Bressler Risk Blog

“After $97 million med-mal verdict, doctors sue insurer for making them tort reform ‘pawns’” —

• “The Iowa Supreme Court was supposed to hear oral arguments next week in the appeal of a record-setting $76 million medical malpractice judgment against an obstetrics and gynecology clinic accused of causing an infant’s severe brain injuries.”
• “That appeal is now stayed amid a blitz of accusations and counterattacks, in both state and federal court, by the medical clinic and the company that provided its malpractice insurance. A case that began as a dispute over the tragic consequences of one infant’s birth has transformed into a high-stakes examination of an alleged conflict between the interests of a policyholder that allegedly wanted to settle and avoid trial and an insurance company that was dedicated to changing malpractice law.”
• “The clinic at the center of the litigation, Obstetrics and Gynecological Associates of Iowa City and Coralville, had a $12 million malpractice insurance policy from MMIC Insurance, a subsidiary of Curi Holdings. Under the terms of the policy, MMIC led the clinic’s legal defense, hiring law firm Shuttleworth & Ingersoll to represent the clinic during the 2022 trial that resulted in a $97 million damages verdict for the family of the injured child. (The verdict was later reduced to a $75 million judgment.)”
• “The clinic now contends in a state-court lawsuit that MMIC had an ulterior motive for refusing to settle the malpractice case: The insurer, which had spent years lobbying for Iowa to pass legislation capping noneconomic damages for medical malpractice victims, wanted to use the clinic and its doctors for its own “propaganda” purposes.”
• “The clinic’s Nov. 21 complaint also named Shuttleworth & Ingersoll as a defendant, alleging that the law firm breached its fiduciary duty and committed malpractice by deferring to MMIC and refusing to engage in pretrial settlement talks with the plaintiffs in the malpractice case.”
• “The insurer, meanwhile, has moved in federal court to enjoin the clinic’s new lawyer, Rowley, from representing the doctors and from engaging in settlement talks with lawyers for the injured child’s family. Alternatively, the insurer said, the court should order the clinic to pay back the $12 million policy proceeds it received from MMIC and should declare the clinic’s insurance contract to be void.”
• “Rowley and his clients previously told the federal judge, in a filing last July, that MMIC was acting in bad faith and should be deemed to have lost the right to control the defense of the malpractice case. That filing — an answer to MMIC’s original federal-court complaint seeking an injunction to block Rowley from dismissing the Iowa Supreme Court appeal — presaged the clinic’s claim in its Nov. 21 lawsuit that MMIC had refused to settle the underlying malpractice case in order to capitalize on the doctors’ plight as it lobbied for Iowa to pass a cap on damages.”
• “MMIC’s new motion for a preliminary injunction argued that Rowley and the clinic had done exactly what the insurer feared when it first filed the federal court suit, manufacturing a conflict for the Shuttleworth firm in order to seize control of the malpractice appeal from MMIC.”
• “If anyone is conflicted, according to the insurer, it is Rowley, whom MMIC accused of colluding with the plaintiffs’ lawyer in the underlying case to sandbag the appeal. It’s all unquestionably a big mess to be unsorted by Rose and the Iowa judge who oversees the clinic’s case against MMIC and the Shuttleworth firm.”

“Calif. Roundup Trial Kicks Off After Monsanto Loses Bid to Boot Judge” —

• “Another Roundup trial started on Monday in California after Monsanto failed to disqualify the judge.”
• “Jury selection began in San Benito County Superior Court, where Monsanto, now owned by Bayer, attempted to remove Judge Patrick Palacios from the trial. After Palacios rejected the disqualification motion, Monsanto filed a Nov. 29 petition for writ of mandate before California’s Sixth District Court of Appeal, insisting that ‘if this court does not immediately stay the case below and issue the requested writ of mandate, Monsanto will be forced to go to trial with a judge who Monsanto believes is prejudiced against it and one of its attorneys.'”
• “‘Unless this court stays the case below, grants this writ, and reverses the Superior Court’s order, the trial in the matter below will proceed under the supervision of a judge who Monsanto and its counsel believe is prejudiced against them,’ wrote Monsanto attorney Shook, Hardy & Bacon partner Jessica Grant in the petition, which didn’t give specifics about the judge’s alleged bias.”
• “‘Bayer believes that the California Court of Appeal for the 6th District should grant its petition for a writ, immediately stay the case, and ultimately reassign the Jones case to a new judge,’ Bayer said in a statement prior to the Sixth District Court of Appeal’s decision. ‘The company believes that the current judge is prejudiced against the company and one of its attorneys and should not preside over the trial. California law provides that peremptory challenge should be ‘liberally construed’ in favor of ensuring public trust in the courts.'”
• “Last month, a jury in San Diego County Superior Court awarded $332 million in a Roundup trial. That verdict was one of four that hit Bayer in the past month, ending a streak of nine defense wins in a row. The others included awards of $1.25 million and $1.56 billion, in separate Missouri state courts, and a $175 million verdict in the Philadelphia Court of Common Pleas, where another trial is wrapping up on Monday.”
• “In California, Bayer insisted that Palacios should be disqualified because he wasn’t an “all purpose” judge assigned to the case… ‘Specifically, Judge Palacios repeatedly emphasized over many months that he would not try this case,’ Grant wrote in Monsanto’s petition. ‘he advised that consistent with the practice of San Benito County Superior Court for long trials, this case would be assigned to a temporary or visiting judge for trial.'”
• “‘The method of assigning cases did not instantly pinpoint Judge Palacios as the judge whom the parties could expect to ultimately preside at trial; and Judge Palacios himself repeatedly confirmed that he was not expected to process the case in its totality,’ she wrote.”

Amy G. McClurg & Jennifer S. Roach at Thompson Hine remind us: “Corporate Transparency Act: Ethical Considerations for 2024” —

• “If you have not heard of the Corporate Transparency Act (CTA), now is the time to become familiar.”
• “The CTA, which Congress passed as a component of the Anti-Money Laundering Act of 2020, was created to enable the government to prevent, detect, and combat money laundering, the funding of terrorism, and other prohibited activity by requiring certain companies to report their beneficial ownership information to the Financial Crimes Enforcement Network division of the U.S. Department of the Treasury (‘FinCEN’). There are still some moving parts with the CTA. For example, the reporting form is not yet available. However, the ethical implications inherent in CTA compliance must be considered now.”
• “Companies that are deemed to be ‘Reporting Companies’ are required to report beneficial ownership to FinCEN. There are two types of ‘Reporting Companies’: Domestic Reporting Companies and Foreign Reporting Companies. There are currently twenty-three (23) exceptions that exempt entities that would otherwise be considered a Reporting Company. Lawyers and law firms alike will want to consider whether they intend to assist clients in ascertaining whether the client is a ‘Reporting Company.'”
• “Of specific interest to attorneys – the CTA also requires up to two ‘company applicants’ to be identified for entities formed after January 1, 2024. This may implicate law firms if they are involved in the preparation or filing or formation documents for clients. The lawyers or paralegals providing those services would have the corresponding obligation under the CTA to register with FinCEN as a company applicant for the client.”
• “The effect of the CTA is far-reaching. Many practitioners will feel the impact it has on their practice, but all practitioners should know about it. Lawyers have a duty to stay abreast of changes to the law and the reporting requirements found in the CTA certainly qualify as a change. For example, the CTA likely implicates the provisions you want to include in employment agreements, shareholder agreements, or LLC operating agreements to require beneficial owners to provide the information needed by the entity to comply with the CTA’s reporting requirements. In addition, due diligence for loans, mergers and acquisitions will likely need to include CTA compliance.”
• “Lawyers also have a duty to keep their current clients reasonably informed about the representation. While there is no duty to notify former clients, lawyers will want to be diligent in notifying current clients about the CTA. Now is the time to determine if the client is former or current.”
• “Don’t wait until January to determine your firm’s capacity or desire to handle CTA related engagements and how it impacts various practice areas. Limitations on the scope of your representation will need to be clearly communicated with your clients. You will want to evaluate any third-party referrals for CTA filings and corporate formation filings. If your firm will play a role in corporate formations and filings, you will want to consider who will be responsible for such filings and how to track and update FinCEN registration for those individuals. Finally, you will want to start thinking of changes in firm policy and procedure that align with your level of involvement in CTA related representations, and ensure all staff are properly trained and supervised to comply accordingly.”

“National firm fined over £100,000 by Solicitors Regulation Authority” —

• “National firm Ashfords LLP has been fined more than £100,000 by the Solicitors Regulation Authority for money laundering compliance failures reported by the firm itself. The fine, the fourth largest imposed by the SRA, was agreed despite the regulator stating that there was no suggestion that any money laundering or other financial crime took place.”
• ‘”In published details of an agreed outcome, the SRA said Ashfords has agreed to pay a penalty of £101,357 plus investigation costs of £1,350. The regulator said it had identified areas of concern in relation to compliance with the 2017 AML regulations and the SRA principles and code of conduct.”
• “Three conveyancing transactions carried out between October 2017 and March 2018 were highlighted as matters of concern. Two of the transactions related to the purchases of properties worth £3.2m and £550,000 on behalf of a limited company. The third transaction related to the purchase of a property worth more than £3m on behalf of a UK registered charity.”
• “In relation to the first transaction, the SRA said customer due diligence revealed conflicting information as to the ultimate beneficial owner and the source of funds was ‘not fully understood or evidenced and had changed during the transaction’. The firm’s compliance raised the issues but there was no written record as to if they were fully resolved before the transaction was completed.”
• “A retrospective search by Ashfords during its own investigation ‘identified a potential link between one of the purported beneficial owners and an entity subject to UK sanctions’, the SRA said.”
• “The firm admitted it failed to behave in a way that maintains public trust and failed to carry out the business effectively and in accordance with proper governance and sound financial and risk management principles.”
• “In considering mitigation, the SRA said the firm ‘had procedures and controls in place; however they were not followed in these matters’. It added: ‘There is no suggestion that the transactions actually involved money laundering or any financial crime.’ There was no evidence that any harm had been suffered, the SRA said. It also noted that the firm had brought the matter to its attention initially, assisted throughout the investigation, admitted breaches, made changes to systems, policies and procedures and ensured that regular training to all relevant employees is provided.”
• “An Ashfords spokesperson said: ‘We self-reported in 2019 to the Solicitors Regulation Authority potential breaches of the money laundering regulations on three transactions that were carried out in 2017 and 2018.”

“Federation of Law Societies launches online program to combat money laundering risks” —

• “The Federation’s of Law Societys has launched an online learning program entitled ‘Anti-Money Laundering and Terrorist Financing in the Canadian Legal Profession.’ The program is free and the Law Society of Ontario has accredited the program for 3 hours and 45 minutes of Professionalism content. From the website:
  • The practice of law exposes legal professionals to unique risks in relation to money laundering and terrorist financing. Although some practice areas present higher risks, any legal professional engaged in financial transactions may be targeted by criminals seeking to launder money or finance terrorist activities.
  • To combat these threats, legal professionals must understand the risks that may arise in their legal practice and be aware of their legal and regulatory obligations. Without such risk-based awareness and knowledge of the rules, they may find themselves unwittingly facilitating or participating in criminal activity.
  • Using interactive tools like scenarios, videos, and quizzes, the Federation has developed this online learning program to provide guidance to legal professionals on how to mitigate money laundering and terrorist financing risks and comply with their legal and regulatory obligations. The program supplements the Federation’s written anti-money laundering and terrorist financing resources for the profession…”
• Access the online learning program directly here.

“California Supreme Court Approves Conflict of Interest Rules for the State Bar of California” —

• “The California Supreme Court on Tuesday approved three measures to identify and prevent conflicts of interest involving the State Bar of California.”
• “The California Supreme Court approved, with significant modifications, amendments to rule 9.11 of the California Rules of Court to ensure those who seek to serve as State Bar Court judges are screened for actual and potential conflicts of interest.”
• “The court modified the State Bar’s proposal to require the screening committee to determine whether a candidate for the State Bar Court has financial or nonfinancial interests or relationships with other attorneys that would impact the applicant’s ability to serve ‘in a manner that avoids impropriety, the appearance of impropriety, or frequent disqualification.'”
• “The court also made modifications to the State Bar’s proposal for screening applicants for the State Bar Board of Trustees under rule 9.90 of the California Rules of Court. Those changes require the screening committee to determine whether a candidate’s ‘relationships with other attorneys’—and not just their financial or nonfinancial interests—would impact the applicant’s ability to serve as a trustee with “disinterested skill and undivided loyalty” to the State Bar.”
• Text of the rules here.

Professor Alberto Bernabe writes: “Does Georgia not have a rule about prospective clients? — CORRECTION!” —

• “Does Georgia not have a rule equivalent to Model Rule 1.18 on the duties owed to prospective clients? … That’s a rhetorical question because I looked it up and they do. But you wouldn’t know it if you read the news about a recent case decided by the state Supreme Court.”
• “According to the story, published in the ABA Journal online, the Georgia Supreme Court recently tossed a disciplinary case against a lawyer who had been charged with using information revealed by a potential client in a consultation.”
• “What I find interesting about this story is that the court apparently ruled that the lawyer could not be disciplined because the rule at issue in the case only applies to actual clients. In other words, the court apparently said that the duty against using confidential information (in rule 1.8) does not apply to prospective clients.”
• “That’s fine and dandy but what about rule 1.18? If the conduct was improper use of confidential information obtained from a prospective client, that would have been the proper rule to apply, and it sounds like the lawyer did violate it.”
• “UPDATE 11/7/23: As I said above, my comment was based on the story about the decision, not on the decision itself, which I had not located (and therefore had not read). Now I have heard from a friend [Bill Freivogel] who did just that and he reports that there is a footnote in the opinion that explains that Rule 1.18 was adopted in Georgia after the conduct in question happened. Now that helps make more sense of the story.”

“New hire forces law firm’s disqualification” —

• “A law firm could not avoid disqualification by screening a newly hired associate from a client matter in which she had a conflict of interest, the New Mexico Supreme Court has ruled in reversing judgment.”
• “The firm represented a defendant in a long-running real estate dispute. During the course of the litigation, the firm hired an associate who had actively represented the plaintiff in the case during previous employment.”
• “The plaintiff moved to disqualify the firm, contending that the associate’s conflict of interest was imputed to the firm.”
  “The court agreed, rejecting the firm’s contention that disqualification was unnecessary because it had screening procedures in place that kept the associate segregated from the real estate litigation and protected confidential information.”
• “The court held that ‘when an attorney has played a substantial role on one side of a lawsuit and subsequently joins a law firm on the opposing side of that lawsuit, both the lawyer and the new firm are disqualified from any further representation, absent informed consent of the former client. We also specifically conclude under the same rule that screening the new attorney from any involvement in the lawsuit is not an adequate response to the conflict.'”

“Trump fundraiser loses bid to sanction Gibson Dunn in Qatar hacking case” —

• “A U.S. judge on Wednesday denied a motion by former Donald Trump fundraiser Elliott Broidy to sanction law firm Gibson, Dunn & Crutcher over allegations that one of its lawyers had a conflict of interest in defending a man accused of hacking Broidy’s emails.”
• “Gibson Dunn in August 2022 withdrew from the defense of former CIA officer Kevin Chalker and his company Global Risk Advisors in a 2019 lawsuit brought in Manhattan federal court by Broidy, who raised money for Trump and accused Chalker of hacking his emails on behalf of Qatar.”
• “Broidy had accused a Gibson Dunn partner on Chalker’s defense team, former Department of Justice lawyer Zainab Ahmad, of having a conflict because she investigated the alleged hacking while working for Special Counsel Robert Mueller, whose office probed Russia’s interference in the 2016 U.S. election.”
• “The firm denied it had a conflict and said it withdrew when Chalker decided to hire a different firm for business reasons. Ahmad said in a sworn declaration in March that she was never involved in any investigation into Broidy and never learned any confidential information relevant to the case.”
• “Vyskocil wrote that the legal basis for disqualifying a lawyer was high, and that the plaintiffs did not prove Gibson Dunn acted in bad faith. She said evidence suggested that the firm ‘had a good faith basis to believe that Ms. Ahmad did not have a conflict of interest.'”

“Developer Daibes will stick with lawyer despite potential conflict in Menendez case” —

• “Fred Daibes, the North Jersey developer charged alongside U.S. Sen. Bob Menendez in an alleged bribery scheme, will keep his attorney in a separate bank fraud case, despite federal prosecutors warning of a legal conflict of interest.”
• “Daibes is one of five people indicted in the alleged corruption scheme involving New Jersey’s senior senator and his wife, Nadine Arslanian Menendez. Daibes pleaded not guilty last month to charges related to the case, in which Menendez is accused of secretly acting as an agent for the Egyptian government.”
• “At a hearing last month, a federal prosecutor said he believed Daibes’ attorney in the bank fraud case, Lawrence S. Lustberg of Gibbons P.C., faced a potential conflict because he also represents a defendant in the corruption case, Wael Hana. Hana, a halal meat exporter, is accused of bribing Menendez to win the senator’s help in getting favorable treatment from Egyptian officials.”
• “At a Nov. 16 court hearing, however, Daibes said he will keep Lustberg as his attorney. Lustberg did not respond to messages for comment.The corruption indictment shed light on Menendez’s alleged interference with Daibes’ bank fraud charges, saying the senator recommended that President Joe Biden nominate a U.S. attorney he believed he could influence in Daibes’ favor.”
• “‘Mr. Lustberg knows certain facts allegedly relevant to those charges,’ Vikas Khanna, first assistant U.S. attorney for the District of New Jersey, wrote in a letter to U.S. District Judge Susan D. Wigenton last month.”
• “At the October hearing, the government requested that Daibes be made aware of the potential conflict of interest and, if it’s appropriate, sign a voluntary waiver to continue with Lustberg as his attorney.”
• “At Hana’s arraignment in the corruption trial last month, U.S. District Judge Sidney Stein repeatedly asked Hana if he wanted new attorneys. That same day, Hana signed a waiver of any potential conflict of interest involving Lustberg’s representation of Daibes, according to court documents.”
• “Stein noted that Lustberg could be called as a witness in the Menendez case. Hana said he was satisfied with Lustberg even after Stein reiterated that he would not be able to appeal on the grounds that Lustberg was conflicted.”

“Allen Matkins Escapes DQ From Land Contamination Suit” —

• “A California federal judge has rejected freight railway operator Union Pacific’s attempt to disqualify Allen Matkins Leck Gamble Mallory & Natsis LLP from its land contamination suit, ruling that there was no conflict of interest stemming from a previous environmental suit.”
• “U.S. District Judge Beth Freeman of the Northern District of California said Wednesday that although former Allen Matkins partner James Meeder previously represented Union Pacific in a similar environmental suit and there was some evidence that could potentially disqualify the firm if it was proven that he shared confidential information with the defendants, the potential delay to proceedings along with evidence outweighing the railway operator’s was enough to avoid disqualification at this stage.”
• “‘Where, as here, defendants have presented persuasive evidence to show that confidential information was not actually exchanged between Meeder and other attorneys at Allen Matkins, the need to maintain ethical standards and maintain public trust in the administration of justice and the integrity of the bar weigh less heavily in the court’s equitable analysis,’ Judge Freeman’s order said.”
• “Union Pacific said in its September bid to have Allen Matkins disqualified that Meeder and partner David Cooke served as legal counsel for legacy company Southern Pacific in a pair of 1990s suits, one over an oil-contaminated property adjacent to a railroad and the other over the contamination of a former railyard site.”
• “Because they represented one of its entities in similar litigation, Union Pacific argued, the attorneys shouldn’t be allowed to represent an opposing party due to the potential for confidential information acquired in those suits to be used against the company.”
• “Union Pacific specifically asserted that Cooke shared confidential information he gained as counsel for a former Southern Pacific environmental manager, Mark Ransom, with his colleague Kamran Javandel, an Allen Matkins partner who represented the Hills.”
• “Judge Freeman determined that the first suit wasn’t related closely enough to be considered a conflict of interest because it was a fraud suit alleging that Southern Pacific misrepresented the property’s pollution status when selling it, instead of a dispute over the contamination itself. The second suit was determined to be closely related as they both included allegations that the railway operator polluted the property with chemical solvents.”
• “When it came to the involvement of the attorneys, Judge Freeman ruled that Cooke didn’t serve a big enough role in the 1990s contamination suit to create a conflict of interest, while Meeder, who retired as a full-time attorney a year before the suit was first filed, was unlikely to have enough opportunities to share confidential information due to his new status as a limited of counsel.”

“Stormy Daniels’ Complaint Against Trump Defense Lawyer Gets Tossed” —

• “New York’s Attorney Grievance Committee closed the books on Tuesday on a complaint filed by adult film actress Stormy Daniels against one of former President Donald Trump’s criminal defense attorneys.
• “In September, a New York judge cleared Trump’s attorney Joe Tacopina of any conflicts of interest involving Daniels, who is a central witness in the pending hush-money criminal case. But Daniels’ attorney Clark Brewster at the time still had a pending complaint against Tacopina with the grievance committee, which also failed.”
• “‘Now both the court and the disciplinary committee have ruled that there was no conflict or ethical violation at all, as I have said from day one,’ Tacopina told The Messenger.”
• “In a CNN interview from 2018, Tacopina told then-host Don Lemon that he could not comment on Daniels because of ‘attorney-client privilege’ tied to her seeking his consultation for legal advice. Tacopina distanced himself from those remarks after joining Trump’s legal team, stating that he never met Daniels, spoke to her or viewed any documents related to her cases.”

“OtterBox Rival Can’t DQ Counsel In Phone Case Patent Feud” —

• “Phone case maker Jefferson Street can’t block Merchant & Gould PC from representing Otter Products LLC based on claims that the firm filed the application for the patents-in-suit, as a Colorado magistrate judge found that Jefferson Street was a separate entity from the patent holder and that there was no evidence showing the firm breached its ethical duties.”
• “U.S. Magistrate Judge Susan Prose said in a Tuesday order that Merchant & Gould filed the patent application for Elizabeth Inc., but Elizabeth never transferred its former relationship with the firm to Jefferson Street Holdings LLC, which does business as Cradl Ltd.”
• “In addition, Judge Prose found that despite Cradl’s claims that Merchant & Gould’s Denver office is small and would make it difficult to uphold an ethical wall, there were no facts suggesting that the size of the law office would cause it to breach its duties to Elizabeth.”
• “‘Based on a careful review of the entire record, this court finds no grounds for employing the extreme remedy of disqualification,’ Judge Prose said.”
• “According to Cradl, the court should reject arguments from Merchant & Gould that there is no conflict because it represented Elizabeth, not Cradl, and that it didn’t prosecute the patent claims in this case because they’re different from the application it filed. Cradl argued that just because Elizabeth’s owner Elizabeth Dining spun out Cradl to another company ‘does not mean that M&G is free to ignore its ethical duties to its former client.'”
• “Otter struck back in August, arguing that the assignment of a patent doesn’t also transfer an attorney-client relationship related to that patent. Otter also argued that Elizabeth still exists as its own entity and isn’t the parent company of Cradl despite sharing the same owner, who invented the patents-in-suit.”
• “Beyond that, Otter said the engagement letter Elizabeth signed stated that ‘representation of the company in this matter will not give rise to any conflict of interest in the event other clients of the firm are adverse to any of the company’s affiliates.'”

“Allen & Overy data hit by hackers in ransomware attack” —

• “Allen & Overy, the ‘magic circle’ law firm, has suffered a cyber attack on its systems, making it the latest big corporate to fall victim to a ransomware hack.”
• “A&O confirmed it had ‘experienced a cyber security incident impacting a small number of storage servers’, after posts on social media platform X on Wednesday claimed the hacking group LockBit had attacked the legal giant and threatened to publish data from the firm’s files on November 28.”
• “‘Investigations to date have confirmed that data in our core systems, including our email and document management system, has not been affected,’ A&O said on Thursday. ‘As a matter of priority, we are assessing exactly what data has been impacted, and we are informing affected clients.’”
• “The UK’s National Cyber Security Centre has warned that law firms present an attractive target for hackers due to the wealth of information they hold on companies across most sectors and regions. Hackers such as LockBit target companies and governments with ransomware that disables access to computer systems. Groups then often demand payments or threaten to release private data and communications.”
• “‘Our technical response team, working alongside an independent cyber security adviser, took immediate action to isolate and contain the incident,’ A&O said. ‘We appreciate that this is an important matter for our clients, and we take this very seriously. Keeping our clients’ data safe, secure, and confidential is an absolute priority.”

“Allen & Overy risks losing trust if it stays silent on cyberattack” —

• “The Australian arm of Allen & Overy risks losing trust with clients and the public if it stays silent on the cyberattack the international legal firm suffered last week, the former boss of the government’s cybersecurity agency said.”
• “Alastair MacGibbon, the former head of the Australian CyberSecurity Centre and an adviser to two prime ministers, told The Australian Financial Review that ‘the fact [Allen & Overy] is not making any comment is unhelpful’. The firm, which has approximately 25 partners and 130 fee-earning lawyers in Australia, counts critical infrastructure assets NBN Co and Port of Melbourne among its Australian clients. Russian-linked hacking group LockBit is threatening to release files stolen from the London-based firm on the dark web from November 28.”
• “Mr MacGibbon, who is now chief strategy officer at CyberCX, said ‘I suspect, since they are a law firm, they are spending most of their time worrying about the legal implications of speaking’.”
• “Earlier this year, Australia’s largest law partnership, HWL Ebsworth, had 2.5 million files stolen in a cyberattack, affecting major banks, insurers and 65 government agencies.”
• “Overseas, major law firms including DLA Piper, K&L Gates and Kirkland & Ellis have all fallen victim to cyberattacks in recent years.”

“Hackers are exploiting ‘CitrixBleed’ bug in the latest wave of mass cyberattacks” —

• “Security researchers say hackers are mass-exploiting a critical-rated vulnerability in Citrix NetScaler systems to launch crippling cyberattacks against big-name organizations worldwide.”
• “These cyberattacks have so far included aerospace giant Boeing; the world’s biggest bank, ICBC; one of the world’s largest port operators, DP World; and international law firm Allen & Overy, according to reports.”
• “Thousands of other organizations remain unpatched against the vulnerability, tracked officially as CVE-2023-4966 and dubbed “CitrixBleed.” The majority of affected systems are located in North America, according to nonprofit threat tracker Shadowserver Foundation. The U.S. government’s cybersecurity agency CISA has also sounded the alarm in an advisory urging federal agencies to patch against the actively exploited flaw.”

“Proposed Advisory Opinion 24-1 Regarding Lawyers’ use of Generative Artificial Intelligence – Official Notice” —

• “The Florida Bar Board of Governors’ Review Committee on Professional Ethics has issued Proposed Advisory Opinion 24-1, reprinted below.”
• “The board will consider any comments received at a meeting scheduled to be held on Friday, January 19, 2024, at the AC Hotel in Tallahassee, Florida. Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider.”
  • “Due to these concerns, lawyers using generative AI must take reasonable precautions to protect the confidentiality of client information, develop policies for the reasonable oversight of generative AI use, ensure fees and costs are reasonable, and comply with applicable ethics and advertising regulations.”
  • “A lawyer’s first responsibility when using generative AI should be the protection of the confidentiality of the client’s information as required by Rule 4-1.6 of the Rules Regulating The Florida Bar.”
  • “When using a third-party generative AI program, lawyers must sufficiently understand the technology to satisfy their ethical obligations. For generative AI, this specifically includes knowledge of whether the program is ‘self-learning’. A generative AI that is ‘self-learning’ continues to develop its responses as it receives additional inputs and adds those inputs to its existing parameters. Neeley, supra n. 2. Use of a ‘self-learning’ generative AI raises the possibility that a client’s information may be stored within the program and revealed in response to future inquiries by third parties.”
  • “Existing ethics opinions relating to cloud computing, electronic storage disposal, remote paralegal services, and metadata have addressed the duties of confidentiality and competence to prior technological innovations and are particularly instructive… While the opinions were developed to address cloud computing, these recommendations are equally applicable to a lawyer’s use of third-party generative AI when dealing with confidential information.”
  • “It should be noted that confidentiality concerns may be mitigated by use of an inhouse generative AI rather than an outside generative AI where the data is hosted and stored by a third-party. If the use of a generative AI program does not involve the disclosure of confidential information to a third-party, a lawyer is not required to obtain a client’s informed consent pursuant to Rule 4-1.6.”
  • “While Rule 4-5.3(a) defines a nonlawyer assistant as a ‘a person’, many of the standards applicable to nonlawyer assistants provide useful guidance for a lawyer’s use of generative AI.”
  • “First, just as a lawyer must make reasonable efforts to ensure that a law firm has policies to reasonably assure that the conduct of a nonlawyer assistant is compatible with the lawyer’s own professional obligations, a lawyer must do the same for generative AI. Lawyers who rely on generative AI for research, drafting, communication, and client intake risk many of the same perils as those who have relied on inexperienced or overconfident nonlawyer assistants.”
  • “Second, a lawyer must always review the work product of a generative AI just as the lawyer must do so for the work of nonlawyer assistants such as paralegals. Lawyers are ultimately responsible for the work product that they create regardless of whether that work product was originally drafted or researched by a nonlawyer or generative AI.”

“California Bar to Vote on AI Guidelines Over Disclosure, Billing” —

• “California State Bar committee is calling for state lawmakers to consider regulations on non-lawyer use of AI legal products and recommending guidance for attorneys who use the technology.”
• “Generative AI’s increasingly sophisticated legal tools hold the promise of improving access to justice by offering free or low-cost legal advice to people who can’t pay for an attorney. But ‘while generative AI may be of great benefit in minimizing the justice gap, it could also create harm if self-represented individuals are relying on generative AI outputs that provide false information,’ the conduct committee said.”
• “The committee is calling for the board of trustees to work with California’s legislature and supreme court to determine if the unauthorized practice of law needs to be more clearly defined, and whether legal generative AI products require licensing or regulating.”
• “The California committee’s recommendations also include non-binding best practices for lawyers using generative AI but stop short of setting ethics rules. It described the proposed guidelines as an ‘interim step to provide guidance on this evolving technology while further rules and regulations are considered.’”
• “The ‘practical guidelines’ ask attorneys to consider disclosing to clients when they use AI in their representation, and to not charge hourly fees for the time saved by using generative AI. Costs associated with generative AI may be billed ‘in compliance with applicable law,’ according to the guidelines.”

“Jackson Walker Says Attorney Lied About Romance With Judge” —

• “A onetime partner at the Texas law firm Jackson Walker failed to disclose the full truth about an alleged romantic relationship she had with bankruptcy Judge David R. Jones, the firm said.”
• “The attorney, Elizabeth Freeman, initially denied in 2021 that she was in a ‘current’ relationship with the prominent Texas bankruptcy judge, but admitted that they’d had a past relationship, Jackson Walker said in a court filing Monday. The firm only learned in 2022 that those statements were ‘possibly false or at least no longer true,’ it said.”
• “The new information comes as the Justice Department’s bankruptcy watchdog, the US Trustee’s office, is challenging at least $13 million in fees the firm collected following revelations that it didn’t disclose allegations of a romantic relationship between Jones and Freeman.”
• “Jones, who sat on the Houston-based bankruptcy court for 12 years, announced last month he would resign after admitting to a long-term relationship with Freeman. Freeman previously worked at Jackson Walker and, before that, as a clerk to Jones himself. She left the firm in December 2022.”
• “The firm reiterated its stance that it first became aware of allegations of a relationship between Jones and Freeman in March 2021. After learning of the allegations, the firm said, it tapped outside counsel at Holland & Knight to help it probe the situation.”
• “Jackson Walker in an August 2021 draft letter to Holland & Knight said Freeman had ‘confirmed that there is no current romantic relationship between herself and Judge Jones and that none is expected going forward.’”
• “Jackson Walker noted that as part of its handling of the allegations, it disclosed the situation in 2021 to Kirkland & Ellis, the powerhouse restructuring firm that was its co-counsel in a bankruptcy case at the time.”
• “Jackson Walker said Freeman denied that the relationship was ongoing when the firm confronted her about it in 2022, but she later admitted to a current romantic relationship. Jackson Walker then launched discussions with her and her attorney ‘that ultimately resulted in her separation from the Firm,’ the filing said.”

“Was Nixon Peabody’s Representation of Trump ‘Worth a Conversation’ With Other Partners?” —

• “Nixon Peabody’s representation of Donald Trump in federal litigation—and whether any firm partners were notified of the representation in advance—is getting more notice, as legal industry observers point to the untraditional and perhaps ‘imprudent’ approach the law firm took in reportedly bringing on the former president as a client.”
• “Observers say a pre-hiring meeting with other lawyers should have occurred because of the potential impact on other clients and on the firm’s business operations.”
• “‘Not as a matter of principle or otherwise, but as a matter of management hygiene, it probably should have been aired in advance and not announced as a ‘fait accompli,’’ noted Bruce MacEwen, a New York-based law firm consultant.”
• “Am Law 200 firms rarely represent Trump, a lightning rod for controversy and often one that corporate clients disagree with. Trump continues to rely on small firms and solo practitioners for the myriad of indictments and other litigation entangling him. One of the most recent Am Law 200 lawyers to represent Trump, Todd Blanche, left Cadwalader Wickersham & Taft to open his own shop in April.”
• “According to reports by Above the Law, Nixon Peabody CEO and managing partner Stephen Zubiago reportedly told surprised members of the Boston-based firm on Nov. 6 that he authorized the firm taking on Trump as a client without disclosing it to partners beforehand.”
• “In a statement to Law.com, Allison McClain, chief communications officer for Nixon Peabody, said the firm performed a conflict check on Trump just as it does ‘for any new representation at the firm.’ She did not respond to a question about whether other lawyers were informed about Trump being a client after the check was completed.”
• “In interviews, law firm consultants and marketing advisers said if Nixon Peabody’s leadership took on the case without consulting the partnership at large, it was within the firm’s right and law firms may take on controversial clients. But several said they wouldn’t advise a firm leader to leave the partnership in the dark on an issue like this.”
• “Even if a firm decides to take a case based solely on its subject matter, the public will link the firm with the client if it’s one with Trump’s celebrity status, MacEwen said. ‘The question is, ‘Who is the client?’’ MacEwen said. ‘If you’re a firm that represents Donald Trump, well, guess what? That’s who you are. I don’t care if it’s a parking ticket.’”
• “Alexa Ross, an Atlanta-based attorney and law firm consultant, noted that prior to engaging with a client, a lawyer or law firm performs ‘reasonable procedures, appropriate for the size and type of firm and practice’ to determine any ‘actual or potential conflicts of interest,’ according to Rule 1.7 of the American Bar Association’s (ABA) Rules of Professional Conduct.”
• “‘This is not a simple Republican versus Democratic situation. All partners—Republicans, Democrats, independents and others—should have been afforded the opportunity to think about the potential ramifications of the representation and determine whether to undertake it,’ she said. ‘The partnership, not the originating partner alone, had the right to decide whether to accept the representation.’”
• “Denver-based law firm marketing consultant Meranda Vieyra said she was unsure if it was ‘practical’ that a firm the size of Nixon Peabody could call a meeting of its partners every time it was considering a new client. Nixon Peabody has about 570 lawyers in 15 offices in four countries.”
• “But she added that a firm probably should inform all its lawyers and staff it is considering a client like Trump—who is facing four indictments while being the front-runner for the Republican nomination for president in 2024.”

November has been a busy month for Bill Freivogel. Some of his updates posted here, with kind thanks. As always with Bill, it’s the little bits of thought and commentary among the summaries that make it all a rewarding read:

• Shenzhen Long King Logistics Co., Ltd. v. Hop Wo Int’l Trading, Inc., 22-CV-10682 (VEC) (S.D.N.Y. Nov. 3, 2023).
  • This is a breach of contract case involving Defendant’s failure to pay shipping fees for nine containers shipped from China to New York. Law Firm represents Plaintiff. Defendant moved to disqualify Law Firm because Law Firm had earlier represented Defendant in analyzing individual warehouse leases.
  • In this opinion the court denied the motion holding that Defendant was not a current client of Law Firm.
  • The somewhat interesting aspect is the court’s characterization of each lease review as individual representations that ended at the conclusion of each review. The court noted the absence of any written expression of a continuing representation. The court also said Defendant’s subjective feeling that the representation was continuing did not make it so. As to the court’s former-client analysis, it was too routine for additional comment here.
• Take2 Techs. Ltd. v. Pac. Biosciences of Cal., No. 5:23-cv-04166-EJD, 2023 WL 7346246 (N.D. Cal. San Jose Div. Nov. 6, 2023).
  • Law Firm represents Plaintiff in this patent-related case. Lawyer moved from Law Firm to the in-house law department of Defendant. Plaintiff moved to disqualify Lawyer and the entire law department of Defendant.
  • In this opinion the court granted the motion as to Lawyer. And, the court found that Lawyer had “substantially” participated in this matter while at Law Firm. The court said that if Lawyer had joined a “conventional law firm,” the entire firm would be disqualified under California’s screening rule. However, the court noted that conflicts law regarding in-house law departments was undeveloped. The court declined to disqualify Defendant’s entire law department, but said that some limitations should be put on Lawyer’s relationship with specific members of the law department. The court ordered the parties to confer and agree on those limitations.
• Hawkins v. DePuy Orthopaedics, Inc., 2023 WL 7292164 (D.D.C. Nov. 6, 2023).
  • This is one of a series of cases dealing with injuries from allegedly defective hip replacement systems. Expert had originally done consulting work for Manufacturer/Defendant. Expert has now shown up as an expert for injured plaintiffs, including Plaintiff here.
  • This was a very fact-intensive analysis resulting in the disqualification of Expert. We will spare you with specifics. The court concluded that Defendant had an expectation of confidentiality from Expert and that Defendant had shared confidences relating to this case with Expert. Thus far, Expert has been disqualified in six cases against Defendant and allowed to remain in one.
• In re Mignott, 2023 WL 6976464 (Ga. Oct. 24, 2023).
  • Lawyer learned information from a “prospective client,” not an “actual client.” Lawyer later revealed that information in a proceeding adverse to the prospective client.
  • All that occurred prior to Georgia’s adoption of Rule 1.18. Disciplinary officials found Lawyer had violated Rules 1.8 and 1.9 and ordered Lawyer suspended.
  • In this opinion the court reversed, saying Lawyer had not acted unethically because rules in effect at the time of the charged conduct did not accomplish what Rule 1.18 was intended to do.
• In re Blue Cross Blue Shield Antitrust Litig. MDL 2406, No. 22-13051 (11th Cir. Oct. 25, 2023).
  • This is an appeal from a trial court approval of a settlement agreement of a class action against Blue Cross Blue Shield. One objection is that the same counsel and class representatives are representing both an injunctive class and a damages class.
  • In this opinion the appellate court rejected that objection. “Given the near-complete overlap in class membership, [the objector] does not offer any evidence that one class was harmed by conduct that benefitted the other.” [Our note: The background of this case involving the provision of health insurance to “subscribers” and “providers” under the antitrust laws is too complex for treatment here. You are on your own.]