Risk Update

Conflicts Allegations & Updates — “Witness Gamesmanship” Allegations Averted & Lawyer as Witness DQ

Goodwin Ducks Sanctions Bid Over Witness Gamesmanship” —

  • “An Illinois federal judge has rejected a bid by an Illinois county to sanction Goodwin Procter LLP over the firm’s dealings with witnesses in a lending practices lawsuit involving Bank of America, finding that neither side took an unreasonable position in the dispute.”
  • “Cook County reasonably asserted that Goodwin could not represent the witnesses because they were adverse to firm client Bank of America, as testimony they gave in depositions had purportedly changed from prior declarations, U.S. Magistrate Judge Sunil R. Harjani held Tuesday.”
  • “But Goodwin also made a reasonable argument that it had offered to include conflict waivers with its bid to represent the witnesses, despite its concurrent assertion that a conflict between the witnesses and Bank of America had not necessarily materialized, according to the judge, who noted that both sides hired experts to make declarations.”
  • “‘Neither declaration is objectively unreasonable, frivolous, reckless or made in bad faith,’ Judge Harjani wrote.”
  • “The judge noted that Goodwin ultimately opted to withdraw from representing the witnesses, a decision that is ‘not akin to a surrender and a victory for plaintiff, but more akin to a calculated decision to compromise and move forward.’

Rule 3.7 Disqualification Upheld” —

  • “The South Carolina Court of Appeals affirmed as modified a trial court order disqualifying counsel as a necessary witness. The order makes clear that disqualification is for purposes of trial only and does not prevent the attorney from otherwise providing legal services to the client. The legal malpractice case involves issues with a real estate matter.”
    • “Altman, on behalf of Fine Housing, brought a legal malpractice suit against Sloan. In its complaint, Fine Housing alleged Sloan failed to identify the tax liens on the Properties, which required Altman to negotiate and obtain payoffs for the tax liens. Fine Housing also alleged Sloan failed to discover that the Properties were subject to the Clarke lease and the Crabtree and Foster lawsuits and failed to issue the title policies correctly.”
    • “In his answer, Sloan denied Altman was required to negotiate tax lien payoffs for the Properties. Sloan alleged Fine Housing failed to mitigate damages, suffered damages due to its own negligence, and its damages were caused by the intervening and superseding acts of others. On June 9, 2016, Sloan submitted his first set of answers to interrogatories, naming Altman as a witness.”
    • “At the hearing on the motion to disqualify Altman, Sloan also asserted Altman was the only one who could explain the tax liens and whether the Crabtree and Foster settlements were fair and reasonable. Lastly, he asserted Altman was a necessary witness as to the mitigation of damages based on Clarke’s offers to buy the Properties.”
  • “The circuit court granted the motion, finding that Altman was a necessary witness and that the dual roles of lawyer and witness would confuse the jury.