Bressler Risk Blog

Recently (April 2020): “UpRight’s Fee-Splitting Win A Boon For ‘Virtual’ Firm Model” —

• “While the decision for UpRight Law focused on a narrow question of federal bankruptcy law, the court’s obvious tolerance for a firm in which hundreds of “partners” simultaneously run similar solo practices will support the move toward innovative business models in the broader legal industry.”
• “According to the trustee, UpRight’s model is essentially an elaborate referral network that doesn’t qualify as a law firm under Section 504 — and thus is not covered by the fee-split exception — or the state ethics rule against fee-splitting.”
• “Judge Limbaugh also rejected the trustee’s argument that UpRight’s lack of a national conflict system — UpRight lawyers do their own checks against their individual client lists — was evidence that the firm is not really acting like a firm at all.”
• “UpRight lawyers ‘are bound by the conflict of interest rules regardless of whether a conflict check system is in place,’ the court reasoned. ‘The presence or absence of such a system — and whether the partners actually abide by the conflict rules — has no bearing on whether the partners have combined to form a law firm in the first place.'”
• “The case also illustrates a fundamental risk management question for any group of lawyers who organize to share information or expertise, and whether that cooperation inadvertently creates a ‘firm’ for purposes of imputed conflicts and client information.”
• “David Menditto, associate general counsel for litigation at UpRight Law, said the court was rightly focused on all the aspects of how the business operates, both publicly and internally. ‘What matters is how we act, and we act like a law firm,’ he said. ‘There is an ongoing relationship through the representation of a client, there is support provided to the lawyer if its needed, and the lawyer can be replaced if they’re not performing. So it’s really not just some loose affiliation of people who get clients from the same source.'”

Earlier (February 2018): “When #Altlaw Is Bad, It Is Truly Horrid” —

• “Upright is an #Altlaw fantasy come to life — a new business model with a self-proclaimed mission of promoting access to justice through ‘cutting edge technology’ and 24/7 online access… Upright farms out most of its cases to local attorneys called “partners” who maintain their own practices.”
• “Earlier this month, a Louisiana bankruptcy court sanctioned Upright and its local attorney for professional negligence. Worse, this past week, the darker side of Upright’s practices came to light in a blistering ruling by a federal bankruptcy court Virginia in response to a complaint filed by the Region Four Bankruptcy Trustee against Upright Law, several of its principals and two solo attorneys who acted as Upright’s local partners.”
• “Upright would contract with local attorneys with independent practices to handle cases received for a given jurisdiction. Upright provided the local attorneys with a separate ECF number to use when filing cases for Upright clients. Although participating attorneys had their own firms, they became limited partners of Upright and were held out to the public as partners;”
• “The court found that the local attorneys knew that Upright’s non-lawyer consultants were giving legal advice to clients, and that the Upright-Sperro deal violated bankruptcy laws and raised serious conflicts of interest. Thus, the court revoked one of the local lawyer’s privileges to practice before the court for one year and fined him $5000, while a second less remorseful local attorney was similarly fined and suspended for 18 months.”

“Nebraska Lawyer Who Helped Girlfriend With Case Gets Reprimand” —

• “A Nebraska county attorney who prepared legal documents for his girlfriend relating to her firing from a job at the county sheriff’s office without initially indicating his involvement in the case was publicly reprimanded by the state’s highest court.”
• “Brandon B. Hanson was working as county attorney for Valley County in 2018 when his girlfriend was fired from her job. Soon after, she filed a suit against someone who commented on social media that she was dismissed for being drunk at work.The comment came from a supporter of Hanson’s rival for the county attorney seat.”
• “The case was the first in which Nebraska’s Supreme Court had to rule on a violation of a local rule requiring a ‘Prepared By’ notation on court filings worked on by an attorney, so it had ‘no comparative cases’ to help determine a sanction, it said in its April 17 opinion.”
• “Hanson’s rival filed a grievance with the state disciplinary board alleging that Hanson had prepared pleadings for his girlfriend without including the required notation. His involvement in her case was also a conflict of interest with his position as the Valley County Attorney, the rival said.”

“Convicted murderer to get new hearing since his trial lawyer started dating, later married, state witness” —

• “A convicted murderer that that has been in prison for six-and-a-half years will get a new evidentiary hearing after he won an appeal that says the timeline of the romantic relationship between his trial lawyer and a witness needs to be explored further.”
• “Furthermore, the three judges ruled that an evidentiary hearing is necessary to determine if there was in fact a conflict of interest for Rubas… ‘“There is no sworn information as to that alleged fact and, to date, defendant has not had an opportunity to cross-examine his trial counsel or others with relevant information. We also reject the fixation on the first date or the notion that the first date is the critical date in considering when the conflict arose. The relationship or communications leading up to the relationship may have commenced earlier.'”

“Withers rebuked for failing to provide appropriate anti-money laundering training” —

• ” Withers has been rebuked by the UK’s law firm regulator for failing to provide appropriate anti-money laundering training to its staff. The public rebuke is contained in a regulatory agreement published by the Solicitors Regulation Authority (SRA) which says Withers failed to comply with The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 over a 28-month period.”
• “‘The firm’s conduct was non-compliant because all of its relevant employees need to be aware of the relevant anti-money laundering legislation, especially when considering the nature of the work the firm undertakes and its client base.'”
• “The SRA said a rebuke was a proportionate response because it created a credible deterrent to other firms and there was no evidence of lasting harm to consumers or third parties. In addition, the breach had been remedied and there was a low risk of repetition.”

In New York, Si Aydiner who focuses on the defense of attorney discipline actions, writes: “Money Laundering, Lawyers, and Escrow: The Case for Voluntary Due Diligence” —

• “Though the popular television series Ozark romanticizes the underlying criminal conduct, money laundering and the manipulation of beneficial ownership are genuine issues confronting lawyers.”
• “Whether lawyers should be mandated financial “gatekeepers,” like banks, has been well debated. ABA Formal Opinion 463. The perception that lawyers are a “significant gap” in the struggle against money laundering—as established by 60 Minutes—has little to do with the profession however.”
• “Lawyers, conversely, are required only to report cash payments exceeding $10,000 (using Form 8300). (FATF-MER p. 38). The lawyer as the “gap” in identifying beneficial ownership stems, not from cultural resistance, but rather from the tripartite relationship between lawyer, escrow account, and bank.”
• “These recent amendments only confirm the need for lawyers to perform a minimum degree of due diligence on clients for two reasons: establishing whether to decline representation (which will depend, to some degree, on the lawyer’s appetite for risk) and having proof in the file that a contemporaneous effort to learn was made in order to militate against an allegation of scienter in a disciplinary proceeding or criminal investigation.”
• “A leading authority on the issue of client due diligence is the ABA’s Voluntary Good Practices Guidance for Lawyers To Detect and Combat Money Laundering and Terrorist Financing (Good Practices). It advocates for a ‘risk-based approach’ to due diligence that ‘ensure[s] that measures to prevent or mitigate money laundering and terrorist financing are commensurate with risks identified.'”
• “As State Tax Law §1409 and Administrative Code §11-2105(h) direct, the identification of beneficial ownership is now locally mandated. Lawyers who make a living facilitating financial transactions may be prudent to employ basic, uniform, due diligence establishing beneficial ownership. While such efforts may be onerous, there are existing resources available to ease the burden. And the cost of such due diligence inquiries should be chargeable to the client.”
• “While a client intent on engaging in illicit activity can misrepresent beneficial ownership, this due diligence is precisely the type of evidence that can be disclosable under Rule 1.6(b)(5)(i) in a subsequent disciplinary investigation implicating Rule 1.2(d) or any other requiring scienter. Demonstrating a willingness to take non-mandated steps would also be strong evidence against the catchall provision of Rule 8.4(h). My Committee experience, and service in-house for two separate federal investigations, instruct that a lawyer’s posture under the circumstances is largely reactionary—the lawyer lacks control under the duress of scrutiny. And a practice of consistent and basic due diligence will serve you well.”

“‘Clash of interests’ at Herbert Smith Freehills over FCA review of business interruption insurance” —

• “One of the City’s most prominent law firms has been accused of being compromised by representing the financial watchdog in a test case over business interruption insurance. Herbert Smith Freehills is advising the Financial Conduct Authority after the watchdog said that it would seek a High Court review of policies after a large number of claims were rejected during the Covid-19 lockdown.”

Additional Detail: “Role of Herbert Smith Freehills questioned in FCA review of rejected Covid-19 business interruption claims” —

• “Mactavish, the specialist outsourced insurance buyer and claims resolution expert, has reviewed the list of insurance policies that the FCA has published as being subject to review by the Court in the Covid-19 related legal review of failed business interruption claims.”
• “Mactavish is calling on Herbert Smith Freehills, which is representing the FCA in this case, to disclose if it also represents any of the insurers or brokers whose wordings will be subject to scrutiny since Mactavish believes that if that is the case it is difficult to see how conflicts of interest would not arise. Mactavish believes that there is a public interest in this disclosure because the FCA, which will presumably be paying their fees, is funded by the taxpayer and was set up to be an independent body to protect the interests of consumers.”
• “Mactavish has also discovered that several of the policy wordings in the policies being considered for the FCA’s legal case were drafted by brokers, not by insurers. Given this, it is calling on the regulator to run a more in-depth review of the role played by brokers around the failed Covid-19 business interruption claims. It says the Covid-19 crisis has revealed several conflicts facing brokers that it believes are detrimental to their clients.”

“Ex-Client Lodges $1.3M Fraud Suit Against Foley & Lardner, 2 Houston Lawyers” —

• “A Houston company is seeking $1.3 million from Foley & Lardner and two of its lawyers, alleging they ‘perpetrated an outright fraud’ to induce it to invest and loan money to another firm client.”
• “The plaintiff, Schumann/Steier Holdings, accuses Foley and the attorneys of ‘numerous misrepresentations and omissions as well as breaches of fiduciary duty.’ In addition to the law firm, the suit names special counsel Anacarolina Estaba, partner Peter McLauchlan and McLauchlan Family Properties. Bedfeld and McLauchlan split their practices between Houston and New York.”
• “‘The obvious conflict of interest created where plaintiff’s investment was ultimately going directly to his own law firm to pay for another client’s legal bills was a clear breach of fiduciary duty and not appropriately disclosed,’ the petition alleges.”
• “A spokeswoman for Foley wrote in an email that the firm declines comment on the allegations in Schumann/Steier Holdings v. Foley & Lardner.”

“Appeals Court Revives Legal Malpractice Suit, OK’s Same-Firm Lawyer’s Expert Affidavit” —

• “Ruling in a case of first impression, the Georgia Court of Appeals revived a legal malpractice lawsuit after finding the trial judge improperly dismissed it simply because the expert affidavit supporting the complaint was written by an attorney who also was a law partner of the filing attorney. The defendants had argued there was an “inherent conflict” in allowing the affidavit, but the Court of Appeals said the lawyer who wrote it met all the requirements of the law.”
• “Far from creating a conflict with the client’s interests, the lawyer’s affidavit actually ‘serves to advance those interests,’ wrote Presiding Judge Anne Elizabeth Barnes, with the concurrence of Judges Elizabeth Gobeil and John Pipkin III on Friday.”
• “Plaintiffs attorney William Ney of Ney Rhein said of the ruling, ‘It just confirms what the ethics rules are: That members of the same firm can provide pretrial affidavits on behalf of each other’s clients and still comply with [the statute].'”

“May 2020 Independent Contractor Misclassification and Compliance Law News Update” —

• “The new complaint filed in federal court in Pennsylvania alleges that the drivers and other personnel making deliveries for the ISP are actually employed by FedEx through intermediary employers – the ISPs – to perform delivery services for FedEx and that FedEx is the joint employer of the drivers along with the ISP companies. Because the drivers’ counsel, Lichten & Liss-Riordan, P.C., also represent a group of ISPs claiming that they are employees who have been misclassified as ICs by FedEx, the company brought a motion to disqualify the law firm.”
• “FedEx argued that the law firm’s representation of the drivers in this case against the company and its representation of a class of ISPs against FedEx in another pending federal court case has created a conflict of interest for the law firm under the applicable Rules of Professional Conduct because the new lawsuit asserts that FedEx is a joint employer with the ISPs of the drivers and helpers.”
• “The Pennsylvania federal court denied FedEx’s motion to disqualify the drivers’ counsel. The court concluded that although the plaintiffs will attempt to prove that FedEx is a joint employer under the FLSA, the ISPs are not a party to the action and ‘there is no circumstance wherein this Court or a jury will be required to find that [Independent] Service Providers are Plaintiffs’ employers.'”
• “It further found that ‘[w]hile FedEx may pursue indemnification and contract termination following the conclusion of the action, a finding of liability on FedEx’s part in no way establishes FedEx’s right to recover from [Independent] Service Providers,’ and that the court would not be required to determine whether the ISPs, who are not parties to the action, are liable for FLSA violations in order for the drivers to recover.”

“SRA to beef up AML monitoring of law firms” —

• “The Solicitors Regulation Authority (SRA) is to beef up its monitoring of firms’ anti-money laundering (AML) efforts and begin a review of continuing competence, its draft 2020/21 business plan has revealed.”
• “This is the first time the SRA has consulted on its annual business plan, for the year from 1 November, and follows the recent publication of its corporate strategy for 2020-23.”
• “To meet its legal obligations to prevent money laundering, the SRA said it would expand its AML visits so as to visit all high-risk firms on a three-year rolling basis, along with visiting a sample of lower-risk firms – the SRA will also review the methodology it uses to risk rate firms.”
• “Further, every month it will call in and analyse a sample of firms’ AML policies, procedures and controls, or their risk assessments, ‘and we are planning to undertake a thematic review into tax advice.’ This means the 2.5% of the SRA’s £70m budget that is currently spent on AML activities will increase to 3%.”
• “The oversight regulator, the Legal Services Board, has begun work on a review of continuing competence that could lead to periodic checks on lawyers’ fitness to practise. The SRA is following suit: ‘We recognise the importance of not only high standards at point of entry into the profession, but also throughout a solicitor’s practice over many years, so we will also undertake a strategic review of our approach to regulating solicitors’ continuing competence.'”
• “It said: ‘As we start to consider our longer-term forward budget, we are acutely aware of the current political and economic context. The impact of Covid-19 on the profession, consumers and, indeed, the wider economy is likely to be significant and long lasting. There is potential need for greater regulatory activity at a time of this significant financial uncertainty for the profession and law firms, at the same time as the economy is adapting to a post-Brexit transition environment.”

And Malcom Mercer shares: “Thoughts about self-regulation in the public interest” —

• “It is no secret that that self-regulation can be compromised by the tension between the public interest and the interest of the regulated profession[i]. This tension leads some to say that self-regulation is inherently flawed and should come to an end.”
• “In this column, I suggest that:
  • it may be useful to recognize that conflicting professional interests are more in tension in some areas than in others and accordingly to look for ways to mitigate that tension where it is potentially problematic
  • there may be limited measures that can be used to mitigate such tension without having to take more transformative measure that may or may not end up achieving what is sought to be achieved and to avoid the costs that come with transformations.”
• “Professional regulators have other responsibilities where the public interest and the interests of regulated professionals are less well aligned. Scope of practice is an area of particular tension where there is more than one profession that may be suited in the public interest to perform a function.”
• “There is a clearly tension between the public interest and the interest of professions where two or more professions would compete for work if permitted to do so.”
• “There is no perfect approach to professional regulation. Professional self-regulation has advantages. It is a challenge without professional expertise to truly address the fundamental aspects of professional regulation; namely professional competence and conduct. It is good to have regulation of lawyers be independent of government both in criminal law defence and generally. In the early days of the Trump administration, lawyers gathered at airports seeking to defend the interests of those seeking to enter the United States. It is not difficult to imagine that regulation of lawyers by the US government might have cast a pall. Whether a government is on the right or the left, independence from government is desirable. We know that autocratic countries around the world use state ‘tools’ to silence lawyers.”
• “In my view, it is particularly important that the question of what is required to become a lawyer and requisite professional conduct and competence of lawyers be independently regulated. Self-regulation is one approach to independent regulation. A difficulty with other approaches to independent regulation is that true independence from the state is both hard to achieve and hard to maintain.”
• “It seems to me that the tension is greatest for self-regulation of lawyers in determining the permitted scope of licensed non-lawyer practice, determining the scope of reservation to licensees (i.e. what is unauthorized practice) and regulating of business activities.”
• “There is talk of the end of self-regulation in Canada. Experts in professional regulation argue that there is growing governmental and public impatience with self-regulation and that self-regulation is inherently fundamentally flawed given conflicting interests.”
• “Perhaps the better choice is evolutionary rather than transformative. Approaches in other jurisdictions always look better than our own and better than they are. And transformative change is difficult to effect and to manage. Results of transformative change are inherently unpredictable.”
• “An alternative that appeals to me comes in part from the Legal Services Board in England & Wales where a Consumer Panel has been established to advocate for consumer interests and in part from the existence of government appointed benchers in Canadian Law Societies.”

“Kirkland’s Role Advising ‘Repeat Players’ Highlights Risk of Business Conflicts in Deals” —

• “Kirkland & Ellis’ resignation from a large debt deal involving multiple firm clients offers a conflicts lesson for firms seeking to rapidly expand client connections in finance and private equity deals.”
• “Business conflicts can be difficult to identify at the beginning of a deal, experts said, putting law firms in a tough position later on in an acrimonious transaction. Kirkland & Ellis, a dominant force in the deal space, was representing U.K.-based corporate travel company Travelport Worldwide in a $1 billion financing deal. The firm backed out of its advisory role to the company after debt investors that Kirkland also represents got into a legal tangle over the deal, according to a Thursday report in The Wall Street Journal.”
• “Elliott Management Corp. and private equity firm Siris Capital Group, which collectively made a $2 billion investment in Travelport Worldwide last year, planned on shoring up their investment during the pandemic with an additional $1 billion in debt financing. But the financing was dependent on shifting some of the company’s valued intellectual property assets away from its current lenders, which include Blackstone Group and Bain Capital, both of which Kirkland has represented in other matters.”
• “Indeed, it isn’t uncommon for firms to negotiate against investors they represent in other matters. It is less common, however, that the advising firm would end up having to back out of its advisory role when the deal becomes too contentious, Talley said.”
• “‘This is not a conflict under the professional rules of conflict,’ said Stephen Gillers, a legal ethics professor at New York University School of Law. ‘This is a business conflict, which can be harder for firms to identify at the onset of a deal.'”
• “But business conflicts are harder, and Gillers said that those conflicts are top of mind at the firms he has worked with. ‘When I talk to law firms about conflicts, the issue of business conflicts often arises,’ he said. ‘Law firms are more concerned about business conflicts than ethical conflicts. Not because they are unethical, but because they are able to anticipate ethical conflicts. The can’t as easily identify the business conflicts.'”
• “Due to the mostly shrouded nature of private deals, it isn’t always publicized when conflicts among legal counsel arise amid these contentions dynamics. ‘It takes a legal fight for this to get into the papers,’ Talley said.
• ‘That said, in order to handle these potential conflict areas and assess whether those are manageable, you have to monitor all things coming in, and that gets more complicated when you grow large as a firm and have teams that overlap each other.'”

Here’s the WSJ article for additional detail.

A few interesting IG related media resources to share today. First, a recorded webinar presentation from Christopher Egan at Akin Gump:

• “Information Governance for the Modern Age — Where Vision Meets Execution” — Chris Egan (Assistant General Counsel for Information Governance at Akin Gump Strauss Hauer & Feld LLP) outlines his vision for modernizing law firm information governance, sharing insights from his firm’s journey to adapting policy, process and technology to deliver on that vision.

Next, from ILTA comes a podcast recording:

• “Disposition: Importance to Maintain a Modern Policy and Procedure” — Chuck Barth (Director of Information Governance at Davis Wright Tremaine LLP) reviews:
• “The importance of records retention and disposition is even more acute now that we are in a time of transition. Law firms have had to quickly transition to a work from home digital environment recently, while some firms had already transitioned to a more digital environment prior to moving remote. It is important that records policies maintain relevancy by addressing the current state of where client data is located. Some firms may not have a policy and procedure in place or may be working with an older policy that does not take into consideration all of the new places and repositories that client data might be stored. This podcast will provide guidance on ways to structure and maintain a modern records policy and procedure.”

This caught my eye, as it addresses how risk teams are struggling and succeeding to manage their resources, charter and success with the firm: “The IG Elephant in the Room: Protecting Your Team and Your Firm in the Age of COVID-19” —

• “The coronavirus pandemic is causing significant disruption, uncertainty and change across the globe. The legal profession isn’t unique in having to face monumental challenges — but many of the challenges it is facing are most certainly unique, and call for unique responses.”
• “Over the past several weeks, I’ve been speaking regularly with information governance leaders at law firms nationally — to better understand the evolving issues they’re facing and the specific measures they’re taking to cope. While there’s tremendous pressure facing IG and records teams, there are also success stories to be told, and response strategies that we can all learn from. In this update, I’ll explore both, and share my own perspective on the unprecedented landscape we face.”
• “The leaders I’m speaking with are all confronting varying obstacles based on their scope of responsibilities, the state of their firm, and the resources they have to work with. But when it comes to information governance there is indeed an urgent elephant in the room. And that’s the fundamental reality that IG teams — both the people comprising them and the functions they perform — are at risk.”
• “They are at risk because many firms are in “cost-cutting” mode — searching for projects to put on hold and staff to furlough or even discharge. They are at risk because in a world that’s now 100% remote their role and function are unclear or misunderstood by management. And they are at risk because as firms adjust to new work patterns, some resources have just found themselves idle.”
• “The good news is that this “elephant” is not unmovable. The world has changed, but IG remains a critical function.  And even during these incredibly challenging times, there is opportunity for IG to expand its support for firms in ways that help organizations improve efficiency, better support lawyers, and manage critical risk and compliance responsibilities that remain as relevant and urgent as ever.”
• “I know this because firms are telling me about positive change that is already happening. Of course, not automatically. And definitely not without the determined, focused effort of committed IG leaders. But it is happening.”

See the full article for various interesting examples and advice shared.

Thank you to the longtime reader who sent in: “Confidentiality obligations to prospective clients addressed in new ABA ethics opinion” —

• “A prospective client is a person who consults a lawyer about the possibility of forming lawyer-client relationship but then doesn’t form such a relationship. The confidentiality duties owed to prospective clients are not as onerous as that owed to existing or former clients.”
• “However, Rule 1.18(c) provides that a lawyer is prohibited from accepting a new client with interests materially adverse to a former prospective client in a matter that is the same or substantially related to the consultation with the former prospective client. This prohibition applies if the lawyer previously had received information from a prospective client that could be ‘significantly harmful’ to the prospective client.”
• “Formal Opinion 492, released Tuesday by the ABA’s Standing Committee on Ethics and Professional Responsibility, sheds light on when information from a prospective client could be “significantly harmful” to that individual.”
• “Under this ‘significantly harmful’ test, the prospective client seeking protection under Rule 1.18 ‘need not demonstrate that the harm is certain to occur in order to demonstrate a conflict.’ Instead, the rule focuses on information that ‘could be significantly harmful.'”
• “Such information, according to the opinion, could include views on various settlement issues, the prospective client’s strategic thinking on litigation, sensitive and personal information in a divorce case, knowledge of a settlement position, or the possible terms and structure of a proposed bid by one corporation to purchase another corporation.”
• “If a lawyer has acquired confidential information from a prospective client, that also disqualifies the lawyer’s firm unless the lawyer is screened and both the prospective and affected clients give informed consent in writing.”

For more, see the complete text of Formal Opinion 492.