“Criminal: Motion to disqualify attorney for co-defendant is rejected” —

• “Where two executives of a home health agency were charged with health care fraud and money laundering, the COO’s motion to disqualify the attorney representing the owner was denied. The attorney previously represented the company, and not the COO. And the COO failed to show what, if any, information would be subject to attorney-client privilege.”
• “According to the indictments, Bryant-Taylor served as an owner, director, president and Chief Operating Officer of 1st Adult N Pediatric Healthcare, a home health agency that provided private duty nursing and personal care throughout Virginia. Okocha was an owner, director, vice president and treasurer of 1st Adult.”
• “Bryant-Taylor now moves to disqualify attorney Robert Jenkins from representing co-defendant Okocha. Bryant-Taylor alleges that during Jenkins’ prior representation of 1st Adult, Bryant-Taylor ‘revealed confidential information about herself and 1st Adult and 1st Adult’s legal situation to attorney Jenkins so that he could adequately represent her company in the civil litigation.'”
• “Bryant-Taylor is now ‘concerned that if she goes to trial and chooses to testify in her own defense, that Attorney Jenkins, in the course of representing Josephine Okocha, may use information the Defendant had revealed to him in preparation of the civil suit for purposes of cross examination or in other ways to her detriment and in violation of attorney/client privilege.’ Thus, she asks that Jenkins be disqualified so that her ‘rights to attorney/client confidentiality be fully protected.'”
• “Bryant-Taylor was not in an attorney-client relationship with Jenkins such that she can now invoke attorney-client privilege on behalf of herself. Although she was 1st Adult’s ‘contact person’ for Jenkins during his representation of the company in the civil case, the engagement letter disclaims that she was the client. The letter expressly states that the business was the client and that the firm did ‘not undertake to provide representation, through this engagement, for the individual interests of any such officer, director or employee of 1st Adult.'”
• “At the April 17 hearing, Bryant-Taylor affirmed that she understood 1st Adult was the client in the civil case and that Jenkins had not specifically agreed to represent her as an individual. Her testimony failed to establish that she held a subjective belief that she was in an attorney-client relationship with Jenkins and that such a belief would have been reasonable under the circumstances.”
• “In sum, there is no evidence that Bryant-Taylor was, in fact, Jenkins’s client for the purposes of Va. R. Prof. Cond. 1.9 and principles governing an attorney’s obligations to former clients. She has not demonstrated an ‘actual’ or a ‘serious potential’ conflict of interest between herself and Jenkins arising from his representation of her co-defendant.”

Judicial Ethics Opinion 25-06(B): “A new judge may hire a law student who previously interned at the judge’s prior law firm as a judicial intern” —

• “Digest: (1) A new judge may hire a law student who previously interned at the judge’s prior law firm as a judicial intern.”
  (2) If, while the judge is already under an obligation to disqualify in matters involving the law firm, the judge wishes to provide an opportunity for remittal of disqualification, the judge may disclose both his/her own prior connection to the firm and the judicial intern’s, and allow the parties and their counsel to consider whether or not they wish to remit the judge’s disqualification. However, if the judge learns that the intern was personally involved with a matter at the law firm, the intern should be insulated from that matter, and such insulation cannot be waived or remitted.”
• “Preliminarily, we note that judges are disqualified from presiding in any case involving their prior law firm or its attorney(s) until two years have passed after the completion of any financial relationship between the judge and the law firm (see e.g. Opinions 18-118; 18-46; 16-36; 22 NYCRR 100.3[E][1]).”
• “Assuming the judge can be fair and impartial, the disqualification is subject to remittal after full disclosure on the record (see Opinion 18-118; 22 NYCRR 100.3[F]). As noted in
• “Opinion 21-22(A), where a judge has a disqualifying conflict, it is not the parties’ burden to request the judge’s disqualification. Rather, it is the judge’s burden to disqualify him/herself at the outset, even if the parties are fully aware of the conflict and do not express any concern (see id.).”
• “…the decision whether to engage a student intern is within the discretion of the judge and does not generally raise ethical concerns. Indeed, where the internship is unpaid, we have advised that the anti-nepotism rule does not apply (see Opinion 14-48 [judge may hire third-degree relative as unpaid intern]). Where a conflict arises in a particular case due to the intern’s outside activities or relationships, it is ordinarily sufficient to disclose the connection and insulate the intern (see e.g. Opinions 22-181; 13-80).”
• “One unusual factor here is that this new judge proposes to hire an intern from his/her former law firm, while the judge is already disqualified from hearing matters involving that law firm. During this period, the judge may, of course, simply disqualify in matters where the law firm appears. Should the judge wish to provide an opportunity for remittal of disqualification, however, the judge may disclose both his/her own prior connection to the firm and the judicial intern’s, and allow the parties and their counsel to consider whether or not they wish to remit the judge’s disqualification. However, if the judge learns that the intern was personally involved with a matter at the law firm, the intern’s insulation from that particular matter cannot be waived or remitted”

David Kluft notes: “Can a law student’s summer associate position conflict them from legal clinic work?” —

• “A MD law school asked the MD bar if its clinical program has to run conflict checks to make sure it isn’t adverse to, for example, the clients of a law firm that employed a clinic student the prior summer, or employs the student currently as a paralegal.”
• “The answer is no. Although law students functions as attorneys within the clinical program, they are non-attorneys outside the clinical program, so for conflict purposes there is not a competing loyalty that can limit the obligation to a clinic client.”
• “However, the student still has an obligation to maintain any client confidential information learned from the outside employment.”