Bressler Risk Blog

“Leon Black drops racketeering claims against law firm Wigdor” —

• “Billionaire investor Leon Black has dropped the Wigdor law firm as a defendant against civil racketeering claims in his lawsuit against a former model who accused him of rape, and dropped the law firm Quinn Emanuel Urquhart & Sullivan after it identified a potential conflict.”
• “The changes were disclosed in Black’s amended complaint filed on Monday night in Manhattan federal court against Guzel Ganieva, with whom the former Apollo Global Management Inc chief executive has admitted to having had a consensual 6-1/2-year relationship, and the Wigdor firm.”
• “Black has forcefully denied Ganieva’s rape and sexual abuse claims, and accused her of extortion. He sued Ganieva last Oct. 28, four months after she sued him in a New York state court for alleged defamation and sexual violence.”
• “According to court records, Quinn Emanuel obtained the presiding judge’s permission to withdraw after partner John Quinn said the firm had identified a ‘potential conflict of interest’ that might implicate issues of privilege.”

“The curious case of the Quinn Emanuel partner and the alleged conspiracy against Leon Black” —

• “Quinn Emanuel Urquhart & Sullivan withdrew this week as counsel to Apollo Global Management Inc founder Leon Black in a lawsuit claiming that an ex-model who has accused Black of rape conspired with his business rival in a smear campaign to bring down the billionaire financier.”
• “Quinn’s withdrawal letter to U.S. District Judge Paul Engelmayer in Manhattan federal court cited a potential conflict of interest. The letter provided no additional details about the conflict.”
• “But Black’s amended complaint, filed at the same time as Quinn’s withdrawal request, contains some intriguing assertions about contacts between purported participants in the alleged anti-Black conspiracy and Quinn litigation partner Alex Spiro.”
• “There is a one big clue that the conflict is linked to Black’s conspiracy allegations: Quinn has not asked to withdraw as Black’s defense counsel in the New York state court sexual assault and defamation case brought by the ex-model, Guzel Ganieva. The firm’s email statement confirmed that Quinn continues to serve as Black’s counsel in the state case.”
• “And regardless of the reasons for Quinn’s withdrawal from the federal case, it’s notable that Black’s own complaint asserts unusual incidents involving Quinn partner Spiro – or, at least, people wielding his name – and purported participants in a vast conspiracy to defame and extort Black, who remains a client of Spiro’s firm.”
• “You need some background to understand those incidents. The lawsuit asserts that Black’s onetime protégé, Josh Harris, was incensed that Black spurned him as a successor to lead Apollo. The complaint claims that Harris orchestrated a retaliatory legal and media blitz against Black, conspiring with Ganieva and a public relations expert to ruin Black’s reputation with false claims of rape and kidnapping.”
• “In early 2021, Black’s complaint alleged, ‘confederates’ of Harris called Spiro to find out if Quinn Emanuel was interested in taking a case against Black. The amended complaint does not specify the identity of these purported confederates, except to describe them as ‘an unidentified shadowy internal faction at Apollo that was involved in ‘cagey business’ there.'”

“Widow Wants Lowenstein Sandler DQ’d From Estate Fight” —

• “A pharmaceutical executive’s widow has called on a New Jersey state appeals court to ban Lowenstein Sandler LLP from representing one of its attorneys as co-executor of her late husband’s estate in a probate matter, as she and the lawyer are battling over the handling of assets once valued at more than $170 million.”
• “Lowenstein Sandler previously represented Angela Krivulka as co-executor of the estate along with Lerner, her interests are ‘materially adverse’ to Lerner’s, and the firm never obtained her ‘informed consent’ to its prohibited representation of Lerner, according to Wright.”
• “With respect to such consent, the firm has pointed to a 2018 joint engagement letter that ‘at best seeks a future conflicts waiver, which is not enforceable,’ Wright said. As examples of their adversity, she noted that Lerner sued Krivulka in probate court to, among other things, remove her as a co-executor and to have the her marriage to Joseph declared invalid.”
• “‘It’s the same matter. They’re adverse. They did not obtain informed consent,’ Wright told the panel. ‘So they should be disqualified.'”
• “Lerner has countered that Krivulka consented in the engagement letter to Lowenstein Sandler continuing to represent him, court documents state. The letter included a provision stating that, if a conflict of interest arose between them, the firm may have to withdraw as counsel to one or both of them, court documents show.”
• “After the firm began representing Lerner and Krivulka as co-executors, she raised the issue of Lowenstein Sandler’s purported conflict of interest, and Cravath Swaine & Moore LLP stepped in to represent her, court documents state.”

“Bankrupt Brooklyn Hotel Gets to Keep Its lawyer” —

• “A bankruptcy judge overseeing the Williamsburg Hotel bankruptcy case Thursday opted not to rule on a motion filed by the U.S. Trustee, who urged the court to disqualify law firm Mayer Brown LLP from representing the hotel owner, 96 Wythe Acquisition.”
• “The U.S. Trustee argued in his motion that the law firm’s role in a separate bankruptcy case involving the same developers behind the hotel, Toby Moskovits and Michael Lichtenstein, poses a clear conflict of interest because a court-appointed examiner is now investigating fund transfers from the hotel to different entities owned by the developers.”
• “Judge Robert Drain said the motion, based on the current evidence, was premature. But he also didn’t dismiss it, leaving a chance for a future discussion.”

“King & Spalding faces plaintiffs’ grilling over new associate in San Francisco” —

• “King & Spalding’s rehiring this month of an associate in San Francisco has become a flashpoint in a long-running antitrust lawsuit just weeks before the trial is set to begin in California federal court.”
• “The law firm said it is taking steps to wall off the associate, who had served as a law clerk to the judge overseeing the antitrust case against longtime client Sutter Health, the Northern California health system.”
• “The dispute came to light on Wednesday night in a series of emails and letters filed with the court among the firms handling the case. The correspondence indicates concerns plaintiffs’ lawyers have about potential conflicts of interest arising from the associate’s work for the judge.”
• “The dustup began on Jan. 4, when a partner at King & Spalding notified the parties and Beeler that the judge’s former clerk, Meghan Strong, was returning to the firm. Strong earlier worked at the firm prior to the start of her clerkship last year.”
• “‘Counsel has an obligation to get to the bottom of this issue on behalf of the class,’ Constantine Cannon partner Matthew Cantor said in a letter on Monday to Beeler about questions he posed to King & Spalding.”
• “King & Spalding’s Stephen Goff in Sacramento, a lawyer for Sutter, told the court Strong is disqualified from representing parties in matters she worked on as a clerk. The firm said it has played a limited role in the Sutter case, with Jones Day attorneys serving as lead trial counsel.”

“As John Pierce’s Jan. 6 Client List Grows, Conflict of Interest Concerns Follow” —

• “Right-wing attorney John Pierce’s fiery pro-Trump and anti-establishment persona, and his reputation for backing causes championed by conservatives, has helped him amass nearly two dozen clients charged in the Jan. 6 attack on the U.S. Capitol. But as his client list grows, so too are concerns about potential conflicts of interest in his cases.”
• “Judges in at least two multi-defendant cases have appointed a conflicts counsel in recent weeks to examine whether Pierce’s representation of multiple co-defendants charged together for allegedly breaching the Capitol presents ethical issues that may require Pierce to withdraw. Pierce is representing at least 22 people charged in the Capitol riot, according to a review of court documents, the most of any defense attorney.”
• “But the sheer number of Pierce clients makes conflict issues more likely, experts said, leaving it to judges and conflicts counsel to sort out potentially thorny issues, such as how to proceed if arguments in one case may undermine potential defenses in other cases involving the same attorney.”
• “Additionally, given his political posturing, Pierce will need to take care to avoid pushing an ideological agenda over the interests of his clients, ethics experts said.”
• “Pierce maintains an active Twitter presence where he frequently lambasts the Biden administration, COVID-19 vaccine mandates, and the D.C. establishment. He earned significant attention on the right for his role in defending Kyle Rittenhouse, the Wisconsin teenager who shot and killed two people during a Black Lives Matter protest and was later acquitted after arguing self-defense. Pierce left Rittenhouse’s defense team before trial, reportedly over a bitter financial dispute with Rittenhouse’s family.”
• “‘I have seen no such conflict to date. The court, which I greatly respect, is simply doing its job under Federal Rule of Criminal Procedure 44 to ensure the rights of defendants are protected,’ Pierce said. ‘That is entirely appropriate.'”
• “The final decision will rest with the judge. And while Gillers said experienced trial court judges have likely dealt with similar issues in the past, it can be a difficult decision. If a judge disqualifies an attorney, a defendant can argue on appeal that they were denied counsel of their choosing. If, on the other hand, a judge allows a lawyer with a conflict to remain on the case, a conviction can be overturned due to ineffective assistance of counsel.”

“Litigation Trendspotter: Federal Judge Recusals Could Soon Be On the Rise—But Requesting Them Remains Risky” —

• “A bipartisan push in Congress for greater transparency on federal judges’ financial ties, a proposed rule change for amicus filers and a vow by Chief Justice John Roberts Jr. to ensure the judiciary’s compliance with ethics canons could soon combine to cause an uptick in recusals and disqualifications.”
• “But, as demonstrated by one jurist’s reaction to recent allegations of a conflict of interest, lawyers who question a judge’s impartiality do so at their own risk.”
• “The legislation is a direct response to the Wall Street Journal’s recent findings that, between 2010 and 2018, 131 federal judges failed to recuse from 685 cases in which they held a financial interest. The WSJ investigation itself has led to an increase in federal recusal motions and conflict-of-interest disclosures since its release in the fall.”
• “The decision of whether to push for a judge’s recusal is often tactical. As Philadelphia-area criminal defense attorney Steven Fairlie told me a few years ago: ‘I could see a possible basis for recusal and keep my mouth shut because I think that judge is good for my case. I’d want to get my client’s approval. I don’t think you can do something like that without bringing your client into the loop.'”
• “Conversely, a party and its attorneys may decide that pushing for recusal is worthwhile where a particular judge is considered to be less favorable to that party’s interests in the case. But recusal-motion-as-litigation-strategy can easily backfire if the motion is ultimately denied.”
• “Judges are, of course, expected to remain impartial even when parties and/or attorneys get under their skin. But most litigators still go to great pains not to offend the judges they appear before—particularly when those appearances are frequent.”
• “As James Sample, a constitutional law professor at the Maurice A. Deane School of Law at Hofstra University, noted in his 2007 paper, ‘Making Judicial Recusal More Rigorous,’ fear of reprisal is one of the chief deterrents of recusal motions. ‘…[L]itigants may be afraid of bringing recusal motions for fear of angering their judge. This fear may be particularly acute for parties and lawyers who are likely to be repeat players before the court,’ Sample wrote.”

“School District Wants BB&K Disqualified From Cleanup Suit” —

• “The school district that oversees the only school on an island off the coast of Los Angeles wants a California federal court to disqualify opposing counsel Best Best & Krieger LLP in a dispute over contamination on school property, arguing the district previously hired the firm for advice regarding the pollution.”
• “The Long Beach Unified School District told the court in a motion to disqualify Tuesday that BB&K attorneys can’t represent the city of Avalon in the litigation over contamination at the Avalon School because the firm was previously retained as the school district’s sole environmental counsel for pollution at the site. The district told the court it only recently became aware of the apparent conflict and the law firm never requested, nor did the district sign off on, a conflict waiver that would have authorized the law firm ‘switching sides.'”
• “According to the motion, the district’s counsel ‘ironically’ discovered the law firm’s previous work for the district while they were defending a claim for work product privilege over certain documents. The documents were communications between the district, its consultants, and counsel dating back to when the California Department of Toxic Substances Control issued an order regarding the pollution at the Avalon School site a decade ago. ‘This led the district’s counsel to discover that certain documents were privileged as a result of BB&K’s prior representation,’ the motion said.”
• “The district told the court it asked BB&K to bow out of the lawsuit after it discovered the previous representation but the firm ‘refused to withdraw.'”

“McKinsey Foe’s Chapter 11 Conflict-of-Interest Lawsuit Revived by Appeals Court” —

• “A federal appeals court revived a McKinsey & Co. critic’s lawsuit alleging the consulting giant concealed conflicts of interest to obtain lucrative appointments advising bankrupt companies at the expense of rival firms.”
• “Wednesday’s ruling by the Second Circuit Court of Appeals in New York revived a racketeering lawsuit accusing McKinsey of submitting false and misleading statements in 13 bankruptcy cases to hide financial conflicts that could have disqualified the firm from being retained.”
• “Bankruptcy advisers legally are required to be disinterested and to disclose connections to other parties to a chapter 11 case that could give rise to a conflict of interest. In many bankruptcy cases that McKinsey worked on, the firm didn’t name any interested parties with whom it had a relationship, relying instead on broad references to unnamed clients. An investigation by The Wall Street Journal found McKinsey routinely disclosed far fewer potential conflicts than other bankruptcy advisers and that the firm’s investment unit held undisclosed financial stakes that gave it a direct interest in the outcome of several bankruptcy cases.”
• “In 2020, McKinsey reached a settlement without admitting wrongdoing with the Justice Department’s bankruptcy division over how the firm discloses potential conflicts of interest. As part of the settlement, McKinsey agreed to walk away from $8 million in fees for work it did advising a bankrupt coal company. The firm also agreed to broaden the scope of disclosures made in future cases, including the names of confidential clients and potential conflicts involving its many affiliates.”

“Second Circuit Revives Jay Alix’s RICO Claims Against McKinsey” —

• “Had the bankruptcy engagements not been awarded to McKinsey, the judges reasoned, it was ‘entirely plausible’ that AlixPartners would have received about 24% of the work and resulting revenue, consistent with its historical market share in the niche advising space.”
• “‘The loss to AlixPartners and the other large advising firms is plausibly alleged to flow directly from McKinsey’s fraud on the bankruptcy court,’ U.S. Circuit Judge Barrington D. Parker wrote for the court.”
• “The ruling sent the suit back to the district court, allowing Alix to build out his allegations that McKinsey had violated the Racketeer Influenced and Corrupt Organizations Act and had employed an illegal pay-to-play scheme to secure work in large corporate bankruptcy cases.”
• “A spokesman for McKinsey cautioned on Wednesday that the Second Circuit’s decision ‘solely addresses technical pleading standards and not whether Mr. Alix’s claims are true…To date, Mr. Alix has lost all six of his lawsuits against McKinsey, and we are confident the evidence will ultimately show that this lawsuit is similarly meritless.'”

“COA reverses disqualification of Fishers attorney representing ex-wife in child support matter” —

• “An Indiana attorney who was disqualified from representing his ex-wife in her post-dissolution matter from a previous marriage was not prevented from doing so a second time because the basis for his first disqualification no longer existed, the Court of Appeals of Indiana has ruled.”
• “Fishers attorney Robert E. Duff of Indiana Consumer Law Group entered an appearance for Lydia in the matter in 2020 before Brian moved to disqualify Duff on grounds of violation of professional conduct rules. Lydia was married to Duff from 2013 to 2019 and at the time was pregnant with Duff’s child.”
• “Specifically, Brian alleged that Duff’s representation of Lydia violated Professional Conduct Rule 3.7 and that Duff had spoken to the GAL on Lydia’s behalf about parenting time and would likely be a ‘necessary’ witness at the parenting-time hearing.”
• “The Hamilton Circuit Court disqualified Duff and the parties subsequently came to an agreement about parenting time, eliminating the need for a hearing.”
• “Eight months later, in June 2021, Brian sought reimbursement for his alleged overpayment of child support. Duff again entered an appearance for Lydia, to which Brian moved to disqualify Duff on the sole basis that he had been ‘previously disqualified from representing’ Lydia. However, he raised no new grounds to support his motion.”
• “The trial court again entered an order disqualifying Duff and certified the issue for interlocutory appeal. But the Court of Appeals of Indiana in a Tuesday decision reversed and remanded, finding the trial court abused its discretion in Robert E. Duff and Lydia Rockey v. Brian Rockey, 21A-DR-1750.”
• “‘…Because the second post-dissolution matter is different from the first post-dissolution matter and the basis for the first disqualification no longer existed, the trial court abused its discretion in disqualifying Attorney Duff from representing Mother in the second post-dissolution matter,’ Vaidik concluded.”

“Norton Rose Avoids DQ In $340M COVID Coverage Suit In NY” —

• “A New York federal judge gently chided Norton Rose but said it was time to move on from an issue that’s been delaying an insurance case…U.S. District Judge John G. Koeltl said that while a conflict certainly existed, Gartner had failed to show that it was likely to have any effect on the insurance coverage litigation. Judge Koeltl also noted there were several signs that ‘tactical considerations may have played a role’ in Gartner’s decision to highlight the issue.”
• “U.S.-based Gartner Inc.’s disqualification bid centered on the fact that while Norton Rose’s Australia unit was helping subsidiary Gartner Australasia with pandemic-related layoffs in spring 2020, Norton Rose Fulbright US LLP was representing U.S. Specialty Insurance Co. and another insurer that sued Gartner Inc. in May in Texas federal court.”
• “Those Texas lawsuits, as well as the New York lawsuit filed by Gartner, concern whether or not the insurers must cover up to $340 million worth of losses caused by the cancellation of dozens of Gartner events due to COVID-19.”
• “‘While [Norton Rose US] should have obtained a waiver from Gartner Australasia or Gartner when it undertook to represent [U.S. Specialty], that conduct does not warrant disqualification on the facts of this case,’ Judge Koeltl said.”
• “Judge Koeltl said under the relevant guidelines the situation laid out by Gartner does technically amount to a conflict, due to how closely Gartner and its Australasia unit are interconnected, the research giant failed to show that it amounts to anything in practice.”
• “Judge Koeltl said there was no evidence that any information had been shared between the attorneys handling the insurance dispute and the Gartner Australasia layoff work, and in any case the layoff information isn’t relevant at all to the insurance litigation.”
• “Judge Koeltl also noted Gartner had floated the idea of dropping the disqualification issue if U.S. Specialty would agree to move all the cases to New York, among other things, and concluded that ‘tactical considerations’ were at least in part driving the disqualification dispute.”

I guess it was only a matter of time before Elon appeared on the risk blog… and maybe he’s just created his own new conflicts category. Here’s the latest: “Elon Musk’s Tesla asked law firm to fire associate hired from SEC” —

• “A partner at law firm Cooley LLP got an unexpected call late last year from a lawyer for one of the firm’s most famous clients, Elon Musk’s Tesla Inc., with an ultimatum.”
• “The world’s richest man wanted Cooley, which was representing Tesla in numerous lawsuits, to fire one of its attorneys or it would lose the electric-vehicle company’s business, people familiar with the matter said.”
• “The target of Mr. Musk’s ire was a former US Securities and Exchange Commission lawyer whom Cooley had hired for its securities litigation and enforcement practice and who had no involvement in the firm’s work for Tesla. At the SEC, the attorney had interviewed Mr. Musk during the agency’s investigation of the Tesla chief executive’s 2018 tweet claiming, wrongly, to have secured funding to potentially take the electric-vehicle maker private.”
• “Cooley has declined to fire the attorney, who remains an associate at the firm, the people said. Since early December, Tesla has begun taking steps in several cases to replace Cooley or add additional counsel, legal documents show. Mr. Musk’s rocket company Space Exploration Technologies Corp., also known as SpaceX, has stopped using Cooley for regulatory work, according to people familiar with the matter.”
• “The interaction with Cooley points to a bigger pattern for Mr. Musk: Long dismissive of regulators, he has recently aimed his ire at individuals with ties to regulatory agencies with which he has sparred.”

Bloomberg Opinion Columnist Matt Levine offers his always fresh commentary:

• “One assumes that Musk was operating out of pure emotional grudge here, but I suppose it’s worth asking if that phone call was a good strategic move. Of course Cooley can’t actually fire the associate, which would be disastrous for its reputation. But that’s not the goal here. Other law firms that do a bunch of work with Tesla might have to ask prospective hires, like, ‘hey you haven’t done anything to annoy Elon Musk have you?’ And so current government regulators might think ‘hmm, I should go easy on Elon Musk so he doesn’t ruin my future career.'”
• “But, look, if a regulator started an investigation into Elon Musk, and Musk called her up and said ‘do you know who I am, I will ruin your career,’ that would definitely make things worse for him, don’t you think? Like she’d tell her bosses and they’d throw the book at him, add charges of interfering with an investigation, etc. Threatening to ruin a regulator’s career for investigating you is a very bad look! Of course Musk didn’t do that. Instead he actually tried to ruin a regulator’s career for investigating him. Arguably that’s a smarter move? Like, the Cooley associate is no longer at the SEC and that investigation is closed, so Musk’s direct risk is lower.”
• “And yet … if you’re at the SEC now, and you’re conducting a different investigation of Tesla, wouldn’t this make you want to be tougher on him? Or if you’re at the Justice Department, or some other government agency? His odds of actually ruining your career are low; there are a lot of law firms, most of them don’t work with Tesla, and Musk didn’t even succeed in getting this associate fired. As a matter of regulatory solidarity, and of punishing Musk for trying to intimidate regulators, wouldn’t you go a bit harder now?”

“TechReport: 2021 Cybersecurity” —

• “The ABA’s 2021 Legal Technology Survey Report explores security threats and safeguards that reporting attorneys and their law firms are using to protect against them. As in past years, it shows that many attorneys and law firms are employing safeguards covered in the questions in the survey and their use is generally increasing over time. However, it also shows that many law firms report that they are not using security measures that are viewed as basic by security professionals and are used more frequently in other businesses and professions.”
• “Significantly, 25% of respondents overall reported this year that their firms had experienced a data breach at some time… This year, the reported percentage of firms experiencing a breach ranged from 17% of solos and firms with 2-9 attorneys, about 35% for firms with 10-49, 46% with 50-99, and about 35% with 100+.”
• “This Cybersecurity TechReport reviews responses to the security questions and discusses them in light of both attorneys’ duty to safeguard information and what many view as standard cybersecurity practices. It breaks down the information by firm size and compares it to prior years. This gives attorneys and law firms (and clients) information to compare their security posture to law firms of similar size.”
• “While a dedicated, full-time chief information security officer is generally appropriate (and affordable) only for larger law firms, every firm should have someone who is responsible for coordinating security… A chief security officer has primary responsibility in some large firms, 13% of firms with 100-499 attorneys, and 16% of firms with 500+. A small percentage (.9%) report that nobody has primary responsibility for security.”
• “According to the 2021 Survey, 53% of respondents report that their firms have a policy to manage the retention of information/data held by the firm, 60% report a policy on email use, 56% for internet use, 57% for computer acceptable use, 56% for remote access, 48% for social media, 32% personal technology use/BYOD, and 44% for employee privacy. The numbers have generally increased over the years and generally increase with firm size.”
• “Incident response is a critical element of a cybersecurity program. Overall, 36% report having an incident response plan. The percentage of respondents reporting that they have incident response plans varies with firm size, ranging from 12% for solos and 21% for firms with 2-9 attorneys to approximately 80% for firms with 100+ attorneys.”
• “The other reported consequences of data breaches are significant. Downtime/loss of billable hours was reported by 36% of respondents; consulting fees for repair were reported by 31%, destruction or loss of files by 13%, and replacement of hardware/software reported by 18% (percentages for firms that experienced breaches).”
• “About 24% overall responded that they notified a client or clients of the breach. Formal opinion 483 addresses the duty to notify clients under Model Rule 1.4. The percentage reporting notice to clients ranges from 33% for solos and firms with 2-9, 9% for firms with 10-49, none for firms with 50-99, 18% for firms with 100-499, and 70% for firms with 500+.”
• “The increased use of security assessments conducted by independent third parties has been a growing security practice for businesses and enterprises generally. Law firms have been slow to adopt this security tool, with only 27% of law firms overall reporting that they had a full assessment. Affirmative responses generally increase with the size of the firm.”

“Judge removes himself from Amazon case after questions about financial conflict” —

• “A judge removed himself from a case involving Amazon after questions about potential financial conflict arose.”
  “U.S. District Judge Liam O’Grady removed himself from a 20-month civil case he had been overseeing between Amazon and two former employees after it was discovered his wife owned around $22,000 in Amazon stock, The Wall Street Journal reported on Tuesday.”
• “O’Grady commented in a hearing that the ‘idea that I would steer this case in Amazon’s favor because I felt that my wife’s $22,000 investment in Amazon’s stock would be at risk if I didn’t is literally – is almost insane.'”
• “…he would do so to remove any hint of impropriety. ‘However, perception of the fair administration of justice-both by the public and by the parties in the case-is of the highest importance to the Court,’ O’Grady wrote.”

“Bid To DQ Firm In NJ Malpractice Suit Meets Skepticism” —

• “A New Jersey state appellate panel on Tuesday challenged a woman’s argument that Wilentz Goldman & Spitzer PA should be barred from representing Mazie Slater Katz & Freeman LLC in her malpractice suit against Mazie Slater on the grounds that a retired jurist and current Wilentz Goldman attorney is a witness.”
• ” During a remote hearing, the panel expressed skepticism over plaintiff Noemi Escobar’s bid to overturn a trial court ruling denying her motion to disqualify Wilentz Goldman over how ex-state Appellate Division Judge John E. Keefe is a witness after having served as a mediator in an underlying case where a $102 million child abuse judgment was thrown out on appeal.”
• “The dispute centers on the meaning of the word ‘participation’ in New Jersey’s Rule of Professional Conduct 1.12(b). Under that provision, a firm in such a scenario would be barred unless ‘the disqualified lawyer is timely screened from any participation in the matter.'”
• “Escobar’s attorney, Robert Solomon of Nagel Rice LLP, argued that the ‘any participation’ language extended to Keefe’s role as a witness and told the panel that Wilentz Goldman must be disqualified since Keefe cannot be screened from participating in the case.”
• “One of the appellate judges, however, noted that all the RPCs deal with individuals’ activities as lawyers, and indicated that she didn’t see that the rule at issue encompassed serving as a witness.”
• “In denying the motion, Superior Court Judge Keith E. Lynott in July found that the phrase ‘any participation’ meant taking part in a case as an attorney and not as a witness. Wilentz Goldman also has implemented adequate measures to screen Keefe from acting as a lawyer in the action, the judge said.”