Bressler Risk Blog

“Canada: Lawyer Who Was Consulted By Another Lawyer Disqualified From Acting Against Other Lawyer” —

• “2658396 Ontario Inc. v. Sanayei. The action stemmed out of mortgage proceedings in which the plaintiff, which was the second mortgagee on a property, learned that the defendant lawyer had acted for the mortgagor on the property in relation to a subsequent third mortgage registered on the same property. A term of the plaintiff’s second mortgage prohibited the registration of any subsequent mortgages. The defendant lawyer did not contact the plaintiff at the time the third mortgage was registered.”
• “The plaintiff later retained his current lawyer (DB), who was one of the lawyers referred by the defendant lawyer, and commenced a mortgage enforcement action of its own against the mortgagor.”
• “The defendant lawyer contended that DB was in a conflict of interest in the action against him. The defendant lawyer provided evidence that DB had previously acted for him on matters that overlapped the mortgage enforcement dispute and that before DB had been retained by the plaintiff he had consulted with DB and sought advice about the second and third mortgage problem that was the subject matter of the plaintiff’s action.”
• “Although there was no formal retainer between the defendant lawyer and DB, the defendant lawyer viewed the consultation as an occasion whereby he conveyed confidential and privilege protected information to DB.”
• “The defendant lawyer and DB had known each other for 20 years and they had maintained a friendly and professional relationship during this period of time.”
• “DB acknowledged that he knew the defendant lawyer for 20 years and that he had represented the defendant lawyer on a few matters over the years. In July 2019, DB had been specifically retained by the defendant lawyer to act for his mortgage company on the enforcement of a mortgage on another property. However, DB denied having disclosed to the plaintiff any information about this retainer and did not recall the defendant lawyer ever imparting any confidential information on him that could be used in the action against the defendant lawyer.”
• “After retaining DB, but prior to commencing the action against the defendant lawyer, the plaintiff’s principal surreptitiously recorded a meeting between himself and the defendant lawyer. In this meeting, the defendant lawyer was told that DB had considered an appraisal given to the plaintiff about the value of the property was illegal, that DB advised the plaintiff to not accept settlement offers in respect of the mortgage enforcement and that the plaintiff’s principal was not interested in power of sale proceedings or purchasing the property.”

“Judge Says Young Thug Can Keep Using His Own Attorney In RICO Case” —

• “The Fulton County District Attorney’s office claimed that Brian Steel, a prominent Atlanta-area criminal defense lawyer, should be disqualified because he represents some of the other 27 alleged gang members named in the sweeping criminal case. Steel and another lawyer argued back that Young Thug should not be deprived of his ‘chosen counsel’ as he fights for his life in court.”
• “In a ruling Thursday – issued hours before he denied bond to the rapper at the same hearing – Judge Ural Glanville sided with Steel. Despite ‘strong concerns’ that a conflict of interest might rear its head later in the case, the judge ruled that those fears were only ‘speculative’ in the early stages of the legal battle.”
• “In an indictment unveiled last month, prosecutors claim Young Thug (Jeffery Williams), Gunna (Sergio Kitchens) and 26 others spent the last decade operating a violent street gang called “Young Slime Life” – allegedly the darker alter-ego of their YSL Records label. The case, built on the state’s RICO statute, includes accusations of murder, carjacking, armed robbery, drug dealing and illegal firearm possession against various YSL members.”

“SEC Probe Looms Over Auditors’ Fastest-Growing Businesses” —

• “When the two top executives of a hot electric-vehicle startup made share purchases that later drew scrutiny, they were helped by accounting firm BDO USA, according to the auto company. BDO was also the auditor of the company they ran.”
• “The dual roles that BDO played at Electric Last Mile Solutions Inc. are typical of potential conflicts of interest faced by auditors. Relationships like this one are under scrutiny by the Securities and Exchange Commission, people close to the inquiry said.”
• “The car maker said it took an internal probe to figure out that BDO was advising its chairman, Jason Luo, and Chief Executive Officer James Taylor. Both executives resigned and their deals for company stock are being investigated by the SEC, the company said in March.”
• “BDO is one of several midtier accounting firms caught in a sweeping probe by the SEC into conflicts of interest by auditors, one of the people close to the investigation said. The probe also includes the Big Four accounting firms Deloitte, Ernst & Young, KPMG and PricewaterhouseCoopers, The Wall Street Journal has previously reported.”
• “BDO resigned as auditor of Electric Last Mile Solutions in February, citing concerns that an illegal act might have occurred. The company decided after its internal investigation that it needed to restate earlier financial statements that were audited by BDO, in the light of the share deals the accounting firm had allegedly advised on.”
• “The SEC investigation reflects concerns about the increasing reliance by the big accounting firms on sales of consulting and tax services, which offer higher margins and greater growth potential than their core audit business.”
• “A Deloitte spokesman said the firm’s multidisciplinary approach ‘enables us to deliver high quality audits for the benefit of the investing public.’ A PwC spokesman said ‘independence is core to the delivery of quality audits, at the heart of PwC’s culture and fundamental to everything we do.’ Representatives of KPMG and EY declined to comment.”
• “In the U.S., senior SEC officials have in recent months publicly warned accounting firms not to ‘creatively apply the [independence] rules,’ and said sanctions may need to increase to deter rule breaking.”
• “The agency’s ongoing conflicts-of-interest investigation is looking for breaches of rules banning accounting firms from selling specified services to audit clients, people close to the probe said.”

“McKinsey & Co. worked with Russian weapons maker even as it advised Pentagon” —

• “Russia has fired more than 2,000 missiles on Ukraine since invading in February. The engines for many of these missiles were manufactured by a massive state-owned enterprise called Rostec, and executives for that company hired the global consulting giant McKinsey & Co. in recent years for advice.”
• “At the same time McKinsey was advising the Russian defense conglomerate, though not on any work directly involving weapons, the firm was carrying out sensitive national security contracts for the Defense Department and the U.S. intelligence community, according to an NBC News investigation.”
• “McKinsey has come under scrutiny in Congress for its work with state-owned companies in China, with lawmakers questioning if the company should be awarded national security-related contracts given its extensive presence in China. McKinsey also faces accusations of ignoring possible conflicts of interest when it advised both opioid manufacturers and officials regulating opioids at the U.S. Food and Drug Administration.”
• “By carrying out consulting work with a company like Rostec, McKinsey placed itself in a potentially risky position, given its work with the U.S. government, according to Scott Blacklin, a former head of the U.S. Chamber of Commerce in Russia and president of the consultancy Blacklin and Associates.”
• “‘It’s really hard to understand how an American consulting firm … would want to be involved in sensitive areas of the Russian defense or intelligence or scientific establishment. And when you talk about Rostec, you’re talking about all of those mixtures,’ Blacklin said.”
• “Sen. Maggie Hassan, D-N.H., told NBC News that McKinsey has displayed a ‘pattern of behavior’ in its consulting abroad and in Washington that raised ‘grave concerns about conflicts of interest.'”
• “‘Whether it be the substance misuse crisis or work for state-owned enterprises in places like Russia and China, I am deeply concerned by McKinsey’s choices and by the fact that the U.S. government continues to contract with McKinsey despite those potential conflicts,’ the senator said.”
• “But the company, which has its headquarters in New York, says it does not see its recent work in Russia as posing a conflict with its consulting for the Pentagon and other federal agencies. When asked by NBC News, a company spokesperson, Neil Grace, said McKinsey has strict rules and firewalls to safeguard against conflicts of interest, and that its work abroad is walled off from its work in Washington.”
• “‘As we have stated previously, McKinsey complies with all applicable U.S. contracting laws, including those regarding conflicts of interest,’ Grace said. ‘When we serve the U.S. government, we do so through a separate legal entity with separate operational structures and separate information technology where required.'”

“NCAA Wants Firm Removed From Race Bias Suit Over Conflict” —

• “The NCAA urged an Indiana federal court to disqualify Fegan Scott LLC from a proposed discrimination class action, saying one of the firm’s lawyers simultaneously worked for the collegiate organization’s document-review vendor.”
• “The NCAA said in a Monday filing that Ravi Sakthivel’s conduct ‘violates the duty of loyalty owed to clients’ and poses a ‘substantial risk’ that factual confidential information from a client could be used by an adversary.”
• “The lawsuit by former collegiate basketball player Troyce Manassa alleged the NCAA’s Academic Performance Program discriminates against student-athletes at historically Black colleges and universities.”
• “Fegan Scott hired Sakthivel as a full-time attorney in September 2020, two months before Manassa’s lawsuit, the NCAA said. Sakthivel’s work as a document review attorney on the Manassa case began March 2 this year, when he was hired by the NCAA’s e-discovery vendor, Proteus, according to the NCAA.”
• “The collegiate organization said it found out in late April that Sakthivel was also employed by Fegan Scott. The NCAA wrote to Elizabeth Fegan, the plaintiff’s lead co-counsel, to deliver the news on April 26. And in a response the same day, Elizabeth Fegan said Sakthivel had been placed on administrative leave.”
• “In a May 2 letter to NCAA counsel Brian Casey, Elizabeth Fegan said she ‘unequivocally’ condemned Sakthivel’s actions. ‘To that end, I personally filed an attorney misconduct complaint regarding Ravi’s actions with the State Bar of California on April 27, 2022, and terminated his employment,’ Fegan said in the letter to Casey, included in the NCAA’s filing.”
• “When he applied with Proteus, Sakthivel removed all references to Fegan Scott in his materials and said he was actually with another firm at the time, the NCAA said. He also attested in writing that he had no conflict of interest before starting work, according to the NCAA.”

“Insurance Defense Counsel a New Target of Legal Malpractice Claims” —

• “The size of payouts for legal malpractice claims reached an all-time high last year, and for the first time some of those claims were made by insurers against the defense attorneys they hire to represent their insureds, according to a new report [PDF here] by the Ames & Gough brokerage.”
• “The growing claim severity in the legal professional liability line continues a years-long trend, but malpractice claims made by insurers against their own counsel are something new. Ames & Gough found no concern about claims in the insurance defense area of practice in its annual survey of insurers from 2010 to 2020, but found that 18% of responding insurers reported claims against defense counsel in 2021.”
• “Ames & Gough said it surveyed 11 legal liability insurance companies that together insure 80% percent of the top 100 law firms. It found that 10 of those insurers participated in a claim payout that topped $50 million in the past two years, three paid a claim between $150 million to $300,000 million and four paid a claim of over $300 million.”
• “The experience of the insurers surveyed only tells part of the story, Garczynski said. ‘Anecdotally, we know of five claims that settled north of nine figures, including one over $400 million.'”
• “Conflict-of-interest complaints remained the leading cause of malpractice claims, with seven of the 11 carriers surveyed ranking such errors as the first or second most common cause of claims. Clerical errors ranked first or second by four insurers.”
• “Garczynski said remote work assignments may be one source of errors. She said young attorneys working from home are not getting direct supervision and miss out on regular communication with more experienced lawyers.”
• “The bulk of the legal malpractice claims stem for three practice areas: 73% of insurers reported claims in the area of trust and estates, 63% reported claims in the area of business transactions and 45% reported claims from the corporate and securities field. Taxation came in fourth, with 27% of insurers reporting claims in that area.”

One could make the case for an internal “New Speaking Intake” workflow/clearance process: “Martin Rogers of US law firm Davis Polk withdraws from Hong Kong national security law forum following criticism” —

• “The Asia chairperson of US-based law firm Davis Polk & Wardwell has withdrawn from a Hong Kong forum on the national security law following criticism that it was a ‘propaganda event.'”
• “Partner Martin Rogers said in a LinkedIn post on Saturday that his agreement to participate did not reflect support for any topics discussed: ‘I was invited to speak, and accepted the invitation, in my individual capacity alongside other independent experts on specific matters including procedural challenges that could arise related to the national security law and laws in other jurisdictions.'”
• “‘My agreement to participate did not reflect an endorsement or support of any topics discussed or individuals or organisations involved,’ he added. However, Rogers has openly expressed support for the security law at a previous government forum.”
• “In a LinkedIn post last week, he tagged his law firm and said it was his honour to take part in the event to commemorate the second anniversary of the security law.”
• “Samuel Bickett, a US lawyer who was forced to leave Hong Kong after serving a jail sentence over the 2019 protests, questioned how Davis Polk had approved the event.”
• “‘Lawyers can and should provide commentary on the [security law] at professional and academic conferences, but that’s not what this event is. It’s a propaganda event intended to validate the NSL as ‘just another law,’ and [Davis Polk] is being used as a tool in service of that goal,’ he said on Twitter last Friday.”
• “He later tweeted: ‘I hope int’l law firms will take a hard look at their human rights oversight procedures across the world. What are your lawyers doing in your firm’s name that you don’t know about?'”

The Law Society’s Gazette brings us commentary from Jonathan Goldsmith, Law Society Council member for EU & international and a former secretary general of the Council of Bars and Law Societies of Europe: “AML laws have failed: it is time to start again” —

• “I want to focus here on the elaborate structure which they foisted on us to stop the servicing of corrupt money – the anti-money laundering laws proliferating around the world. These have failed, too. It is not an exaggeration to say that those laws lie in ruins, having failed to stop the penetration of Western economies by corrupt Russian money.”
• “Yet there seems no recognition that the AML regime is fatally flawed. As with all mistakes, its supporters believe that it was just not applied strictly enough, and needs to be reinforced.”
• “To understand the depth of wrongness of the current AML concept, one need only read Catherine Belton’s book, ‘Putin’s People,’ which was published in 2020. This documents in some detail the various criminal dealings which led to the rise of the Russian billionaires whose money flooded the West. She conducted dozens of interviews over many years. Even so, there are large gaps because so much took place behind an impenetrable veil of secrecy, and through multiple layers of shell companies in tax havens which lack transparency.”
• “Yet the OECD, the EU, the UK government and others behind the construction of the AML laws expect every solicitor to conduct his or her own investigation as part of customer due diligence and ‘know-your-client’. The investigation is thus privatised and fragmented, having to be done over and over again by each solicitor or law firm as it is consulted.”
• “Yet the depth of knowledge required – of Russian politics, of the Russian language, of the many varied players, of the multiplying companies and fronts and transactions, of Russian laws, and of historical events – is beyond the resources of a law firm. It is ridiculous to expect law firms to investigate what takes years, many interviews, and much academic knowledge.”
• “It is also a very inefficient way of going about things, because it requires the background to be re-investigated over and over again by separate lawyers and law firms… It so happens that there is now a ‘Putin’s People’ to help with Russian investigations. But that stops in 2020, and has understandable gaps. Is there a ‘Putin’s People’ for Kazakhstan, China and whatever other countries fall within the same category?”
• “A system which privatises and fragments the need to research the most complex events imaginable is both inefficient and unworkable. And we have just seen the results: huge compliance departments failed to stops serious penetration of our economies, with dire results.”
• “The legal profession made a mistake in its opposition to the laws when they were first introduced. We opposed it on the basis that it made us breach lawyer-client confidentiality through reporting suspicious transactions. We got nowhere with these claims, which were rejected by the courts.”
• “We would have been better off by pointing out that the system being set up, with its requirement for solicitors to investigate complexities and historical events which are beyond reasonable reach, is unworkable, and for them to be re-investigated by each player in the chain over and over again is completely inefficient.”

“Alberta Court of Queen’s Bench Finds Conflict of Interest for Class Counsel Also Representing Individual” —

• “In Smith v Lafarge Canada Inc, 2022 ABQB 289 [Smith], the Court of Queen’s Bench considered a preliminary application arising out of a proposed class action which involved claims advanced on behalf of the proposed class as well as individual claims specific to the proposed representative plaintiff.”
• “The Court found that the individual claims should be stayed pending certification and found an inherent conflict in counsel for the proposed class also representing the proposed representative plaintiff with his individual claims. The case demonstrates a strong presumption that class counsel should not act for plaintiffs in pursuing individual claims related to the class action before or after certification.”
• “Smith, a former employee of Lafarge Canada, brought an action on behalf of all current and former Lafarge employees, alleging that Lafarge underpaid amounts due to employees under employment standards and purposely omitted information from pay statements, depriving employees of the information required to ascertain whether their pay was properly calculated.”
• “The plaintiff also advanced an individual claim that he had been terminated on the basis of his age, constituting discrimination on grounds prohibited under the Alberta Human Rights Act.”
• “Justice Eamon found that the inherent nature of a class action creates sufficient risk of a conflict to bar counsel from joint representation of both the proposed class and individual claims.”
• ” Since the class included employees of various ages, age discrimination was not a common fact among all class members. As for issues of law, Justice Eamon found that a claim for age discrimination could only give rise to discrete damages under the Alberta Human Rights Act, which lack any obvious link to the common issues of systematic underpayment or mental distress arising from wrongful termination. The age discrimination claim bore only superficial connection to the class claims, and as such was discrete and severable.”
• “On the basis of this potential for conflict, Justice Eamon ordered that the plaintiff’s counsel of record be removed from either the class action or the discrimination claim, at the plaintiff’s choice.”

“Fox Rothschild Faces New DQ Bid In Athlete Startup Case” —

• “A startup seeking to ‘tokenize’ and sell shares of professional athletes said Fox Rothschild LLP should be disqualified from representing investors in a $1 million fraud lawsuit against the company, claiming the firm was ‘preparing to file the current complaint’ while simultaneously representing those now being sued.”
• “Cypress Holdings sued startup SportBLX, parent company GlassBridge Enterprises and the startup’s founders George Hall and Joseph DePerio in February, claiming investors were duped into pouring $1 million into the venture in 2019 based on misrepresentations of a business plan that never materialized.”
• “In a letter Friday to U.S. District Judge Lorna G. Schofield, Hall and DePerio said Fox Rothschild attorneys repeatedly reassured them in emails throughout 2019 that the firm and attorney Marc Gross were not also representing Cypress.”
• “DePerio said he alerted Fox Rothschild partner Pamela Thein to a letter from Gross about ‘certain potential claims of Cypress in connection with its investment,’ prompting Thein to respond that the firm was withdrawing from representing the investor group.”
• “DePerio wrote to Fox Rothschild again several times over the coming months asking why Gross was still being copied on emails from Cypress.”
• “GlassBridge said it paid Fox Rothschild almost $850,000 in legal fees before the firm ended representation in early November 2021, two months before Cypress sued. ‘Essentially, GlassBridge spent nearly a million dollars on Fox Rothschild’s services during the same time the firm was apparently preparing to file the current complaint. GlassBridge was also a significant owner of Sport-BLX,’ Friday’s letter said.”
• “Gross said he was not concerned about the latest letter or the emails. ‘I know what occurred,’ he said. ‘So I suspect that if a motion is filed, the defendants are going to lose and usually defendants do this when they think that changing counsel will impact the way the case is going to develop.'”

“U.S. judge recuses himself from Archegos fraud case, citing wife’s ties to banks” —

• “Archegos Capital Management founder Bill Hwang will get a new judge for his U.S. fraud trial, after the judge assigned to the case recused himself on Thursday due to his wife’s ties to banks that could have been caught in the investment firm’s meltdown.”
• “U.S. District Judge Andrew Carter said in a Manhattan federal court hearing that his wife is a lawyer for Bank of New York Mellon (BK.N) and used to work for JPMorgan Chase (JPM.N), and that he would have a conflict of interest if either bank were a victim of the alleged fraud.”
• “Archegos, which had $36 billion in assets, collapsed last year when it was caught short on highly leveraged trades, leaving global banks with $10 billion in losses. Prosecutors say Hwang lied to banks to increase Archegos’ credit lines. “
• “Carter’s decision came amid heightened attention by lawmakers and court reform advocates to judicial recusals due to conflicts. President Joe Biden last week signed into law a bill subjecting federal judges to tougher disclosure requirements for their financial holdings and stock trades.”

“Miami-Dade Judge Steps Down From Litigation Over Attorney Fees” —

• “Miami-Dade Circuit Judge Beatrice Butchko stepped down from a case over attorney fees and costs, hours after a litigant filed a verified disqualification motion.”
• “Litigant Sarah Lazow claimed in a disqualification motion that her former attorney, Robert Zarco, a partner at Zarco Einhorn Salkowski & Brito in Fort Lauderdale, allegedly pitched his legal services by boasting he had a ‘very close relationship’ with Butchko, who might allegedly ‘role play as angry on the record.'”
• “But Lazow’s opponents describe her as a ‘desperate litigant,’ ready to defame the judge and other side.”
• “Lazow claimed in the motion that Butchko could not be impartial in the litigation, in which one of Lazow’s former attorneys sued for legal fees, stemming from a larger lawsuit involving Setai Hotel Acquisition LLC, the operator of the Setai Hotel in Miami Beach.”
• “‘She hates you,’ Zarco allegedly said to Lazow, according to the motion for disqualification. ‘She asked me why I would get involved in this case when you have already been through six lawyers. She said you were crazy.'”
• “Bob Jarvis, an ethics professor at Nova Southeastern University Shepard Broad College of Law, who is not involved in the litigation, said the Judicial Qualifications Commission might want to examine if the allegations are true.”
• “‘I am not surprised that Judge Butchko granted the recusal motion,’ Jarvis said. ‘I am surprised that she waited until there was a motion. In my opinion, she should have recused herself when she first realized she had developed negative feelings toward the defendant, or, at the very latest, when she spoke with Zarco.'”
• “However, Zarco pushed back Wednesday against what he called ‘fabricated’ allegations Lazow put forth in the motion. He said Lazow has a history of recklessly filing motions for disqualification of judges without legal basis, to forum shop a jurist more sympathetic to her case. Zarco also said he declined to refute each ‘fabricated’ statement in court.”

“Judge Tosses BofA Bias Suit And Bid To DQ McGuireWoods” —

• “A Georgia federal judge on Monday permanently dismissed a discrimination suit filed against Bank of America stemming from a foreclosure case and rejected the plaintiff’s bid to oust the bank’s attorneys at McGuireWoods LLP from the case, finding there is no basis for disqualification.”
• “Judge William M. Ray II of the U.S. District Court for the Northern District of Georgia said in an order that plaintiff Keith Thomas’ argument that McGuireWoods and the law firm Rubin Lublin should be disqualified because they were also defendants in the case did not pass muster, noting that it did not appear that the relevant Rule of Professional Conduct applies to entire law firms.”
• “‘In addition, it does not appear Rule 3.7 applies at this stage of the case,’ Judge Ray said of the relevant rule. ‘The rule states only that a lawyer may ‘not act as advocate at a trial in which the lawyer is likely to be a necessary witness’ … but this case has not progressed to a trial.'”
• “Thomas, who is representing himself, initiated the case in August, arguing that McGuireWoods helped Northstar Mortgage Group LLC, mortgage database company Mortgage Electronic Registration Systems Inc. and Bank of America engage in mail fraud and in violating the Civil Rights Act of 1866 and various federal regulations.”
• “Judge Ray further found that Thomas didn’t show that either law firm or any of their lawyers are likely to be a necessary witness. And the court rejected Thomas’ argument that McGuireWoods should be disqualified for allegedly engaging in fraudulent activity that it didn’t disclose to the court, saying Thomas ‘wholly fails to cite any evidence that McGuireWoods in fact knew about any supposed fraudulent activity,’ as required by Rule of Professional Conduct 3.3.”

“The financial arrangements between lawyers and Indigenous clients” —

• “Recent decades have seen an explosion of Indigenous case law in Canada, with precedent-setting decisions like R v. Sparrow and Delgamuukw v. British Columbia vastly increasing activity in what used to be a specialized field.”
• “More cases mean more opportunities for conflict between lawyers and their clients over financial arrangements. The past few decades also have seen a significant number of those conflicts make their way to court — disputes over hourly fees, retainers and contingency fees, arguments over who has the right to act for a particular First Nation.”
• “Some professionals in the Indigenous law field say those conflicts are the result of a power imbalance between Indigenous communities and the lawyers they hire. They’re calling for reforms to the model code of conduct to protect Indigenous clients from bad actors in the legal profession.”
• “Lafond said the IBA [Indigenous Bar Association] is partnering with the Federation of Law Societies of Canada to review and modify the model code to protect Indigenous clients — starting with changes to the way contingency agreements work.”
• “Contingency fee agreements can get cases off the ground for cash-poor clients, but unless their lawyers are transparent about the work’s nature, they can lead to unfair outcomes.”
• “University of Windsor law professor Noel Semple says one sensible way to protect vulnerable clients is to develop standards for time-based billing, a practice he said is largely unregulated in Canada.”
• “‘And there are ways retainer agreements themselves can be structured to prevent a First Nation from retaining another law firm to examine the fees charged by another,’ said Lafond. ‘In some cases, these retainer agreements prevent the client from hiring another firm until the original firm has been made whole on the bill it sent the client.'”

“D.C. Opines On Disclosure Issues” —

• “In April 2022, the Legal Ethics Committee issued Opinion 383 finding that, absent informed consent, a lawyer generally may not disclose to a client or prospective client information about another client or prospective client that is a protected secret or confidence under Rules 1.6 or 1.18. Such protected information often includes (1) the identity of another client or prospective client and (2) the nature of the other person’s matter.”
• “LEO 383 cautions that even requesting or agreeing to a commitment to make such disclosures pursuant to an outside counsel agreement or otherwise may constitute a prohibited attempt or inducement to another to violate the Rules. The opinion also concludes that Rules 1.7(d) and 1.16 — and not an advance agreement between one client and outside counsel — govern whether a lawyer must or may withdraw from her representation of another client if a ‘midstream’ conflict arises. Finally, a lawyer may not permit a client to access the lawyer’s records if such access might disclose confidences or secrets of other clients. Read the full opinion here.”