Risk News — Co-defendant Adversity, Union Fails to Disqualify Lawyer in Termination Suit, Attorney Disclosure Conflicts Claim Considered
Posted onIn Massachusetts: “Attorneys – Duty to disclose – Rule 1.13(b)” —
- “Where a plaintiff limited liability company has alleged that a defendant attorney was negligent in not disclosing to the plaintiff’s board of directors certain information that the company’s chief executive officer shared with the attorney regarding a federal investigation, the attorney is entitled to summary judgment because he did not have and did not breach any duty to disclose directly to the board the information that was already known to its CEO.”
- “‘Massachusetts Premier Soccer LLC ran a for-profit youth soccer business under the name Global Premier Soccer. The parties refer to the plaintiff as ‘GPS.’ Many of GPS’s coaches were foreign nationals who were present in the United States under temporary, non-immigrant visas. During 2018, federal agents began to investigate GPS’s use of these visas for its coaches. Attorney Perry Henderson and his law firm Burns & Levinson were doing a broad array of corporate legal work for GPS, but not representing or counselling GPS with respect to its visa pro0gram. GPS’s chief executive officer, Joseph Bradley, knew about the apparent federal investigation and shared some of that information with Henderson. In October 2019, federal agents executed a search warrant at GPS’s headquarters. GPS contends that its reputation and business were severely harmed by this surprise raid, and that it could have avoided this harm if Henderson had told other board members about the investigation.”
- “‘GPS has three remaining claims against Burns & Levinson and Henderson. First, it alleges that Henderson was negligent in not disclosing to GPS’s board of directors the information shared by CEO Bradley about the apparent federal visa investigation, that if the Board had been aware of what was going on it could have managed the situation and avoided the surprise execution of a search warrant, and that Henderson’s alleged breach of a duty of disclosure to the Board substantially harmed GPS. Second, GPS claims that Burns & Levinson had a conflict of interest because it was representing Bradley and GPS at the same time. Third, it also claims that Burns & Levinson improperly billed GPS for worked done solely for Bradley.”
- “‘The Court will allow the motion by Burns & Levinson and Henderson on these claims. As for the first claim, the summary judgment record establishes that these defendants did not have and did not breach any duty to disclose directly to GPS’s board the information that was already known to its CEO. GPS did not articulate any substantive opposition to the summary judgment motion with respect to the other two claims. …”
- “‘Though GPS has sued Burns & Levinson and Attorney Henderson for legal malpractice, it does not contend that these defendants were negligent in providing legal services or advice. Instead, GPS asserts in count I of its complaint that these Defendants were negligent because they allegedly had and breached an affirmative obligation under Mass. R. Prof. Conduct 1.13(b) to notify other board members that federal officials seemed to be looking into the GPS visa program. The Court will allow Defendants’ request for summary judgment on this claim because the summary judgment record establishes that Burns & Levinson and Henderson did not have and did not breach any such duty under the circumstances of this case. …”
- “‘GPS contends that Burns & Levinson and Henderson had a duty under Mass. R. Civ. P. 1.13(b) ‘to disclose to the non-conflicted members of the GPS board of managers the existence of the criminal investigation as a corporate crisis involving ongoing business practices at the core of the business.’ The Court is not persuaded. It concludes that, as a matter of law, Defendants did not have and did not breach any such duty. …”
- “‘The summary judgment record establishes that Defendants had no duty under Rule 1.13(b) to inform other board members about the apparent federal investigation for several, independent reasons.”
- “‘Second, Henderson had no actual knowledge — or, for that matter, any reason to believe — that the federal investigation into GPS’s visa program concerned ‘a matter related to the representation’ of GPS by Burns & Levinson. As discussed above, Burns & Levinson was not involved in designing the visa program and did not submit any petitions seeking visas. Nothing in the limited information shared with Henderson by Bradley suggested that the apparent federal investigation was related in any way to matters or issues as to which Burns & Levinson had done legal work for or provided legal advice to GPS.”
- Read the order: here.
“RND Contractors, Inc. v. Superior Court (2025) E084508 [Cal.App.4th Dist., Div. Two, July 1, 2025]” —
- “The Court found that a party may oppose a co-defendant’s motion for summary judgment even if the plaintiff does not oppose it, and even if there are no cross-claims between the parties, so long as the parties are adverse to each other.”
- “Specifically, the California Court of Appeal found:
- When a defendant moves for summary judgment and the plaintiff does not oppose, another party—such as a co-defendant—can oppose the motion if that party is adverse to the moving defendant.
- There is no requirement that cross-claims exist between the parties for them to be considered adverse.
- The trial court erred by refusing to consider the oppositions filed by RND and Balfour (co-defendants), on the basis that they lacked standing due to the absence of cross-claims.”
- “The appellate court granted the petition for writ of mandate, directing the trial court to vacate its order granting summary judgment and to reconsider the motion after taking into account the oppositions of the adverse parties.”
- “This decision clarifies California law on summary judgment procedure in multi-defendant cases, ensuring that adverse parties have the opportunity to oppose summary judgment motions, regardless of whether the plaintiff participates or cross-claims exist.”
“Union Loses Atty DQ Bid In NJ Wrongful Termination Dispute” —
- “A longshoremen’s union has lost its bid to disqualify an attorney from representing a former member in a wrongful termination suit in New Jersey federal court that alleges the union gave him bad advice that prevented him from properly fighting claims that led to his termination.”
- “‘The crux of the disqualification motion is that Till previously represented Garcia in 2018 in connection with an inquiry by ILA Local 1235 related to his run for president, and is therefore conflicted from now being adverse to him,’ the opinion summarizes.”
- “But the magistrate judge ruled that ‘there is no basis for disqualifying Till under applicable Rules of Professional Conduct.'”
- “Although Till had advised Garcia in connection with a 2018 interview regarding an investigation into whether certain of Garcia’s ‘familial relationships’ should bar him from running for the union presidency, that matter isn’t ‘substantially related’ to Pagan’s suit, the magistrate judge ruled.”
- “‘Here, there is no dispute that Garcia is a former client of Till, and that plaintiff’s interests in this lawsuit are materially adverse to Garcia,’ the opinion said. ‘As defendants have satisfied this initial burden, the burden then shifts to Till [to] demonstrate that the [previous] matter and the instant matter are neither the same nor substantially related. There is no question that this matter is not the same as the former matter.'”
- “The previous matter was limited to Garcia’s vetting for the union presidency, while ‘the current matter involves allegations made 6 years later by an unrelated union member concerning the termination of his employment,’ Judge Adams wrote.”
- “In her ruling, the judge also wrote: ‘Beyond his familial relations, there may have been minimal discussion between Till and Garcia about how Garcia intended to lead the union if elected, but that information was widely publicized to the union members who ultimately elected him. Till confirmed he has not conferred with Garcia since 2018.'”
- “The union and Garcia failed to identify ‘any confidential information disclosed by Garcia to Till during the course of the 2018 representation that would be relevant or material to the instant matter,’ the magistrate judge wrote.”