Bressler Risk Blog

“Cannabis Practice Creates Ethical Traps, Conflicts for Lawyers“ —

• “Ethical and legal snags abound for lawyers representing cannabis industry clients in the growing number of states where weed is legal, requiring extra due diligence to ensure compliance, attorneys familiar with the rapidly evolving business tell Bloomberg Law.”
• “For instance, the California Evidence Code covering attorney-client privilege requires lawyers to advise clients of state and federal law conflicts, and should be incorporated in engagement letters to balance ethical obligations.”
• “Michelle Mabugat, counsel at Greenberg Glusker LLP in Los Angeles, said she also likes to counsel of the inherent conflict of representing clients with competing economic interests in the small industry. ‘The cannabis law practice is just particularly and especially ripe for conflicts in client’ engagement, she said. ‘It’s finite. There’s only so many players in this industry and they’re all trying to do business with each other. You have to be extra vigilant on with your ethical obligations in this space.'”
• “Rachel Gillette, who leads Holland & Hart in Denver’s cannabis practice, said she sees ‘over and over lawyers in newly legalized states dipping their toes into what they would call ‘cannabis law.’ Really cannabis is an industry, and just because you practice criminal defense, DUI defense, or personal injury law, that does not mean you should now hang your shingle as a ‘cannabis lawyer.””
• “Knowing who the client is crucial. Bricken said attorneys ‘need to develop a very good red flag radar where a lot of bad actors still make their way to your office in order to try to take advantage of licensing for other nefarious activities.'”
• “Careful client selection is essential ‘because there are still operators in the industry that are not operating quite legally. If you want to protect your firm and practice, you want to work with good actors,’ said Ryan Lowther, founder of Farella Braun + Martel LLP’s cannabis Industry practice group in San Francisco.”

“Lawyers beware: NY and GA issue conflicting ethics decisions on representing cannabis clients” —

• “Ethics authorities in New York and Georgia recently issued opposing opinions on whether lawyers can represent clients in navigating what Justice Clarence Thomas last month called the ‘half-in, half-out regime’ related to both recreational and medical marijuana, ‘a contradictory and unstable state of affairs’ that ‘conceals traps for the unwary.'”
• “On July 8, 2021, following New York’s enactment of legislation legalizing recreational cannabis for adults, the New York State Bar Association gave attorneys the green light to counsel clients in the recreational marijuana industry… The NYSBA found that the federal enforcement policy created a ‘highly unusual and unique circumstance’ and that the prohibition in Rule 1.2 was not intended to ‘preclude lawyers from counseling or assisting conduct that is legal under state law or to provide assistance that is necessary to implement state law and to effectuate current federal policy.'”
• “The NYSBA’s opinion comes on the heels of the Supreme Court of Georgia taking the exact opposite position in its June 21, 2021 order denying a motion to amend Rule 1.2(d) of the Georgia Rules of Professional Conduct.”
• “In denying the motion, the Supreme Court of Georgia relied on the federal illegality of cannabis and held that passage of state laws permitting and regulating conduct that is still a federal crime does not change the long-standing prohibition against ‘counseling and assisting clients in the commission of criminal acts.'”
• “If you are considering counseling a cannabis client, you should be familiar with the relevant jurisdiction’s position on cannabis and Rule 1.2. Unsurprisingly, many commentators note that lawyers are simply ignoring ethics opinions that prohibit advising cannabis clients and some expect that will be the case in Georgia as well. That seems risky. While it is unclear whether lawyers have yet faced disciplinary consequences for violating state ethics rules related to cannabis clients or will in the future, this is a continually developing area that requires caution.”

“SDNY Takes Over ‘Lottery Lawyer’ Case Due To EDNY Conflict” —

• “Federal prosecutors from the Southern District of New York are taking over the case accusing the “Lottery Lawyer” of defrauding clients out of millions of dollars from the Eastern District of New York in light of a conflict due to the marriage of the acting EDNY U.S. attorney and a lawyer for the former Rivkin Radler partner.”
• “The recently appointed acting EDNY U.S. attorney, Jacquelyn Kasulis, is married to Telemachus “Tim” Kasulis of Morvillo Abramowitz Grand Iason & Anello PC, a lawyer for attorney Jason Kurland, who stands accused of offering investment opportunities to his lottery winner clients without disclosing kickbacks he received in exchange for the referrals.”
• “Prior to her appointment to acting U.S. attorney, Jacquelyn Kasulis served as chief assistant U.S. attorney and chief of EDNY’s criminal division. She had been recused from the case due to her husband’s representation of Kurland. Elbert will continue as a prosecutor on the case, she said, but supervision of the matter will be handled by the higher-ups at SDNY.”
• “Kurland advised some of the biggest jackpot winners in recent history on how to stay anonymous, handle the media, and collect and invest their winnings. He would stand beside his clients or stand in for them at news conferences… According to prosecutors, Kurland’s three clients invested $107 million with entities involved in the scheme, and more than $80 million of that was stolen or lost between 2018 and 2020… Kurland faces six counts of wire fraud, eight counts of honest services fraud, and a count each of money laundering and conspiracy.”

For more of the story here, see ABC’s piece: “‘Lottery Lawyer’ allegedly swindled jackpot winners in $107M scheme”

“Conflict of interest fears in Warragamba Dam probe” —

• “An investigation into allegations that traditional owners were offered bribes in exchange for their support for raising the Warragamba Dam wall was handled by a law firm with links to WaterNSW, raising major concerns of a conflict of interest.”
• “Traditional owner Kazan Brown told the hearing Registered Aboriginal Parties were offered inducements, including access to culturally significant sites and employment offers, in exchange for supporting the project.”
• “The allegations sparked an “independent” internal investigation, with WaterNSW engaging Melbourne-based law firm Sparke Helmore Lawyers to provide legal advice. The report found ‘no bribe or inducement was offered to her for her support of the project.'”
• “Sparke Helmore, however, previously employed WaterNSW corporate lawyer regulatory & compliance Daniella Zuvela, raising concerns about the investigation, which was supposed to be undertaken at arms-length from the government agency.”
• “One of the leading critics of the Warragamba Dam raising, Colong Foundation general manager Harry Burkitt, said the revelation raised concerns of a conflict of interest in the investigation, which ‘marred the findings’ of the ‘supposedly independent process.'”
• “A spokesman for WaterNSW said: ‘WaterNSW selected the legal firm to undertake the investigation from among the law firms registered on the NSW Government Legal Services Panel. The ­selection process was consistent with the panel’s rules.'”

“Wiley Rein admits ethics lapse but resists discovery bid in BDO case” —

• “McDermott Will & Emery has asked a Washington, D.C., judge to let it scrutinize rival law firm Wiley Rein’s business practices after it admitted to breaching ethics rules by simultaneously representing opposing sides in an employment lawsuit earlier this year.”
• “The discovery bid stems from a D.C. Superior Court lawsuit that McDermott client BDO USA LLP brought last May against a former BDO partner, Eric Jia-Sobota, for allegedly scheming to steal the accounting giant’s clients and employees.”
• “Lawyers from Wiley Rein, working with Ari Wilkenfeld of Washington’s Wilkenfeld, Herendeen & Atkinson, are representing Jia-Sobota and his new company EverGlade Consulting. But in March 2021, an insurance carrier for BDO separately reached out to Wiley Rein to serve as coverage counsel for a counterclaim filed by Jia-Sobota, who has denied taking any steps contrary to his obligations to BDO.”
• “A conflicts team at Wiley Rein ran a check for any matters adverse to BDO, but the review ‘inadvertently’ did not include EverGlade and Jia-Sobota, the firm stated in court filings. Wiley Rein represented a BDO insurance carrier and the defendants for a month, billing about 11 hours, until BDO first became aware of the conflict and alerted Wiley Rein. The firm apologized to BDO and stopped representing the insurance carrier in April.”
• “Wiley Rein said no lawyer for EverGlade ever saw BDO-related documents during the month the firm represented the opposing sides.”
  “The dispute has teed up a potential disqualification bid by McDermott, and claims from Wiley Rein that its adversary is trying to exploit the ethics error to gain an advantage in the ongoing employment case.”
• “McDermott is seeking documents from Wiley Rein including internal and external communication, conflict-check files and draft billing records. Judge Heidi Pasichow last week set a status hearing for October. The judge hasn’t yet ruled on whether to allow discovery.”
• “‘Wiley must account for its engagement with precision and transparency, which can only be accomplished through the confirmatory discovery BDO seeks,’ McDermott lawyers told the court on June 28. The materials are needed to show ‘whether Wiley can ethically continue as counsel in this litigation,’ the firm said.”
• “Wilkenfeld, a veteran labor and employment litigator, called McDermott’s bid for discovery a ‘continuation of what is, in my view, scorched-earth litigation tactics.'”

Perhaps old hat to some, this presented detail that was new and fascinating to me: “What Lawyers Should Be Thinking About before Entering into an Of Counsel Relationship” —

• “The ‘of counsel’ designation, as envisioned by the authors of various ethics opinions around the country, refers to something altogether different from a traditional attorney within a firm. These opinions generally define the term ‘of counsel’ as an attorney who is not a partner, associate, shareholder, or member of a firm, and further state that an attorney may only be designated ‘of counsel’ to a firm if the attorney will have a close and continuing relationship with that firm.”
• “Thus, any attorney who works at a firm and has a significant degree of shared liability with that firm or has any managerial responsibilities to that firm and/or its staff should never be designated as ‘of counsel.’ And be aware that related terms such as ‘special counsel,’ ‘tax counsel,’ ‘senior counsel,’ and the like are understood to have the same meaning as “of counsel” and thus the requirement of a close and continuing relationship will apply here as well.”
• “The requirement of a close and continuing relationship has been defined as providing for close, ongoing, regular, and frequent contact for the purpose of consultation and advice. Further, the of counsel attorney must be more than an advisor on only one case or just a forwarder or receiver of legal business. Now you know why attorneys sometimes find themselves in ethical hot water after designating an attorney, whose sole role is to act as a referral source, as ‘of counsel’ to a firm. Use of the term in this manner is considered to be a misleading client communication.”
• “For conflict purposes the of counsel affiliation means that the affiliated firm and the of counsel attorney will often be treated as one entity. This does mean that the conflicts the of counsel attorney brings to the table may prevent the affiliated firm from continuing to represent current or future clients.”
• “Likewise, the of counsel attorney must be concerned about apparent or actual conflicts between his own clients and those of the affiliated firm. The imputed disqualification rule is a two-way street and there is little that can be done to correct the problem once it has arisen. Conflict checks can be burdensome and the potential cost in lost business if a conflict is ever missed can be substantial. Always address the conflict issue prior to establishing of counsel relationships so that everyone understands what the additional burden will be and can agree that the benefits outweigh the costs.”

Fascinating piece from Kwok Kit Cheung, partner at Deacons. The article is worth reading in full for much more context, detail and analysis: “An arbitrator’s duty to avoid conflicts of interest” —

• “In Secretariat Consulting Pte Ltd v A Company [2021] EWCA Civ 6, England’s Court of Appeal held that, depending on the terms of the retainer, the relationship between a provider of litigation support services/expert and his or her client, may have one of the characteristics of a fiduciary relationship, namely a duty of loyalty or, to put it another way, a duty to avoid conflicts of interest. In this case, there was a contract with an express clause dealing with conflicts of interest and since a fiduciary duty of loyalty would not add to or enhance the obligations arising from that clause, considering the issue further was unnecessary for the disposition of the appeal.”
• “In March 2019, the respondent’s solicitors approached Secretariat Consulting Pte Ltd (SCL), a Singapore subsidiary of the Secretariat group (which group provides litigation support services and act as delay and quantum experts in construction arbitrations) to provide arbitration support and expert services in Arbitration 1, in connection with the causes of delay and disruption to packages A and B.”
• “Having received the Confidentiality Agreement, the respondent’s solicitors wrote to K (the individual at SCL who was going to be the lead expert and who had signed the Confidentiality Agreement) asking him to confirm that he was not conflicted to act as independent expert witness in the matter, which he did.”
• “In October 2019 Secretariat International UK Ltd (SIUL) was approached by the third party to provide arbitration support and expert services in respect of quantum in Arbitration 2. SIUL ran a conflict check (which involved all entities in the Secretariat group) which revealed the engagement of SCL by the respondent. K wrote to the respondent’s solicitors stating that since the third party’s contract with the respondent was for EPCM works for the full complex, and their engagement was in relation to the evaluation of delays on the construction subcontract for non-process buildings, their view was that working on the two matters (in different offices) would not constitute a ‘strict’ legal conflict and that his firm also had the ability to set the engagements up in a manner so that there was the required physical and electronic separation between the teams.”
• “On 5 March 2020, the respondent’s solicitors wrote to K to say that they would like to expand the scope of their instructions to include expert witness services in the matter of an arbitration in which the respondent was defending claims brought by the third party. Then, on 10 March 2020, the third party wrote to the tribunal in Arbitration 2 to confirm that M of Secretariat had been engaged as the third party’s quantum expert and was already working. On 12 March 2020, the respondent’s solicitors wrote to SCL to say that there was a conflict which could give rise to a risk that SIUL might use the respondent’s confidential information.”
• “The Technology and Construction Court granted an injunction preventing SIUL from doing any further work in Arbitration 2. It held that SCL owed its client (the respondent) a fiduciary duty of loyalty, which meant that SIUL could not provide similar expert services to a third party, who was making a claim in another arbitration against the same respondent arising out of the same project and concerned with the same or similar subject matter.”
• “It said that where a fiduciary duty of loyalty arises, it is not limited to the individual concerned, but also extends to the firm or company and may extend to the wider group. The court distinguished the issue of confidential information and said that the fiduciary obligation of loyalty is not satisfied simply by putting in place measures to preserve confidentiality and privilege. Such a fiduciary must not place himself in a position where his duty and his interest may conflict. This was the first time in the English jurisdiction that an expert had been found to owe a fiduciary duty to its client.”
• “The Court said that none of this should be taken as saying that the same expert cannot act both for and against the same client. Of course, an expert can do so. Large multinational companies often engage experts on one project and see them on the other side in relation to a dispute on another project. That is inevitable. But a conflict of interest is a matter of degree, the Court said, and the overlaps of parties, role, project and subject matter made it plain that in the present case, there was a conflict of interest.”
• “The Court said that the result in this case was a reflection of the terms of the original retainer. It was perfectly possible for a group like Secretariat, if it thought it commercially sensible to do so, to make plain that its representations as to conflict of interest and its undertakings for the future were based solely on the entity involved, and that, despite the scope of the conflict check that they had undertaken, no such representations or undertakings were given in relation to any other entity in the Secretariat group.”

“Rackspace founder Graham Weston sues San Antonio lawyer” —

• “Rackspace Technology Inc. co-founder Graham Weston calls it ‘perhaps the most blatant violation and betrayal of the attorney-client relationship in the history of Texas jurisprudence.'”
• “Davis and his law firm, Davis & Santos, accepted more than $2.9 million in legal fees to represent Weston in various matters over the years — only to ‘secretly’ agree later to serve as Elizabeth Weston’s counsel in the couple’s divorce, the suit alleges. The complaint was filed Wednesday.”
• “As part of his representation of Elizabeth Weston, the complaint says, Davis conducted a “secret investigation” to develop criminal, civil and family law claims against Weston — all while still representing him and entities he manages in three lawsuits.”
• “In an answer filed Thursday afternoon, Davis says the lawsuit is an attempt to “bully” him and his client because ‘they dared to stand up’ to Weston. Davis describes himself as her lawyer and “longtime, trusted confidant.” He has represented Weston entities, for which Elizabeth Weston has served as authorized representative while managing their litigation, the document says. Davis disputes he ever represented Graham Weston individually, save for a matter involving Rackspace that ended in 2012.”
• “In his order, Waldrip found ‘an impermissible conflict of interest arose when Davis agreed to assist Elizabeth in investigating claims now within this divorce proceeding, including allegations of personal injury and family violence against Graham.’ Davis sought to overturn Waldrip’s ruling, but the 3rd Court of Appeals in Austin last week denied the request without explanation.”
• In a declaration attached to Davis’ answer Thursday, Elizabeth Weston said she filed for divorce because ‘I could no longer withstand the emotional, psychological, physical, and sexual abuse I suffered by Graham for many years.’ Weston has said the allegations are fabricated. He has accused his wife of recording him and hiring a private investigator to track him for a year and a half.”

“New Local Rule Allows Disclosure of Litigation Funding in NJ’s Federal Courts” —

• “New local Rule 7.1.1 (effective Aug. 5, 2021), changes the landscape of litigation funding disclosure in New Jersey’s federal courts. The District of New Jersey will now require all parties to file statements setting forth information about any non-party person or entity that is ‘providing funding for some or all of the attorney fees and expenses for the litigation on a non-recourse basis’ in exchange for either ‘a contingent financial interest based upon’ the litigation’s results or a ‘non-monetary result that is not in the nature of a personal or bank loan, or insurance.'”
• “The emerging trend has been to extend privacy protections to litigation funding materials under the work-product doctrine, and generally to deny production or use of such materials in litigation. New Jersey federal courts seem to be charting a different path, and one that may influence other courts to reexamine their own rules and practices.”
• “Part of the stated basis for the new Rule 7.1.1 is to allow judges sufficient information to decide recusal issues for potential pecuniary interest and conflict. However, the Rule’s actual impact may be broader, as the Rule also provides that a party may seek discovery “of the terms of any such agreement upon a showing of good cause that the non-party has authority to make material litigation decisions or settlement decisions, the interests of the parties or the class (if applicable) are not being promoted or protected, or conflicts of interest exist, or such other disclosure is necessary to any issue in the case.” So, although information about the funding is disclosed, a party seeking discovery about the terms must still demonstrate good cause to get additional information. That line of thinking is consistent with the case-by-case analysis generally applied to discovery of litigation funding documents.”
• “New Jersey’s new local federal rule seems intended to strike a balance, requiring a showing of good cause before chasing down records that might be compromising. However, the idea that a funder is a real party in interest to be disclosed at the outset is, in and of itself, not insignificant, particularly as mainstream financial institutions continue to take on this type of funding arrangement. The implications for recusal are real, and courts should have the existence of the agreement and identity of the funder as a basis for decision.”

“Why Don’t Malpractice Policies Typically Cover Consulting Work? Understanding the Ancillary Services Coverage Concern” —

• “Ancillary services are often the issue. It might be a lawyer is planning on offering both legal and non-legal services under the banner of their practice. Think regulatory compliance and consulting in the cybersecurity sector, employment law and consulting or investigation services in the employment law sector, or business formation and consulting in the business sector.”
• “It might be a lawyer planning to team up with a local CPA to offer legal and nonlegal services under one roof. Heck, the plan might be as simple as deciding to offer do-it-yourself legal forms from the law firm’s website. Suffice it to say the length of this list is only going to be limited by the creativity of lawyers and we can be a creative bunch.”
• “Here’s the rub. A lawyer’s professional liability policy does not cover any and all liability that a lawyer may face. At the most basic level, a legal malpractice policy will only cover allegations of negligence in the performance of professional services that were provided to clients of the named insured, a law firm.”
• “The definition of the term “professional services” is typically a rather broad definition that covers the legal advice and services traditionally provided in an attorney-client relationship… The important point here is to help you understand that ancillary services that are nonlegal in nature, such as consulting, are not going to be covered under a lawyer’s professional liability policy nor will any work done on behalf of someone who is not in an attorney-client relationship with you.”
• “Since you should have coverage for both your law practice and your ancillary business, anything you do to help underscore the presence of a separate and distinct delivery model for the legal and nonlegal services you wish to offer will make it easier to properly insure both risks by way of separate policies.”

“Firm Beats DQ Bid Over Ex-Judge’s Role In Malpractice Suit” —

• “Superior Court Judge Keith E. Lynott on Wednesday knocked down plaintiff Noemi Escobar’s bid to disqualify Wilentz Goldman on the grounds that ex-state Appellate Division Judge John E. Keefe is a witness after having served as a mediator in an underlying case where a $102 million child abuse judgment was thrown out on appeal.”
• “The judge found that a state professional ethics rule at issue applied to Keefe’s participation in the present suit as an attorney but not as a witness.”
• “As long as Judge Lynott is “satisfied that Judge Keefe is screened from acting as an attorney for the defendants,” Wilentz Goldman and firm attorney Brian J. Molloy may continue serving as counsel for Mazie Slater and fellow defendant, firm partner David A. Mazie, according to the judge’s written opinion. ‘This is so notwithstanding the fact that Judge Keefe will be a potential fact witness whom either side may summon to appear at a deposition or at the trial,’ Judge Lynott said.”
• “Wilentz Goldman and Molloy have implemented ‘adequate screening procedures,’ even though the firm has said it never intended for Keefe to serve as an attorney in the matter, the judge said. Those procedures include preventing Keefe from accessing the firm’s files in the case or getting a cut of the fees paid to the firm for its work on the suit, the judge said.”
• “The dispute largely centered on the meaning of the phrase ‘any participation’ under New Jersey’s Rule of Professional Conduct 1.12(b). According to that provision, a firm in such a scenario would be barred unless ‘the disqualified lawyer is timely screened from any participation in the matter.'”
• “But Judge Lynott on Wednesday found that it’s ‘appropriate to construe the phrase ‘any participation,’ as used in this rule, to mean participation as an attorney and not as a witness.'”

“7th Circuit upholds spoofing conviction despite Sullivan & Cromwell conflict” —

• “The 7th U.S. Circuit Court of Appeals rejected a former high-speed trader’s challenge to his conviction on spoofing charges, saying that while his law firm Sullivan & Cromwell had a conflict of interest in the case, it did not affect the 2015 trial.”
• “Spoofing involves placing bids to buy or offers to sell futures contracts with the intent to cancel them before execution. By creating an illusion of demand, the tactic can sway prices to benefit the trader’s market positions.”
• “Coscia then filed a civil rights lawsuit seeking to set aside his conviction over Sullivan & Cromwell’s alleged conflict, and sought a new trial based on trade data he had obtained after his conviction.”
• “The court said attorney Kenneth Raisler and his firm’s representation of ICE, ‘and the failure to disclose such conflict, is cause for concern that loyalties may have been divided,’ but said Coscia did not show it adversely affected his defense.”
• “Coscia had argued Sullivan & Cromwell was ineffective for failing to obtain the full ICE data, but the panel said that data would not have changed the trial’s outcome.”

“Pediatrician blasts use of bone scanners as ‘fairness hearing’ begins on Flint settlement” —

• “A Flint pediatrician and former hospital CEO blasted the use of industrial scanners — not designed for use on human beings — to document Flint residents’ exposure to lead-contaminated drinking water, as a federal judge began a multi-day hearing Monday on whether a proposed $641.25 million partial settlement is a fair one.”
• “Also during Tuesday’s daylong hearing, lawyers in the Flint water crisis civil litigation accused one another of unethical behavior and conflicts of interest.”
• “Napoli and another lead attorney, Corey Stern of New York, hit back at Cuker, accusing him of inconsistencies that include questioning the safety of the portable bone scans while at the same time complaining that his clients cannot get access to the scanning, controlled by Napoli’s firm.”
• “Napoli and another lead attorney, Corey Stern of New York, hit back at Cuker, accusing him of inconsistencies that include questioning the safety of the portable bone scans while at the same time complaining that his clients cannot get access to the scanning, controlled by Napoli’s firm.”
• “They also accused Cuker of having a conflict of interest by representing hundreds of clients who want a share of the Flint settlement while at the same time representing a handful of clients who oppose the settlement. That is a conflict because if the settlement gets torpedoed as a result of objections Cuker raises, it will almost certainly hurt his clients who want to settle, they said.”

“Facebook Gets Law Firm Leading Major Antitrust Case Disqualified” —

• “Facebook Inc. succeeded in disqualifying one of the firms leading antitrust litigation over its alleged scheme to squash rival startups, when a federal judge in California ruled that Keller Lenkner LLC was compromised when it hired a lawyer who had worked on the tech giant’s antitrust defense.”
• “Judge Lucy H. Koh removed Keller Lenkner from the proposed consumer class action in the U.S. District Court for the Northern District of California, where it’s one of several parallel lawsuits accusing Facebook of exploiting its troves of data to target competing apps that posed a potential threat.”
• The judge noted: “The court notes, nonetheless, that the record does not reflect that there has been any disclosure of Facebook confidential information. However, such a disclosure is not required for disqualification… The purpose of a disqualification order is prophylactic, not punitive.”
• For more history on this one

“NYSBA Ethics Opinion Gives Green Light To Lawyers’ Involvement With Marijuana Businesses” —

• “Earlier this week, the Committee issued Ethics Opinion 1225, which addresses lawyers’ ethical obligations when engaged in activities regulated by New York’s Recreational Marijuana Law. The Opinion answered three questions:
• “May an attorney ethically provide legal services to assist a client to comply with New York’s Recreational Marijuana Law?:”
  • “the Committee previously concluded that a New York lawyer could assist a client to comply with the Compassionate Care act, which regulated medicinal marijuana.”
• “May an attorney ethically use marijuana recreationally and grow it at home for personal use?”
  • “The Opinion reasoned that “the scope of federal forbearance provides inquirer with a ‘reasonablegood-faith belief that no valid obligation exists” to comply with federal narcotics laws that would otherwise prohibit her ownership of an interest in a cannabis business, her home cultivation of marijuana plants for personal use, and her recreational use of marijuana, where and when such activities are authorized by New York State law.'”
• May an attorney accept an equity interest in a client’s cannabis business in exchange for providing legal services?”
  • “…the Opinion concluded that a lawyer may accept an equity interest in a client’s cannabis business provided the lawyer follows the appropriate conflict of interest rules.”
  • “The Opinion also reasoned that the lawyer should determine whether her equity interest in the client’s business would give rise to a personal interest conflict under RPC 1.7(a)(2). If so, the lawyer may still proceed with the representation provided “(i) the lawyer reasonably believes she can provide competent and diligent representation despite the conflict and (ii) the lawyer obtains the client’s informed consent, confirmed in writing” as required by RPC 1.7(b).”

“Britney Spears’ conservatorship hearing could create change in the system as a whole” —

• “Allowing Spears to choose her own counsel could create systemic change since ABC10 has found this is a rarity in probate courts statewide.”
  “It wasn’t until an army of Britney Spears fans caught wind of the legal system controlling the pop icon’s life as well as her $60 million estate. Today they’ve become known as the Free Britney movement, formed from passionate, emblazed fans across the world, determined to use their voice to help an idol they grew up influenced by, listened to and watched.”
• “The sentiment advocates shared throughout the course of our investigation is that Spears has brought attention to the problem with conservatorships, and therefore the possibility of change. Many of the advocates told ABC10 that ‘the elderly aren’t sexy,’ and that ‘no one cares about grandma,’ which is why they believe change has not happened yet.”
• “Spears was permitted to select attorney Mathew Rosengart, a prominent Los Angeles attorney and former federal prosecutor, after her court-appointed attorney, Sam Ingham, resigned following her explosive testimony calling the conservatorship “abusive” in a June 23 hearing. Ingham had been appointed to represent Spears in 2008.”
• “In our year-long investigation, nearly every conservatorship we reviewed had a court-appointed attorney assigned to represent the conservatee. Court-appointed attorneys are supposed to serve as an unbiased party and represent the best interest of their client.”
• “Our investigation found a pattern in Sacramento County of court-appointed attorneys representing proposed conservators, then conservatees with the same proposed conservator in other cases, posing the question of conflict of interest.”
• “For Spears’ case, MacCarley believes Ingham did not serve in Spears’ best interest because in her June 23 hearing she alleged the conservatorship allowed control over her life, even controlling her cell phone and isolating her.”