“Motley Rice Cites ABA Ethics Opinion in Opioid Disqualification Duel” —

• “Motley Rice, facing possible disqualification from dozens of opioid lawsuits, has turned to the latest formal opinion about the American Bar Association’s professional conduct rule governing ethics guidance for government lawyers.”
• “OptumRx Inc., a pharmacy benefit manager and defendant in the opioid lawsuits, is attempting to disqualify Motley Rice, which it says previously obtained confidential information from the company while serving as outside counsel to Hawaii, the District of Columbia and Chicago. Motley Rice has insisted there is no conflict, but a federal judge in the opioid multidistrict litigation wanted more information about the firm’s representations.”
• “Now, Motley Rice has turned to the ABA Standing Committee on Ethics and Professional Responsibility’s Feb. 28 formal opinion to the Model Rule of Professional Conduct 1.11, which prohibits a lawyer with confidential government information about a person from representing a private client ‘whose interests are adverse to that person.'”
• “In a March 1 supplemental brief, the plaintiffs’ executive committee, which includes Motley Rice member Joe Rice, in Mount Pleasant, South Carolina, said the cities and counties the firm now represents in the opioid cases are public entities, not ‘private clients,’ as defined in the ABA rule opinion.”
• “‘This conclusion supports plaintiffs’ arguments that the government entity bellwether plaintiffs are not covered as private clients,’ the committee wrote, ‘where plaintiffs have the right through discovery to obtain and use the investigation documents at issue, and in fact already have obtained and used many of these documents.'”
• “Also, the brief said, the information Motley Rice obtained in the prior government cases was not confidential because it could be accessed through routine discovery.”
• “‘Motley Rice wielded government power when it investigated OptumRx. It obtained confidential information about OptumRx through those investigations,’ Alston & Bird partner Brian Boone, in Charlotte, North Carolina, wrote for OptumRx, which is owned by United HealthCare. ‘Now it is litigating against OptumRx in private civil litigation when it can use that confidential information to OptumRx’s material disadvantage.'”
• “Rule 1.11 addresses a long-standing ethical debate about when private plaintiffs firms serve as outside counsel to government entities, particularly state attorneys general. The representation is particularly common in mass torts, where states and local governments sue companies for public nuisance.”
• “Last month’s ABA opinion addressed two areas of ambiguity, one involving the definition of a ‘private client,’ which is relevant to the Motley Rice matter, said Dru Stevenson, a professor at South Texas College of Law in Houston. He called the disqualification debate in the opioid lawsuits a ‘close case.'”
• “OptumRx is insisting that Motley Rice had subpoena powers while representing Hawaii, D.C. and Chicago, which it used to obtain confidential documents. And the ABA rule opinion confirms that lawyers qualify as public officials when accepting ‘special’ government appointments, as Motley Rice did, according to its court filing. Two lawyers who represented OptumRx in the prior government cases—Michelle Grant, of Dorsey & Whitney in Minneapolis, and Hogan Lovells partner Allison Caplis, in Baltimore, Maryland—filed declarations about Motley Rice’s subpoenas.”
• “The rule opinion also confirms that Motley Rice’s public entity clients in the opioid cases qualify as ‘private clients,” Boone wrote. He called Motley Rice’s interpretation of the ABA opinion “dangerous.’ ‘If accepted,” he wrote, “it would give free rein to private lawyers to seek out special appointments so they can use government power for their own private profit.'”

“WilmerHale Work for Harvard Scrutinized in Ethics Complaint” —

• “An anonymous ethics complaint targeting prominent WilmerHale attorney William Lee is calling on the Massachusetts attorney general’s office to investigate the firm’s relationship with Harvard University, where Lee served on its governing board for over a decade.”
• “Lee and Wilmer Hale represented the elite school in its attempt to defend its race-based admission policy from legal attacks by conservative groups, a battle it lost at the Supreme Court last summer. The firm also coached ex-Harvard president Claudine Gay for what turned into a highly damaging congressional hearing on antisemitism that helped lead to Gay’s ouster.”
• “Although the complaint represents another instance that spotlights WilmerHale’s ties to Harvard, the fact that one of the firm’s top lawyers served on the university’s board as it paid millions of dollars to the firm does not on its face represent any wrongdoing, said Stephen Gillers, a New York University legal ethics professor.”
• “Lee, a lead trial lawyer for Harvard in the high-profile litigation that led to the end of affirmative action at colleges, is the target of the complaint filed with the Massachusetts attorney general’s office over an alleged conflict of interest, a spokesman for the AG confirmed Friday. “
• “The anonymous complaint, the New York Post reported, claims the WilmerHale partner and Harvard alumnus Lee may have violated conflict of interest rules for public institutions.”
• “‘There was nothing improper about the firm’s legal representations of Harvard,’ WilmerHale said in a Monday statement, noting Lee recused himself from all of the school’s decisions concerning the case.”
• “The university told the Harvard Crimson, a student-run newspaper, in 2018 that Lee did not bill the school for his work on the affirmative action case, ‘nor does he receive any payment for revenue based on the firm’s billing to Harvard as part of the case.'”
• “There’s no evidence suggesting ‘Lee, on behalf of Harvard, personally participated in any decision for the school in which his law firm had an interest,’ said Gillers. ‘The fact that Lee was on the Harvard board while his firm and he represented the school violates no rule.'”
• “WilmerHale ensuring that no compensation went to Lee from the case appears to show the firm was ‘bending over backwards to ensure there is no issue at all,’ said Scott Cummings, a UCLA School of Law professor.”
• “The only problem would be if WilmerHale, a firm with deep trial and appellate benches, got ‘more work than it normally would,’ Cummings said. ‘As long as there aren’t any allegations of unfairness, then I don’t see the problem.'”
• “Lee stepped down from Harvard Corp. in June 2022. In December, he worked with the WilmerHale team that coached Gay before the congressional hearing on antisemitism on campus following the Oct. 7 Hamas attack on Israel, according to the Harvard Crimson.”