As always, with thanks, the latest from Bill Freivogel:

• Sheldon-Lee v. Birch Horton Bittner, Inc., No. S-18214 (Alaska March 21, 2025).
  • “Legal malpractice case. The trial court granted summary judgment for the defendant law firm on statute of limitations grounds. In this opinion the Alaska Supreme Court reversed. The only issue of possible interest to this audience is the court noted the failure of a law firm to tell a client about the law firm’s conflict of interest could toll the running of the statute.”
• Salerno v. Family Heritage Life Ins. Co., 2025 WL 843387 (N.D. Ohio March 18, 2025).
  • “Plaintiff is suing Defendant for compensation. Defendant offered the opinion of its own vice president (‘Expert’) to opine on the present value of Plaintiff’s earnings. Plaintiff moved to disqualify Expert.”
  • “In this opinion the court denied the motion. Expert was not involved in the periodic review of Plaintiff’s work or in Defendant’s decision regarding denial of Plaintiff’s compensation. Thus, Expert’s relationship with Defendant goes to the weight of his testimony and is grist for cross-examination.”
• Gross v. Scottsdale Ins. Co., 2025 WL 885853 (N.D. Cal. March 21, 2025).
  • “This is a discovery dispute involving privilege and work-product. In the opinion the court acknowledged in California the insurer, absent a conflict, has two clients.”
• Lukoil Pan Ams. LLC v. Phoeninca Invs. LLC, No. 653336/2024 (N.Y. Sup. Ct. N.Y. County March 17, 2024).
  • “A global law firm (‘Law Firm’) represents Plaintiff. Defendant moved to disqualify Law Firm, claiming Law Firm represented Defendant in 2016-17.”
  • “In this opinion the court denied the motion. First, the court noted Law Firm never represented Defendant; it represented one of the companies that formed Defendant (‘Other Client’).”
  • “Second, in the earlier matter, Other Client agreed to Law Firm’s engagement terms, which provided only Other Client was a client. The engagement terms also included an advance waiver, which the court said applied here.”
  • “Last, because the conduct complained of in this case occurred after the completion of Law Firm’s earlier work for Other Client, the matters were not related.”
• Johnson v. Dep’t of Transp., 2025 WL 829714 (Cal. App. 3d Dist. March 17, 2025).
  • At some point, in this employment-related case, Defendant’s lawyer sent to Plaintiff’s supervisor at Defendant (“Supervisor”) an email about the case. The opinion does not say what was in the email or why Defendant’s lawyer sent it to Supervisor. Supervisor sent an image of the email to Plaintiff (the enemy, no less). Plaintiff gave it to his lawyer (“Lawyer”). Lawyer dutifully notified Defendant about receipt of the image. Lawyer then showed the email around to others, including three of Plaintiff’s experts. When the smoke cleared, Defendant moved to disqualify Lawyer and Plaintiff’s experts. The trial court granted the motion. In this opinion the appellate court affirmed. Among other things, the appellate court said that upon receipt of the email, Lawyer had a duty to ascertain whether it was privileged before disseminating it. [Our note: This is an exhaustive opinion on whether the email was privileged, whether the privilege was waived, the receiving lawyer’s duties, and so forth. The appellate court’s cites are numerous and almost all California cases. However, the reasoning would seem valid in any U.S. jurisdiction where authorities are relatively scarce.]

“International Lawyers Headed to the US Advised to Take More Precautions” —

• “Getting ready to head to New York for the legal industry conference LegalWeek, Toronto lawyer Monica Goyal was paranoid that U.S. border authorities were going to search her phone.”
• “As a technology lawyer who has been widely recognized by the legal industry, Goyal’s standard travel procedure is to keep minimal things on her phone. For instance, she has no social media apps. Despite that, stories of detentions, questioning, and refusals of entry at the U.S. border had her spooked.”
• “Lawyers say her concerns aren’t misplaced, as the Trump regime is not only laser-focused on the legal profession but is implementing what one lawyer called ‘extreme vetting,’ both at border crossings and ‘integrity-based stops.'”
• ‘The Trump administration is reaching to, and exploring, the limits of its authority to search phones, laptops, tablets, and other similar devices,’ said Bo Cooper, a Washington, D.C.-based partner and head of Fragomen, Del Rey, Bernsen & Loewy’s government strategies and compliance group.”
• “Regardless of the current environment, privacy lawyer David Fraser said anybody crossing a border has a reduced expectation of privacy so they should proactively take steps to guard personal information, and in the case of lawyers, particularly, any privileged material on electronic devices.”
• “Similar warnings have been issued to U.S. citizens traveling to China for years. But heightened concerns about what could happen at U.S. border crossings are recent.”
• “‘The best step that any lawyer can take in traveling internationally is essentially to remove all privileged material from your laptop, from your tablet, and from your smartphone. If you need access to those materials while you’re traveling, use a cloud-based service,’ Fraser said.”
• “Asserting solicitor-client privilege may have worked to protect lawyers’ devices from searches in the past, but the reality is border officials in the U.S. can search electronic devices without any grounds whatsoever, said Robert Currie, a professor at Dalhousie University’s Schulich School of Law in Nova Scotia.”
• “Once your device is open, border officials may review what’s on it, copy files, and analyze the data.”
• “Currie said the law around border searches in the U.S. is ‘fractured’ with opinions from various appellate courts saying different things.”
  ‘But generally speaking, [U.S.] border search law has essentially said they can mostly do arbitrary searches of things people have with them at the border,’ Currie said.”
• “The best advice is to cross the border with clean devices. But even if you’ve scrubbed your phone of social media apps, Fraser noted that at the border, you are obliged to answer questions honestly. So, if border guards ask for your account passwords, you have to give them up or face potential detention.”
• ‘That may be something that lawyers and others want to turn their mind to in terms of what’s out there in their digital footprint,’ said Fraser.”

“Standing Up to Trump Is Good for Big Law’s Business. No, Really” —

• “Albany Law professor Ray Brescia says Paul Weiss’s agreement with President Donald Trump may send a message that the law firm won’t zealously advocate for their clients against the US government.”
• “Critics inside and out of the legal profession have derided Paul Weiss’ decision to reach an agreement so President Donald Trump would revoke an executive order punishing the firm for its past political actions and hobbling its ability to represent clients.”
• “Some begrudgingly have accepted the firm’s justification—that the potential to lose business was far too great. But no one should welcome a situation in which lawyers can be cowed by the US government. In fact, a client should seek out lawyers who will fight for their interests and rights without fear that doing so could anger the government.”
• “In the high-priced world of Big Law, lawyers often are recruited from government agencies precisely because of their relationships with the government lawyers who might appear on the other side of client disputes. This can take the form of a white-collar criminal defense case before the Department of Justice, an application for a business merger before the Federal Trade Commission, or an energy company looking for regulatory approval for a new power plant from the Environmental Protection Agency.”
• “Clients want lawyers who can handle such cases competently and probably would prefer those who have effective relationships with regulators on the other side of the table.”
• “But no client should want a lawyer whose very claim to fame is that they will capitulate to this administration—or any administration—when the chips are down.”
• “If a government adversary knows the law firm on the other side of the table is more concerned about maintaining its reputation for having a good relationship with the government than winning, what won’t the other side ask for? When will the demands imposed on those lawyers’ clients end? What negotiating power will a lawyer with such a reputation, and for maintaining that reputation, have?”
• “In any negotiation, a lawyer always must present at least a credible threat that they will turn down an offer, go to the mat for a client, take a case to trial, or break off the negotiations. A lawyer who wants to stay in the good graces of the government can’t mount such a credible threat.”
• “It’s fine for a lawyer to have a reputation as an honest broker or a straight shooter. But an advocate who cares more about their reputation and relationships with the powerful than representing their client is antithetical to our adversarial system and inconsistent with legal professional values.”
• “A go-along-to-get-along attitude won’t serve many—if any—clients well. And when push comes to shove, a lawyer concerned with maintaining a reputation as an administration-cowing lawyer isn’t likely to fight for a client’s interests.”
• “It is for this reason that any firm trying to justify capitulation to the government pressure over possibly losing clients should ring so hollow. Knowing what’s at stake, informed consumers of legal services should recognize the risks associated with capitulating to governmental overreach, even in the business context, far outweigh their perceived benefits.”
• “Clients should send market signals of their own, showing they prefer lawyers who will fight for them when they need them to, and not care more about remaining in the good graces of the government.”
• “Not many private lawyers or advocates would look forward to having Paul Weiss attorneys on the other side of the negotiating table. But for the first time in its 150-year history, lawyers for the federal government might be all too happy to sit down with them.”