Risk Update

Conflicts & DQ — Positional Judicial Conflicts Opinion, Former GC’s Role Results in Disqualification Bid

Posted Dan Bressler

David Kluft finds great stuff: “Can a judge decide whether a firm’s fees are reasonable if he argued they were unreasonable before taking the bench?” —

  • “Before taking the bench, a TN judge was an expert adverse to a law firm, opining that the firm’s fees were ‘outrageous.’ In 2022, the judge was assigned to an unrelated case involving the same firm in which the firm’s rates would be at issue.”
  • “The TN Supreme Court held that a judge is not required to recuse simply because he advocated or made public statements against a party while in private practice.”
  • Decision: here.

“Buchanan Ingersoll Faces DQ Bid Over Former GC’s Role” —

  • “Buchanan Ingersoll & Rooney PC attorneys defending Amerilife should be disqualified for allegedly running ‘roughshod’ over ethical rules by using a former general counsel of a retirement planning agency to gain an upper hand in a dispute in a Florida federal court, according to a bid to boot the firm from the case.”
  • “Investment adviser Joshua Mellberg alleges that attorney Dan Morgan is advising Buchanan Ingersoll and acting as a corporate representative for Amerilife despite having previously served as general counsel to Joshua David Mellberg LLC, including during a 2020 sale in which Amerilife acquired a majority interest in the business.”
  • “‘Instead of collaborating with plaintiffs to avoid the conflict, defendants’ counsel continued to run roughshod over the applicable ethical rules, refusing to remove Morgan as its corporate representative and purposely continuing to rely on Morgan’s assistance due to Morgan’s intimate knowledge of the substance of the case,’ Mellberg said in a motion to disqualify on Thursday.”
  • “Mellberg sued Amerilife last April but said he was not aware of Morgan’s involvement in the case until December. Mellberg said the court conducted an in camera review of notes Morgan took during a deposition of Mellberg, and said, ‘there’s no question that Morgan is facially in violation of the rules’ during a hearing in December.”
  • “‘As the court further explained, that the notes reference to ‘things that were in place before the transaction’ is ‘why lawyers are not allowed to represent other parties adverse to the interests of their former client without the former client’s consent,’ and only if such consent would be appropriate under the circumstances,’ Mellberg said, purportedly quoting the court.”
  • “‘Defendants’ counsel remain impervious to their and Morgan’s ethical violations and continue to refuse to acknowledge that Morgan’s involvement presents a conflict,’ Mellberg said.”
  • “Mellberg stayed on with Joshua David Mellberg LLC after the sale to Amerilife as an employee of subsidiary Independent Administrative Services LLC, or IAS, according to an amended complaint filed in October. Morgan also remained with IAS as Joshua David Mellberg LLC’s chief compliance and legal officer, the complaint states.”
  • “‘Plaintiffs only took this drastic step after consulting multiple legal ethics experts including Scott Tozian in Tampa and the prior General Counsel of the Georgia State Bar, Paula Frederick, to determine that AmeriLife and defense counsel’s conduct is egregious warranting disqualification,’ Steffenson [counsel for Mellberg] said. ‘Defense counsel at Buchannon Ingersol and AmerilLife’s prior in-house counsel, Robert Nathan Hightower, fought to keep Mr. Morgan as AmeriLife’s corporate representative where he could continue using his prior clients’ confidential information to help AmeriLife this litigation to the detriment of the former client.'”
  • “Steffenson added, ‘Under the Eleventh Circuit’s irrebuttable presumption, legal counsel cannot associate with someone who has confidential information about your opposing party and expect not to be conflicted out. Even after being made aware of the conflict, AmeriLife and its counsel refused to acknowledge a potential problem.'”