“Jumio, FaceTec liveness IP legal tussle accelerates with new motion” —

• “There is new sauce on the ongoing legal beef between Jumio and FaceTec over a patent for liveness detection technology.”
• “Having already had Jumio’s original legal counsel, Perkins Coie LLP, disqualified, FaceTec filed a motion to have its replacement disqualified, too.”
• “But Jumio is arguing to a California court that there’s no reason to disqualify law firm Morrison & Foerster LLP, because they really didn’t have much to do with Perkins Coie.”
• “Perkins was disqualified earlier in the year for having previously worked with and represented FaceTec in matters ‘substantially related’ to the litigation. In effect, FaceTec says the firm communicated confidential information about its biometric technology to Jumio; specifically, patents covering FaceTec’s flagship biometric liveness detection product, ZoOm. It now says that Morrison & Foerster LLP, which had some overlap with Perkins, should not be able to access documents prepared by Perkins, and that it should also be disqualified, to boot.”
• “Jumio disagrees. ‘FaceTec’s motion depends on the fundamentally incorrect assertion that the disqualification of one firm raises an ‘irrebuttable presumption’ that its co-counsel must be disqualified,’ says Jumio’s motion to dismiss the request. ‘But courts in this district have repeatedly held that the disqualification of one firm does not automatically compel the disqualification of co-counsel, particularly where, as here, co-counsel had no contact with any lawyer at the disqualified firm who possessed the adversary’s confidential information.'”
• “Furthermore, ‘Morrison has been representing Jumio in disputes with FaceTec relating to the same technology at issue here for four-and-a-half years.'”

David Kluft notes: “Can I force a judge to recuse from my cases by sending her an insulting private letter?”

• “A NY judge received a private letter from a lawyer accusing the judge of personal animosity towards the lawyer and threatening to file a public recusal motion unless the judge privately ‘agreed’ to recuse.”
• “The Committee on Judicial Ethics committee opined that the judge under no circumstances could privately “agree” to recuse, and doesn’t have to recuse at all unless in her discretion she doesn’t think she can be fair and impartial. The judge need not but may report the attorney to the Attorney Grievance Committee.”
• Text of the full opinion here.

“Lima Accuses Foley Hoag Of Conflict In $200M Award Case” —

• “The Peruvian city of Lima has urged a D.C. federal court to vacate its confirmation of about $200 million in arbitral awards favoring a highway contractor, saying the municipality’s former counsel at Foley Hoag LLP concealed a conflict of interest.”
• “The Metropolitan Municipality of Lima argued in a Wednesday memorandum that it had relied on Foley Hoag for years to protect its interests in multiple arbitrations and annulment proceedings against highway contractor Rutas de Lima SAC related to a major toll road concession in the city.”
• “But the capital city of Peru discovered only after losses in arbitration and before the court that Foley Hoag also represented affiliates of Brookfield Asset Management Inc., the parent company of Brookfield Infrastructure Partners, the majority Rutas stakeholder, according to the municipality.”
• “‘This conflict was deemed important enough that Foley confidentially disclosed this conflict to the Republic of Peru while soliciting work in a separate arbitration over the concession contract — while trying to minimize it as only a ‘potential’ conflict — but never informed MML of the conflict, in violation of its professional ethical and contractual obligations to MML,’ the Metropolitan Municipality of Lima said.”
• “The alleged conflict tainted Foley’s representation of Lima, with devastating results, according to the municipality.”
• “‘MML lost two Foley-led arbitration proceedings resulting in adverse awards of approximately $200 million,’ Lima asserted in its 50-page memorandum.”
• “As an example of the undisclosed conflict, the memorandum claims that Foley didn’t seek a pause in arbitration proceedings pending resolution of Peruvian criminal investigations over alleged bribery tied to the concession contract. Nor did Foley adequately prepare a key witness on corruption claims related to a Brazilian court’s 2016 sentencing of Odebrecht SA’s CEO, Marcelo Odebrecht, to 19 years in prison, Lima’s memorandum said.”
• “Lima’s Wednesday memorandum asks U.S. District Judge Ana C. Reyes to vacate judgment under Federal Rule of Civil Procedure 60(b), which governs relief of a party from a final judgment or order. Judge Reyes issued a decision in March 2024 enforcing the arbitral awards made to Rutas de Lima, now worth approximately $200 million.”
• “‘Relief under Rule 60(b) is warranted,’ the memorandum argues. ‘MML was deprived of meaningful representation because Foley, burdened with an undisclosed conflict of interest, undermined MML’s defenses. Foley’s acts, omissions and conflicts, taken together, resulted in the entry and confirmation of adverse awards.'”

In the UK: “The solicitors’ duty to advise on their own negligence” —

• “In limited circumstances solicitors have a duty to advise their client that they may have been negligent. Allegations of breach of that duty normally arise in the context of claims which are brought after the normal six-year limitation period, and after three years from the date of knowledge. One may think that such claims would be rare, but in my experience they are not that unusual. There are, though, limited reported cases on the issue, and the recent case of Evans v Hughes Fowler Carruthers [2025] EWHC 481 (Ch) is therefore of some interest.”
• “Evans v Hughes Fowler Carruthers was a successful appeal by the claimant on an application to strike out her claim. Ms Evans instructed the defendant (‘HFC’) and Mr Howard QC in her ancillary relief proceedings which were before Mostyn J. HFC also acted for Lady Mostyn in her divorce from Mostyn J. In April 2012, when his judgment in Ms Evans’ case was in draft, it was alleged that HFC and Mr Howard QC had emails as a result of acting for Lady Mostyn in which the Judge had made disparaging comments about HFC and Mr Howard QC. This gave rise to an obvious conflict, and HFC and Mr Howard QC could not continue to act. Ms Evans instructed Farrers and new Leading Counsel, and a successful challenge was made to set aside Mostyn J’s judgment. This enabled HFC and Mr Howard QC to act for Ms Evans again, and there was a further trial before a different judge and a judgment in May 2013, with consequential matters continuing until 2018.”
• “There were two categories of negligence alleged. The first was that in 2011 and 2012 Ms Evans was not sufficiently advised of the risks of continuing her action before Mostyn J, and in particular she was not told that there was a special arrangement approved by the President of the Family Division that cases involving HFC would, if the clients desired it, be automatically transferred from Mostyn J to another judge. If the allegation was correct, and Ms Evans could prove that she would have sought a different judge, then the costs of the first trial were wasted and would be recoverable in damages.”
• “However, those allegations were statute barred, as the claim was brought in 2021. The Judge below who had struck out the claim held (and this was not appealed) that Ms Evans had actual knowledge by July 2012 that HFC had not advised her to have her case moved to another Judge, and thus she could not rely on section 14A of the Limitation Act 1980. That section does not, of course, require knowledge that the impugned act or omission was negligent.”
• “The second category of negligence was necessary to circumvent this limitation defence. Ms Evans alleged that she was not told that she might bring a claim against HFC for their earlier negligence in 2011.”
• “On appeal, Adam Johnston followed Bacon J.’s formulation in Cutlers Holdings and concluded that Ms Evans had a real prospect of showing that HFC knew or ought to have known that there was a significant risk that their earlier conduct was negligent. He rejected the point that had impressed the judge below that that the breach was not flagged up by Farrer & Co, Mr Howard QC, or the SRA, as there may have been reasons for that, such as the limitation on the scope of Farrers’ retainer.”
• “Why does there have to be actual or ostensible knowledge by the solicitor that there was a significant risk, rather than any risk, that their earlier advice was negligent, and what does this mean? Adam Johnson J concluded at [43] that a fanciful or spurious risk was not enough to trigger the duty, following the conclusion in Cutlers that the risk had to be substantial, without expressly explaining why.”
• “One reason may be that this duty arises only in a relatively exceptional case. Neuberger J held in Gold that it would, otherwise the provisions of the Limitation Act would be evaded in many cases in an artificial way, and that it would give rise to some sort of implied general retainer. Bacon J in Cutler made a parallel with a solicitor having no duty to advise the client of a risk of litigation where the risk was spurious or fanciful.”
• “It makes sense that spurious or fanciful risks should not give rise to any duty. If substantial merely means not spurious or fanciful, which it would appear it does from the reasoning in Cutlers and Evans, then there is no real difficulty with this test. Solicitors’ duties should not be over onerous, and a client needs to know what is really material. Perhaps most significantly, if the risk is spurious or fanciful, or not substantial, the clients will normally have to incur expense in instructing new solicitors.”
• “I would add one point. For the same reasons, the duty should only be imposed if the risk of causation being established was substantial, as well as the negligence. Suppose a solicitor gives negligent advice that the client’s claim has limited prospects of success because he fails to take into account a point of law; the client then comes back six months later for more advice, perhaps because there are new potentially relevant facts, and the solicitor gives the correct advice, including on the point of law. Unless the delay was over the expiry of a limitation period, no loss would normally have been caused by it. The solicitor should have no duty to advise the client on his earlier negligence. Even if he did, it would be causally irrelevant.”