Bressler Risk Blog

David Kluft asks: “Can I advise a defendant on a pre-trial plea deal if a former client may be an adverse witness later at trial?” —

• “Multiple defendants were arrested as part of a drug distribution ring in CO. One defendant (the Witness) pled guilty right away and planned to testify against the others. A CO lawyer who had previously represented the Witness in an unrelated matter appeared for one of the other defendants (the Defendant) against whom the Witness might testify at trial.The lawyer had confidential info about the Witness that would help the Defendant, so he had a potential conflict if the Witness testified.”
• “However, it never came to that because Defendant took a plea deal before trial. Defendant later moved to withdraw the plea, arguing that her counsel had a conflict while advising her on the plea. The trial court denied the motion because, although the lawyer didn’t consult with Defendant about the possible conflict, the conflict was never realized because there was no testimony, and the lawyer claimed it didn’t affect the advice he gave her on the plea.”
• “This decision was reversed on appeal: because the lawyer was unable to disclose to the Defendant the confidential info he had about a witness, he was operating under a conflict that was not waived by either client, and he failed to discuss with his client alternative strategies such as withdrawing from the case in favor of successor counsel, who may be able to discover and use info against the Witness that he could not use.”
• Decision: here.

“Seyfarth Beats DQ Bid In Amazon COVID Screening Case” —

• “A Colorado federal judge Monday [9/29] denied Amazon warehouse workers’ bid to disqualify Seyfarth Shaw LLP from representing the e-commerce giant in a proposed wage class action, rejecting arguments that Amazon wrongly represented former managers who may be class members since the firm immediately withdrew from that representation once informed of the possible conflict.”
• “Seyfarth Shaw LLP is representing Amazon in a proposed class action, filed in 2021, alleging that the online retailer violated Colorado wage law by failing to pay employees for the time they spent undergoing COVID-19 screenings before clocking in for work. (Courtesy of JKing Images)”
• “In a seven-page ruling, U.S. District Judge Raymond P. Moore denied a Sept. 13, 2024, motion to disqualify Seyfarth and sanction Amazon. The motion accused Seyfarth of violating ethics rules by representing former Amazon managers who had previously been hourly workers and were therefore possible class members in the lawsuit over unpaid COVID-19 screenings done off-the-clock.”
• “The former employees who held managerial roles at issue are Kierra Howlett, Kristi Adkins, Eric Girard and Kevin Copeland. The plaintiffs argued Seyfarth reached out to these individuals after Amazon was sued, agreed to represent them at their depositions as third-party witnesses, and entered agreements with them.”
• “The plaintiffs further accused the firm of soliciting direct representation of these individuals, with Amazon footing the bill, adding there are ‘obvious conflicts’ associated with simultaneously representing absent proposed class members and a defendant in a case, according to their motion to disqualify. “
• “On Oct. 30, 2024, Seyfarth opposed the disqualification bid, arguing there was no real harm since its attorneys quickly ended their representation of these former employees, after discovering some of them could qualify as class members since they previously worked as hourly employees at Amazon.”
• “However, even if those individuals are putative class members, they’re not parties to the instant action, Seyfarth had said, pointing out there’s no class certification motion pending in the case.”
• “On Monday, Judge Moore rejected the sanctions bid and the motion to disqualify, ruling that the plaintiffs’ claims aren’t enough to show that Seyfarth’s brief representation of the possible class members adversely impacted the integrity of the judicial process, let alone that any impact superseded Amazon’s right to pick its attorneys.”
• “Regarding Colorado Rules of Professional Conduct Rule 1.7, which the plaintiffs relied on to push their argument that Seyfarth’s representation of Howlett and Girard created a conflict of interest, Judge Moore noted that rule only applies to representation that involves a concurrent conflict.”
• “The judge continued: ‘And, in the absence of even a motion for class certification, plaintiffs’ suggestion that Seyfarth would need to be ‘actively fighting class certification’ is premature.'”
• “Seyfarth’s representation of these individuals didn’t violate any law, and the plaintiffs do not show Seyfarth had any reason to think it couldn’t competently and diligently represent these individuals’ interests, the order added.”
• “‘Nor have plaintiffs shown that by conducting pre-disposition meetings with these individuals, Seyfarth obtained confidential information that Defendant might use to their disadvantage,’ Judge Moore said. ‘Plaintiffs have not established that Seyfarth violated any duty it owed to its former clients or that any potential conflict of interests tainted the fairness of these proceedings.'”

“‘Website Time’: The Big Law Phenomenon That Could Lead to a Liability Nightmare” —

• “Jumped or pushed? In today’s world it is difficult to tell whether a lawyer leaves a law firm of their own accord or is shown the door. This uncertainty extends to the hiring market where firms recruiting associates or partners may think they’ve made a wise choice, when in reality their sparkly hire had been asked to leave their previous employer. This confusion owes in part to the rising phenomenon known as ‘website time’.”
• “Website time is the period that a lawyer’s profile remains on a law firm’s website even in the months after they’ve ceased practising with their firm. It enables lawyers to appear as if they’re still active and are leaving out of choice, avoiding the need to explain to recruiters and prospective employers either the circumstances of their departure or the dreaded gap in their work history.”
• “But law firms benefit too. According to sources, some firms are offering website time instead of having to pay out a lawyer’s notice period. Though the practice is ‘widespread’, law firm insurers and other insiders explain to Law.com how website time can expose firms to potential fraud and dishonesty claims, and could even limit their ability to turn to their insurers where disputes arise.”
• “There is a growing sense in Big Law that once you are off a law firm’s website you will struggle to find a job… ‘A profile absence of more than the usual notice periods raises unwanted questions, and gives other firms the impression that you were not wanted.’ A recruiter said that once a lawyer was off a website that ‘they were instantly less valuable.'”
• “But website time helps address this anxiety. It keeps you ‘active’, notwithstanding the fact that your employment has ended in a less than desirable manner.”
• “One senior partner at a U.S. firm in London said that you could offer associates website time in lieu of a paid notice period, thereby giving them longer to try and find a job but also keeping money in the pocket of the firm.”
• “Despite its benefits to the parties involved, website time raises an ethical question. Jeff Cunningham, an outside general counsel for law firms at U.S. based firm Cohen Vaughan, said: ‘It’s clearly misleading to the public, it invites confusion for the client when they think they’re being represented by someone else.’ Cunningham also pointed to issues such as conflict of interest and law firm insurance.”
• “He suggested that the practice was unlikely to change until law firms felt it in their pocket, adding that the relative weakness of the legal services regulators, both in the U.K. and the U.S. meant that the people with the real power are the insurers. Cunningham said: ‘It’s a long time for law firms to have someone on the website [six months] and that’s a big liability.'”
• “A legal insurance specialist at a leading U.K. legal insurer told Law.com that ‘if a client asked me about this, the moment a person ceases to be employed, they should come off the website… You would think in a well run firm, they would keep the website bang up to date. The danger is if you’re on the website and not on the books.'”
• “The insurer added that it was a grey area that had yet to be challenged in the insurance realm. But he could foresee difficulties for law firms.”
• “Theresa Panesky, west region leader of the claims and legal group at insurer WTW, said: ‘If a lawyer who is no longer employed holds themselves out as affiliated with the firm, and the firm is named in a claim, coverage issues could arise. An insurer might be likely to argue that the conduct was outside the scope of the attorney’s role at the firm, and therefore not covered.'”

“Judge Allows Malpractice Lawsuit Against Baker McKenzie to Move Forward” —

• “Global law firm Baker McKenzie is facing renewed legal scrutiny after an Illinois judge allowed a legal malpractice lawsuit to proceed against the firm and its Moscow affiliate, Baker & McKenzie CIS Ltd. The case, filed by London-based investment firm Lehram Capital Investments Ltd., accuses the firm of negligence, conflicts of interest, and mishandling of crucial litigation tied to a disputed coal mining venture in Russia.”
• “The dispute centers on Lehram’s 2013 acquisition of a coal mine in Russia’s Kemerovo region — an area known for its energy resources and complex local political ties. Lehram alleges that soon after the purchase, one of its directors was detained by Russian authorities and pressured to sign documents transferring the mining asset to a company allegedly linked to the powerful Shchukin family, which the plaintiff claims has close connections to regional government figures.”
• “Lehram retained Baker McKenzie’s Moscow office to help recover the mine and address what it characterized as an unlawful seizure of its property. The lawsuit claims that the firm, despite its global brand and integrated marketing, failed to deliver the competent representation expected from an international law firm of its stature.”
• “In its complaint, Lehram accuses Baker McKenzie and its Russian affiliate of professional negligence and breach of fiduciary duty. The allegations include filing the recovery claim in the wrong court — a procedural error that allegedly doomed Lehram’s case from the start. According to the suit, Baker lawyers chose to file in a civil court that imposed a 10-day limitation period instead of pursuing arbitration, which would have offered a three-year filing window. As a result, Lehram’s claim was dismissed as time-barred, effectively preventing the company from reclaiming its lost asset.”
• “Lehram also contends that Baker McKenzie failed to disclose significant conflicts of interest, including prior relationships with Russian government-connected clients. The firm is further accused of exposing Lehram representatives to risk by introducing them to individuals allegedly tied to criminal groups during the course of the representation.”
• “Baker McKenzie, which operates globally through a Swiss verein structure — meaning its various offices are legally independent entities — has argued that its Moscow affiliate acted autonomously. The firm sought to dismiss the lawsuit on jurisdictional grounds, asserting that the case should be heard in Russia, where the events occurred, or alternatively in London, where Lehram is based.”
• “On October 17, 2025, Judge John Tully Jr. of the Circuit Court of Cook County, Illinois, denied Baker McKenzie’s motion to dismiss the case, allowing Lehram to move forward with discovery. The court found that Lehram had presented sufficient evidence to suggest that Baker McKenzie’s global offices might operate with more interconnection than the verein model publicly suggests.”
• “The case highlights ongoing legal and ethical challenges faced by international law firms operating under the verein model, where member firms share branding, marketing, and resources but claim separate legal liability. While the verein structure offers flexibility for managing global operations, courts in the United States have increasingly scrutinized whether such distinctions truly shield parent entities from liability.”
• “Legal analysts say the Lehram v. Baker McKenzie case could have significant implications for malpractice risk management, especially for firms that market themselves as ‘seamlessly global’ while maintaining legally distinct partnerships. The outcome may clarify how far U.S. courts are willing to extend liability to global firms when their affiliates allegedly fail clients abroad.”
• “If Lehram ultimately prevails, the case could set a precedent allowing plaintiffs to hold major U.S.-based law firms accountable for malpractice committed by their international branches — particularly when evidence shows the firms function as integrated global operations rather than independent local partnerships.”
• “The case underscores a growing risk for international law firms: the possibility that courts in their home jurisdictions may hold them liable for actions by affiliates operating abroad, particularly when firms promote themselves as unified global organizations.”

“Cybercriminals are going after law firms’ sensitive client data” —

• “Regardless of their size, all law firms hold valuable data, including client communications, financial records, and confidential legal strategies. That data has never been more at risk. Cybercriminals are targeting law firms by exploiting vulnerabilities, weak passwords, outdated systems, and untrained staff.”
• “The FBI warned U.S. law firms about the Silent Ransom Group, which has been active since 2022. The group breaks into networks, steals client data, and demands payment while threatening to leak or sell the information. Since March 2025, it has moved from callback phishing campaigns that impersonated companies like Duolingo to vishing, where attackers pose as IT staff to get employees to install remote access tools such as Zoho Assist or AnyDesk.”
• “The UK’s Legal Aid Agency disclosed a data breach that exposed sensitive case information, showing that government-backed legal organizations face the same risks as private firms. The breach forced the agency to take digital services offline, stopping online applications, payments to legal aid providers, and case processing.”
• “Law firms are also finding themselves in the crosshairs of cyberattacks linked to foreign governments. Nation-state actors see the sensitive client and corporate information law firms hold as strategically valuable, making them prime targets for espionage and data theft. “

“Quandaries & Quagmires: Risky business: Professional liability claims” —

• “The American Bar Association’s Standing Committee on Lawyers’ Professional Responsibility recently published an update to its Profile of Legal Malpractice Claims (‘ABA Study’) providing data related to professional liability claims from 2020-2023, based on data from professional liability insurers who shared data with the study. An important limitation to the study is that big law is generally not represented. A separate study conducted by Eileen Garczynski at EPIC Law Firm Group polled 11 professional liability insurers that combined provide coverage to more than 80% of AM Law 100 and NLJ 250 firms (‘EPIC Study’).1 Additionally, Doug Richmond and Andrew Ricke recently compiled information from two leading insurers of large and midsize firms and reported the data anonymously (‘Lockton Report’).2 Finally, Minnesota’s Office of Lawyers Professional Responsibility published its Annual Report providing insight into disciplinary trends. Collectively, the studies/reports will be discussed to illustrate risk variations among those surveyed and tips to minimize risk will be provided.”
• “According to the 2020-2023 ABA Study, the riskiest practice areas experiencing the highest number of claims are (1) estate, trust, and probate; (2) real estate; (3) personal injury – plaintiff; (4) family law; (5) collections and bankruptcy; (6) business transaction commercial law; (7) patent, trademark, and copyright; (8) corporate/business organization; (9) labor law; and (10) criminal law.3 For context, estate, trust, and probate increased in risk from its previous fourth-place ranking to now atop the leaderboard. This shift in frequency is attributed to the aging population and the highest transfer of wealth comparatively to any other time in the United States.4 Likewise, labor law and patent, trademark, and copyright claims increased by approximately 2.6%.”
• “Conversely, criminal lawyers experienced a decrease in claims by 2.2% compared to the 2019 study, as did person injury – plaintiff lawyers (3.58%), family law claims (2.79%), and collections and bankruptcy claims.5”
• “Five actions (or inactions) have consistently remained the top five activities giving rise to claims. They are: (1) preparation, filing transmittal of documents; (2) commencement of action/proceeding; (3) advice; (4) pre-trial or pre-hearing; and (5) settlement negotiation.12 Substantive errors are the largest error category alleged in claims and include failing to know and/or apply the law, drafting errors, conflicts, inadequate discovery/investigation, failure to know/ascertain a deadline, failure to understand/anticipate tax, errors in public record search, and errors in mathematical calculation.13 Administrative errors follow and include failing to calendar properly, clerical errors, failing to react to calendar, failure to document—no deadline, procrastination, and lost file.14 Client relations errors follow, with intentional wrongs claims as the least frequently made claim.”
  “Lawyers are much more likely to experience a claim because they failed to commence an action in a timely matter (up 2.73%), had a drafting error (up 3.99%) or engaged in a conflict of interest (up 2.89%).15”

“SDNY Judge Tells Biglaw Lawyers ‘Costumes Optional’ For Friday Hearing” —

• “On Friday morning, lawyers from Weil Gotshal and Steptoe, facing off in WarnerMedia Network Sales v. DISH Network L.L.C., will convene at the Southern District of New York courthouse for a morning meeting with Judge Arun Subramanian. It’s your standard, sign-of-our-times media feud: Warner has a deal allowing DISH to air Warner programming, but DISH packaged some of that content so it could be purchased on a day-to-day or week-to-week basis through SlingTV and Warner isn’t happy about it. It’s a ‘can the roommate keep using the Netflix account we got for the house?’ situation ramped up to corporate boardroom level.”
• “A Friday hearing is pretty normal. But Friday is Halloween, so the judge has one special trick for the parties.”

• “Here’s the thing about the words ‘Costumes optional.’ It may seem ‘optional,’ but that reads a whole lot like a dare. Do you want to show up in business attire when the other side agreed to the judge’s whimsical invitation? Is there some junior associate at Weil billing .3 to ‘Trip to Spirit Halloween’ for a David S. Pumpkins suit right now?”
• “The odds are probably right around the same as an appearance of the Great Pumpkin. That said, if any litigation could bring out a little lawyer cosplay, it would be one involving media companies. We [Above the Law] reached out to both Weil and Steptoe to ask if they had any reaction to the order, but have not heard back. We will update if either decides on a costume.”
  “To demonstrate the parties’ good faith negotiation powers, maybe the lead attorneys could coordinate and arrive in a Vincent Gambini maroon tuxedo and an Elle Woods pink Jackie Kennedy outfit? Unfortunately, My Cousin Vinny is a 20th Century Fox production and it might be more gauche than the tuxedo for Warner’s attorney to show up as a rival studio’s character.”

“Ga. Atty DQ’d From ‘Extremely Weird’ Pharma Fraud Case” —

• “A Georgia federal judge said Wednesday [10/1] she intends to disqualify a prominent defense attorney from representing a man charged with lying to investigators amid a criminal fraud probe into his employer, Hi-Tech Pharmaceuticals Inc., but would allow the company to continue footing his legal bills as he seeks new counsel.”
• “U.S. District Judge Amy Totenberg said that she could not allow attorney Bruce Harvey to represent Choat Soviravong thanks to Harvey’s past work for Hi-Tech’s CEO Jared Wheat, who is set to head to trial later this month on a slew of fraud charges related to the company’s sales of dietary supplements.”
• “But citing Soviravong’s right to the counsel of his choice and the strain on federal resources in assigning him a public defender in what’s already been an ‘extremely weird’ case, Judge Totenberg said she would let Hi-Tech keep covering his attorneys fees. The decision came despite protests from the government that the arrangement would compromise Soviravong’s ability to decide if he wanted to turn state’s witness for Wheat’s trial.”
• “‘I feel constrained,’ Judge Totenberg said, ‘but it doesn’t mean I don’t think that there needs to be a proper transition.'”
• “The wrangling over Harvey’s role in Soviravong’s criminal case came as the latest wrinkle in a nearly decade-long investigation into Wheat and his Norcross, Georgia-based company. First indicted in 2017, Wheat was accused of forging documents to deceive consumers into believing his products met U.S. Food and Drug Administration guidelines. He also faces money laundering counts and, until earlier this month, several controlled substance charges that were dropped by prosecutors.”
• “Soviravong’s prosecution, according to court records, stemmed from an interview with FDA and Internal Revenue Service investigators in 2014. Sorivavong, who is listed as Hi-Tech’s creative director on its website, was indicted five years later on charges that in the interview, he falsely said he wasn’t involved in the preparation of pharmaceutical certificates.”
• “Harvey’s representation of Soviravong during that interview would ultimately result in his removal from both his and Wheat’s criminal cases. One of Atlanta’s most in-demand defense attorneys, Harvey joined Wheat’s legal team shortly after his 2017 indictment, but prosecutors called for his removal about three months later since Harvey had already represented a potential government witness.”
• “On Wednesday, Hi-Tech attorney Arthur Leach told Judge Totenberg that he had erected a ‘Chinese wall’ around Harvey as soon as they realized the potential for a conflict, cutting him off from discovery almost immediately after he was hired.”
• “‘I explained to [Wheat] that you just can’t bring Bruce inside until this is resolved,’ Leach said.”
• “But federal prosecutor Nathan Kitchens argued that the conflict had created an ‘unrebuttable presumption’ that Harvey had access to privileged information from Wheat’s case, telling the judge that ‘neither the court nor the government nor anyone should be in a position where we’re intruding’ into attorney-client discussions.”
• “‘You have to presume that in that three-month period, Mr. Harvey obtained privileged, confidential information,’ Kitchens said.”

“Mintz Seeks $2 Million in Success Fees from Former Client in Patent Dispute” —

• “Boston-based law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. has filed a lawsuit against its former client Parus Holdings, Inc., alleging the company failed to pay over $2 million in ‘success fees’ tied to a series of lucrative patent litigation outcomes. The case, filed in the U.S. District Court for the District of Massachusetts, sheds light on the growing tension between law firms and clients over performance-based compensation structures in intellectual property cases.”
• “According to Mintz’s complaint, the firm entered into a 2019 engagement agreement with Parus Holdings, a Texas-based technology company specializing in voice-enabled and AI-driven communication technologies. Under the agreement, Mintz agreed to provide legal services, including portfolio evaluation, patent enforcement strategy, and litigation support, with part of its compensation tied to the results achieved through enforcement actions.”
• “Mintz claims that under the terms of their engagement, the firm was entitled to receive contingent success fees based on recoveries or settlements resulting from Parus’s patent enforcement efforts. The firm alleges that after it provided years of extensive legal services—including case preparation, filings, and negotiation strategy—Parus received financial recoveries from several of its infringement lawsuits.”
• “However, Mintz asserts that Parus has refused to pay the agreed-upon success fees, totaling more than $2 million. The firm argues that it upheld its end of the agreement by helping Parus achieve favorable results in its intellectual property disputes, entitling it to the promised compensation.”
• “According to the complaint, Parus ‘wrongfully retained the benefits’ of Mintz’s legal work while refusing to pay for the contingent portion of the agreement. Mintz is now seeking damages, interest, and attorney’s fees for breach of contract and unjust enrichment.”
• “The 2019 engagement agreement reportedly outlined specific performance benchmarks that would trigger success fees once certain litigation milestones or settlements were achieved. Such arrangements are common in high-stakes patent litigation, where clients may be unable or unwilling to pay full hourly fees up front and instead offer a percentage of any recovery.”
• “Mintz contends that it provided significant value by developing Parus’s IP litigation framework, identifying infringement targets, and initiating enforcement actions that led to successful outcomes. The firm’s filing argues that Parus’s refusal to pay violates both the spirit and the letter of the contract.”
• “The Mintz-Parus dispute underscores a broader trend in the legal profession—especially in intellectual property law—toward performance-based or contingent fee arrangements. Such agreements can benefit clients by reducing upfront legal costs, but they also increase the risk of post-litigation fee disputes if the parties disagree on what constitutes a ‘success.'”
• “For law firms like Mintz, success-based compensation provides the potential for significant rewards in exchange for the risk of partial or delayed payment. However, when clients fail to honor these agreements, firms can face lengthy legal battles to recover fees.”
• “Legal industry experts note that success-fee disputes have become increasingly common as firms seek creative billing arrangements amid competitive pressures and rising litigation costs. The outcome of this case could have implications for how law firms structure similar agreements in the future, especially in the patent enforcement arena.”

“County of Los Angeles v. Quinn Emanuel Urquhart & Sullivan, LLP 10/23/25 CA2/8” —

• “These cases, consolidated for purposes of oral argument and decision, concern a law firm’s efforts to recover more than $1.7 million in fees and costs for legal services in connection with its representation of then-sheriff Alex Villanueva and the Los Angeles County Sheriff’s Department (sheriff’s department) in a lawsuit that the County of Los Angeles (county) brought against Villanueva.”
• “Because of the county’s legal conflict of interest with the sheriff, county counsel by letter advised Villanueva that the Board of Supervisors (board) would provide him with independent legal counsel for the Mandoyan matter.”
• “The same letter also advised Villanueva that he could ‘select which independent counsel to represent [him] in this matter,’ but that the board ‘has discretion to pay such compensation as it deems just and proper for these services,’ citing Government Code section 31000.”
• “Villanueva selected Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel or Quinn). The county filed its lawsuit on March 4, 2019. The firm vigorously litigated on Villanueva’s behalf for more than three weeks, at which time Quinn sent Villanueva an engagement agreement which Villanueva signed, and county counsel separately sent Quinn a retainer agreement which Quinn refused to sign. Quinn continued to represent Villanueva until January 2020, and the county paid none of its fees.”
• “Eventually (in October 2021), Quinn Emanuel demanded arbitration at JAMS under the terms of the engagement agreement it had signed with Villanueva.). County plaintiffs sought a declaration that there was no valid agreement to arbitrate between Quinn and the county plaintiffs, and that Quinn was precluded by a previous court order from arguing it had a valid contract for its representation of Villanueva. The county also sought an order preliminarily and permanently enjoining the pending arbitration initiated by Quinn.”
• “The central dispute involves whether or not then-Sheriff Villanueva had the authority to retain – as opposed to select – independent counsel to represent him in the Mandoyan matter.”
• “We conclude the sheriff did not have the authority to retain Quinn Emanuel. Summary judgment for the county plaintiffs in their declaratory relief action was proper;”

“Case No.:4:20-CV-02254-YGR: TENTATIVE ORDER GRANTING MOTION FOR SANCTIONS FOR PLAINTIFFS’ COUNSEL’S VIOLATION OF THE PROTECTIVE ORDER” —

• “Defendants move for sanctions for plaintiffs’ counsel’s alleged violations of the parties’ stipulated protective order governing this case. The motion is based on certain document disclosures plaintiffs’ counsel made to Department of Labor(‘DOL’) personnel. Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby TENTATIVELY GRANTS the motion and orders plaintiffs’ counsel to reimburse defendants in an amount of $50,000,as explained further below.”
• “According to plaintiffs, the DOL is currently investigating defendants in this action for the same business practices forming the basis of this suit. DOL personnel therefore reached out to plaintiffs’ counsel and ‘requested that Plaintiffs enter into a Common Interest Agreement (‘CIA’) with the DOL to facilitate the DOL’s pre-existing investigation.'”
• “Plaintiffs’ counsel states that the DOL intimated it was against department policy to sign protective orders in private cases ‘and that the DOL instead conducts information-sharing with counsel under its own confidentiality and common-interest framework.’ Ostensibly, the CIA was meant to offer similar protections to the protective order. Plaintiffs and the DOL officials entered into the proposed CIA…”
• “Plaintiffs’ counsel acknowledges that pursuant to the CIA, they transmitted information which was designated confidential or for Attorneys’ Eyes Only pursuant to the protective order. Indeed, counsel transmitted hundreds of documents to DOL officials between August 2022 and April 2023. Per defendants, the transmissions were only discovered by coincidence.”
• “On December 3, 2024, in connection with a separate matter, DOL sent the United Defendants a document marked ‘Confidential –Attorneys’ Eyes Only’ with a Bates stamp from this action. This did not make any sense, because Defendants had never sent that document to DOL, it had never been disclosed publicly, and Plaintiffs’ counsel had never notified Defendants of any third-party disclosure nor challenged that document’s confidentiality designation.”
• “After further investigation and back and forth with DOL, on December 4, 2024, DOL confirmed they received the document from Plaintiffs’ counsel in this action. Following this discovery, defendants sought a court order mandating that plaintiffs provide a log of all disclosures, which the Court granted. Following delivery of the log, defendants moved for sanctions.”
• “It is beyond dispute that plaintiffs’ counsel violated the protective order. (See Lavin Decl. ¶ 3 (‘I recognize that I made an error in judgment in this case, and I intend never to repeat it.’).)”
• “While the Court recognizes plaintiffs’ counsel’s apology and acknowledgement of the poor judgment, the concession does not firmly admit the gravity of the violation. Counsel states they were acting in good faith and their wrongdoing is characterized by mistaken but reasonable, albeit incorrect,assumptions. The Court disagrees.”
• Even if not willful or malicious, counsel’s assumptions were not reasonable,and the suggestion to the contrary undercuts counsel’s apology.”
• “Finally, the Court notes the parties’ disagreement about a prior case involving a motion for sanctions against the same plaintiffs’ firm, Arnall Golden Gregory LLP. In that case, a Special Master found the firm violated that case’s protective order when it allowed certain corporate executives of the plaintiff to review documents designated as ‘attorneys’ eyes only.”
• “Ultimately, the Court agrees with defendants that TML Recovery presents a troubling pattern in plaintiffs’ firm’s behavior. Despite the district court not adopting the sanctions recommendation, this Court would have expected attorneys from the firm to have learned the importance of adhering to protective orders and with a resolve to avoid any future breaches. The throughline from the Special Master’s findings to this case involves Arnall Golden Gregory’s willingness to treat the terms of protective orders to which they themselves have stipulated as optional, and assume the role of arbiter over whether or not competing concerns justify the sharing of information outside the bounds of those agreements. This they may not do.”
• “As such, the Court finds a knowing and intentional breach of the protective order in this case. An award of sanctions is appropriate to deter further violations in this, and other cases. As shown in another case, failure to assess a penalty did not have a deterrent effect.”

“US Lawyers Walk Fine Line On Privilege, Work Product in Mexico” —

• “For multinational companies, the confidentiality of legal communications is a critical concern, especially when operations span jurisdictions with vastly different approaches to attorney-client privilege and the protection of legal work product.While the principle is foundational in the US, its application and enforcement is murky in Latin America, exposing companies to significant legal and practical risks during cross-border investigations.”
• “Attorney-client privilege and work product are cornerstones of the legal profession in the US, but their strength depends on where you are and who is providing the legal advice. For multinationals, understanding these differences—and planning accordingly—is essential to safeguarding sensitive communications and managing legal risk in cross-border investigations.”
• “In the US, attorney-client privilege protects confidential communications between clients and lawyers for the purpose of seeking or providing legal advice. The privilege belongs to the client, and only the client can waive it.”
• “In contrast, many Latin American countries have less robust and inconsistently enforced privilege protections. Although laws in places such as Mexico, Peru, and Chile require lawyers to keep client information confidential , privilege is often treated as a lawyer’s duty, not a client’s right. This distinction can have major consequences, especially when authorities or courts decide whether to safeguard the privilege and work product during investigations.”
• “The US concept of work product privilege is weak or largely absent in Latin America. In Mexico, for example, there is no direct equivalent, so materials prepared in anticipation of litigation—such as investigation notes, legal analyses, or strategy documents—may not be protected from disclosure if seized or requested in legal proceedings.”
• “Suppose a US-based multinational company operates in Mexico, where certain cartels are designated as terrorist organizations under US law, making any assistance to them strictly prohibited. In Mexico, however, it is said that cartels are deeply embedded in legitimate businesses, such as logistics providers.”
• “Imagine a multinational unknowingly using a cartel-controlled logistics company. Acting on cartel intelligence, Mexican authorities launch a sweeping investigation, raiding both companies and seizing records, computers, and communications between the multinational’s Mexican executives and in-house lawyers.”
• “This highlights a critical gap: In the US, such communications and work product would likely be protected, unless the crime-fraud exception applied. In Mexico, and much of Latin America, the situation is far less certain.”
• “The disparity in privilege protections across jurisdictions creates several risks for multinational companies:”
  • “Loss of Privilege: If authorities in countries with weaker privilege protections review privileged communications or work product, the company may lose the ability to assert privilege over those materials in subsequent proceedings.”
  • “Regulatory Exposure: Seized materials may be shared with US authorities, potentially triggering further investigations or prosecutions.”
  • “Reputational Damage: Public disclosure of internal legal communications can harm a company’s reputation and erode trust with stakeholders.”
  • “Internal Tensions: In-house lawyers in countries with weaker privilege protections may be caught between their duty to protect client confidences and their obligations under local law, which may require them to report suspicious activities.”
• “Multinational companies must adapt legal risk management to each jurisdiction, as relying on US-style protections abroad can be costly. While Mexico’s Article 77 Bis improves protection for external counsel in antitrust matters, significant gaps remain for in-house counsel and the law’s limited scope. The lack of a work product doctrine further heightens risk in Latin America.”

“ASIC Finds Many Auditors Failing To Demonstrate Compliance With Auditor Independence Obligations” —

• “Multiple auditors from audit firms of all sizes were unable to effectively demonstrate compliance with independence and conflict of interest obligations, a new ASIC [Australian Securities and Investments Commission] review has revealed.”
• “The findings, outlined in Report 817 Building trust: Auditor compliance with independence and conflict of interest obligations (REP 817), follow ASIC action against several auditors and audit firm identified as in likely breach of their obligations through this review.”
• “ASIC Commissioner Kate O’Rourke said that the audit sector directly contributes to the quality and integrity of financial reporting by companies and that it needs to observe independence requirements.”
• “‘Auditor independence underpins stakeholder trust and confidence in the audit process and the reliability of the financial information being audited. Unfortunately, our review found that many auditors failed to meet the basic independence requirements, and others failed to identify and critically evaluate potential threats to their independence.”
• “‘It is not enough for auditors to adopt a tick-a-box approach to complying with these important obligations. They must think more critically about whether they are independent and be alive to even the perception that their independence is compromised,’ said Ms O’Rourke.”
• “ASIC’s review found a disappointing number of likely breaches of prescriptive independence requirements. Fifteen auditors were found to be in likely breach of rotation requirements, relationship prohibitions or providing a prohibited non-audit service.”
• “Nine auditors failed to demonstrate how they complied with mandatory rotation requirements that prevent auditors from auditing a listed client for more than five consecutive years.”
• “Five auditors appeared to hold prohibited relationships with clients, including one auditor who was also an officeholder of their client.”
• “None of the 15 auditors flagged by ASIC as having breached their obligations had proactively reported the potential breaches to ASIC, despite receiving a reminder from ASIC in October last year.”
• “‘The failure of these auditors to report breaches to ASIC, including of the longstanding prescriptive independence obligations, is concerning,’ said Ms O’Rourke.”
• “As a result of this review, ASIC accepted the cancellation of a company auditor’s registration for independence failures, issued a $78,250 infringement notice to Nexia Perth over prohibited services, and entered into three court enforceable undertakings with auditors associated with Hall Chadwick (NSW)and the firm over audit rotation failures.”
• “ASIC is conducting additional inquiries into potential breaches identified during this review.”
• “‘Auditor independence is fundamental to audit quality and integrity. A strong focus on independence not only builds trust, it also fosters more rigorous challenge in the audit process thereby enhancing the preparation of high-quality financial information.”
• “‘We expect auditors to carefully consider this report and use its findings to address gaps in their compliance,’ Ms O’Rourke said.”
  “The final review cohort of 48 auditors included individual auditors as well as auditors from the following firms:
  • BDO Audit Pty Ltd
  • BDO Audit (WA) Pty Ltd
  • Connect National Audit Pty Ltd
  • Deloitte Touche Tohmatsu
  • Ernst & Young
  • Grant Thornton Audit Pty Ltd
  • Hall Chadwick (NSW)
  • Hall Chadwick WA Audit Pty Ltd
  • Kelly Partners (Sydney) Audit Partnership
  • KPMG Australia
  • Pitcher Partners
  • Nexia Perth Audit Services Pty Ltd
  • PKF Melbourne Audit & Assurance Pty Ltd
  • PricewaterhouseCoopers
  • RSM Australia Partners
  • Stantons International Audit and Consulting Pty Ltd
  • Trood Pratt Audit & Assurance Services Pty Ltd
  • William Buck (QLD) Pty Ltd
  • William Buck Audit (WA) Pty Ltd”

“Cooley Hit With $15M Legal Malpractice Verdict” —

• “A jury in New Jersey state court on Friday delivered a nearly $16 million jury verdict against Cooley in a legal malpractice and breach of fiduciary duty suit.”
• “The eight-year-old suit was filed by plaintiff John Gregg in New Jersey Superior Court in Mercer County on Oct. 26, 2017. Gregg claimed Cooley had failed to disclose a conflict of interest in the course of negotiating financing for Symbiomix Therapeutics, a drug development company that he controlled and later lost ownership of as a result of Cooley’s legal advice.”
• “‘We strongly disagree with the verdict and will be pursuing an appeal,’ Cooley said through a spokesperson. ‘The evidence presented throughout this matter demonstrated that our attorneys acted with professionalism, diligence, and integrity. We stand firmly behind their conduct and look forward to a fair and thorough review by the appellate court.'”
• “Gregg’s relationship with Cooley began in 2009, when he contracted the firm to provide legal advice on the intellectual property portfolio he controlled through the company Symbiomix, which consisted of multiple antibiotic drugs, court filings read. Founded in 2012, Symbiomix was acquired by Indian drug manufacturer Lupin for roughly $150 million on Oct. 11, 2017. Cooley represented Symbiomix in the sale.”
• “According to court documents, Cooley was representing both Symbiomix on the sell side and had also advised investors on the buy side of the deal in separate matters, creating a conflict of interest. Gregg’s suit claimed that Cooley wrongly prioritized the interests of the investors in Symbiomix, including OrbiMed and Fidelity Biosciences, which created a conflict of interest and disadvantaged Gregg as a Cooley client.”
• “‘Cooley committed malpractice and breached its fiduciary duties to Mr. Gregg when, in connection with attempting to close a financing deal with the VCs so that Cooley could get paid, Cooley advised Mr. Gregg to surrender his personal ownership of the provisional patents he had obtained’ for antibiotics the company had developed, the October 2017 lawsuit read.”
• “Cooley’s compensation was partly contingent on a Series A venture capital funding deal being completed, which led to the firm advising Gregg to take an inferior deal that removed him from company leadership roles and caused him to lose equity in the company, the lawsuit read.”
• “Cooley advised Gregg to ‘dilute his ownership and control of Symbiomix such that he could be frozen out of the future, massive benefits that would later enrich the VCs and Cooley, all at the expense of Cooley’s client,’ Gregg’s lawyers wrote in the suit.”
• “The jury voted unanimously 8-0 to hold Cooley accountable for the legal malpractice and levied a $15.65 million verdict against the law firm. But the overall amount of damages could be higher, as Gregg is still entitled to attorney’s fees and prejudgment interest for the last eight years.”

“Federal prosecutors question conflict of interest in Steven Tompkins’ pot extortion case” —

• “Federal prosecutors who allege that Suffolk Sheriff Steven Tompkins extorted a Boston cannabis company are requesting the court to consider whether the defense counsel’s representation poses a conflict of interest in the case.”
• “In a request for a hearing, prosecutors outline how Tompkins’ defense counsel, Martin Weinberg, ‘previously represented’ the attorney for the cannabis company they argue was extorted and how the two share a ‘close professional working relationship.'”
• “‘The trust, camaraderie, and respect that grew from that relationship cannot be underestimated,’ Assistant U.S. Attorney John Mulcahy wrote in the request filed on Tuesday. ‘In fact, following that case, Defense Counsel took on Attorney A, not as a client, but as a partner, in handling serious criminal matters in federal criminal court.'”
• “Prosecutors are also pointing to how Tompkins’ defense counsel ‘selected, presumably prepared, and called’ the cannabis company’s attorney at a sentencing hearing in another case in November 2023.”
• “Tompkins, 67, is accused of using his official position to bully executives at a Boston cannabis company regarding his pre-initial public offering investment of $50,000. Following the IPO, his indictment states, his investment value ballooned to $140,000, but then fell below his initial investment value.”
• “Prosecutors argue the sheriff, who has been on medical leave following his indictment in August, used his position to demand his full initial investment back to ‘help pay for campaign and personal expenses.'”
• “In response to the prosecution’s request for a hearing, defense attorney Weinberg wrote that he has ‘never represented Individual A and owes no ethical obligations to him.’ He argued that the government cited ‘no precedent for its suggestion that a professional relationship between two attorneys who are not members of the same law firm can give rise to a conflict.'”
• “Weinberg also called it ‘utterly unremarkable’ that he and ‘Attorney A’ have had ‘two cases in common over the course of the ensuing years.'”
• “‘The undersigned counsel owes no duty of loyalty to clients of the attorney for ‘Individual A,’’ Weinberg wrote, ‘and speculation that he would ‘pull [his] punches’ and betray his responsibilities to the defendant because he has a professional relationship with a witness’s attorney is illusory and illogical.'”

“Ga. Judge Rejects DQ Bid, Questions ‘Quality’ Of Lawyering” —

• “A Georgia federal judge has said he harbors no bias against the four women suing comedian Katt Williams, but he has ‘concern about the quality of legal representation’ they are receiving in light of an explanation given for a brief that contained erroneous case citations generated by artificial intelligence.”
• “In a Tuesday order denying a motion to recuse, U.S. District Judge William M. Ray II said ‘the fact that the undersigned may have questions regarding the honesty, candor, and credibility of Ms. [Loletha Denise] Hale’s explanation for her flawed brief is not a proper basis for disqualification.'”
• “‘Indeed, judges are required to make such determinations when addressing Rule 11 violations,’ Judge Ray added, referring to Federal Rule of Civil Procedure 11, which mandates attorneys conduct reasonable inquiries into facts and law before filing papers with the court.”
• “Hale filed a recusal motion earlier this month, saying Judge Ray’s threat to sanction her for a filing that included multiple references to nonexistent cases ‘appears retaliatory and designed to chill advocacy, rather than grounded in procedural necessity.'”
• “Hale claims her daughter — who is not a lawyer or paralegal but who was helping Hale on the case — used artificial intelligence to generate a brief for the suit that was saved under the same name as the brief the attorney intended to file with the court, and that Hale uploaded the AI brief in error.”
• “Judge Ray said Tuesday he has scheduled a hearing for next week to address the possibility of sanctions because it appears Hale ‘abdicated her responsibility to ensure that the brief she signed and filed with the court was accurate.'”
• “‘Furthermore, although the undersigned has concerns about Ms. Hale’s professionalism, based not only on her flawed brief but also her prior misrepresentations in an unrelated case before this court, such concerns are not a proper basis to have a different judge assigned to preside over the matter,’ Judge Ray said. ‘To be clear, it is Ms. Hale’s conduct in this case that is at issue here.'”
• “In her request to have Judge Ray recuse, Hale had argued that his mention at a hearing in August of an unrelated case over which he presided and for which she had provided testimony was improper and showed he was biased against her.”
• “Judge Ray countered Tuesday that ‘the glaring inaccuracies of the brief prepared by Ms. Hale prompted the undersigned to recall a prior unrelated case in which Ms. Hale had made blatant misrepresentations before this court.'”
• “In that case, In Lewis v. Aimbridge Hospitality LLC, the judge said in a footnote that ‘Ms. Hale misrepresented facts to a jury when testifying under oath as a witness before this court.'”
• “Judge Ray attached a portion of a transcript from the Lewis case, which shows Hale testified that a Henry County, Georgia, judge had been removed from the bench or had agreed not to run again because of a complaint she had made against him. Judge Ray determined that the testimony was inaccurate and had told Hale during that proceeding that he was referring her to the Georgia bar for a possible ethical violation.”

“Nelson Mullins Can’t Escape Claims It Created a Conflict of Interest Involving Newly Hired Attorney” —

• “Nelson Mullins Riley & Scarborough must continue facing claims it created ‘incentives’ for an attorney’s planned 2023 move to the firm while also knowing he was ‘not honoring the duties’ he owed a Colorado inventor who hired him for a lawsuit against a Nelson Mullins client.”
• “Colorado state court Judge Jill Dorancy last week dismissed a civil conspiracy claim against the Am Law 100 firm but allowed to stand an allegation that the firm aided and abetted a breach of fiduciary duty by the lawyer for Colorado inventor Amanda Sima in a case stemming from claims a manufacturer copied Sima’s plans for a children’s drinking cup lid.”
• “Sima’s current attorney, Paul Gordon of Gordon Legal Malpractice said that, ‘assuming the case proceeds as normal,’ it could proceed to trial in Denver in summer 2026. Denver-based Nelson Mullins partner Mark Clouatre, representing the firm, declined comment.”
• “‘The court emphasizes that the court’s reinstatement of the aiding and abetting claim does not resolve whether the fiduciary actually breached the duty—only that plaintiff plausibly alleged it for purposes of Rule 12(b)(5).'”
• “The case, first filed in May 2025 in Denver County Court, stems from Nelson Mullins’ representation of Novolex Holdings and its involvement in attorney Barker’s ‘conflict’ with his representation of Sima and subsequent departure from representing her after disclosing he was joining Nelson Mullins.”
• “‘Defendants intentionally caused Benesch to terminate the contract with plaintiff,’ Sima alleged. ‘Plaintiff had a contract with Benesch in which Benesch agreed to provide legal services for plaintiff. Defendants knew their actions were likely to result in Benesch terminating Benesch’s contract with plaintiff.'”
• “In addition, ‘Nelson Mullins had actual knowledge of the conflicts of interest in discussing Mr. Barker’s employment and in hiring Mr. Barker,’ the original lawsuit stated.”
• “‘In the alternative, and in the face of the lateral hire of seven lawyers from a competing law firm, Nelson Mullins knowingly and intentionally refused to investigate whether conflicts of interest did or would exist. In any event, Nelson Mullins should have known about the conflicts.'”
• “After not hearing from Novolex, Sima said she contacted FM Turner Co. about marketing the lids. She also ‘relied on the promises of FM Turner not to disclose and not to use confidential information concerning the lids’ but was unaware the company also represented Novolex, the suit stated.”
• “Sima then claimed Turner gave information about the lids to Novolex which obtained a provisional patent for a similar product and began selling it in 2019—after which ‘investors withdrew their financing’ for Sima’s product.”
• “She then retained Barker and Novolex hired Nelson Mullins for the case.”
• “Dorancy wrote in a filing last week that Benesch advised Sima to ‘allow Benesch to accept documents from Nelson Mullins without disclosing the nature and content to plaintiff’ after she agreed to an Attorney Eyes Only (AEO) agreement.”
• “‘Benesch then entered into the AEO agreement, telling her that her claims against Novolex lacked merit. Then, within a month, plaintiff’s attorney [Barker] publicly disclosed, unbeknownst to her at the time, that he was joining Nelson Mullins.”
• “‘These allegations, if true, plausibly support an inference that [Nelson Mullins and Novolex] knowingly participated in and substantially assisted a breach of fiduciary duty. Whether the proof ultimately bears this out is for another day.'”
• “‘Because Benesch’s alleged breach of duty is on appeal in Illinois, the first element—whether a fiduciary duty was breached—may be unresolved,’ Dorancy wrote. ‘Once the issue is resolved, the court finds the analysis regarding the aiding and abetting claim may change as they may be foundational to the claim of aiding and abetting.'”

“Reed Smith Blasts DQ Attempt As ‘Litigation Gamesmanship’” —

• “A shareholder of the Venezuelan airline Avior Airlines has urged a Florida federal judge to reject a bid to disqualify his counsel at Reed Smith LLP and attorney Ana R. Ulseth, arguing that the push to disqualify the firm is not about ethics but rather ‘litigation gamesmanship.'”
• “Jorge de Jesus Añez argued in a response Thursday that a motion to disqualify his counsel is a baseless tactic since its work in the disputes hasn’t created any conflicts. Añez added that the motion filed by feuding shareholders is ‘procedurally improper, legally unfounded, and factually misleading.'”
• “The petitioners, shareholders Luis A. Suarez Magual, Moises Maionica and Carlos Kauffmann, argued that the engagement of the law firm was not approved by a majority of the shareholders as required by the company’s bylaws. They say Añez has taken control of Avior in spite of an International Chamber of Commerce arbitration award stating that they own 50% of the airline.”
• “They also pointed to a November 2020 decision by former Miami-Dade Circuit Judge Michael Hanzman that found the Suarez group holds a 50% stake in Avior.”
• “‘Nothing approved by the illegitimate board is a valid corporate act, including the retaining of Reed Smith as counsel,’ the Suarez group said in their motion. ‘As evidenced by Ms. Ulseth and Reed Smith’s appearance, Añez continues to operate Avior as if the Hanzman order, the ICC award and Avior’s by-laws do not exist.'”
• “None of the members of the Suarez Group, as 50% owners of Avior, approved or ratified Ulseth and Reed Smith’s representation of the airline, according to their August motion to disqualify. They said Avior is operating with an illegitimate board that was unilaterally appointed by Añez.”
• “Ulseth and Reed Smith also have a conflict of interest due to their dual representation of Avior and Añez, according to the motion. That’s because Ulseth and Reed Smith also represent Añez in the related case, called Jorge Anez v. Luis Suarez, Carlos Kauffmann and Moises Maionica, as well as Avior Airlines CA et al. v. Luis Suarez, both in Florida’s Eleventh Judicial Circuit.”
• “But Añez said the other shareholders set forth a narrative in their motion that is ‘riddled with misrepresentations.'”
• “‘They distort the factual record, mischaracterize the nature and scope of Reed Smith’s involvement in the relevant cases, and mislabel claims to suit their agenda — going so far as to describe Mr. Añez’s individual damages suit as a ‘derivative action,’ despite the clear allegations to the contrary,’ Añez said.”
• “He added, ‘In reality, Reed Smith’s representations have been narrow, nonoverlapping, and entirely consistent with the ethical rules.'”
  “Aside from those concerns, Añez argued that the court does not need to decide on the merits of the motion because it fails for two independent and dispositive reasons. The first being that the other shareholders lack standing to even bring the motion… Additionally, even if the group had standing, they waived any right to challenge Reed Smith’s representation because they’ve known about the alleged conflict for more than a year and half and still ‘actively litigated against Reed Smith without objection, including at hearings and depositions, and engaged in extensive conferral regarding attorneys’ fees in the postjudgment case.'”

“Prosecutors may move to oust James Comey’s defense lawyer” —

• “Federal prosecutors signaled Sunday that they may seek to boot Patrick Fitzgerald, James Comey’s lead defense attorney, because of Fitzgerald’s alleged involvement in disclosures to the media shortly after President Donald Trump fired Comey as FBI director in 2017.”
• “In a submission Sunday evening, prosecutors suggested to U.S. District Judge Michael Nachmanoff that Fitzgerald, Comey’s lawyer and close friend, could have an insurmountable conflict of interest as a result of the disclosures.”
• “The prosecutors asked the judge to quickly approve a proposal for a ‘filter team’ of lawyers to sift through evidence in Comey’s criminal case that could clarify Fitzgerald’s role in the 8-year-old disclosures — without breaching Comey’s attorney-client privilege.”
• “Prosecutors proposed the ‘filter team’ to the court last week, but in the new filing they said the request has particular urgency because Fitzgerald played a role in Comey’s release of information that officials later deemed classified.”
• “‘Based on publicly disclosed information, the defendant used current lead defense counsel to improperly disclose classified information,’ prosecutors Tyler Lemons and Gabriel Diaz wrote. ‘This fact raises a question of conflict and disqualification for current lead defense counsel.'”
• “Fitzgerald fired back at prosecutors Monday morning, accusing them of attempting to ‘defame’ him with demonstrably false allegations.”
• “‘There was no ‘leaking’ of classified information to the press by either Mr. Comey or his counsel. Full stop,’ Fitzgerald and other defense attorneys wrote.”
• “About a month after Comey was fired, he acknowledged during Senate testimony that he asked another lawyer and friend, Columbia law professor Daniel Richman, to give versions of memos he had written about his conversations with Trump to The New York Times in a bid to make sure a special counsel was named to investigate Trump’s conduct.”
• “The inspector general report found that some of the information Comey shared with his attorneys was classified and faulted him for sharing sensitive investigative information with outsiders and the media, but also found no evidence ‘that Comey or his attorneys released any of the classified information contained in any of the memos to members of the media.'”
• “Fitzgerald argued in the filing Monday that he and Comey acted appropriately in that episode and that Comey shared information with him as he mulled his legal options related to the firing.”
• “‘After Mr. Comey was fired on May 9, 2017, he sought legal advice with respect to his termination and with regard to having witnessed behavior by the President that he considered unlawful,’ Fitzgerald wrote. He said Comey attempted to segregate some memos with classified information from others he deemed unclassified, but that others came to different judgments after the fact and deemed a portion of one memo he’d shared with his lawyers to be classified at the lowest level used by the government.”
• “The Inspector General report noted that the FBI moved to delete the materials Fitzgerald received from his email accounts — and that Fitzgerald, a former U.S. Attorney in Chicago, ‘voluntarily and promptly’ cooperated.”
• “The prosecution’s filing came one day before Comey’s lawyers are scheduled to file their first substantive motions in the case. Comey’s lawyers are set to seek to dismiss the case on grounds of selective and vindictive prosecution as well as on the grounds that the Trump-appointed prosecutor who brought the case, Lindsey Halligan, was not lawfully installed as the interim U.S. attorney for the Eastern District of Virginia.”

Why law firm risk leaders receive recognition, it’s worth noting — Congrats, Robyn! — “DLA Piper shortlisted for five Financial Times 2025 North America Innovative Lawyer awards” —

• “Finally, Robyn Spanier, the firm’s Executive Director of New Business Intake and Procurement, was shortlisted in the Innovation in Strategic Direction category for her role revolutionizing the firm’s new business intake process, leading to market-leading turnaround times for running conflict searches and processing new matters.”
• “This year’s North America Innovative Lawyer awards ceremony will be held in New York on December 8.”

“Chris Cuomo Loses Appeal Bid to Disqualify Arbitrator in CNN Proceedings” —

• “Chris Cuomo can’t revive his bid to disqualify the arbitrator overseeing his $125 million claim against CNN, a New York appeals court has ruled.”
• “The court found that Cuomo ‘did not set forth facts to indicate that the arbitrator was biased in his handling of the arbitration.’ He had initiated the proceedings after he was fired by CNN in 2021 after a deposition revealed he gave advice to his brother, former New York Gov. Andrew Cuomo, who was accused of sexual harassment.”
• “Cuomo’s lawyers had moved to remove JAMS arbitrator Stephen Sonnenberg because he failed to disclose four CNN-related matters that his former law firm handled when he worked at Paul Hastings. He was also personally involved in a 2003 case involving the network, though he said he had no recollection of the matter.”
• “In the order, issued on Tuesday, the court stressed that Cuomo’s lawyers had no issue with the 39 orders issued so far in the arbitration. ‘Nor did counsel claim there was any misconduct on the part of the arbitrator, and was willing to proceed with the arbitration, but only if a new arbitrator was selected by the parties,’ the ruling stated. ‘However, an arbitrator may not be disqualified solely because of his relationship to a party, but rather, upon facts demonstrating partiality to a litigant.'”
• “Cuomo’s bid for discovery to explore Sonnenberg’s recollection of the CNN case he was involved in was properly denied since it was grounded in speculation that he wasn’t honest, the appeals court concluded. It also pointed to Sonnenberg handling the case more than 20 years ago and that his firm was only paid $3,000 in legal fees.”
• “Cuomo had been with CNN since 2013, first as the anchor of its morning show New Day, and then as a primetime host, where he would often have more of a ‘take’ on the day’s news. In the early weeks and months of the pandemic, he also hosted his older brother on his CNN program, with Zucker and Gollust’s blessing, despite there being a ban on such interviews since 2013. He currently hosts a show on rival cable outlet NewsNation.”

“When Disclosure Becomes Disqualification: Management of Arbitrator Disclosure in MTCC No. 1251 v Windsor Arms” —

• “The appearance of arbitrator bias has been a topic of significant interest in recent years, as well as significant concern given the risks it poses. As a result, any case law that handles new or uncommon factual applications of this issue will be of interest to readers.”
• “One recent example is MTCC No. 1251 v Windsor Arms Hotel Corp., 2025 ONSC 5009, where the Ontario Superior Court considered the issue of an arbitrator having an unrelated matter referred to them by a party’s expert witness, as well as the arbitrator’s handling of the potential appearance of a conflict of interest once it arose. While the Court acknowledged that a single business referral may not be sufficient grounds for disqualification, the arbitrator’s subsequent handling of the conflict created an undeniable perception of partiality. Below, we review the decision.”
• “Roughly 30 hours before the hearing was set to begin, the arbitrator emailed the parties to disclose a ‘clear appearance of conflict.’ The conflict stemmed from the fact that the Tax Expert had recently referred an unrelated litigation matter to the arbitrator’s law firm, and the arbitrator himself had been tasked with ‘preparing the pleadings and assuming carriage of it.’ The arbitrator advised that he had no prior dealings with the Tax Expert, and that no discussions had occurred with respect to his involvement in the arbitration.[3]”
• “The arbitrator’s email presented three options to resolve the conflict: (1) his resignation, (2) a written waiver from both parties, or (3) the exclusion of the Tax Expert’s evidence with a corresponding adjournment to allow MTCC 1251 to retain a new expert. The next day, counsel for Windsor Arms asked the arbitrator to elaborate, taking the position that there was no conflict.”
• “Counsel also suggested a fourth option that the Arbitrator did not mention: ‘the client [who had been referred to the Arbitrator’s firm] could retain someone else and [the Arbitrator] would no longer act.’ In response, the arbitrator reiterated his position, advising that he was content to proceed with the arbitration provided that ‘everyone signs off in one way or another about what might be perceived to be a conflict of interest.'”
• “On the day the hearing was scheduled to begin, MTCC 1251 declined to waive the conflict. Windsor Arms, however, took the position that there was no conflict and the arbitration should proceed. The arbitrator then reversed his position, stating that because Windsor Arms objected to him withdrawing (in other words, because there was no agreement between the parties that his withdrawal was necessary), he would no longer resign. In a series of subsequent emails, the arbitrator suggested the arbitration could and should still proceed, prompting MTCC 1251 to bring a formal motion (within the arbitral process) for his removal. The arbitrator heard the motion and determined that there was no conflict. Consequently, MTCC 1251 commenced an Application in the Superior Court of Justice.”
• “The sole issue before the Court was whether the circumstances gave rise to a reasonable apprehension of bias, a standard set out in s. 13(1) of the Arbitration Act, 1991, which provides that a court may remove an arbitrator where circumstances exist that may give rise to a reasonable apprehension of bias.”
• “The Court, after a de novo review of the facts and the applicable law, concluded that the apprehension of bias was reasonable and that the arbitrator should be disqualified. The Court agreed with the arbitrator that in many cases, a single business referral might not be sufficient for removal; however, in this particular case, the arbitrator’s subsequent conduct following his initial disclosure – when considered in its entirety – gave rise to a reasonable apprehension. The Court identified seven key events in support of this conclusion.”
• “Although Windsor Arms does not necessarily raise a novel issue of law, it does emphasize how the management of an arbitrator’s disclosure, rather than the subject matter of the disclosure itself, can be determinative on a test for reasonable apprehension of bias, and that such management can colour events normal to the arbitration process in such a manner that they are construed in a different light.”
• “Most obviously, the arbitrator’s own assessment of their disclosure carries significant weight. The arbitrator’s initial declaration of a ‘clear appearance of conflict’ was not merely a disclosure; rather, it was a determinative self-assessment by the person with the fullest knowledge of the facts. The arbitrator’s reversal on this point was, unsurprisingly, fundamentally impactful to the test for apprehension of bias.”
• “On the other hand, however, the arbitrator was placed in a somewhat invidious position in that his non-disclosure of his communications with the Tax Expert, while relevant to the Court’s analysis, appeared to be the correct approach with respect to the preservation of privilege. It might have been possible for the arbitrator to seek the unrelated client’s waiver of that privilege in order to permit the disclosure of those communications, but there would have been no guarantee that the client would agree to such a request. Furthermore, given the abbreviated timeline of events, this might simply not have been logistically possible in the time available.”
• “Similarly, the exclusion of the clients from the case conference – which is generally unremarkable in normal circumstances – was instead determined to be an additional factor that exacerbated the apprehension of bias. Evidently, procedural decisions – even if standard – must be weighed against the specific circumstances of the parties and the situation at hand.”
• “By contrast, it is equally important to highlight the Court’s emphasis that a single business referral might not be grounds for disqualification. As we have written elsewhere, serving as an arbitrator is an inherently commercial endeavour, and so too is maintaining a practice as counsel at the same time. In such circumstances, it is entirely possible that these two spheres may overlap – particularly in specialized industries – such that professional relationships and business referrals may exist between participants in an arbitration.”
• “Ultimately, Windsor Arms perhaps speaks most directly to the challenge of managing disclosures for arbitrators wearing more than one hat – i.e. maintaining a counsel practice while practicing as an arbitrator (and in some circumstances, an expert witness practice as well). Ultimately, arbitrators and counsel will need to remain mindful not only of the need for disclosure, but of the manner in which such disclosures are managed as well.”

“Atty-Trustee Conflicts Doom Scaife Estate’s $26M Tax Refund” —

• “A Strassburger McKenna Gutnick & Gefsky attorney was also acting as Mellon heir Richard Scaife’s lawyer, trustee and media executive when he signed releases that kept Scaife’s spending of his inheritance secret from his children, so a resulting $200 million settlement between the children and Scaife’s estate was not a bona fide tax-exempt expense, a Pennsylvania appeals court ruled Tuesday.”
• “Citing the apparent conflicts of interest from attorney H. Yale Gutnick’s multiple hats, a three-judge Commonwealth Court panel said the agreements indemnifying the trustees that Scaife signed every time he withdrew money from a family trust were not presumptively valid. Scaife’s estate therefore could not claim the $200 million the trustees paid to replenish the account as an expense of the estate and claim a $26 million refund on state inheritance taxes.”
• “‘Conflicts of interest and fiduciary duties abound in the numerous and layered transactions underlying this matter. Those transactions, in the end, resulted in a several-hundred-million-dollar liability of the estate, the complete absolvement of the trustees of any liability for distributions, and the payment to attorney Gutnick’s law firm of approximately $1.6 million in attorneys’ fees,’ Commonwealth Court Judge Patricia McCullough wrote in the panel’s opinion. ‘Although we cannot divine whether these results were intended by decedent, we must agree with the Westmoreland County Orphans’ Court’s determination that the estate has not succeeded in removing them from suspicion’s reach.'”
• “Scaife had been a beneficiary of a trust that his mother, Sarah Mellon Scaife, had established in 1935, with any children he would have as ‘remainder beneficiaries.’ The trustees of that fund, including Gutnick, allowed Scaife to make 19 withdrawals from the trust between 1996 and his 2014 death, each time without seeking court approval — allegedly to hide the distributions from his children, David and Jennie, the Commonwealth Court said.”
• “To protect themselves, the trustees had Scaife sign agreements each time indemnifying them from any consequences of the withdrawals, which eventually drained all $400 million from the trust to support Scaife’s media holdings.”
• “Upon discovering that the trust had been drained and left nothing for them, David Scaife and Jennie Scaife’s estate sued the trustees. They reached a $200 million settlement in early 2020, and the trustees sought to have that deducted from the value of Scaife’s estate for state and federal inheritance taxes.”
• “But in order for an estate’s liabilities based on promises or agreements to be deductible, the deals need to be genuine or ‘bona fide’ and made in consideration for money or something worth money.”
• “In oral arguments in February, Gutnick’s attorney David Strassburger told the panel that the indemnifications were bona fide agreements between Scaife and the trustees, since Scaife got the ‘consideration’ of not having to go through the courts to access the money.”
• “But the Commonwealth Court said Tuesday the agreements were not genuine, because Gutnick had conflicts of interest in getting Scaife to sign them. Gutnick had been a personal friend Scaife’s; his personal and business attorney; trustee of multiple trusts, including the 1935 trust and other parts of the family fortune; executor of Scaife’s estate; and a board member and president of Scaife’s newspaper companies.”
• “Scaife had not had an outside attorney review the indemnification agreements before signing them, and Gutnick got both the benefit of indemnification and the money going to the media companies he helped run for Scaife, the opinion said.”
• “‘Both the execution and postmortem enforcement of the indemnification agreements clearly were born of a multi-layered confidential relationship between decedent and attorney Gutnick that implicated the array of attorney Gutnick’s significant and potentially conflicting professional and fiduciary duties,’ the opinion said. ‘As a matter of law, then, the indemnification agreements, in this context, are presumptively voidable.'”