Bressler Risk Blog

“Clark Partington Facing DQ Bid In Fla. Whistleblower Case” —

• “A former client of Clark Partington Hart Larry Bond & Stackhouse PA has asked a federal judge to disqualify the firm from representing a commercial pilot in a whistleblower case against him over his alleged illegal monopoly control of a northwest Florida airport.”
• “Clark Partington currently represents commercial pilot Robert Smith in a False Claims Act suit accusing businessman Jay Odom of using a strawman scheme to take full control of the Destin Executive Airport in violation of laws prohibiting monopolies at airports that receive state and federal funds.”
• “But Odom argued in a brief Wednesday that Clark Partington’s work on his behalf in 2011 in the negotiation of a loan and the creation of entities to hold assets at issue in Smith’s suit meant the firm should be barred from handling the case.”
• “‘Given the law firm’s prior role as counsel in facilitating one of the schemes cited in the amended complaint as evidence of the fraud alleged as to the Destin airport, disqualification is proper,’ Odom said.”
• “The request to disqualify Clark Patington in the federal False Claim Acts suit notes that a judge in a related state court case in the First Judicial Circuit Court of Okaloosa County granted a motion to disqualify on Sept. 23 based on the same arguments about the firm’s prior representation of Odom and his companies.”
• “In reaching that decision, Circuit Judge John T. Brown found that Odom and Clark Partington had an attorney-client relationship and that the law firm’s prior work for Odom was ‘substantially related’ to Smith’s claims of wrongdoing in the current case.”
• “Smith, representing the federal government and the state of Florida as relator, claims Odom used a group of strawman LLCs he controls to take control of both fixed-base operators at the airport in 2012, and that Okaloosa County officials have been aware of the situation since at least 2014 while accepting millions in state and federal grants.”

Clearly from a source with an agenda. And they do not appear to cite examples of actual conflict or adversity, focusing on appearances. Still, interesting reading in the context of PR and positional risk: “WNN Exclusive: SEC FOIA Documents Reveal Big Law Defense Firms are Confidentially Representing Dodd-Frank Whistleblowers” —

• “Documents obtained under the Freedom of Information Act (FOIA) from the U.S. Securities and Exchange Commission (SEC) reveal that large “Big Law” corporate law firms are confidentially or quietly representing whistleblowers in whistleblower reward cases filed under the highly successful Dodd-Frank Act.”
• “‘The revelation that the most notorious anti-whistleblower law firms are quietly representing whistleblowers in SEC enforcement cases came as a shock,’said Stephen M. Kohn. Kohn is a whistleblower attorney who filed the FOIA request on behalf of Whistleblower Network News (WNN) and the National Whistleblower Center (NWC). ‘The potential for massive conflicts of interest is obvious,” Kohn said, “as these firms base their practices on defending corporations accused by whistleblowers of engaging in bribery, money laundering, and securities frauds.'”
• “WNN reviewed the 1034 pages of FOIA documents released by the SEC and carefully compiled a list of the 64 law firms that successfully obtained a reward on behalf of a whistleblower. Among those firms were six that primarily represent corporations and individuals accused of corporate crimes.”
• “‘Whistleblowers need to know that corporate firms that make millions of dollars by defending corporate criminals are also trying to represent them. Whistleblowers’ interests may conflict with big law’s major client base. It appears as if some of the defense firms have tried to take advantage of Dodd-Frank’s confidentiality rules in order to hide their representation of whistleblowers from their corporate clients. I hope this is not the case,’ Nelson said.”
• “The number of defense firms now representing whistleblowers may be significantly larger than the six firms identified in the SEC FOIA documents. The vast majority of Dodd-Frank cases are still under review by the SEC, and the corporate defense firms involved in those cases were not revealed in the FOIA responses.”
• “All of the cases handled by the corporate defense firms resulted in significant sanctions leveled against companies or individuals who violated the Securities and Exchange Act. The Dodd-Frank Act only permits a reward to be paid if sanctions ordered to be paid exceed $1 million.”
• “‘It is hard to understand how a corporate defense firm can have ‘undivided loyalty’ to whistleblowers who disclose large corporate frauds. When a whistleblower files a case, it is often impossible to determine how far the frauds may go and what companies may be involved in a conspiracy. Whistleblowers need lawyers who do not fear following the facts wherever they may lead,’ Kohn said.”

“Judicial Ethics Opinion 22-29” —

• “The Advisory Committee on Judicial Ethics responds to written inquiries from New York state’s approximately 3,600 judges and justices, as well as hundreds of judicial hearing officers, support magistrates, court attorney-referees, and judicial candidates (both judges and non-judges seeking election to judicial office)”
• “A full-time judge may preside over cases involving an insurance company for which the judge had previously served as in-house counsel once two years have elapsed since the end of the relationship or the final payment of any fees to the judge, whichever is later, provided the judge had no involvement in the case before them as counsel.”
• “The inquiring full-time judge, prior to taking the bench, worked for a law firm that served exclusively as in-house counsel to an insurance company. Approximately three years ago, the judge left that law firm and ceased handling any cases involving that insurance company. All business and financial connections between the judge and the law firm terminated at that time, and the judge has no retirement/pension plan with them. The judge asks if they may preside in cases involving the insurance company.”
• “Applying these principles here, it appears that the attorney-client relationship between the inquiring judge and the insurance company completely ended approximately three years ago, as did the business/financial relationship between the judge and the law firm that served as in-house counsel to the insurance company. Accordingly, since more than two years have elapsed since the end of the judge’s attorney-client relationship with the insurance company and the final payment of any legal fees, the judge may now preside in cases involving the insurance company, provided the judge had no involvement in the matter as an attorney.”

“Court agrees to remove San Luis Obispo D.A. from case over Black Lives Matter comments” —

• “On the same day San Luis Obispo County District Attorney Dan Dow began filing charges against marchers protesting the killing of George Floyd by police in Minneapolis, Dow met on Facebook with a group that described the Black Lives Matter movement as ‘domestic terrorism.'”
• “Also on that day, Dow and his wife asked supporters to contribute to his re-election campaign ‘so he can keep leading the fight in SLO County against the wacky defund the police movement and anarchist groups that are trying to undermine the rule of law and public safety in our community.'”
• “A state appeals court says those and other comments justified disqualifying Dow and his office as prosecutors of the protest marchers, and turning the case over to the state attorney general’s office.”
• “The district attorney did not surrender his rights of free speech and freedom of association when he took office, but his exercise of those rights ‘cannot deprive those he prosecutes of their own right to a fundamentally fair trial,’ said the Second District Court of Appeal in Ventura, in a ruling published Wednesday as a precedent for future cases.”
• “Dow sought to remain on the case, and said the comments created, at most, an appearance of a conflict of interest. Attorney General Rob Bonta’s office supported him. But Superior Court Judge Matthew Guerrero said the evidence supported the protesters’ claims of political motivation, and the appeals court upheld his decision.”

Rabiya Hirji touches on a topic we’ve observed increasing interest in: “Creating New Roles and Opportunities in Law Firm Risk Functions” —

• “When I started my career in law firm risk management over 25 years ago, the conflicts assistant/analyst/administrator was expected to fulfill a wide range of responsibilities including all aspects of matter opening, procuring details to respond to audit letters, preparing matter lists for lawyer departures, and maintaining client/matter data in financial systems. This wide range of duties and expectations not only put a lot of strain on these professionals; it also kept them from focusing on and specializing in specific areas and skillsets.”
• “A recent ILTA podcast, “New and Evolving Roles in Law Firm Risk Functions,” highlighted how new technology, changing client expectations, and regulatory changes are transforming law firm functions by creating opportunities for individuals to develop new skillsets — allowing firms and legal departments to rethink how they deliver their legal services.”
• “At some firms, risk teams are creating dedicated roles for specialized functions, such as conflicts clearance lawyers, risk systems administrators, client commitments analysts, and audit letter specialists. These niche roles let risk professionals develop new skill sets and specialize in specific areas of their choosing. At a time when “quiet quitting” and “the great resignation” have become common parlance, law firms should view this trend toward more specialized roles as an opportunity to retain talent.”
• “Risk professionals are re-assessing their positions and their career options more than ever, so firms that want to improve retention should give their professionals meaningful opportunities for professional growth and support their curiosity. By providing talented employees with interesting career opportunities and specialized roles, your firm can gain a competitive advantage in acquiring and retaining talent, and enhance your risk team’s overall success at the same time.”

[Note, the referenced podcast is available to ILTA members with sufficient access rights here.]

“Reliance: Can You Use Client Due Diligence Conducted By Third Parties? [Money Laundering Regulations, UK]” —

• “Short answer: Yes, there is a mechanism for ‘reliance’ in Regulation 39 of the Money Laundering Regulations 2017. There are, however, certain preconditions, risks and practical considerations. It should not be the default way for law firms to conduct CDD.”
• “The starting point is that the law firm should conduct client due diligence (CDD). However, CDD carried out by another ‘relevant person’ can also be relied upon in certain circumstances.”
• “Reliance can save time and work duplication, not to mention client frustration. For example, it might be a suitable way to deal with clients who are ‘passed on’ by another company in the law firm’s group. Or if you regularly work with another professional adviser in transactions, there is potential to streamline the onboarding process.”
• “The key point to understand is that the party relying on the CDD is responsible for it.”
• “If the party supplying the CDD (let’s say, the client’s accountant or estate agent) failed to do sufficient checks, the solicitor relying on the same documents would remain equally liable if the client turned out to be dodgy.”
• “There is an increased risk because circumstances may have changed since the original party conducted the CDD. Maybe the client moved, or a business gained new beneficial owners. It is imperative that the solicitor knows that the AML checks in front of them are fully up to date.”
• “And since CDD failures potentially carry criminal liability, there is a strong incentive for law firms to insist on doing their own AML checks.”
• “If you do go down the reliance route, it is not an informal process. There has to be a written agreement in place, where the original party agrees to provide CDD documents within two days of being asked for it. The parties must also agree to keep records in accordance with the Regulations.”

“9th Circ. Won’t Undo Calif. Firm’s DQ For Privileged Info” —

• “The Ninth Circuit has denied a request to reconsider its decision upholding the disqualification of a San Diego business litigation firm from a racketeering lawsuit due to the firm allegedly obtaining privileged information through a man who posed as a lawyer.”
• “The lower court previously disqualified Mirch Law Firm from representing Seyed Zia Eddin Ahmadi Abhari, Donya Entertainment Inc. and Noureen Entertainment Inc. in the racketeering case in light of allegations that the firm obtained privileged information through Martin Reiner, who was posing as a lawyer representing the defendants in an earlier trademark infringement case.”
• “According to court documents, Reiner went on to claim to be Mirch’s witness. Mirch denied receiving confidential information from Reiner, but the Ninth Circuit maintained in an unpublished opinion that ‘the district court’s weighing of the evidence is entitled to deference.’ The court also held that both an attorney’s presumed or actual acquisition of an adversary’s privileged information can warrant their disqualification.”
• “When asking for an en banc rehearing, Mirch Law Firm said the court failed to address limits on attorney-client privilege and the doctrines of waiver and joint representation. The firm also argued that the court did not recognize its due process rights when faced with allegations of ethical violations.”
• “The underlying racketeering case came about when the plaintiffs accused Victory Park Capital Advisors of scheming to “acquire worthless restaurant franchises and resell them through fronts at unconscionable prices induced by fabricated financial statements,” according to court documents.”

“[New York] Judicial Ethics Opinion 22-22 (B)” —

• “A full-time judge, previously employed as an attorney in a not-for-profit labor union’s legal services office, and who upon retirement will be eligible for a pension and medical benefits through the union:
  • (1) is permanently disqualified in cases where the judge participated in any way as an attorney, whether in a personal or supervisory capacity;
  • (2) is disqualified for two years, subject to remittal, in cases involving the judge’s former clients; but
  • (3) is not otherwise disqualified from cases where a litigant is represented by the union, provided the judge can be fair and impartial.”
• “We recently advised that a judge who “worked for an insurance company more than a decade ago and has a pension benefit associated with that company” maintains a financial connection to that employer, giving rise to a situation “in which the judge’s impartiality might reasonably be questioned” (Opinion 21-29). We reached this conclusion notwithstanding that, much like the present inquiry, the pension was “independently managed by an outside third party” and was “not in pay status” (id.). Relying on opinions involving judges who were previously employed with a private law firm, we said the judge is disqualified, subject to remittal, when the former employer appears as an insurer of a party in a lawsuit pending before the judge (see id., citing Opinions 18-118 and 04-42).”
• “For completeness, we also note that the judge (1) is permanently disqualified in cases in which the judge participated in any way as an attorney, whether in a personal or supervisory capacity, and (2) is disqualified for two years, subject to remittal, in cases involving the judge’s former clients (see Opinion 20-73). With respect to the second point, we note that the attorney-client relationship between the judge and these former union member clients terminated when the judge ceased employment with the union and assumed full-time judicial office. Thus, as more than two years have elapsed since the judge’s former employment with the union, disqualification or disclosure in new matters involving these former clients is now left to the judge’s sole discretion.”

“Infowars’ Bankruptcy Judge Removes Top Advisors, Orders Probe” —

• “Infowars’ parent is facing a major setback in its Chapter 11 case after a bankruptcy judge removed its top attorney and chief restructuring officer for their failure to disclose prior connections to company founder Alex Jones.”
• “Texas bankruptcy Judge Christopher M. Lopez on Tuesday evening sided with the Justice Department’s bankruptcy watchdog and rejected motions by the parent company, Free Speech Systems LLC, to hire attorney Kyung Lee or his firm, Shannon & Lee LLP, as the company’s bankruptcy co-counsel. “
• “Free Speech Systems filed for Chapter 11 protection in July after Sandy Hook Elementary School shooting victim families won judgments against far-right conspiracy theorist Jones and his website for falsely claiming the massacre was a hoax.”
• “Lee and his firm have potential conflicts due to their representation of three other Jones-affiliated companies in a previous bankruptcy, the court found Tuesday. That created a conflict of interest that is adverse to Free Speech Systems’ bankruptcy estate, it said.”
• “Free Speech System’s motion to employ W. Marc Schwartz as its chief restructuring officer was also denied. Lee and Schwartz had been working for the debtor for months. Schwartz had begun preparing a bankruptcy plan that would use the company’s disposable income to pay creditors.”
• “‘I do think there was some lack of candor in this case,’ Lopez said. ‘I’ve expressed concerns since the first hearing about what happened. And as this case has progressed, and based on what I’ve heard today and the evidence that I was able to review, those concerns continue to exist.'”
• “In June, three Jones-affiliated companies—InfoW LLC, IWHealth LLC, and Prison Planet TV LLC—struck a deal with the Justice Department’s US Trustee to dismiss their bankruptcy cases pending in Texas. Schwartz and Lee also for a time worked with those three debtors during the previous bankruptcy but never disclosed the relationship to the court, the US Trustee said. “

“Denied: Defense Lawyer Can’t Withdraw From Litigation Over School Cheating Scandal” —

• “In a case of first impression, the Supreme Court of Georgia has affirmed that the denial of a motion to withdraw as counsel based on alleged conflicts of interest is not directly appealable.”
• “Atlanta Judicial Circuit Public Defender Stephen R. Scarborough no longer wants to represent his six clients, citing an alleged ethical conflict of interest, as some clients name each other in their defenses.”
• “After Fulton County Superior Court Judge Jerry W. Baxter denied the attorney’s motion to withdraw representation and the Georgia Court of Appeals dismissed his appellate challenge, Scarborough appeared before the Supreme Court of Georgia in April to argue his case.”
• “Scarborough attempted to convince the high court that the collateral order doctrine supported his motion.”
• “Under the doctrine, parties may appeal interlocutory rulings if the order conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action or would be unreviewable on appeal from a final judgment.”
• “Across the aisle, Fulton County Chief Senior Assistant District Attorney Kevin C. Armstrong argued the doctrine failed to support Scarborough’s motion. He noted that the appellants had access to ‘a future remedy,’ since they could obtain relief through an interlocutory appeal.”
• “Five months after the oral argument, the Supreme Court of Georgia issued a unanimous opinion affirming the lower courts’ rulings. ‘We granted certiorari in this case to determine whether a trial court’s order denying a motion to withdraw as counsel based on alleged conflicts of interest is immediately appealable under the collateral order doctrine,’ read an opinion drafted by Justice Shawn E. LaGrua. ‘We conclude that such orders do not fall within ‘the very small class’ of trial court orders that are appealable under that doctrine.'”
• “‘We reach this conclusion because orders denying a counsel’s motion to withdraw based on an alleged conflict of interest are not ‘effectively final,’ even as to counsel’s interest, in the sense needed to justify application of the collateral order doctrine.'”
• “Instead, LaGrua highlighted a more extreme remedy Scarborough could opt to entertain. She wrote that, if the public defender felt strongly that remaining on the case would violate rules of professional conduct and create ethical conflicts of interest for his clients, he could exercise ‘another long-recognized option’ by choosing to ‘disobey the order and potentially be held in contempt of court.'”
• “‘The attorney can then appeal directly from any resulting contempt ruling under OCGA § 5-6-34 (a) (2),’ LaGrua explained. ‘We recognize that this avenue for appellate review places the attorney in a very difficult position, but it is a means of obtaining direct appellate review set forth in Georgia statutory law that lifts the issue presented in this case out of the realm of non-reviewability.'”

“Litigation Funder Wins $1.2 Million Over Lawyer-Judge Connection” —

• “A Texas attorney must pay $1.2 million to a litigation funder that sued him for malpractice after he failed to disclose a conflict of interest involving a judge, a US district court ruled.”
• “The attorney, Sergio Muñoz Jr., failed to tell his ex-client, Law Funder LLC, he had a business relationship with a judge presiding over a case the company joined because of its litigation investments, the firm alleged in a lawsuit.”
• “Litigation funders provide capital to plaintiffs or their lawyres in exchange for portions of cash settlements and financial awards. The Law Funder had retained Munoz in 2011 to protect its investments in lawsuits filed by a Mexican law firm whose ownership became a subject of a divorce proceeding.”
• “Muñoz was a co-principal in a professional corporation with Judge Jesse Contreras, who presided over the divorce case. The connection ultimately prompted the removal of the judge in the case as well as a voiding of all his orders. Law Funder later withdrew from the proceedings because it didn’t have the money to start over.”

“Billion-dollar class action lawsuit against Bed Bath & Beyond – and its CFO who jumped to his death off NYC’s ‘Jenga’ building – is in jeopardy after law firm handling case BOWS OUT” —

• “A shareholder lawsuit that is thought to have possibly played a role in the suicide of Bed Bath & Beyond’s former Chief Financial Officer appears to have run into legal trouble.”
• “The $1.2 billion suit, which some have suggested contributed to Gustavo Arnal’s stress, has just been passed over to a new law firm based outside of Washington D.C. after a ‘conflict of interest’ occurred that ‘would like have seen it thrown out by a judge’.”
• “Arnal, 52, was listed as one of the defendants in a class action lawsuit brought by a group of shareholders who claim they lost around $1.2billion when Arnal and majority shareholder Ryan Cohen allegedly engaged in a ‘pump and dump’ scheme that saw them sell off shares at a higher price.”
• “However it appears as though the attorney involved, Pengcheng Si, was both acting as counsel and the plaintiff resulting in a clear conflict of interest.”

“Rogue Attorneys Lurking In Law Firms” —

• “An attorney can be a free agent, or part of a team. Increasingly, it seems the attorney can be both, at once. Carasco v Schlesinger 2022 NY Slip Op 33021(U) September 8, 2022.”
• “David B. Cohen is an example of an attorney taking a case on in a partnership, leaving the partnership, moving on to a new firm, taking a case with him, but not transferring it to a new firm. When it all goes wrong, the question remains: Who is the attorney?”]
• “On or about December 8, 2014, plaintiff signed a retainer agreement with defendant law firm Julien & Schlesinger (“J&S”)… ‘It is undisputed that, on January 6, 2016, Schlesinger, was no longer an employee of J&S, which ceased operations in 2015, became an associate at defendant Morelli Law Firm, PLLC.'”
• “‘On or about January 28, 2016, plaintiff commenced a personal injury action in this Court styled Hazel Carasco v City of New York, Consolidated Edison
  Company, and Halcyon Construction Company, et. al., under Ind. No. 105779/1.'”
• “‘Between February 2017 and July 2018, this Court (d’ Auguste, J. and Tisch, J.) issued orders dismissing the underlying action against the defendants therein based, inter alia, on plaintiffs failure to provide discovery. Doc. 54.'”
• “Plaintiff fails to raise an issue of fact regarding whether she was represented by MLF. The sole retainer agreement she signed in connection with the underlying action was with J&S.”
• “Plaintiff’s presumption that there would be a continuation of the retainer agreement she signed with J&S when Schlesinger moved to MLF is insufficient to raise an issue of fact…”
• “Plaintiff conceded at her deposition that Schlesinger never told her that MLF represented her, but rather that he was representing her and that he worked for MLF. Plaintiff even conceded that Schlesinger told her as early as April 2016 that MLF was reluctant to take her case and there is no evidence that plaintiff was ever told that MLF agreed to represent her.”
• “This Court acknowledges that plaintiff met with Schlesinger at MLF’ s offices on 3 or 4 occasions, that MLF appeared as counsel ofrecord on eLaw and/or eCourts, evidently because Schlesinger was affiliated with the firm, and that plaintiff received email correspondence from Schlesinger via MLF’s email server.”
• “While the foregoing facts may be some indicia that MLF represented plaintiff, this Court finds that they do not raise a material issue of fact regarding whether she had an attorney-client relationship with the firm…”

“Comments Sought on Conflicts Representing Children and Parents in Personal Injury Cases” —

• “The Virginia State Bar seeks public comment on Legal Ethics Opinion 1893, a proposed advisory on representing children and “next friends” as plaintiffs in personal injury cases.”
• “This proposed opinion addresses possible conflicts of interest when a parent, guardian, or other ‘next friend’ engages a lawyer to represent a minor child in a personal injury case against a tortfeasor, when the parent or guardian may also have a lien for past and future expenses for medical treatment of the child. “
• “In the proposed opinion, the Standing Committee on Legal Ethics concluded that generally there is no conflict of interest because the interests of the parent and the child are usually aligned and the parent’s relationship with the child raises a presumption that the parent is acting in the child’s best interests.”
• “The opinion also gives guidance on the types of conflicts that could arise – when the ‘next friend’ is directing the lawyer’s representation in an unreasonable way that is detrimental to the best interests of the child, or there are inadequate assets to compensate both the parent and the child.”
• “If there is a conflict between the parent’s and child’s interests, the child cannot waive any conflict because of their lack of legal capacity, and the lawyer cannot reasonably accept consent of the parent on behalf of the child. In that case, the lawyer may seek appointment of a guardian ad litem to protect the child’s interests, may seek judicial approval of a proposed settlement, or may petition a court to appoint a substitute ‘next friend.'”

“Law firm informs 255K of HIPAA data incident 10 months after hack” —

• “Warner Norcross & Judge recently informed the Department of Health and Human Services of a Health Insurance Portability and Accountability Act data breach impacting 255,160 individuals. The law firm provides employment and immigration services to healthcare entities, including three of the largest hospital systems in Michigan.”
• “On Oct. 22, 2021, WNJ first discovered unauthorized activity on ‘some of its systems’ and took steps to secure the network. A digital forensics firm was brought on to investigate and to perform a ‘data mining and manual review.'”
• “WNJ found that personal and protected health information was contained in the protected systems, including names, dates of birth, Social Security numbers, driver’s licenses, passports, and government IDs, annual compensation amounts, benefit contribution details, credit or debit card numbers and PINs, financial accounts or routing numbers, and other sensitive data.”
• “The notice appears to explain the lengthy delay in notifying patients as tied to its data mining to identify impacted information and individuals. But under HIPAA, covered entities and business associates are required to report within 60 days of discovery, not at the close of an investigation.”

“Firm Yanks Atty From Ga. Clinic FCA Suit After DQ Bid” —

• “A Georgia law firm agreed to pull one of its attorneys from representing doctors at an orthopedic clinic defending a False Claims Act suit, after a former clinic executive raised concerns that the attorney worked for the U.S. Department of Justice when she filed whistleblower allegations.”
• “Griffin Durham Tanner & Clarkson LLC said it will replace attorney Charles W. Byrd on the case defending two Athens Orthopedic Clinic surgeons against claims they violated federal anti-kickback laws. The clinic’s former chief operating officer, Rebecca Hockaday, agreed to drop her motion to disqualify the firm with Byrd no longer on the case.”
• “Hockaday alleged in her disqualification motion that Byrd had access to confidential and privileged information that could be integral to her case as part of his role as an assistant U.S. attorney at the time she filed the whistleblower complaint against the clinic.”
• “Clarkson assured Hockaday that neither he nor anyone else at the firm had received confidential or privileged information from Byrd regarding the case, she said in the motion. The firm also agreed to ensure that Byrd was ‘timely screened from any participation in the matter,’ Hockaday said, and would receive no part of the fees arising from it. She also said the firm agreed to give the government the ability to ensure those promises were kept.”
• “The surgeons had previously responded to the disqualification motion by arguing Byrd couldn’t recall having any substantive involvement in the suit when he was an assistant U.S. attorney and said that, prior to agreeing to represent them, he had inquired with the U.S. Attorney’s Office for the Middle District of Georgia about whether he had any involvement with the suit during his tenure with the office. According to the filing, Byrd was told he hadn’t and that it had been handled by another attorney.”

And via Bill Freivogel:

• “Lecompte v. C.F. Woodford & Son, Inc., 2022 WL 4129410 (Super. Ct. Conn. Sept. 12, 2022). Plaintiff is suing Defendants for injuries suffered on Defendants’ premises. Firm 1 represents Defendants. Firm 2 represents Plaintiff. Lawyer was employed at Firm 1 when this case began. Lawyer moved to Firm 2. Defendants moved to disqualify Lawyer and Firm 2. In this opinion the court denied the motion. In a fact-intensive analysis the court found that Lawyer did not represent Defendants while at Firm 1 and learned nothing about the case while there. Thus, there was no basis to disqualify Lawyer or Firm 2 and no need for a screen at Firm 2.”
• “In re Maxus Energy Corp., 2022 WL 4113656 (3d Cir. Sept. 9, 2022). In this Chapter 11 proceeding the liquidating trustee is suing YPF S.A., and others, for fraudulent conveyance and related claims. Firm 1 is representing the trustee. Firm 2 is representing YPF. Lawyer, while at Firm 2 did substantial work on the case for YPF. Lawyer moved to Firm 1, which erected a timely screen. YPF moved to disqualify Firm 1. The bankruptcy judge denied the motion, terming the screen “robust.” In this opinion the Third Circuit affirmed. The court noted that the Bankruptcy Court for the District of Delaware had adopted the ABA Model Rules. The only unique circumstance here was that when Lawyer changed firms, she was engaged to a lawyer in her new firm. (They ultimately married, but the opinion is not clear when.) While Lawyer was not apportioned any fees from this case, her “spouse” was not so treated. YPF felt that for the screen to be effective, the spouse should also be denied a share of fees from the case. Nope, said the Third Circuit, construing Model Rule 1.10(a)(2)(i).”
• “Lowes v. Lowes, 2022 MBQB 156 (CanLII) (Ct. Q.B. Man. July 29, 2022). Divorce case filed by W. One of W’s lawyers was Lawyer employed by Law Firm 1. After W replaced lawyer, Lawyer left Firm 1 and joined Law Firm 2. Law Firm 2 is representing H in this case. W moved to disqualify Law Firm 2. In this opinion the master denied the motion. Firm 2 had erected an “ethical wall” (herein, “Screen”). In an exhaustive discussion of authorities throughout Canada on screening laterals, the master relied primarily upon guidelines in the Law Society of Manitoba Code of Professional Conduct. The Manitoba guidelines are consistent with those recommended by the Federation of Law Societies and the Canadian Bar Association. We will not set forth the guidelines’ requirements for Screens other than to say that they work in Canada, and there were no surprises here.”

The acting Attorney General of New Jersey has released updated Outside Counsel Guidelines which go into effect this November. More at this page: “New Jersey Office of the Attorney General” with a PDF of the complete guidelines themselves here.

• “Law firms retained by the Division of Law are required to comply with the Division’s Outside Counsel Guidelines, which were last updated in January 2015. Over the past several months, the Guidelines have undergone a thorough revision and are posted here for a reference. The new Guidelines go into effect on November 1, 2022. The Guidelines include detailed information about conflicts of interest, staffing, billing, confidentiality, and engagement of third-party vendors, among other topics.”
• “One common question is whether a private law firm can perform work for a particular state agency when that firm also represents clients adverse to a different state agency. The issue has been discussed in a number of ethics opinions and court rulings, which were most recently summarized in a May 2019 Attorney General letter.”

From the guidelines:

• “State agencies cannot waive any conflicts that the Rules of Professional Conduct (“RPCs”) prohibit, and counsel should neither request nor expect the Attorney General to grant such a waiver. See RPC 1.7(b)(1 ), 1.8(1) and 1.9(d)”
• “State agencies cannot waive any conflicts that the rules of professional conduct prohibit, and counsel should neither request nor expect the attorney general to grant such a waiver.”
• “Counsel must avoid a conflict of interest involving the State client they represent. As part of the retention process, the Division of Law will identify those entities the Division deems to be the ‘client’ for conflicts of interest purposes.”
• “The Division prohibits counsel that represent a State client from:
  • a) Representing private parties before the State client (or its officers) in an adversarial, transactional or non-adversarial proceeding…
  • b) Representing private parties in any matter in which the State client is also a party, if the private party has interests adverse to the State client.
  • c) Representing the State client in a matter in which a private client is adverse to the State if the firm represents the private client in other matters, even if the firm does not represent the private client in the matter involving the State client.
  • d) Representing the State agency in a matter in which a private client appears before the agency, submits an application to the agency or otherwise is requesting the agency take some action or refrain from taking some action, if the firm represents the private client in other matters, even if the firm does not represent the private client in the matter before the agency.
  • e) Representing a private party who has interests adverse to the State client.
  • f) Representing another client where the outside counsel’s knowledge of the State’s legal positions or strategy, derived from the representation or prospective representation of the State client, could be used to the advantage of the other client or to the disadvantage of the State client.”
• “A conflict may also arise from counsel’s advocacy of positions conflicting with important State interests. Positional conflicts could arise in litigation matters, transactional matters, and lobbying efforts. Prior to your engagement, your firm should carefully review whether any such conflict exists or if there is a potential for such a conflict. Whether a positional conflict exists is a fact-sensitive determination.”
• “Outside counsel, however, should generally avoid advocating a position that would limit the authority of the State client, would expand the scope of potential liability of the State client, or would require the State client to divulge information that the State client generally regards as confidential or privileged.”
• “Outside counsel must promptly report positional conflicts to the designated attorney before the firm accepts an engagement that will require the firm to advocate a position that may be adverse to a State legal interest or otherwise prejudicial to the interests of the State.”

And for those tracking Congressional activity on AML rules, Nigel Riley at Intapp advises: “ENABLERS Act: Enhance your risk and compliance management” —

• “For years, experts have warned professional service firms in the U.S. that they need to start preparing for money laundering regulations. And in recent months, those warnings have become impossible to ignore.”
• “The latest and loudest alert came in July 2022, when the U.S. House of Representatives proposed the Establishing New Authorities for Businesses Laundering and Enabling Risks to Security (ENABLERS) Act. This bipartisan legislation, aimed at so-called gatekeepers, would expand anti-money laundering (AML) surveillance — currently required of financial institutions — to professional services firms, requiring accounting and law firms to collect, monitor, and report specific types of client information.”
• “Passage of the ENABLERS Act is not guaranteed. It’s currently an amendment to the National Defense Authorization Act (NDAA), which observers expect congress to vote on by December. It could undergo significant changes prior to the final vote, or not pass at all this year.”
• “My advice to firm leaders is simple:
  • Don’t delay. Proactively prepare by enhancing your KYC and AML processes.
  • Focus on the long-term. Augmenting your firm’s risk and compliance programs can have ongoing, positive impacts on other aspects of your business.”
• “Firms will have to find their own path, but they can get there by focusing on three key areas:
  • Process — Now is the time to thoroughly review current policies and practices, including overall governance framework and risk and compliance protocols for assessing risks associated with accepting new clients and engagements, clearing conflicts, onboarding new business, monitoring engagement performance, and managing client relationships. You can also map out a plan for review and conduct a gap analysis against the newly proposed requirements.
  • People — The risk and compliance team shouldn’t be the only function to prepare for the new regulatory requirements. Instead, a cross-functional evaluation of the client lifecycle and all touchpoints provides a better approach to comprehensively assessing your firm’s current risks, capabilities, and staffing needs. Enhancing team resources, upskilling staff, and identifying inefficiencies can create additional capacity to satisfy the new requirements and allow staff to allocate more time to higher-value work and analysis.
  • Technology — It’s critical to determine if your firm’s current software is optimal enough to support more robust tracking, greater amounts of data, and enhanced reporting as required by the proposed legislation. Take this opportunity to reconsider the software tools currently in use at your firm, evaluate paper-based or manual processes, and identify areas prone to human error where automation and systems integration could mitigate risks and make adopting new regulations easier.”
• “As my colleague and risk management expert Meg Block notes, preparing for the requirements of the ENABLERS Act will require firms to review client onboarding procedures and create additional mechanisms for ongoing monitoring throughout the client lifecycle. This process could create long-term benefits.”
• “Whether or not the ENABLERS Act passes this year, the message is clear: Professional services firms need to prepare for AML regulatory requirements. By starting now, firms can better understand how the regulations may affect them and where they need to focus.”

Finally, interesting news on a law firm CEO conflict for the Ince Group plc (Stock Ticker: INCE), which describes itself: “As well as providing legal services, The Ince Group provides accounting, financial services, consulting and pensions advice to clients.” “Former Ince chief exec removed as company director over ‘conflict of interest’ concerns” —

• “The former chief executive of the listed law firm Ince has been removed from his position as a company director with immediate effect, it was announced yesterday.”
• “In July, Adrian Biles confirmed he would step down from his role as Ince’s chief executive and resign from the board upon completion of £8.6 million fund raising project through the issuance of new shares and a loan.”
• “In an announcement to the stock market yesterday, Ince said Biles ‘has been removed as a director of the Company with immediate effect, as a result of circumstances which may give rise to a conflict of interest between Adrian Biles and the Company.'”
• “The consequences of all this can be seen in the company’s latest financial results in which revenues dipped 3% to £97 million. Ince’s share price also dived 50% to around 5p following the July announcement that it would be undergoing further financing. The listed law firm’s shares price tumbled further to 4.33p in the wake of yesterday’s announcement.”