Bressler Risk Blog

For those of you who are ILTA members, you may be interested in two recent relevant webinar recordings from events held late last year:

“General Firm Risks: A General Counsel’s Perspective” —

• “If you are interested in learning ways to strengthen your relationships with your general counsel, or are a GC yourself, this roundtable will provide insights into multiple areas and questions to ask, no matter the side of the table you are on. This roundtable will cover topics such as: Meeting/Messaging Services, Cyber Insurance, Cloud: Legal Considerations while Using and eDiscovery/eBilling.”
• Moderators & Participants:
  • Matthew Roskoski – Deputy General Counsel at Latham & Watkins LLP
  • Martin Kaminsky – Chief Legal Officer and General Counsel at Greenberg Traurig LLP
  • Corey Reitz – E-Discovery Project Lead at Sandia National Laboratories
  • Michele Gossmeyer – Global Director, Information Governance, Risk and Compliance at Dentons

“Client Audits” —

• “Client audits (like them or not) happen, and you have to be prepared for them. As we become ever more reliant on technology, the complexity of our systems increases; clients know this and want to be ensured that the data they provide us is well-protected. Most of us are regularly subjected to client audits, which can range from being as simple as a couple of security-related questions to the equivalent of a TSA pat-down. Similarly, outside counsel guidelines and representation agreements are becoming more and more complex, covering a wide range of insurance, governance and security requirements.”
• “So how can we best prepare for and respond to client audits? Bring your friends (and your questions and experiences) and join us in an open mic discussion as we try to chart a better course through the chaos of client audits.”
• Participants:
  • Matt McKinley – Chief Information Officer, Holland & Knight LLP
  • Jon Washburn – Chief Information Security Officer, Stoel Rives LLP

“Treasure Trove On Thumb Drives: Remand Ordered In Dispute Over Conduct Of Departing Attorneys” —

• “The Massachusetts Supreme Judicial Court has remanded in a suit brought concerning the conduct of departing law firm attorneys.”
• “Over the course of more than two decades representing clients in asbestos litigation, the plaintiff Governo Law Firm LLC (GLF) systematically created the contents of a research library, a treasure trove of materials amassed from GLF’s own matters as well as other sources, that gave it a competitive edge in attracting and providing legal services to clients in this specialized field.GLF also built electronic databases to render the library readily searchable, facilitating retrieval of the information.”
• “In the fall of 2016, these proprietary materials were taken by a group of nonequity employees at GLF (attorney defendants) as they prepared to start a new law firm, the defendant CMBG3 Law LLC (CMBG3), in case their planned purchase of GLF proved unfruitful.”
• “The attorney defendants took turns secretly downloading the library and databases, as well as GLF’s employee handbook, other administrative materials, and client lists, onto high-capacity ‘thumb drives’; the attorneys then surreptitiously removed these materials from GLF’s offices.”
• “They subsequently made an offer to GLF’s sole owner, David Governo, to buy GLF, stating that they would resign if the offer were not accepted that day. Governo rejected the offer that same day and locked the attorney defendants out of GLF’s computer systems. The next day, the attorney defendants opened for business under the previously incorporated CMBG3, where they used the stolen materials and derived profits therefrom.”
• “The materials copied included three different types of information: a research library, databases, and administrative files. The research library contained over 100,000 documents relevant to asbestos litigation, including witness interviews, expert reports, and investigative reports… The library was developed by GLF over a period of twenty years, at a cost of more than $100,000. According to testimony by GLF’s expert, these materials were ‘extremely valuable’ and provided a competitive advantage to GLF over other law firms within the field of asbestos litigation.”

My friends and colleagues at InOutsource are hosting their latest virtual risk round table webinar. I’ve enjoyed these past sessions and will be in the audience again at: “VIRTUAL ROUND TABLE: Successful New Business Intake” —

• DATE: April 22^nd at 1 pm Eastern.
• “As partnerships, law firms are complicated organizations. The greatest challenges of the partnership model often are associated with getting the partners to do things associated with running the business of the firm. Lawyers like to practice law, not handle business administration.”
• “One of the key pieces of the business of a law firm is new business intake. Get it right and important downstream processes like timekeeping, billing, collections, and profit analysis will go smoothly. Get it wrong and not only will it jam up those gears but it also could expose the firm to ethical, financial, and reputational risks.””
• “So, if new business intake is so important, why do so many law firms struggle to get it right? What does successful new business intake look like? We have some ideas but we also want you to share yours!”

• Conversation topic starters will include:
  • What works really well? What really doesn’t work?
  • Is this just a hoop to jump through or is there meaningful consideration of new work?
  • Are there creative workflow strategies you’ve employed to get better information from submitters, get better involvement from reviewers (answering the “should we” question), and speed things up?
  • What are the “new” things your firm has asked to know about new matters? (Marijuana businesses, Pricing, LPM, OCGs, etc.”
• Registration link

“Court of Appeals Issues Rare Decision on Revoking Consent to Conflict Waiver” —

• “Earlier this year, Division I of the Washington Court of Appeals issued a decision touching on an area of the Rules of Professional Conduct (RPC) that is rarely litigated: revoking consent to conflict waivers. The decision was “unpublished” under General Rule 14.1, but is instructive nonetheless—both for its illumination of this comparatively “unplumbed” area of conflicts law and as an illustration of the result.”
• “R.O. by and through S.H. v. Medalist Holdings, Inc., No. 81040-5-I, 2021 WL 672069 (Wn. App. Feb. 22, 2021) (unpublished), was painted against the backdrop of parallel federal criminal and state civil proceedings against two groups of related companies, Medalist and Backpage, and their executives. A law firm represented both corporate groups and the executives in the civil case under a set of joint representation agreements. In the criminal litigation, Backpage and its CEO pleaded guilty and, as a part of the plea deal, agreed to cooperate with the government against Medalist.”
• “After the guilty pleas, Backpage’s CEO notified the law firm that he was withdrawing from the joint representation agreement. The law firm, in turn, moved to withdraw from representing all of the Backpage defendants while continuing to represent the Medalist defendants. The CEO, however, objected to the law firm continuing to represent Medalist. The trial court granted the law firm’s motion to withdraw from representing the Backpage defendants—but also disqualified the law firm from continuing to represent the Medalist defendants. The Medalist defendants sought discretionary review, but the Court of Appeals affirmed the law firm’s disqualification.”
• “The Court of Appeals examined whether the CEO had validly revoked consent under Comment 21. It focused primarily on the phrase “material change in circumstances.” The Court of Appeals found that the guilty pleas met that standard. That left the law firm with an unwaived former client conflict. The Court of Appeals then concluded that the trial court was within its discretion in disqualifying the law firm as a remedy for the unwaived conflict notwithstanding the impact on the Medalist defendants.”

“Goulston & Storrs Faces $300M Suit Over Role in Failed Boston High Rise Project” —

• “Am Law 200 firm Goulston & Storrs is facing a $300 million lawsuit based on allegations the firm failed to disclose client conflicts and relevant information to a construction client in Boston, ultimately causing a major real estate development project to flounder. The firm says the claims are without merit.”
• “The complaint, filed Friday by construction magnate John Fish and his company JFF Cecilia in Massachusetts State Court, centers on a billion-dollar, mixed-use high rise project in Boston’s Back Bay neighborhood, referred to in the complaint as the St. Cecilia’s Project. Also involved in that project was Stephen Weiner and his firm, Weiner Ventures, which conceived the project, according to Fish’s complaint.”
• “According to the complaint, Goulston & Storrs has contended that it never represented Fish or JFF Cecilia in the project, and that it only represented the joint venture entity, ADG Scotia Holdings LLC.”
• “But Fish’s complaint referred to ‘five years of emails,’ including screenshots of some of them, that refer to representation of Fish. It alleges that Goulston & Storrs collected about $12 million in fees from Fish, and that Goulston & Storrs formed the entity JFF Cecilia on Fish’s behalf.”
• “In its statement Friday, Goulston & Storrs added, ‘We made clear at the outset of our engagement that we represented the joint venture entity, not the individual interests of Mr. Fish or the other participants relative to the project. In fact, each party signed a conflict waiver letter with our firm acknowledging this agreement, and our team of attorneys fulfilled their professional and ethical obligations at all times. Neither party received preferential treatment; we treat all of our clients with the same respect and superior service.'”
• “In a footnote of the complaint, Fish alleged that ‘Goulston & Storrs itself has confirmed that it failed to obtain a relevant conflict waiver.’ It said when a new lawyer representing Fish asked Goulston & Storrs for engagement letters or conflict waivers related to the project in 2019, the firm responded that it did not have any, according to the footnote.”

“Gibson Dunn DQ’d From Military Contractors’ Copyright Fight” —

• “A California federal judge on Wednesday disqualified Gibson Dunn & Crutcher LP from representing military helicopter maker MD Helicopters Inc. in its copyright infringement suit against government contractor Aerometals, finding that the firm is conflicted in light of its past representation of Aerometals in related fraud litigation.”
• “In an 18-page order, U.S. District Judge Troy L. Nunley agreed with Aerometals Inc. that Gibson Dunn ‘clearly still possesses confidential and possibly privileged information’ from representing Aerometals in prior litigation from 2002 through 2005, and that none of the actions that Gibson Dunn took after learning of the possible conflict could cure the issue.”
• “‘A number of California courts have found vicarious disqualification of a firm to be required where a substantial relationship is proven, ‘even if the firm erects an ethical wall around the attorney who possesses the opponent’s confidences,” the order says. ‘Accordingly, this court too finds Gibson Dunn’s ethical wall insufficient to prevent the firm from vicarious disqualification.'”
• “Gibson Dunn sought to serve as co-counsel for MD Helicopters in July 2019, but Aerometals asked the judge to disqualify Gibson Dunn the following September. Aerometals argued that roughly 12 attorneys at the law firm had represented the company in four related matters from 2002 to 2005, and had charged Aerometals more than $1.1 million in fees and costs.”
• “Aerometals had expressed concerns to Gibson Dunn about its past representation of the company, but the firm argued in response that most of the attorneys who worked on those cases no longer practice at Gibson Dunn and that none of the attorneys working on the instant suit worked on the prior cases. Gibson Dunn also said that it had implemented an ethical wall since receiving Aerometals’ objection, and that disqualifying the firm at this stage of litigation would be highly prejudicial.”

“Arnold & Porter Accused Of Conflicts In Mallinckrodt Ch. 11” —

• “Parties with antitrust claims against bankrupt drugmaker Mallinckrodt and mail order pharmacy Express Scripts are asking a Delaware district court to remove Arnold & Porter as special counsel in the Mallinckrodt Chapter 11 case for alleged conflicts of interest… the plaintiffs in the antitrust case said they intend to argue the law firm is simultaneously representing Express Scripts, creating an ‘irreconcilable conflict of interest.'”
• “A proposed antitrust class action was filed in April 2017, contending that Mallinckrodt’s predecessor Questcor was able to jack up the price of Acthar through various practices, including a 2007 agreement with Express Scripts that made it the sole supplier of the hormone treatment. Mallinckrodt bought Questcor for $5.9 billion in 2014, and the complaint contends little has changed under Mallinckrodt’s watch, with the drug’s price ultimately being raised 1,300%.”
• “Arnold & Porter has been serving as Mallinckrodt’s counsel in connection with the Acthar cases, and last month the plaintiffs in the cases filed an appeal with the U.S. District Court for the District of Delaware of the bankruptcy court’s order allowing Mallinckrodt to retain the firm.”
• “In the papers, the plaintiffs say they intend to argue Arnold & Porter failed to make a full disclosure in its retention application and was simultaneously representing Express Scripts, creating a conflict of interest.”

“New York Gov. Andrew Cuomo’s Office Hires Outside Lawyers For Sex-Harassment Probe” —

• “New York Gov. Andrew Cuomo’s office has hired outside lawyers to represent his Executive Chamber in an investigation into accusations that the governor acted inappropriately to aides in the workplace.”
• “The lawyers are Paul Fishman, a former U.S. Attorney in New Jersey, and Mitra Hormozi, who worked for Mr. Cuomo when he was state attorney general, according to a statement from the law firm Arnold & Porter. Mr. Fishman is a partner at the firm.”
• “Davis Polk & Wardwell LLP will assist the chamber’s judiciary committee in examining Mr. Cuomo’s conduct, Assembly Speaker Carl Heastie said.
• “Mr. Heastie said that the Davis Polk team would include Angela Burgess, Greg Andres and Martine Beamon. They will work with Assemblyman Charles Lavine, a Democrat from Long Island who chairs the chamber’s judiciary committee.”
• “One of Mr. Cuomo’s accusers, 25-year-old former aide Charlotte Bennett, has said that the governor asked her about her sex life during a meeting in his office in June. Later that month, Ms. Mogul spoke to Ms. Bennett after she complained about Mr. Cuomo’s behavior…In a statement, Ms. Bennett’s attorney Debra S. Katz said she was alarmed at the selection of Davis Polk for the impeachment inquiry.”
• “Ms. Katz said the law firm’s hiring represented a conflict of interest because Dennis Glazer, who was a longtime partner in the firm before he left in 2012, is the husband of New York State Court of Appeals Chief Judge Janet DiFiore, who was appointed by the governor.”
• “A spokesman for Judge DiFiore said she had no connection to the firm or any involvement in its selection.”

“DOJ Says Atty Wall Can’t Fix Morgan Lewis, Glenmark Conflict” —

• “The U.S. Department of Justice on Friday told the Pennsylvania federal court overseeing a criminal price-fixing case against Glenmark and Teva that the ‘ethical walls’ put in place by Morgan Lewis & Bockius LLP may not be enough to fix potential conflicts of interest for the firm.”
• “The DOJ filed a reply brief on Friday supporting its call for a conflict of interests hearing over the agency’s concerns about Morgan Lewis’ representation of Glenmark in the generic drug fixing case, its past representation of Glenmark and Teva during the investigation and its current representation of both companies in parallel civil litigation.”
• “Glenmark had responded that Morgan Lewis has nothing to hide, noting that neither company objects to its participation in the case, and said the firm had had safeguards in place to prevent attorneys working for each of the companies from seeing the others’ information. But the DOJ said Friday that might not be enough.”
• “‘It is for this court to decide whether waiver of the conflict here is sufficient,’ the DOJ’s reply said. ‘Glenmark attempts to create an exception to the imputation of conflicts to allow a large firm like Morgan Lewis to enact screens and then assert that conflicts cannot be of concern because the clients do not object. The applicable rules do not allow for such an exception.'”
• “The DOJ further contended that the rules and cases cited by Glenmark allow screens to be put in place when an attorney moves from one firm to another, ‘not for a law firm to circumvent conflicts of interest.’ The DOJ also argued that the existence of ethical walls does not address the fact that Morgan Lewis has an ‘ongoing duty of loyalty’ to both Glenmark and Teva.”
• “Glenmark responded to the motion arguing that DOJ’s concerns are “misplaced,” noting the ethical walls and the fact that Wilkinson Stekloff is Glenmark’s lead counsel in the criminal case. The response also said Teva is a sophisticated party with its own experienced attorneys.”

“Akerman Out: Big Law Firm, Partner Disqualified for Alleged Conflict in Insurance Suit” —

• “A Florida trial court ruled in favor of the plaintiffs on the threshold legal issue of disqualifying a nationwide law firm and one of its partners in its Miami office in multi-year insurance litigation.”
• “Miami Dade Circuit Judge David C. Miller granted the plaintiff’s motion to disqualify Akerman and commercial litigator Valerie B. Greenberg in a case that shows the complexity of Florida’s no-fault law, and how multiple insurers are constantly facing off when policy beneficiaries have motor vehicle accidents.”
• “Attorney John H. Ruiz, a founder of MSP Recovery Law Firm in Coral Gables, which is one of the plaintiffs in the case, welcomed the outcome. Ruiz said that the judge made the decision in favor of the plaintiffs on the baseline requirements for the case to proceed that they presented to the court. Citing court documents, he stated Greenberg and Akerman had multiple conflicts of interest in this case due to their representation of dozens of insurance companies, some of whom had conflicting issues.”
• “‘The takeaway is you need to represent clients and have their best interest in mind,’ Ruiz said. ‘When you’re doing that with multiple clients, you can’t do that ethically or effectively, if you cannot advance the interest of one client, because advancing the interest of one client affects the interest of another.'”
• “Now, Greenberg and Akerman will have an opportunity to appeal the motion to disqualify and will face a May 5 evidentiary hearing to dispute the conflict-of-interest allegations.”

“California Lawyers Association Ethics Committee Issues Formal Opinion on Ethical Screens” —

• “The California Lawyers Association (CLA) Ethics Committee has issued its first formal ethics opinion, Formal Opinion 2021-1, addressing Ethical Screens. The opinion promises to be a vital resource for any law firm wishing to minimize the risk of conflicts. Several Rules of Professional Conduct expressly provide for implementation of a screen without client consent to rebut the presumption of shared confidences, and CLA’s opinion clarifies and expounds on those Rules, including 1.0.1(k) (which provides a definition of the term “screened”).”
• “The opinion addresses the elements an ethical screen must have in circumstances where such a screen is expressly required by the Rules. Importantly, the opinion notes that there may be a distinction between what is ethically required to comply with professional obligations and what a court may view as necessary to avoid disqualification, which sometimes may be granted without a violation.”
• “The most critical ethical screen factors are those expressly set forth in the Rules. The screen must be implemented in a timely manner, and include preventative measures to protect against the confidential information of the former or potential client from being shared with others in the firm. There should be no communications related to any matter being protected in either direction across the screen. The lawyers whose conflict results in them being screened off should not receive any portion of the fees from the matters they are screened from. And the affected clients must receive notice of the fact of the screen and its terms so they have an opportunity to comment about them. Additional factors may help the efficacy of the screen in preventing the sharing of confidential information, but whether they should be implemented largely depends on the circumstances.”
• “Any ethical screen must ultimately be judged by whether it is sufficient to meet its purpose, to satisfy concerns that a prohibited attorney has not and will not have any involvement with, or communication concerning, the screened matter that would support a reasonable inference that confidential information was or will be disclosed.”

“CLA issues its first advisory opinion on ethical screens” —

• “To rebut the presumption that lawyers who are practicing together are sharing confidential information about a particular client, the firm or employer may create an ethical screen. This would allow a firm to take on a client whose interests may be adverse to the interests of another client of the firm or, as is often the case, a client once represented by someone else at the firm.”
• “This could arise when a government lawyer leaves public service and joins private practice or when a lawyer in private practice leaves one firm for another firm — whether or not the lawyer took their ‘book of business’ with them. The lawyer who is new to the firm may need to be screened from knowledge about certain matters being worked on by their new colleagues. Absent an effective ethical screen, everyone at the lawyer’s new firm would be precluded from representing clients with a conflict vis-à-vis work the lawyer did previously because the lawyer’s conflict is imputed to the entirety of the new firm.”
• “One of the universally mandatory elements of an effective ethical screen is that it be imposed in a timely manner. In practice, this means instituting the screen as soon as reasonably possible following discovery of a conflict. It is much easier (and ethical!) to decline to take on a matter or to get conflict waivers at the beginning of an engagement than to seek waivers or — worse yet — to have to withdraw, because a conflict was discovered after the representation has begun.”
• “The last few universally mandatory elements of an effective ethical screen all go together and could be characterized as “good housekeeping” for any law firm. These elements include prohibiting communications across the screen, limiting access by the screened person (for example, the former government lawyer) to the screened matter’s file, and limitations on access to the screened lawyer’s documents and information — e.g., the documents and information the new lawyer brings from their former employer.”
• “A variety of other tools and techniques are available to law firms and legal employers, depending on the circumstances, all which would enhance the effectiveness of an ethical screen and all of which, if viewed in retrospect, may strengthen a firm’s argument that it had an effective ethical screen in place.”
• “And, finally, just as one of the most important steps to imposing an ethical screen at the beginning of an engagement is to have mechanism for conducting and to actually conduct a conflicts check, once that screen is in place, firms would be well-served to periodically monitor the screen for its effectiveness.”

We noted this story when the news first broke. Now come additional developments and expanding industry commentary. First, extensive analysis and third party commentary: “Turning Down a Client on Ethical Grounds a Difficult Decision for Law Firms” —

• “An email by an Australian law firm leader apologising to staff after a senior partner had agreed to represent a politician accused of an historic rape has cast light on the question of how often law firms ever turn down clients on ethical or moral grounds.”
• “Firms rarely publicly discuss or acknowledge the issue, and generally do not disclose what policies, if any, they have regarding the ethics of a clients’ action.”
• “Law firm leaders and observers say that for the most part firms don’t turn down clients for reasons other than conflict of interest or concerns about their solvency, but it might become more of an issue as firms seek to protect their reputation in the broader community.”
• “Annette Kimmitt lost her job as chief executive of top-tier Australian corporate firm MinterEllison this week after she emailed staff to ‘apologize for the pain you may be experiencing’ because defamation specialist Peter Bartlett had agreed to represent Commonwealth Attorney General Christian Porter over allegations he raped a 16 year old girl in the 1988. Porter denies the allegations.”
• “The email caused uproar at the firm, according to local reports, and on Monday the firm’s board sacked Kimmitt, an accountant who joined the firm from EY in 2018.”
• “Choosing whether or not to represent a client is a business decision, Tim Corcoran, a legal management consultant with offices in New York, Charlottesville, and Sydney, said in a LinkedIn post. ‘This is a business decision, like Jones Day representing Trump and McKinsey on the opioids thing,” he wrote. “As owners of the business, you know there are consequences, even if there isn’t a $100 million fine like McKinsey had, or you might have some partners leave Jones Day because they dealt with Trump and their clients didn’t like it.'”
• “Corcoran, who also spoke on a call, says Kimmitt was “dead on” for complaining Bartlett didn’t consult the wider firm on the decision to represent Porter. “If you are going to take on an investigation and potentially offend clients of the firm, you need to have a discussion on whether we are prepared for that and talk internally about it. The fact that it didn’t happen here, that was a poor decision,” he argues.”
• “This is the approach at Melbourne and Sydney firm Arnold Bloch Leibler, where a conflicts notice is sent to every member of staff before the firm takes on a new client to give anybody a chance to raise an issue if they would ‘feel uncomfortable about the firm acting on a particular matter.’
• “An issue very rarely arises, says senior partner Mark Leibler, but if one does, the firm’s 35 partners discuss it informally and come to an agreement.”
• “They have never had a vote on a client, but a decade ago the firm stopped acting for arts organisation RedBubble after it started producing ‘Hipster Hitler’ T-shirts. ‘We really didn’t have to think about it,’ recalls Leibler, who adds that the goings on at MinterEllison have caused him to consider how the firm decides on clients.”
• “The managing partner of a large national Australian firm, who declined to be named, says the firm decided some years ago not to represent the tobacco sector after being approached by a potential client. The firm has a policy of declining to reject whole industry sectors rather than particular businesses or clients. ‘It’s uniform; we can say to everyone that it’s a policy position,’ he says.”
• “Despite the risk to their reputation, commercial law firms rarely refuse to act for clients on ethical grounds or ESG (environmental, social and governance) considerations, says Professor Simon Rice of the University of Sydney Law School.”
• “They are balancing two competing reputational considerations when they agree to take on a client. ‘One is their reputation in the market as being available to commercial clients as a good lawyer, against whatever reputational risk they fear might attach to being a lawyer for a client who attracts opprobrium in public. And the former far outweighs the latter,’ he says.”

See also interesting public commentary in response to a prompt by the Editor-in-Chief of ALM on LinkedIn:

• Law firm management advisor Timothy Corcoran: “A number of people, here, in Aussie op-eds, Twitter, etc., have raised the “everyone deserves quality legal representation” point. It’s a fair point. But it’s not that simple. Clients aren’t required to ponder that when they see a preferred panel law firm represent someone, or something, they find contrary to their values. And law firms, as businesses, need to weigh these considerations before leaping into new engagements that benefit one group but disadvantage others. This could be a lively discussion… The partner’s initial action, and the Board’s subsequent action, have sent a loud message to the firm’s lawyers, employees, clients, and to the public, whether intentional or not, that the shareholders value publicity and fees more than they value their reputation. Rather than see this engagement as going against the firm’s stated values, I see it as an endorsement of their actual values. Jones Day doesn’t care. McKinsey partners don’t care. Apparently neither does Minters.”
• PR and Crisis Communications Advisor Gina Furia Rubel: “As an attorney, I believe everyone has the right representation, however, firm culture and values should come into play when deciding who to represent. As a business leader, I advocate for following process and procedures. On the surface, it appears that they did not do that here. As a public relations advisor to law firms internationally, much of this could’ve been avoided if the firm prescribed to open communications. The email, in my opinion, is akin to letting people know that something they’re about to see, read, or learn about can trigger painful and emotional responses. She obviously has emotional intelligence and cares about the behavioral health of her colleagues. Sad and true, this is the classic, “rainmaker does no wrong” approach to law firm decision making.”
• Clark Hill Law Director of Marketing Roy Sexton: “I do wonder if this is a bit of the guild punishing her and if she had been an attorney they would have taken different action. Or no action. That is of course just my own prejudiced conjecture. But I think by this action, the firm has taken a bad situation and made it infinitely worse from a cultural perspective and from a PR one.”
• Crisis and Risk Communications Consultant Aidan M. Ryan: “Very interesting. Two industry trends intersecting here: 1. Heightened expectations that client representations will align with stated firm values, and 2. Culture clashes as nonlawyers take leadership positions. We saw something like this with the backlash against U.S. firms participating in election litigation – the profession’s ancient traditions around the right to representation (at least in the civil sphere) are very much under siege.”

Here’s a great approach to conflicts education from from Burns & Levinson partner Tiffany Bentley and associate Noelle Lussier. What caught my eye in particular is that the firm has created a scenario to explore several issues: “A Family History of the Austens.” There are: “…made-up people with a wild accumulation of fictional (but factual) circumstances that raise all kinds of probate and fiduciary litigation issues.”

The conflicts pieces is the subject of: “An Estate Planner’s Duty of Loyalty: Examining the Austen Family” —

• “Attorney Hume was Jack’s estate planning attorney. It is not surprising, then, that when Kate and Charlie had questions about their father’s estate plan following his death, they turned to Hume for advice. But what are the limits on what Hume can do for Kate and Charlie? What are the potential conflicts of interest, and what actions should Hume take to ensure that he fulfills his duties to his client – Jack – in the face of any conflict?”
• “We can presume that the engagement letter states that the client in this case is Jack, not the Austen family and not Jack and Juliet jointly, as we know Jack failed to inform any of his family members of his estate plan prior to his death.”
• “(Notably, attorneys engaging in dual representation of spouses could technically be violating the rules of professional conduct. To avoid a conflict of interest, attorneys – especially estate planning attorneys – must be clear in their engagement letters regarding joint representation and provide a full disclosure of the possible effect of dual representation. For purposes of this fact pattern, however, we will assume there was not a joint representation and that Jack was Hume’s only client.)”
• “After Jack’s death, Hume met with Kate and Charlie to inform them of their father’s succession plan, specifically, that the remaining membership interests in the company would ultimately be divided equally among the siblings. A conflict of interest likely arose once Hume began to advise Kate with respect to her mother’s incapacity.”
• “Hume advising on the disclaimer of assets, as well as providing tax advice upon Juliet’s death, may be considered outside the scope of his original work for Jack and would – at least potentially – create a divergence of interests among the beneficiaries of Jack’s estate, pitting the children against the surviving spouse. Further, by providing legal advice such as this, Hume may be creating an unintended attorney-client relationship with both Kate and Charlie, whose interests are neither aligned with each other nor with Jack’s estate. Hume would not be able to maintain his duty of loyalty and care owed to Jack’s estate while also owing these duties to Kate and Charlie.”
• “Hume then went even further, indicating that he would need to apply for the conservatorship in order to execute the disclaimer on Juliet’s behalf. There would certainly be a conflict of interest if Hume himself stepped into the role of Juliet’s conservator, as he would then be serving as a fiduciary for Jack’s estate and Juliet.”