base presents an inherent conflict, a conundrum can present quite early and often in the relationship.”
• “To counteract this issue, waivers and disclosures must identify potential conflicts and ensure informed consent about how they will be addressed. Trust and estate retainers should acknowledge this potential for conflict, and waivers should be comprehensive and clearly disclose the risks that working with the attorney may present to the client. For example, perhaps one spouse reveals information in confidence to his attorney and asks his attorney not to tell his spouse. Where the attorney would be obligated to disclose this sensitive information to the client’s spouse, the waiver should be written so comprehensively as to disclose this protocol. Therefore, the client fully comprehends the obligations under the attorney-client relationship to both parties.”
• “Further, if the conflict is significant enough that the couple reaches a crossroads in their estate planning, the attorney may be presented with questions surrounding representation: moving forward, can she represent neither spouse, or could she represent only one and not the other? Waivers can be written to outline these protocols and ensure informed consent up front.”
• “Trust and estate planning often involves multiple generations of a family, and attorneys may be pressured to share confidential information among family members. Rule 1.6 of the New York Rules of Professional Conduct imposes strict confidentiality requirements, and breaching, whether with a client’s spouse, child, or other family member, can lead to significant ethical violations.”
• “When representing fiduciaries such as executors or trustees, attorneys must remember that their client is the fiduciary, not the beneficiary. This distinction can sometimes blur in practice when beneficiaries attempt to influence decisions or demand information; or, if an attorney frequently communicates with the trustee of a trust, it is essential for the attorney to remember that the grantor, not the trustee, is her client.”
• “Similarly, trust and estate attorneys often work with families in a multigenerational capacity. This dynamic poses additional ethical challenges. For example, if one parent has a health condition that she has not yet disclosed to her children and wants to keep secret, if the attorney also represents her child, she risks breaching attorney-client privilege with the child by disclosing information the child should know.”
• “Challenges also frequently arise when an attorney is asked to represent one family member in a dispute against another, such as in a will contest. In such cases, the attorney must evaluate whether prior knowledge has been obtained in the course of joint representation in planning stages that would create conflict in representing one child and her interests against the other.”
• “In representing a client through estate planning, an attorney may be asked to serve as a trustee, executor, or agent as well, which can create potential conflicts of interest. A key ethical concern may arise regarding whether the attorney can remain impartial while fulfilling both roles as the attorney may earn commission from these additional appointments. In New York, this role is permissible but requires transparency and informed consent from the client.”
• “One way in which such conflicts may rise to the surface is through fee disputes. The attorney must disclose and obtain approval for any fees drawn from the estate and adhere to the ethical guidelines and statutory requirements.”
• “When a client passes away, the estate plan may be challenged on the grounds of undue influence or lack of capacity, opening up will contests and allegations of misconduct. In these situations, the drafting attorney often becomes a witness or may even be accused of impropriety.”
• “Navigating these situations while maintaining professional integrity and avoiding conflicts is a delicate balance. Properly executed waivers, disclosures, and documentation may assuage such concerns. The attorney must also be thoughtful and precise in handling successive representation. If an attorney represented a decedent and is later asked to represent a party in estate litigation, they must carefully evaluate any potential conflicts or duties owed to the former client.”

“Ethical Considerations When a Lawyer Serves as an Expert Witness” —

• “The role of the expert witness in litigation is critical and indispensable, underpinning the facts and theories in diverse litigation across nearly every professional field. While experts typically hail from non-legal disciplines—from medicine to finance—this article will focus on the specialized and often ethically complex area of attorneys who provide expert witness testimony. This intersection is most prominent in legal malpractice cases, where expert evidence is generally mandated to establish the required standard of care and scope of duty (see Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239).”
• “Lawyers, even when providing services for which they expressly disclaim the formation of an attorney-client relationship or the provision of any legal advice or services, are still subject to violations of the laws and rules governing lawyer conduct, set forth in Business & Professions and the Rules of Professional Conduct.”
• “Some common ethical issues which can arise include:”
  • “May a lawyer ethically testify as an expert witness adverse to a former client?”
  • “May a lawyer ethically represent the client who is adverse to the party on whose behalf they previously testified as an expert?”
  • “May a lawyer ethically serve as an expert witness against a current client of the lawyer’s firm in an unrelated matter?”
• “Previously, California attorneys engaged as expert witnesses relied solely on their own ethical compasses to answer these and other ethical issues arising from such work. The State Bar’s Standing Committee on Professional Responsibility and Conduct is currently publishing for public comment its Formal Opinion Interim No. 20-0001. If adopted, this guidance will provide a clear roadmap for California attorneys navigating these issues, moving the profession away from reliance solely on an ‘ethical compass’ and toward clear, practical standards.”
• “RPC 1.9 prohibits an attorney from accepting representation that would be adverse to a former client in the same or a substantially related matter. However, because expert engagement is not legal representation, it appears that RPC 1.9 would not be an issue. The fundamental reason an expert engagement is not considered legal representation or the formation of an attorney-client relationship in California is due to the nature of the services provided and the role the expert individual plays in the litigation.”
• “Expert witness role (attorneys): The attorney’s function, when acting solely as an expert, is to provide specialized knowledge, opinions, and analysis to help the trier of fact (the judge or jury) understand complex issues like the standard of care in a legal malpractice case. The expert serves the court by offering impartial (or semi-impartial, as retained) professional opinion. The expert is not acting as an advocate for the client and thus is not engaged in the practice of law.”
• “Legal representation role: On the other hand, an attorney acting as a lawyer serves as an advocate, providing legal advice, negotiating, and making strategic decisions to advance the client’s interests in the matter. This is what creates the confidential, fiduciary, and contractual attorney-client relationship.”
• “Contractual limitation (the engagement agreement) and express disclaimer. In best practice, the attorney-expert explicitly disclaims to prevent the formation of an attorney-client relationship through the expert engagement agreement. This contract typically states that the expert’s role is strictly limited to reviewing materials, forming opinions, and testifying, and that they will not be providing legal advice or representation to the retaining client. An attorney can effectively avoid forming a relationship by express actions or words.”
• “Since no attorney-client relationship is formed, many of the stringent conflict of interest rules (such as Rule 1.7 concerning conflicts with current clients or Rule 1.9 concerning former clients) do not strictly apply to the expert engagement itself. The expert is not ‘representing’ a client within the meaning of these rules. However, although the conflict rules don’t apply, an attorney-expert is still bound by general ethical duties, such as not using confidential information acquired from a current or former client in their testimony.”
• “In summary, the key difference is that the attorney-expert is functioning as a highly qualified, specialized witness—not as the client’s legal counsel or fiduciary advisor—a distinction usually cemented by the specific terms of the engagement contract. But this is not the end of the analysis, because attorneys must always protect their client’s privilege. This obligation is expressly referenced in RPC 1.9(c). (See also B&P §6068(e), RPC 1.6, Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 823.) The onus is on the expert to ensure that requested opinions can be provided without relying on or otherwise using protected information of the former client.”
• “Because engagement as an expert does not create an attorney-client relationship, there is no inherent prohibition on subsequently representing a party, even an adverse party, from the matter in which the attorney acted as an expert. But there are still ethical matters to address.”
• “There may be express or implied contractual limitations imposed on a former expert, such as confidentiality or refraining from accepting subsequent adverse positions. There may be protective orders issued in the prior matter. These limitations may impact the effectiveness of the former expert to adequately represent their potential new client. Any material limitation on an attorney’s ability to represent a client must be disclosed pursuant to RPC 1.7(b).”
• “Acting as both expert and attorney for an adverse party. This is the most problematic scenario and at first seems to be the least likely to occur. However, RPC 1.10(a) imputes the conflicts of a single lawyer to the entire firm. The first step in this situation is to ensure that the attorney acting as an expert will have no access to the adverse client’s privileged information (B&P §6068(e), RPC 1.6).”
• “The separation between an attorney’s role as a testifying expert and as legal counsel is more than a technicality; it is the linchpin that prevents an ethical crisis. An expert—even one who is a licensed lawyer—operates outside the traditional fiduciary bubble, sidestepping the rigid rules of client loyalty and imputed conflicts. This distinction is crucial, yet perilous. Because the expert engagement is not legal representation, it can allow attorneys to avoid conflict-of-interest rules that could otherwise halt litigation. However, this freedom demands vigilance. For the retaining firm, a fuzzy engagement letter is an invitation to disqualification or malpractice; for the testifying lawyer, breaching a former client’s confidentiality, even in an unrelated expert role, remains a career-ending risk.”
• “The lesson is simple: when contracting with an attorney-expert, assume nothing. Similarly, when an attorney-expert enters into an expert engagement, they should be diligent both in their retainer and in their actions, limiting their activities to solely providing opinions based on presented facts and not providing what could be interpreted as legal advice. As an expert, one should generally err on the side of avoiding even the appearance of ethical gray areas, performing conflict checks prior to accepting engagement and declining if there appears to be an ethical conundrum. The only true safe harbor lies in absolute clarity over function, privilege, and the precise boundaries of the relationship.”

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.'”