“DOJ’s New Biglaw ‘Conflict’ Policy: A Masterclass in Retaliation Theater” —

• “In an effort to keep piling indignity upon the legacy of the Department of Justice, Deputy Attorney General (and apparently Librarian of Congress somehow?) Todd Blanche just unveiled a policy redefining ‘conflict of interest’ to mean ‘dared to sue us’ — directing that the Justice Department’s ‘private counsel’ program can no longer hire any firm that ‘contemporaneously are directly adverse to the United States — for example, active litigation against Administration policies or representing clients in active litigation against Administration policies.'”
• “The edict cites the Model Rules, which do identify as a conflict, ‘the representation of one client will be directly adverse to another client.’ Though since representing a law firm challenging an executive order has no substantive connection to helping the civil division collect debts — the point of the private counsel program — the announcement stretches the interpretation of ‘conflict’ like flubber. “
• “There are around 20 Am Law 200 firms currently tussling with the government by the National Law Journal’s reckoning. That includes firms targeted by Trump executive orders that had the self-respect not to surrender, the firms representing those firms, as well as the firms representing the wrongfully deported or Harvard or people illegally fired by [Elon Musk].”
• “Except… who cares? The flipside of running an administration built on illegal retaliation is that it creates enough potential business to more than offset losing out on any private counsel work the DOJ might throw that way. When Trump closes a door, he opens several more and they all lead into courtrooms. “
• “Does anyone actually think we’ve seen the end of law firms slapped with vindictive executive orders or universities receiving funding threats? There’s going to be work everywhere… The only practical effect of this decision is leaving the DOJ without anyone trying to take on private counsel business.”

“‘Prior knowledge’ clause bars legal malpractice action” —

• “A professional liability insurance policy did not cover a malpractice claim brought against an attorney who drafted a company’s standard noncompete agreement before representing one of the company’s principals against allegations that she breached the agreement, a Superior Court judge has held.”
• “Defendant John Tocci provided employment counseling to Flexible Fundamentals for several years, during which he drafted its noncompete agreement and advised ‘FlexFun’ on the agreement’s implementation and enforceability.”
• “In 2021, FlexFun sued principal Errion McGrath, claiming she violated her noncompete by starting a competing entity.”
• “When FlexFun learned that Tocci was defending McGrath and other defendants in its action, it sought to disqualify him, citing a conflict of interest. A trial judge allowed the motion and the Appeals Court upheld the disqualification, stating that the record showed he had confidential information from his prior representation of FlexFun that he could have used against his former client.”
• “FlexFun subsequently brought a malpractice claim against Tocci and his firm.”
• “Plaintiff AIX Specialty Insurance followed with an action seeking a declaration that a ‘prior knowledge limitation’ in Tocci’s policy barred coverage because he had a reasonable basis to foresee the malpractice claim before the applicable policy period began.”
• “Judge Peter B. KruppJudge Peter B. Krupp, sitting in the Business Litigation Session, granted the motion.”
• See: AIX Specialty Insurance Company v. Tocci, et al., Lawyers Weekly No. 09-057-25

“Doctors Want Stay Of DQ Bid Amid Spine Center ERISA Deal” —

• “Doctors and other former employees of Atlanta-area Polaris Spine and Neurosurgery PC have agreed to settle their ERISA claims alleging the center botched the distribution of their retirement benefits, also seeking a stay of Polaris’ bid to have their Holland & Knight counsel disqualified over an alleged conflict.”
• “Plaintiffs Emily Joy Taylor, Carri Thier, Christopher Tomaras, Raymond Walkup and Shane Mangrum filed a notice of settlement in Georgia federal court Monday, ending claims they first launched in January 2023 under the Employee Retirement Income Security Act.”
• “‘Plaintiffs request that, pursuant to its inherent power to control its docket and in the interests of judicial economy, this court stay the pending motion [to] disqualify plaintiffs’ counsel through and including May 5, 2025,’ the notice says.”
• “The notice came while Polaris is seeking to have Holland & Knight removed from representing the former staff, arguing the law firm had previously represented the spine center.”
• “Polaris and Steuer told the court in their December motion that Holland & Knight spent more than a year serving as corporate counsel for the spine center, ‘during a highly litigious time period,’ and that allowing the firm to continue representing the ex-employees would violate Georgia rules of conduct.”
• “Holland & Knight represented the practice amid a heated ownership dispute from May 2020 into July 2021, Polaris said, arguing the dispute underlies the ERISA case, and therefore the law firm should not be permitted to represent the doctors.”
• “‘Defendants will pursue discovery into the origin and impact of the partnership dispute, and the impact of the dispute on Polaris, including its financial ability to contribute to, or even rely on advisors to actively manage, the Polaris retirement plan,’ Polaris and Steuer said in the disqualification bid. ‘These matters, in which Holland & Knight represented Polaris, are critical to the background of this dispute.'”
• “In an opposition filed in January, Holland & Knight called the disqualification bid a ‘purely tactical move,’ telling the court there was not a ‘substantial relationship’ between the firm’s previous representation and the ERISA matter.”