Risk Update

Cakes and Cut Deals — Chocolate Cake Not a Conflict, Deal-cutting Firms Facing Administration,

Posted Dan Bressler

David Kluft notes: “If the judge exchanged a chocolate cake recipe with opposing counsel’s mom, can I get her recused?” —

  • “In a TN civil bench trial, the transcript began with a partial conversation between defense counsel and the judge about a chocolate cake recipe, and a strange reference by the judge that she had already ‘told [plaintiff’s counsel] about the chocolate cake recipe,’ followed by laughter.”
  • “The ‘chocolate cake recipe’ conversation was referencing the fact that the judge’s son and defense counsel were best friends as children in the 1980s, and the judge had exchanged a cake recipe with defense counsel’s mom, but then the families fell out of touch.”
  • “This relationship was apparently disclosed prior to trial, but it was not captured on the transcript. Plaintiff did not move to recuse before trial, but did so after he didn’t like the judgment. Plaintiff claimed that bringing up the chocolate cake recipe relationship 10 seconds before trial started was essentially an unfair ambush that caught him unaware.”
  • “On appeal, the TN Supreme Court affirmed denial of the recusal motion, holding that the plaintiff did not timely move for recusal, that the mere existence of a friendship between a judge and a lawyer is not enough for recusal, and that a friendship between the judge’s son and defense counsel that ended thirty years earlier was not enough to raise a legitimate question about the judge’s impartiality.”
  • Decision: here.

“Some law firms that cut deals with Trump take cases opposing his administration” —

  • “When nine U.S. law firms struck agreements with President Donald Trump in March and April to head off a crackdown on their business, it prompted broad concern that the deals would deter them from taking cases against his policies. Months later, at least four of them are involved in lawsuits opposing Trump’s administration in cases involving transgender rights, immigration, tariffs and wind power, court records show.”
  • “The four firms are Latham & Watkins; Willkie Farr & Gallagher; Skadden, Arps, Slate, Meagher & Flom; and Milbank. They represent clients that have sued the administration since May, after the agreements were reached.”
  • “It is unclear whether these four firms or others may still be steering clear of certain cases for fear of drawing Trump’s ire or imperiling their agreements with the Republican president. Some legal experts said law firms may be wrestling with competing pressures, since representing clients against the government is a key driver of business and prestige.”
  • “‘A lot of litigation is opposed to the federal government,’ said Michael McCabe, a business lawyer who advises other attorneys on ethics matters. ‘All of that work is an important part of a law firm economy.'”
    “A Reuters investigation in July found that dozens of major law firms, wary of retaliation, have broadly scaled back pro bono work, workplace diversity initiatives and litigation that could place them in conflict with Trump. Reuters also found that top firms had pulled back from litigation against the U.S. government.”
  • “Legal industry experts said the lawsuits involving the four firms that have reached agreements with Trump include the kinds of matters large firms cannot easily give up, serving important clients or spearheaded by key lawyers at the firms.”