Risk Update

Conflicts & DQs in the News (Side-switching and Spurious)

Let’s look at some of the latest making news, starting with a side-switching accusation: “Advocates Seek To DQ Jones Day In Calif. Homelessness Suit” —

  • “Advocacy groups suing several Southern California cities over their treatment of homeless residents have asked a California federal court to disqualify Jones Day from representing three of the cities, saying the firm previously represented a related advocacy group in a similar suit.”
  • “Housing is a Human Right and others told the court Wednesday that Jones Day previously represented People’s Homeless Task Force pro bono in a similar lawsuit, saying that the two organizations comprised substantially the same people and had overlapping missions. One affidavit described the relationship as akin to The Sierra Club and The Sierra Club Foundation.”
  • “‘Jones Day is switching sides and attacking former clients on the very matters the firm represented them on, mandating disqualification without a signed and knowing waiver of the conflict by PHTF,’ the motion said.”
  • “The motion also said that the attorneys for Housing is a Human Right went forward with the motion without finishing the usual prefiling process of conferring because one of the cities, San Clemente, was reportedly moving ahead with a plan to build a homeless shelter on land that had previously been ruled too unsafe for an animal shelter. It seeks to disqualify not only Jones Day, but also the city attorneys in San Clemente and city attorneys for Jones Day’s other clients.”

Lewis Brisbois Properly Disqualified Based on Conflict” —

  • “The Court of Appeal has affirmed an order disqualifying the law firm of Lewis Brisbois Bisgaard & Smith from representation in three consolidated cases involving a family trust because it once represented the law firm for the other side and the conduct of one of its lawyers is in issue in the present litigation.”
  • “Lewis Brisbois had represented Bohm Wildish (then Bohm, Matsen, Kegel & Aguilera LLP)—but not Bohm, individually—in a professional negligence action against it, Olson v. Grad. Although Bohm Wildish was dismissed without prejudice in 2016, as Heisler saw it, that was of no consequence… Responding to Lewis Brisbois protest that James Bohm was never its client, he [Judge] wrote: ‘The assertion that Lewis Brisbois breaches no duty to Bohm Wildish—the law firm—by making allegations against Bohm as an individual ignores the fact that Bohm Wildish acts through the attorneys it employs. Consequently, an allegation of professional misconduct against Bohm is also an allegation against Bohm Wildish.'”
  • “Heisler relied on the Court of Appeal’s 2003 decision in Hernandez v. Paicius, which emanated from a differently constituted panel of the Fourth District’s Div. Three. There it was held that a judge should have granted a mistrial after the defendant’s lawyer vigorously cross-examined the plaintiff’s expert witness, a medical doctor, as to allegations against him of malpractice and unethical conduct. The doctor was a client of the defendant’s attorney.”

Takeda loses ‘spurious’ bid to DQ Baker Botts in antitrust case” —

  • “Takeda Pharmaceutical Company on Thursday lost a bid to disqualify Baker Botts from representing generic drug company Zydus Pharmaceuticals Inc in a lawsuit accusing Takeda of an antitrust violation.”
  • “Affirming a magistrate judge, U.S. District Judge Freda Wolfson in Trenton, New Jersey rejected Takeda’s argument that it had an implied attorney-client relationship with Baker Botts because of the firm’s previous representation of Takeda’s co-plaintiff in related patent litigation.”
  • The judge wrote: “Takeda’s argument that it nonetheless had a reasonable or objective belief that Baker Botts was acting as its attorney — in the face of the agreement’s plain language evidencing the contrary — is spurious at best…. The plain terms of the agreement make clear that the parties did not intend an attorney-client relationship, implied or express, to arise.”