Risk Update

Time for Time Entry, Phishing, Cloud & Malpractice Risk

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Hat tip to Simon Chester at Gowling WLG for pointing out: “Email fraudsters impersonate Clifford Chance UK managing partner” — 

  • “The Solicitors Regulation Authority (SRA) confirmed that a number of emails have been sent misusing the name of Clifford Chance and Michael Bates, the magic circle player’s UK managing partner. The phishing-style emails invite recipients to review an attachment, which isn’t attached, regarding a client matter, according to the regulator’s alert.”

These security topics are timely. Last week, watching a webinar on integrating client OCG compliance into time entry software, jogged my memory on the topic of time and technology risk, and I thought I would share a few items of note.

First, on the topic of billing compliance see also: “Block Billing Gets Attorney Suspended” — 

  • “Ronald D. Hassan is a lawyer who admittedly engaged in “value billing” and “block billing” to calculate the amounts owed to him by the Public Defender Services (PDS) for his court-appointed representation of criminal defendants. Mr. Hassan’s billing practices resulted in impractical absurdities such as billing thirty or more hours on multiple days. He was charged with violating two separate provisions of the West Virginia Rules of Professional Conduct.”

Another interesting story about law firm time software risk caught my eye a few months ago, and I found myself exploring a chain of articles and reading a malpractice complaint.

As is widely reported, targeted spear phishing attacks are a known and growing problem for the entire industry. And according to an ABA survey published last year, one in five law firms experience a “cyber incident.” It’s actually noted that 20% of firms reported being the object of a cyber attack. The actual number may be higher.

And, as reported this week in the Texas Lawbook: “Four out of five corporate law firms operating in Texas have experienced a “cyber incident” or an actual data breach during the past two years, according to an exclusive new Texas Lawbook survey.”

The ABA also noted this fascinating incident: “Law Firm Cybersecurity Breach Opens Door to Lawsuit,” which notes this case Shore et al v. Johnson & Bell, Ltd (described here, but you have to scroll):

  • “The class action against Chicago firm Johnson & Bell is understood to be the first in which a law firm has been accused of exposing client information and failing to protect client data through inadequate security.”

  • “In the former, the claim states that the defendant operates a Webtime service developed by Rippe & Kingston, which the claimants say has not been properly configured and is running out of date software.”

  • “The claim, which Johnson & Bell has publicly called ‘baseless’ and ‘specious’ and says it will fully defend, seeks to compel Johnson & Bell to ‘implement industry standard protocols; to allow an independent third party firm to conduct a security audit; to inform Johnson & Bell’s clients that their confidential information has been exposed; and damages.'”

The complete complaint makes an interesting read.

To be fair to the vendor, it looks like the 100 lawyer firm’s IT standards were allegedly lacking… they hadn’t updated their self-managed, internet-facing system in several years.

But merits of this particular matter aside, no firm or vendor wants to see itself subject to this type of public attention and scrutiny. Like any category of serious risk, it’s always prudent to ensure your firm has its internal processes defined and up to date. And equally important that vendors are working carefully to ensure issues like these are addressed —  and updates are actually being implemented by clients. (I type as my Windows system informs me a mandatory shutdown is imminent…)

Risk Update

Records, Retention & IG: Client Files and Client Identities

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From the Ethical Grounds Blog (which sounds like the makings of a great name for a firm’s in-house coffee bar…) comes some interesting commentary in the just issued NYSBA Ethics Opinion 1164 (Returning client files without keeping a copy; conditions on compliance): “When a client asks you not to keep a copy of the file” —

  • “A quick recap: Upon the termination of a representation, Rule 1.16(d) requires a lawyer to surrender ‘papers and property to which the client is entitled.’ The client is entitled to ‘the file.’ A lawyer may keep a copy of the file. A lawyer’s malpractice policy might include a provision that requires a lawyer to keep a copy of the file. Today’s question: what to do if a client directs a lawyer not to keep to a copy of a the file?”

  • “Former Employer alleged that Client had misappropriated propriety information, and that some of it was in the data that Client had provided to Lawyer; Client terminated Lawyer, and hired new counsel; Lawyer forwarded the file, but kept a copy, including back-ups of the digital data; Client and Former Employer settled; the settlement required Client to “retrieve and destroy” all of the digital data; Client asks Lawyer to destroy the digital data.

  • The NYSBA’s response: A lawyer has a valid interest in keeping a copy of a former client’s file. The general rule is that a lawyer may do even over a former client’s objection. In New York, a lawyer may condition not keeping a copy on the former client providing a release.”

  • “The lawyer’s interesting in keeping a copy of the file is not unqualified. There may be times when ‘extraordinary circumstances’ exist that favor requiring a lawyer to comply with a former client’s instruction not to keep a copy of the file. A lawyer may condition compliance with a former client’s instruction to destroy copies of the file on obtaining a release and hold-harmless agreement from the former client. A lawyer may condition compliance with a former client’s instruction to destroy copies of the file on creating and keeping an inventory of the material provided to the lawyer by the former client.”

Next, a different type of fight over client files: “Covington Told To Hand Whole Client File To Flynn Associate” —

  • “Michael Flynn business associate Bijan Rafiekian won an order on Tuesday [4/9/19] telling Covington & Burling LLP to hand over notes and documents related to a false foreign agent registration that Rafiekian is accused of causing the firm to make about work he and Flynn did for the Turkish government.”

  • “A Virginia federal judge ruled that Covington must hand over the entire client file including notes containing attorneys’ thoughts to Bijan Rafiekian, a former director of the Flynn Intel Group.”

  • “Last month, he subpoenaed Covington for its client file related to the foreign agent registration he’s accused of lying to the firm about, ‘including, but not limited to, notes, memoranda, timesheets, billing records and other documents.’ Covington opposed the demand, saying the material was irrelevant, protected by attorney-client privilege and mingled in a file with non-FARA and non-FIG related work for Flynn. The firm also claimed Rafiekian was not the firm’s client.”

  • “Yes, he is, U.S. District Judge Anthony J. Trenga decided on Tuesday. Judge Trenga pointed to the fact that Flynn and Rafiekian were the only directors and shareholders of FIG. Flynn was CEO and chairman of the two-person board, but the judge said that didn’t give him the sole right to Covington’s work for the company, which Rafiekian says he paid for in part. Instead, the judge said the pair are ‘comparably situated’ within the company under Delaware law.”

Risk Update

Technology, Advertising, Alleged Jury Influence & Ethics Rules

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A fascinating scenario making news: “Did Defendants in Latest Roundup Trial ‘Geo-Fence’ Jurors?” —

  • “At the beginning of the third and latest trial over alleged toxic properties of Roundup, plaintiffs lawyers asked a judge to prevent Monsanto Co. from advertising that its weed killer was safe. Their motion for temporary injunction focused on a full-page ad in The Wall Street Journal on the first day of voir dire, but that wasn’t what alarmed them the most—in court, they brought up another, more cutting edge, marketing practice: geo-fencing.”

  • “Geo-fencing is a digital marketing tool that allows companies to send pop-up advertisements to cell phone apps within a designated geographical area—in this case, according to plaintiffs attorneys, the courthouse in Oakland, California, where the third Roundup trial is ongoing. At an April 4 hearing, plaintiffs’ attorneys told the judge that Monsanto’s advertising activities were akin to juror tampering and asked to prohibit geo-fencing within a quarter of a mile of the courthouse.”

  • “Although she acknowledged that geo-fencing ‘raises a number of issues,’ noting that ‘technology has taken us places probably we never thought it would go,’ Alameda County Superior Court Judge Winifred Smith denied the plaintiffs’ motion. ‘The court is not persuaded that the alleged geo-marketing is materially different from carrying signs outside a courthouse or carrying placards or wearing buttons inside a courtroom or that it requires a different judicial response,’ she wrote.”

  • “‘Some of the jurors who didn’t end up making it on the jury said they were getting pop-up ads touting the history and safety of Roundup,’ Brady said. ‘That’s when we became concerned about it. And we noticed it—a number of us who are not jurors to the case.'”

  • “The American Bar Association, in fact, came out with a formal ethics opinion last year that addressed attorneys talking about their cases online, like in blogs. ABA’s Model Code of Judicial Conduct also prohibits lawyers from influencing a jury.”

Risk Update

INTERVIEW: Bill Frievogel on Risk Trends (Client Pressures, Conflicts Challenges and Response Strategies)

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Incredibly pleased to share my interview with Bill Freivogel: “Expert Exchange: William Freivogel.” (or another link if you prefer a collectible PDF)

A longtime friend and risk inspiration (and source of innumerable but always cited conflicts cases of note), he graciously agreed to spend some time sharing his perspective on a gamut of issues.

In our discussion, we cover: risk management, ethics and professional responsibility trends facing the legal industry — client pressures, conflicts challenges and response strategies.

Both a frank assessment of the current landscape:

  • “Over the past few years, my work has been mostly with large general practice firms with big business practices. What we’re seeing, and a lot of it I get from talking to people in my network, is that the very best firms are making more mistakes. They’re under pressure to do more. They’re under budgeting pressures. The corporate world is constantly tightening the screws on what the firms can bill for. They put limits on how much you can bill for an associate, for example, or even billing for first-year people. That sort of thing.”

  • “At the same time, business has improved since the Great Recession, so there’s often actually more work to be done. And all of these factors have added up to seeing a few more mistakes. Sometimes those are just plain missing deadlines, leaving paragraphs out of important deal documents, that sort of thing. But that hadn’t been the case for most of the 30-some years I’ve been doing this work.”

  • “The bigger firms were largely clean of simple mistakes, but that’s changed a bit. That’s the one I’d note as a surprise. But in hindsight, we should have predicted it. Of course, another trend is tied to bad clients…”

And optimism:

  • “My experience has been there is a general improvement among law firms as to the many things they need to do to avoid trouble, in the areas of conflicts of interest and representing dishonest clients.”

  • “In terms of avoiding conflicts, the larger firms now have good experienced people who really know the conflicts rules. Increasingly, those people have the attention of the rainmakers in the firm, and command more attention and respect. Conflicts has become more of a profession now. I know some very fine lawyers who do this for large law firms. And they have large staffs that help them, including other lawyers.”

There’s more. And more detail to read. (And more original risk content in the works. Keen to connect with experts interested in sharing their own perspectives… or those with nominations. Feel free to get in touch.)

And, quick reminder, if you’re enjoying the blog, please do forward on a story or note and encourage your friends and colleagues to join the mailing list. This ship has plenty of room.

Risk Update

Disqualification Discussions: Government Lawyers, Imputed Conflicts, Malpractice Management & Texas

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Karen Rubin at Thomson Hine notes: “Prosecutor’s conflict DQ’s entire office, says WA appeals court” —

  • “A Washington appellate court recently disqualified a county prosecutor’s entire office from participating in the re-trial of a murder case. The chief prosecutor had previously represented the defendant while in private practice. The case shines a light on government lawyers and imputed conflicts of interest.”

  • “The county prosecuting attorney, Garth Dano, had worked closely as a “consulting attorney” with the murder defendant’s trial team, and communicated about strategy, the theory of the case, potential witnesses and jury selection. Dano also had appeared in court with the defendant. After the guilty verdict, and while the case was on appeal, Dano won election as county prosecuting attorney.”

  • “No amount of screening can be sufficient to fully wall off” Dano, the court of appeals held…. You might think that the lack of an imputation rule for government lawyers would have allowed all the county prosecutors except Dano to participate in the remanded murder case, particularly since Dano had been screened from the other prosecutors. But not so. The court said that Washington’s then-version of Rule 1.11 simply meant that instead of a sweeping rule of imputation, as in Rule 1.10, government lawyer conflicts must be ‘assessed more narrowly, according to each lawyer’s individual circumstances.'”

Attorney Disqualification in a Legal Malpractice Setting” —

  • “Akin to a pro-se situation, when law firms defend themselves in a legal malpractice setting they run the risk of attorney disqualification on the attorney-witness rule. “Quadrozzi v Castro 2019 NY Slip Op 30550(U) March 5, 2019 Supreme Court, New York County Docket Number: 151675/2018 Judge: Frank P. Nervo is a good example.”

  • “‘However, the Court finds it is likely that defense counsel will be a witness on a significant issue of fact, namely the defendants’ representation of plaintiff in the real estate closing and research regarding liens. Plaintiff has established that defense counsel performed legal work on the matter giving rise to the instant malpractice action, and although defense counsel characterizes his involvement in the matter as more closely related to that of an assistant, he does not refute that he corresponded with plaintiff regarding the matter and billed plaintiff for 4.25 hours of said work. Defendant does not identify any other witness, besides Defendant Castro, who may be able to provide testimony relating to standard of legal work performed for the closing. Consequently, defense counsel’s testimony regarding the closing is likely to be necessary, and he should be disqualified from representing defendants (Delgado, 109 AD3d at 47; Chang, 190 AD2d at 311).'”

Bill Freivogel notes a Texan disqualification, noting unique Texan rules in play:

  • “In re Liebbe, 2019 WL 1416637 (Tex. App. March 29, 2019). Susan Whomble suffers from Alzheimer’s disease. In this proceeding Richard Whomble applied to be guardian of Susan’s person. Donna Liebbe, Susan’s friend, contested Richard’s application. Donna’s lawyer was Bill Liebbe. Richard moved to disqualify Bill. The trial court granted the motion. Donna appealed.”

  • “In this opinion the appellate court affirmed (denied mandamus). Bill had earlier represented Richard in two personal injury cases. The appellate court dwelled upon the interplay of Texas Rules 1.5 (Texas’ confidentiality rule) and 1.9 (Texas’ former client rule). Put simply, because it was probable that Bill violated Texas Rule 1.5, the prohibition of Rule 1.9 was triggered. [Bill’s note: This opinion can only be useful to Texas lawyers, so we are not going to say any more about it. Because of the uniqueness of Texas rules in circumstances such as this, we are completely unable to say whether this opinion has precedential value in Texas (or anywhere else, for that matter).]

Risk Update

Anti-Money Laundering (AML) — SRA Increasing Focus on Compliance

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SRA puts firms on notice for money laundering compliance checks” —

  • “We will be carrying out rigorous checks on law firms to make sure they are meeting their anti-money laundering obligations.”

  • “We will shortly be writing to an initial sample of 400 firms asking them to demonstrate compliance with the Government’s 2017 Money Laundering Regulations1. There are around 7,000 SRA-regulated law firms who fall under the scope of these Regulations.”

  • “We want to make sure that firms have a money laundering risk assessment in place and are implementing it. A risk assessment is required by legislation and should be the backbone of a firm’s anti-money laundering approach. If firms are not complying, they will go into the regulator’s enforcement processes.”

  • “Paul Philip, SRA Chief Executive, said: ‘Money laundering is far from being a victimless crime and must be taken seriously. Solicitors, as enablers of moving funds around, can willingly or unwittingly be part of the problem. So we expect firms to be vigilant and they, in turn, can expect us to be robust in our enforcement action where solicitors firms are involved in money laundering or are not complying with the relevant legislation.‘”

And for more from Paul Philip: “Tackling money laundering: making sure firms are doing their job” —

  • “The reasons why tackling money laundering matters so much clearly hit home for everyone in the room. Beyond terrorism, money laundering also supports serious crimes ranging from people trafficking to drug smuggling. We all need to understand that the type of work law firms do and the credibility of solicitors makes them an attractive target for terrorists and criminals who want to process their ‘dirty money.’”

  • “If we don’t successfully address the problem, the social, economic and security consequences can be devastating. Doing all we can is also essential if we are to continue to maintain trust and confidence in the legal profession. Trust that is vital to our country’s continued success as a leading international centre for legal services.”

  • “We understand that the overwhelming majority of solicitors want to do the right thing. We have produced a package of support for solicitors to highlight good practice and understand what is needed. The onus is on firms to do what they are being asked to do. Many firms are, but those who are not should be on notice to get their house in order.”

Risk Update

Insurance Insights (Brexit, #MeToo, Coverage Lost and More)

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One way of managing risk is with insurance. Clearly a backstop and less desirable strategy than avoiding or mitigating risk in the first place, it’s one of the biggest financial investments every prudent firm makes. Here are some recent articles, analysis and observations in this realm:

First, an article from Marsh on a topic that continues to unfold in unpredictable ways: “How Could Brexit Affect the Risk and Insurance Needs of UK Law Firms and Solicitors?“–

  • “It is difficult to determine what the full impact of the UK leaving the European Union (EU) will be; however, there are questions UK law firms and solicitors should be considering now in order to be prepared for the outcome of future negotiations.”
  • “While the expertise of law firms means they are well placed to face Brexit-driven challenges, they will still need to consider how the UK’s exit from the EU could affect their risk and insurance needs. Our adviser discusses some of the issues that law firms should consider in order to safeguard their businesses. Marsh will also continue to work with law firms and insurers to further understand the full risk and insurance implications of Brexit.”
  • “From an insurance perspective, some commentators have considered how the current and future dependency on “freedom of services” passporting rights throughout the EU will affect insurance solutions for businesses.”
  • “If the enforcement of UK judgments across the EU is not maintained, then litigation by EU companies in the UK courts is likely to decrease.”
  • “While the application of law and technical aspects of contracts are likely to require individual review, some routine/boilerplate issues may need to be reviewed from a risk perspective.”
  • “Consider changes to the Continuing Competence regime: Firms may want to ensure they can demonstrate that Brexit- related learning and development needs were identified and increased levels of specific training, and/or allocation of time in practice meetings was given, to address possible impact and changes.”
    “Data protection rights are likely to undergo changes before the UK exits the EU. From time to time, firms’ approaches will require review in any event.”

On the Brexit front: “Brexit Is Messy. London’s Lawyers Are Cashing In” —

  • “In any divorce, lawyers are the only surefire winners, and as Britain muddles through one of the biggest, messiest and most complicated breakups in economic history, the country’s top law firms are booming.”

  • “‘There’s been some swearing, some clients whose faces have drained of color, when they realize the sort of impact this all will have,’ said Andrew Hood, a regulatory and trade partner at Fieldfisher, a London-based firm with more than 1,000 lawyers. ‘And in the last six weeks, the number of clients who have woken up worried about what a no-deal Brexit looks like has doubled or tripled.'”

  • “‘What’s now in the back of everyone’s mind is that Brexit may be great for lawyers in short term,’ said Jolyon Maugham, a tax lawyer and anti-Brexit campaigner. ‘But it’s like you’re a funeral director at the time of the plague. You’re busy in the moment but you fear a bit for your business model.'”

After #MeToo, whole industries have been blacklisted by insurers for sexual harassment liability coverage” —

  • “A new report from Betterley Risk Consultants, shared with The Intercept, reveals that many of the world’s largest insureres will no longer conside whole industries for “employment practices liability insurance” (EPLI), which covers liability from ‘sexual harassment, sex discrimination, and other employee claims.'”
  • “Ten of the 32 largest insurers will no longer write EPLI policies for financial firms (brokers, investment banks, VCs, etc); eight will no longer sell EPLI coverage to entertainment and media companies. Also blacklisted are law firms, car dealerships, and other industries where ‘superstars’ or ‘celebrities’ or ‘high-billing rainmakers’ have historically been able to get away with bad behavior so long as they continued to perform for the firm.”

For additional commentary on the #MeToo topic, see also that latest in the Georgetown Journal of Legal Ethics: “Taking #MeToo Seriously in the Legal Profession” —

  • “Part I reviews different states’ rules of professional conduct and their interpretations with respect to gender violence and harassment. It homes in on state-to-state discrepancies in interpreting certain shared provisions that could be used for disciplining rape, sexual assault, sexual harassment, and domestic violence. Part II then reviews enforcement patterns for states that either do or might professionally sanction gender violence and harassment. Noting that enforcement rates are staggeringly low, Part II identifies deficiencies in the rules of professional conduct that permit abusers to keep practicing without professional sanction.”

While likely not an issue for our readers specifically, this article was certainly educational about baseline industry standards on coverage: “More states consider requiring legal malpractice insurance” —

  • “Currently, Oregon and Idaho are the only states that require attorneys to carry legal malpractice insurance coverage. Active consideration of the issue is taking place in Washington state, which has proposed that failure to comply with obtaining coverage would result in attorney suspension, as well as California, which has proposed similar amendments to its licensing rules. California is also proposing that attorneys be required to disclose if they are not insured.”

  • “Those in favor of mandatory malpractice coverage argue public protection is at risk and that lawyers who fail to carry coverage may leave clients unable to secure relief in the event of malpractice. Those taken advantage of by attorneys acting fraudulently have limited recourse against lawyers who fail to exercise ordinary care.”

Which lead to this interesting update (h/t Prof Resp Blog): “New Jersey Supreme Court Rejects Mandatory Malpractice Insurance, embraces disclosure of coverage” —

  • “The New Jersey Supreme Court has issued a Notice to the Bar. It has rejected in part, accepted in part, and deferred in part the recommendations of its Ad Hoc Committee on Attorney Malpractice Insurance. It concurred with the November 2017 report recommendation that malpractice insurance not be mandated for all private practitioners.”


Risk Update

Reputation Risk (When Practice Provokes PR Peril)

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The questions of how and where firms draw the line in terms of completely legitimate engagements that raise public scrutiny and those that might be more problematic, how they address member behavior that may cause issues, and how organizations just generally traverse the challenges and uncertainties of reputation risk is one that’s always intrigued me. Here are some recent stories making news on this theme:

Federal Prosecutors Are Thinking About Going After Skadden: The Biglaw firm is under fire for its work on behalf of Paul Manafort.” —

  • “The work that Skadden Arps did for Paul Manafort on behalf of the Ukrainian government — specifically, writing a report justifying the prosecution of former Russian-aligned Ukrainian President Viktor Yanukovych’s political rivals — has long been in the spotlight, what with it being a featured part of the Mueller investigation’s case against Manafort. In addition to being well-known, it has also triggered a series of legal woes for Skadden attorneys that worked on the matter.”

  • “Former Skadden associate Alex van der Zwaan pleaded guilty to lying to investigators in the Mueller probe. And the case against former Skadden counsel Greg Craig was referred to the Southern District of New York for potentially acting as an unregistered lobbyist.”

  • “As CNN reports: In addition, these sources said, prosecutors in the US Attorney’s Office for the Southern District of New York are considering taking action against powerhouse law firm Skadden, Arps, Slate, Meagher & Flom LLP, where Craig was a partner during the activity under examination. Prosecutors are considering a civil settlement with the firm or a deferred prosecution agreement with Skadden, these sources said.”

On Leave From Willkie, Where Does Gordon Caplan Go From Here?” —

  • “A lapse in ethical judgment can quickly turn a Big Law leader into a target of an internal investigation, industry sources said.”

  • “Willkie placed Caplan on leave Wednesday as he defends himself against charges related to allegations that he spent $75,000 to have his daughter’s standardized test score fudged. Caplan was allegedly overheard on federal wiretaps saying he was not concerned with “the moral issue” related to lying to colleges about his daughter’s ACT score.”

  • “Caplan is confronting the potential that the law firm he once helped lead will now turn an investigative lens toward him. Legal industry sources said it is possible—some said likely—that Willkie would view Caplan’s apparent dishonesty in prosecutors’ claims unveiled Tuesday as an entrée to investigate his work on behalf of clients. Law firms are also often obligated to report their lawyers’ unethical conduct to state bar regulatory bodies.”

  • “The question, in one way, is how to square a law firm’s brand as an imprimatur of the ethical exercise of good judgment with a partner allegedly overheard on federal wiretaps arranging for cheating on a standardized exam.”

David Boies’s Fall From Grace” —

  • “Boies’s firm soldiers on and continues to rake in money by the barrel-load. Yet cracks in its once-burnished veneer are now visible to the naked eye.”

  • “When news first trickled out about his work on behalf of Harvey Weinstein, his supporters winced and his legacy began to creak and yawn. As further evidence established that this representation included an attempt at silencing, and undermining the statements of, possible sexual assault victims, and doing so in an underhanded attempt to stymie The New York Times, which also happened to be his client, that legacy tottered over and came crashing down.”

  • “When it was later revealed that Boies was complicit in the great Theranos tragedy, people were less surprised… Boies was a Theranos board member and stockholder. He was also, somehow, the company’s lawyer. This conflict of interest may have been the impetus for Boies’s aggressive and distasteful defense of the company. He worked to intimidate whistleblowers, running up their legal bills and threatening litigation, and acted in a manner that Wall Street Journal reporter John Carreyrou, who exposed both Theranos and Boies, described as thuggish.”

  • “He is steadfast in asserting that it was not a conflict of interest to represent the New York Times while also attempting to silence a New York Times journalist at the behest of another client, Weinstein… Boies notes that his attempt to “completely stop,” as his contract with a covert investigator put it, a NYT article was completely appropriate because ‘reporters do not have a monopoly on investigating facts.'”

Risk Update

A Thank You, “Irreconcilable” Lead Conflicts, “Baby” Conflict, Client Security Concerns & More

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I’d like to take a moment to thank everyone for their support of BRB. The blog is off to a strong start and I sincerely appreciate the many who took a moment to send in notes of encouragement, share the news with colleagues, and “like” this on social media this week.

(That last part is something I thought I’d never say… but now that it’s working I’ll take every “like” everyone out there might be kind enough to click here and help out with. >smile<) Starting fresh was definitely a bit of a risk, but one that’s paying off well in terms of job satisfaction. Now, back to work.

Lawyer asks judge to disqualify Nessel’s office from Flint civil lawsuits” — 

  • “A lead lawyer in the civil lawsuits linked to the Flint lead-contaminated water crisis has asked a judge to disqualify the entire Michigan Attorney General’s office from further representation in dozens of Genesee County civil lawsuits.”

  • “The state created ‘irreconcilable conflicts of interest’ by assigning the same four assistant attorneys general to both defend state officials against suits from Flint residents and represent Flint residents in a civil lawsuit against engineering firms that performed work in the city prior to the water crisis, lawyer Corey Stern said in his motion.”

  • “Stern represents 2,500 Flint children suing the state, was appointed lead counsel for plaintiffs involved in Flint-related litigation in state courts in 2016, and is liaison counsel for individual plaintiffs in federal court.”

  • “An ethics officer in the Attorney General’s office reviewed the case after Stern raised the issue in a letter to Nessel. Ethics officer Frank Monticello ruled in early March that there is no conflict in Kuhl’s dual roles because the office’s interest in the ‘health, safety and welfare’ of Michigan residents doesn’t conflict with its interest in ‘protecting the state treasury.’ But Stern’s legal ethics expert, who submitted his opinion on the issue, disagreed with the Attorney General’s office.”

  • “The Attorney General’s office has received the motion and is reviewing it, said Dan Olsen, a spokesman for Attorney General Dana Nessel’s office.”

Baby Conflict Leads To Resignation” —

  • “The Oklahoma Supreme Court has accepted the resignation of an attorney.”

  • “The Bar’s complaint received by the Bar Association concerning her conduct and alleging she engaged in conflicting representation of clients…. The Complaint against Claborn states she represented Geiser in a criminal case while representing Claborn’s daughter in the guardianship case involving Geiser’s son, and Claborn created a conflict of interest in violation of Rule 1.7 of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, Ch.1, App. 3-A, (ORPC). The Complaint states Claborn had conversations with Geiser when she lacked an attorney, and these conversations were false and misleading regarding Claborn’s interests. The Bar asserts Claborn’s conduct violated Rules 4.1 and 4.3 of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, Ch.1, App. 3-A.”

Judge in Dougherty Case Says Co-Defendants Repped by Same Firm Waived Conflict” —

  • “The federal judge overseeing the case of Philadelphia union leader John Dougherty and several co-defendants has ruled that attorneys from the same firm working for two separate defendants can continue their representation, despite the government’s concerns that a conflict of interest exists.”

  • “Prosecutors claimed that because both defendants were represented by the same firm, there was an inherent conflict of interest. In his Monday order, Schmehl said the defendants waived the right to raise any conflict concerns, but left room for the prosecution to bring up the issue again down the line.”

The other day we noted a story about firm hacking risk, here’s an interesting take from client eyes I took note of last November: “Access to Law Firm Data ‘Just Too Easy,’ Worrying Clients” —

  • “A cybersecurity scare at Foley & Lardner has drawn new attention to a debate over data security at top law firms, and some clients and outside organizations are taking matters into their own hands. The incident last month, described by a firm spokeswoman only as ‘a cyber event that caused a disruption to our IT systems,’ comes as general counsels’ offices express renewed concern about whether even the biggest law firms are adequately protecting highly sensitive data.”

  • “In recognition of the threat, Whipple [Associate GC of DHL Supply Chain Americas] said his company last year revised its outside counsel guidelines to include added cyber protections. This includes giving the company the right to conduct its own audit of outside law firms’ cyber defenses. At stake, he said, is the sensitive DHL information that can include everything from employee pay rates and product pricing to personally identifiable information.”

  • “Gilead, along with the Corporate Legal Operations Consortium (CLOC), a group of legal ops professionals, are working on an initiative to create standardized legal security assessments. CLOC’s Cybersecurity Initiative Steering Committee includes several law firm and in-house leaders, such as Baker McKenzie Global CIO Daniel Surowiec, Greenberg Traurig CIO Jay Nogle, and Google Legal Operations Manager Marika Daggett, group officials confirm.”

  • “‘Sadly, in any industry, most breaches trace back to choices that have been made to choose profits over effective security,’ Jeffrey Ritter, founding chair of the ABA’s cyberspace law committee and an external lecturer for the computer science department at the University of Oxford, said in a written statement.”

Risk Update

Conflicts News (Waivers, Disqualifications & Non-conflicts DQ)

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It wouldn’t be a Bressler Risk Blog if I didn’t crib updates from the unmatchable Bill Freivogel. So with a hat tip and clear credit to him (and some more to come) let’s have a look at what he’s seeing on the conflicts front:

  • “Cedar Rapids Bank & Trust Co. v. Mako One Corp., 2019 WL 1283988 (8th Cir. March 21, 2019). Corp. hired Law Firm to draft a tax credit bond to finance a building restoration project. Bank purchased the bond. When a default occurred, Bank hired Law Firm to bring this foreclosure proceeding against Corp. Corp. moved to disqualify Law Firm. The trial court denied the motion. In this opinion the Eighth Circuit reversed, based upon an “inadequate” written advance waiver signed by Law Firm, Corp., and Bank, before hostilities broke out. The court said “the letter makes no pretense to elucidate any risk involved,” only that the parties’ interests “are or may be adverse.” The letter also contained an unfortunate drafting error. There is more, but the reader should get the idea by now.”
  • “Re: Nat’l Prescription Opiate Litig., 2019 WL 1274555 (N.D. Ohio March 19, 2019). From 2009 until 2017 Carole Rendon (“Rendon”) was a lawyer in the office of the U.S. Attorney for the N.D. of Ohio (“the Office”). During that period Rendon represented the Office in an opioid task force, which included health professionals, state and local law enforcement, and others. Included were City of Cleveland (“City”) and Cuyahoga County (“County”). In 2017 Rendon left government and joined Baker & Hostetler (“B&H”). After Rendon joined B&H, City and County joined in lawsuits against opiode providers, including Endo Int’l PLC (“Endo;” full name from press account). Rendon appeared for Endo. City and County moved to disqualify Rendon and B&H. In this opinion the court granted the motion. The court found that Rendon did not violate Ohio Rule 1.11(a), but did violate Rule 1.11(c). The court relied in significant part on a letter from a Senior Trial Counsel from the Office claiming that City and County did share relevant nonpublic information with Rendon while she was on the task force.

And see also Law.com on: “Judge Disqualifies Baker & Hostetler Partner From Defense of First Bellwether Opioid Trial

  • “Jarvis v. Jarvis, 2019 WL 1254013 (Cal. App. March 19, 2019). Todd Jarvis and James Jarvis are the 50% owners of Jarvis Properties, a limited partnership (“LP”). They are at odds over what to do with property in the LP. James filed this action for partition against Todd and LP. Todd hired a lawyer for himself and and hired a different lawyer, William Roscoe, to represent LP. A California statute provides, in effect, that a 50% owner cannot act on behalf of a partnership. Therefore, James moved to disqualify Roscoe. The trial court granted the motion. In this opinion the appellate court affirmed. The court could not nail down precedent for this situation. While repeatedly emphasizing that this was not a conflict of interest situation, the court discussed California conflicts law extensively. The court did not say how LP’s successor lawyer should be selected but seemed confident that the trial court would figure something out under its “inherent and equitable powers.