Bressler Risk Blog

I always take note of the annual insurer survey report produced by Ames & Gough. The Insurance Journal offers an excellent summary: “Law Firms and Their Insurers Feel the Pain of Bigger Malpractice Claims” —

• “Even as law firms made adjustments to sustain their operations through the COVID-19 pandemic, they were unable to avoid the rising costs of malpractice claims. Indeed, the time period beginning in 2019 through mid-2020 marked the worst two years on record for legal malpractice claim payouts, according to a new survey by insurance broker Ames & Gough.”
• “The survey also found insurers apprehensive about claims that may mature post pandemic; most reported a significant volume of claims last year with substantial reserves and large payouts.”
• “Nine of the 11 insurers surveyed had participated in a claim payout in excess of $50 million in the past two years; two paid a claim between $150 million – $300 million and four paid a claim over $300 million. Altogether, the survey found the number of claims resulting in larger multi-million dollar payouts, and the amounts of these payouts, had increased year over year.”
• “Nine of the 11 insurers indicated their claims frequency decrease or stabilize between 2019 and 2020. Of the remaining insurers, one saw claims increase by 6-10% and the other, by 11-21%. By contrast, in 2019, 80 percent of the insurers surveyed indicated their claim frequency was the same or higher than the previous year, the first time since 2013 that frequency rose.”
• “Insurers surveyed traced the largest numbers of malpractice claims to three key practice areas: Trust & Estates; Business Transactions, and Corporate & Securities.”
• “The survey findings also underscored the value of effective communication. Ten of the 11 insurers polled indicated that poor communication – such as not getting client consent, poor documentation of a file, not using or updating an engagement agreement, or saying something derogatory about a client or colleague – was a contributing factor in legal malpractice claims.”
• “Among the most common legal malpractice errors, conflicts of interest remains the leading cause of malpractice claims with seven of the 11 insurers surveyed ranking it the first or second cause.”
• “This year, survey participants were asked to list the three most useful risk management techniques for law firms to mitigate legal malpractice risk. Seven of the 11 insurers cited a well-crafted engagement agreement focusing on the scope of work as essential to avoiding risk, along with revisiting it whenever there is a change in direction of the services needed.”
• “In addition, five insurers also listed peer review and supervision of work, good client intake, and detailed communication among the most important techniques to avoid malpractice claims.”

“Facebook Seeks to DQ Antitrust Plaintiffs’ Firm Over New Hire” —

• “Facebook Inc. is seeking to disqualify one of the law firms leading a case over its alleged scheme to squash rival startups, arguing in California federal court that Keller Lenkner LLC should step aside after hiring an attorney who spent six months preparing the tech giant’s antitrust defense.”
• “‘Notwithstanding the obvious conflict of interest created by an attorney switching sides,’ Keller Lenkner didn’t screen its new hire until four months after he started, the company says. ‘Facebook can never know which of the firm’s actions are tainted by that ethical violation.'”
• “The lawsuit, consolidated in the U.S. District Court for the Northern District of California, involves claims by consumers and advertisers that have accused the tech giant of monopolizing social media by exploiting its troves of user data to identify potential competitors to buy, copy, or kill.”
• “Facebook says the firm waited too long before honoring its ethical duty to put up a wall between the case and a former Facebook attorney it hired from Kellogg, Hansen, Todd, Figel & Frederick PLLC. The lawyer came over from Kellogg Hansen in June 2020—after six months of ‘deeply involved’ work on Facebook’s defense against the government antitrust probes—but Keller Lenkner didn’t put up a screen until November, the disqualification motion says.”
• “The firm then ‘overstated’ the screen, including in court, according to Facebook, which claims its concerns were “exacerbated” because Keller Lenkner was removed from a case involving Uber Technologies Inc. for playing ‘fast and loose with this same ethics rule.'”
• “‘This was not an insignificant or incidental representation’ but an attorney who worked closely with Facebook and ‘was frequently entrusted with’ its ‘confidential and privileged information,’ the motion says.”

For more detail on the screening argument and beyond, see the complete disqualification motion.

“Ontario court rejects motion to disqualify counsel in proceedings arising from medical care action” —

• “The Ontario Superior Court of Justice recently considered whether a firm could act for a defendant when one of its lawyers generally discussed his potential retention as an expert witness for the plaintiff relating to a previous civil trial.”
• “The plaintiffs sought to disqualify Adair Goldblatt Bieber LLP (AGB) from representing the defendants in the present action. The plaintiffs argued that AGB possessed confidential information attributable to the solicitor-client relationship between the plaintiffs and the plaintiffs’ counsel, Falconeri Rumble Harrison LLP (FRH), following a discussion participated in by Mr. Adair, Mr. Falconeri and Mr. Rumble.”
• “In April 2019, Adair was at the offices of FRH to discuss an unrelated legal matter in which Adair was retained to provide an expert opinion in a legal malpractice action involving FRH. Adair was asked whether the fact that Mr. Bieber, Adair’s partner at AGB, was acting on behalf of LawPro would interfere with Adair’s ability to provide opinions for FRH in legal malpractice actions, to which Adair replied that it would not.”
• “Falconeri then began to discuss a case in his office relating to a possible legal malpractice claim against a lawyer based on the lawyer’s involvement in a medical malpractice action. Adair indicated that he would be open to offering an opinion in the future if he was asked and provided with enough information.”
• “The Superior Court of Justice of Ontario dismissed the motion to prevent AGB from representing the defendants in the present action, finding that this was not a proper case that justified granting the extreme remedy of disqualifying counsel. The court noted that it could only interfere with the litigant’s right to choose counsel

“‘I Was Speechless’: Law Firm Investigated Its Own Ex-Client For Trump VOA Chief” —

• “Early last June, the Open Technology Fund was scrambling for survival. The nonprofit fosters technology that enables people who live under repressive regimes to communicate securely. It is wholly dependent on the U.S. government for money. And the new CEO of the federal agency that subsidizes the fund had declared war on it.”
• “So Lauren Turner, the fund’s general counsel, turned to a familiar name for help: the powerhouse law firm McGuireWoods. The firm had been advising the fund pro bono, or without charge, for several months. Its lawyers met with the fund’s board and president to discuss a potential lawsuit against the federal agency.”
• “And then, word came down from the law firm’s headquarters in Richmond, Va., that McGuireWoods would not represent the fund in this matter. Senior partners suggested the case might be too political, according to three people with knowledge.”
• “Eight weeks later, the firm made an about-face. McGuireWoods signed a confidential, no-bid contract with the man threatening to take away the nonprofit’s money for the year: U.S. Agency for Global Media CEO Michael Pack, an appointee of President Donald Trump. The agency also oversees Voice of America and other international networks sponsored by the federal government.”
• “Eight weeks later, the firm made an about-face. McGuireWoods signed a confidential, no-bid contract with the man threatening to take away the nonprofit’s money for the year: U.S. Agency for Global Media CEO Michael Pack, an appointee of President Donald Trump. The agency also oversees Voice of America and other international networks sponsored by the federal government.”
• “‘I was speechless,’ says Turner. ‘I had no idea that they would ever turn around and represent our actual adversary in a lawsuit, after an attorney in their practice had spoken to our board about our strategy and asked me for internal documents to help frame up the theory of our case.'”
• “McGuireWoods attorney Greg Guice, who had been giving the fund pro bono advice, says he was blindsided, too. ‘I was shocked to learn of this other work that McGuireWoods was doing,’ Guice says.”
• “Several McGuireWoods staffers involved with the pro bono effort soon left the firm under duress from senior lawyers, according to two people with knowledge, though the Open Technology Fund work was not cited as a reason for their departures.”
• “Over the course of less than five months, McGuireWoods partner John D. Adams and his team earned well over $2 million in taxpayer money for work typically done by government employees, according to law firm billing records and exchanges between U.S. Agency for Global Media staffers reviewed by NPR.”
• “Several outside lawyers tell NPR that McGuireWoods’ handling of the Open Technology Fund appears deeply problematic. ‘This needs to be investigated,’ Richard Painter, the former chief ethics lawyer for President George W. Bush’s administration, said. ‘This needs to be looked into by the government and by the bar association. This is a potentially very serious matter.'”
• “The contract McGuireWoods sent for Pack’s signature, released under the Freedom of Information Act, stated, ‘We are not aware of any conflicts that disqualify us from representing You.’ The firm also said it retained the right to accept future legal or consulting services for people whose interests were against the agency in matters unrelated to the investigation.”
• “Revelations about the no-bid contract last week generated sharp criticism; Walter Shaub, a former top White House ethics official under President Barack Obama, suggested on Twitter they might reflect violations of the federal contracting procedures.”
• “In a comment to NPR, USAGM’s new leadership noted that a federal watchdog called the Office of Special Counsel has found ‘a substantial likelihood of wrongdoing’ over Pack’s suspensions of senior executives and hiring of McGuireWoods to investigate them.”

“Fluor Says Conflict Requires Transfer of Afghan Bombing Case” —

• “Fluor Corp. said someone else must preside over a lawsuit accusing it of failing to stop a November 2016 suicide bombing attack in Afghanistan because the current judge has a presumed conflict of interest involving a family member, and 11 related cases have already been transferred to the other judge.”
• “Hencely, a U.S. army specialist severely injured in the attack, says Fluor negligently employed bomber Ahmad Nayeb as a private contractor at the base, while knowing he was a former Taliban member.”
• “Fluor said the court advised the parties by email May 3 that Judge Bruce H. Hendricks—whose niece by marriage is one of the plaintiffs’ lawyers in those cases—has a presumed conflict of interest that disqualifies her from presiding over the othercases.”
• “The court said disqualification is mandatory because Hendricks’ impartiality might be reasonably questioned, according to Fluor.”
• “Hendricks’ niece has an interest that could be substantially affected by the outcome of this case. And the resolution of any issue in the case could affect the resolution of all the other cases in which her niece is counsel, Fluor said.”

“Mike Feuer and the fallout of the highly questionable LADWP settlement” —

• “There are political scandals, and there are corruption scandals, and then there’s the level of scandal that becomes a movie starring Jack Nicholson…
• “Advocacy group Consumer Watchdog has called for the release of the videotape of a deposition Feuer gave in the city’s lawsuit against PricewaterhouseCoopers, the firm that was hired to modernize the LADWP’s billing system. “He [Feuer] recited, ‘I don’t recall’ over 60 times,” according to a statement posted on the organization’s website on January 23 that accused Feuer of ‘withholding the video tape of the deposition from the public because it would no-doubt show the insincerity on the face of a man notorious for his micromanagement.'”
• “The video of the deposition is ‘safely locked in a court reporter’s cabinet’ because Feuer dismissed the city’s case against PwC in September 2019. Feuer said it was too hard to gather evidence because some of the lawyers who were witnesses in the case were invoking their Fifth Amendment right against self-incrimination and refusing to testify.”
• “PwC accused City Attorney Mike Feuer’s office of secretly controlling the outcome of the class-action suit, digging up evidence that the attorney representing Antwon Jones and LADWP ratepayers had been retained by Feuer’s office at around the same time he represented the ratepayers. A few months later, the FBI raided the city attorney’s office and the LADWP.”
• “Are you following this? The middle of these movies can lose you if you step out for popcorn. The lawyer representing you, the ratepayer, had a conflict of interest because he also worked for the city that you, the ratepayer, were suing. Actually, there were a few lawyers involved in this, but Robert Towne would probably consolidate them into one character for dramatic simplicity.”
• “Antwon Jones has recently filed a federal lawsuit against the city of Los Angeles alleging violation of civil rights and waste of taxpayer funds. The lawsuit says the city and others used Jones as an ‘unwitting pawn’ to reach a settlement that ‘was the product of collusion and a fraud on the court.’ Jones’ lawsuit asks the court to stop the city and Feuer from ‘illegally expending and wasting more taxpayer funds to conceal and cover up their misconduct.'”
• “Feuer released a statement saying, ‘I’ve always acted with complete integrity, and always will. Any claim that even remotely suggests otherwise is not only absolutely false, it’s malicious.'”
• “In October, Feuer’s office was hit with a $2.5 million fine by the same judge for ‘serious abuse of discovery by the city and its counsel,’ lawyer-speak for hiding evidence from the court, in the LADWP case.”
• “Feuer’s running for mayor in 2022.”

I enjoy a good thought exercise and this one was definitely worth the read: “Law Firm Consolidation — Perpetually Out Of Reach?” —

• “The notion that consolidation could be the panacea for challenges facing less profitable firms has always been questionable. But whether you buy into that particular narrative or not, it is incontrovertible that the legal industry remains remarkably fragmented in comparison to other professional services sectors. So what are the barriers to a wave of mergers? And if the barriers were removed, would significant consolidation actually happen?”
• “How can it be that the legal industry remains so fragmented in relation to peers in fields like accounting and management consulting? Ethics rules are a big part of the story.”
• “When clients engage a law firm, they engage not just the firm as an entity but the individual lawyers leading the matter. If the lead lawyer on a case decides the grass is greener at a new firm, there is little the old firm can do to prevent the client from following the lawyer. And indeed, lawyers are very mobile. Over the past 12 months alone, Am Law 200 law firms have made 7,385 lateral hires: 4,635 associates, 1,685 partners, and 1,065 counsel. Almost all of these lateral moves involved a departure from another Am Law 200 firm. A carousel of attorneys move from Am Law firm to Am Law firm, churning winners and losers on a quarterly basis.”
• “Even if partner departures were not a concern, potential law firm mergers can also be disrupted by client conflicts. For some comparative perspective on conflicts, consider the management consulting firm McKinsey & Company. McKinsey, as a firm, routinely serves competing clients in the same industry. It navigates conflicts by ensuring that individual consultants do not serve competitors and by safeguarding confidential information internally, such that McKinsey teams serving competitors do not share with each other the details of their work. In this way, the firm manages to sell its services to multiple competitors in a given sector.”
• “Legal ethics constraints make it impossible to apply the McKinsey model in a law firm context. For conflicts purposes, a client of an individual lawyer is a client of every lawyer in the firm, albeit there are ways to wall off attorneys and use client waivers to navigate conflicts.”
• “Let’s imagine that these ethical barriers were suddenly removed, making consolidation more viable. What would happen? The basic logic undergirding consolidation in any industry is economies of scale: if two companies can operate more efficiently as a combined entity, a merger will create value. Does law practice exhibit economies of scale? Hugh A. Simons and Nicholas Bruch believe it does not:”
  • ‘Markets, where rivals focus on specific segments or seek to compete through differentiation rather than on cost, tend to remain fragmented. Haute couture is an example of such a market. Law is less like commodity chemicals and more like haute couture. It’s an amalgam of distinct services offered by very different providers in settings that have widely varying balances of power between buyers and sellers. Law exhibits no economies of scale. The notion that law must consolidate is simplistic and misleading.’
• “Others commentators take a different view, arguing that law practice is suboptimally fragmented, and that the industry’s fragmentation prevents it from matching the innovation seen in other sectors. As Dan Packel recently put it:”
  • ‘That fragmentation matters when we get to the question of why law firms are behind the curve on innovation. No one has market share anywhere comparable to the Big Four accounting firms, who collectively audit more than 80% of U.S. publicly traded companies. And it’s no coincidence that these businesses are far ahead of law firms when it comes to improvements in process management. Their revenues give them the capacities to invest, and the lack of fragmentation makes it easier to discern what works and what doesn’t.’
• “Let’s end by putting aside the inevitable conflicts and other obstacles and imagining a hyper-consolidated legal market with a closer resemblance to accounting’s Big 4. In this world, the current Am Law 100 would have merged into four megafirms based on broadly similar profits per equity partner. What would the combinations look like?”
• “Will this happen anytime soon? Definitely not. But it’s a fun thought exercise.”

A few interesting risk updates that have caught my eye. First, in Canada: “Police cannot sue Crown attorneys over handling of criminal cases, SCC rules” —

• “Police cannot sue Crown attorneys over their handling of criminal cases, the Supreme Court of Canada ruled today in a decision that reinforced the mutually independent relationship between police and Crown attorneys.”
• “In an 8-1 decision in Ontario (Attorney General) v. Clark that concerned Crown liability, the Supreme Court found that police cannot sue Crown attorneys for misfeasance of public office, i.e., for the misuse or abuse of power in public office.”
• “‘Piercing the immunity of Crown prosecutors to make them accountable to police officers puts them in perpetual potential conflict with their transcendent public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice,’ wrote Justice Rosalie Abella in her reasons for the majority.”
• “‘Beyond the risk of actual conflict between the prosecutors’ core duties and their risk of liability to the police, the appearance of such a conflict would be equally damaging to the integrity of the administration of justice,’ wrote Justice Abella. ‘As the joint interveners the Canadian Association of Crown Counsel and the Ontario Crown Attorneys’ Association put it, permitting police lawsuits against Crown prosecutors would suggest to the public and to accused persons that police were ‘policing prosecutions’ through the use of private law, imperiling public confidence in the independent and objective ability of prosecutors to conduct fair trials.'”
• “The case in question involved three Toronto police officers who in June 2009 arrested two men in connection with a complaint of armed robbery and forcible confinement. After they had each given statements, the accused claimed the officers had assaulted them during their arrests; the officers denied the allegations and provided the Crown Attorney with exculpatory evidence supporting their position.”
• “…The police officers then commenced an action against the Attorney General for Ontario, alleging that the Crown Attorneys didn’t pursue or put forward available evidence that contradicted the assault claims of the accused, and that the Crown’s actions and omissions caused irreparable harm to their reputations. They alleged negligence and misfeasance in public office.”
• “Two exceptions have been recognized to Crown liability: first, where the Crown has acted with malice in the context of a malicious prosecution claim, and second, where the Crown has intentionally withheld disclosure in a criminal proceeding, which is contrary to an accused person’s constitutionally protected right to full disclosure. So, the accused does have a right to sue Crown attorneys through the tort of malicious prosecution, Cavalluzzo notes.”

And two interesting catches by the Legal Profession Blog: “Poaching Of Clients As Tortious Interference” —

• “A defamation claim has failed but a tortious interference claim survives in a suit brought against attorneys who had taken cases from the plaintiff law firm. So held the New York Appellate Division for the First Judicial Department”
• “As to the tortious interference claim, the parties do not challenge the court’s articulation of the elements of such a claim in the context of terminable-at-will retainer agreements, namely, that the defendant’s conduct must constitute a crime or an independent tort (see e.g. Steinberg v Schnapp, 73 AD3d 171, 176 [1st Dept 2010]).”
• “We find that the complaint, as augmented by affidavits submitted in opposition to defendants’ motions to dismiss, and in conjunction with the undisputed proof of the four clients who substituted plaintiff for either the Schweitzer firm or the Garcia firm, states at a minimum a cause of action for tortious interference premised on violations of Judiciary Law §§ 479 and 482, which are unclassified misdemeanors (Matter of Ravitch, 82 AD3d 126, 127 [1st Dept 2011]; Matter of Boter, 46 AD3d 1, 3 [1st Dept 2007]).”
• “Affidavits show that defendants’ efforts to lure away plaintiff’s clients involved the use of case runners to solicit business on their behalf. Although the affidavits by the unnamed Clients 1-5, who remained plaintiff’s clients, do not alone support the tortious interference claim, they shed light on the tactics to which defendants were apparently willing to resort, as does the affidavit by the Schwitzer firm’s former employee, which is consistent with those by Clients 1-5.”

“No Privity, No Recovery, When Law Firm Seeks Payment From Client’s Insurer” —

• “A law firm may not recover its legal fees from its client’s insurer according to a decision of the New York Appellate Division for the First Judicial Department”:
  • “Plaintiff law firm lacks standing to recover its legal fees under the insurance policy, to which it is not a named party (Miller & Wrubel, P.C. v Todtman, Nachamie, Spizz & Johns, P.C., 106 AD3d 446 [1st Dept 2013]). Plaintiff was merely an ‘incidental beneficiary to its client’s malpractice insurance policy’ (id.). Thus, the motion court properly found that plaintiff’s sole recourse was against the insured, its client, and not its client’s insurance provider.”
  • “Plaintiff’s argument that it had a direct contract with defendant on account of the various correspondence between itself and one of defendant’s employees also fails. Indeed, these letters merely confirm, consistent with the policy’s requirement that the insurer’s consent of the insured’s choice of counsel not be “unreasonably withheld,” that defendant consented to the insured’s continued retention of plaintiff.”
  • “The motion court also properly dismissed plaintiff’s claim for unjust enrichment, which required a showing, among other things, that defendant was enriched (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]). It is undisputed that defendant will pay the full limit of the policy to reimburse the insured for its defense and settlement costs of the covered claims, regardless of whether those costs were incurred by plaintiff or the other lawyers that the insured retained. Further, the retainer agreements between plaintiff and the insured govern this dispute, which provides a further basis for affirming the order (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]).”

It definitely feels like we’re seeing more stories about “law clerk conflicts allegations.” This one reads more cut and dry. But it’s an interesting to see how and when these come up, and how the play out. The latest example via Mr Volokh: “No Recusal When Judge’s Ex-Clerk, Who Clerked While Case Was Pending, Now Works for a Law Firm in the Case” —

From a decision on April 21 by Judge James L. Robart (W.D. Wash) in Straw v. Avvo, Inc.:

• “Mr. Straw assert[s] claims against Defendant Avvo, Inc. … for defamation; tortious interference with prospective contractual relations; intentional infliction of emotional distress; and violations of Title II of the Americans with Disabilities Act. These claims arose from statements that Avvo published on Mr. Straw’s profile in a directory of lawyers on the Avvo.com website…
• “Mr. Straw … argues that recusal is necessary because Avvo’s law firm, Davis Wright Tremaine LLP (“DWT”), employs an attorney who formerly served as one of the undersigned’s law clerks while Mr. Straw’s case was pending in this court. He contends that “the existence of [the law clerk] on the roster of attorneys at DWT … favors the trial judge’s clerk, his firm, and that firm’s clients.” As a result, according to Mr. Straw, the undersigned violates his duty to be fair and impartial by continuing to preside over this case.”
• “Mr. Straw asserts that because ‘Avvo has been wrong so severely in injuring [him] and with its false statements to courts and poor ethical judgment, taking data not allowed to be republished and publishing it to injure [him] over [his] objections, [he] want[s] a trial judge who has NO CONNECTION whatsoever to Avvo, its parent companies, or its lawyers.’ If there is no such judge in this district, he asks that the Chief Judge of the Ninth Circuit ‘find someone who is unconnected and disinterested.'”
• “The undersigned declines to recuse … from this case. The fact that a former law clerk now works for a law firm that represents a party in a matter before the court does not, without more, provide a basis for recusal… Moreover, the attorney to whom Mr. Straw refers in his motion did not work on Mr. Straw’s case while he served as a law clerk and, according to DWT, has not worked on Mr. Straw’s case since joining that firm… Because the undersigned harbors no bias against Mr. Straw or in favor of Avvo or its attorneys, he declines to recuse himself.”

The Chief Judge has declined to require recusal:

• “Plaintiff has not set forth a basis upon which Judge Robart’s impartiality may reasonably be questioned. Plaintiff does not allege that Judge Robart’s former clerk has worked on this matter on behalf of Avvo. Plaintiff does not allege that Judge Robart’s former clerk has any information related to the case that is not in the public record. Plaintiff does not allege that any communication related to his case has occurred between Judge Robart and his former clerk.”
• “Rather, Plaintiff speculates, without a factual basis, that Judge Robart will favor the clients of a large firm that now employs a single attorney who previously clerked for Judge Robart. Such speculation does not establish an objective basis to conclude that Judge Robart’s impartiality can reasonably be questioned.”

My friend and colleague Meg Block at Intapp dropped me a line to remind folks that their annual Risk Staffing Survey is closing soon (Deadline: May 14th). You can read more and participate via this link.

I asked Meg if the analysis that’s sure to come out the other end was reserved solely for participants, and she was mysterious…

So if the topics below are on your mind, it’s probably safest to share your thoughts and contribute, to ensure a spot on the report distribution list.

Survey Overview:

• “The annual Risk Staffing Survey explores the ways you and your colleagues conduct various risk-related activities. We’ve expanded the questions this year to understand how the COVID-19 pandemic changed the ways in which risk teams work.
• “Participate in this year’s survey to share your insights on topics such as:
  • Conflicts resolution
  • Client due diligence
  • Business acceptance operations
  • Risk research
  • Client engagement terms management”

I attended their recent webinar on last year’s findings, featuring commentary by Meg, Patty Fitzpatrick (Seyfarth Shaw) and Jennifer Schwendemann, which is available here: “Intapp Risk Staffing Survey Readout: Risk Staffing Trends Helped Firms Craft a Stronger Pandemic Response.”

That report was definitely a slice in time, presenting a view of the world at a particular point during the pandemic:

• “The COVID-19 pandemic dealt law firms and other professional service firms an unprecedented hand, but research shows that the professionalization of risk teams — and their firms’ support for distributed staff — helped position risk services to continue without interruption during stay-at-home restrictions. Tune in to hear a panel of experts reflect on key findings from our recent Intapp Risk Staffing Survey that firms can use to inform their strategies in the new normal.”

I’ve no doubt things have shifted, adjusted and evolved since last year’s survey. And I look forward to reading the eventual 2021 report.

You can read more, contribute your thoughts and get on the mailing list for the summary report: Risk Staffing Survey

Sometimes the headlines write themselves (along with the miniseries): “Old Friends Split over Napa Cab” —

• “They were great friends until one stopped sending the other wine… But in 2016, Schrader stopped sending his annual shipment of 17 cases of his expensive Schrader Cellars Napa Valley Cabernet Sauvignon to Roach. ‘I stopped sending Roach wine in 2016 when he stopped giving me legal advice,’ Schrader said in a deposition.”
• “Then, in 2017, Schrader sold his very high-end wine brand for about $60 million to Constellation Brands, a shocking upscale move at the time for Constellation. Now Roach and Schrader are suing each other in state and federal courts over Roach’s claim that he was an investor in Schrader’s business. Roach filed a lawsuit in Harris County, Texas (Houston is the largest city) against Schrader and Constellation. Schrader then filed a federal lawsuit arguing that while all his exes may live in Texas, the jurisdiction for this case resides elsewhere.”
• “It’s a nasty battle and the court records show how the two men’s former friendship curdled into hatred. Constellation’s attorney Casey Low accused Roach’s attorney – who is also Roach’s law firm partner – of deliberately filing timely document requests while Low’s wife was undergoing a medical emergency.”
• “Roach and Schrader agree that they were very good friends, and that in 2000, Roach gave Schrader $135,000 to buy grapes, and that several years later Schrader repaid Roach $150,000. That’s where their stories diverge. Roach claims that the money was for a very specific purpose: to enter into a longterm lease to buy specific rows of Clone 337 Cabernet Sauvignon grapes from Beckstoffer To Kalon vineyard. Schrader claims the money was just to ‘buy grapes,’ but not those in particular. Schrader claims the $135,000 he got from Roach in 2000 was a loan that he paid back in full.”
• “A complicating factor is that in 2002, Roach and Schrader formed a company in California called Roach Brown Schrader (RBS) LLC. The ‘Brown’ is winemaker Thomas Rivers Brown, who has apparently managed to avoid being sued by either so far. In 2003, the company charter was amended to cut out Brown, but kept the name RBS…In 2013, Schrader cancelled the Roach Brown Schrader LLC. Roach claims he didn’t learn about this until 2017, when Schrader Cellars was sold.”
• “Schrader claims the statute of limitations for Roach to complain about the cancellation of the LLC has expired, because Roach didn’t file a lawsuit until 2018. He has also asked the court to disqualify Roach’s attorney John W. Newton III, a partner in Roach’s law firm, because Roach has access to Schrader’s records; Roach gave Schrader legal advice for years.”
• “Then there’s the question of jurisdiction. Though almost every aspect of the case happened in California, Roach is trying very hard to keep the case in Harris County. Roach argued that he helped promote Schrader wines in Texas, and that Schrader attended several wine dinners in Texas… Roach argued that Harris County has jurisdiction because Constellation sells wine there… The wine shipments have stopped, but both the state and federal lawsuits are ongoing.”

I have yet to regret spending an hour with the InOutsource crew and 75+ of their closest colleagues and contacts talking risk as part of their ongoing risk round table series.

The discussion a few weeks ago was fascinating indeed. And commentary from the group in attendance clearly led to the creation of May’s session topic and title, which I just love: “Sneaky Lawyer Intake Tricks and How to Sniff Them Out” —

• “During our last roundtable on successful new business intake, general matters, and how law firms balance the legitimate need for general billing repositories against the occasional use of those repositories as ways to circumvent the firm’s intake policies and process.”
• “In our next roundtable, we’ll have some fun sharing examples of the lengths lawyers sometimes go to avoid the system but we will also have some very serious discussion about why that happens, what the day-to-day work of a lawyer at a law firm is like, and ways conflicts and new business intake folks can come up with solutions that satisfy both firm risk management and practical lawyer interests.”

Registration link and more details: here.