Risk Update

Conflicts News — Lawyer Disqualification, “Pinky Promise” Charge Conflict Cut

Posted Dan Bressler

“Lawyer Witness Rule, Other Concerns, Justify Disqualification” —

  • “The North Carolina Court of Appeals affirmed the grant of a motion to disqualify as counsel an attorney sued for malpractice by his former client under the lawyer-as-witness rule.”
  • “The court held that the attorney could not represent either himself or a law firm co-defendant. The defendant attorney had contended that the motion was “premature” at the pretrial stage. The court disagreed.”
    • “‘A lawyer’s right to be self-represented even when the lawyer is likely to be a necessary witness notwithstanding, the question remains whether circumstances may arise permitting a court to disqualify a lawyer from appearing pro se in a particular case. North Carolina courts do not appear to have addressed this question. At least one court has suggested, however, that while the witness-advocate rule codified in Rule 3.7 does not apply to lawyers appearing pro se, the pro se lawyer may still be subject to discipline or sanctions including disqualification for abusing the role of lawyer-litigant'”
    • “‘Here, while it is apparent that the trial court did rely on Rule 3.7 in part for the basis of disqualifying Fine from representing both himself and Marshall Grant, it is also clear this was not the sole basis for disqualifying Fine. In fact, the trial court’s Findings reflect the trial court’s concern was not merely that Fine may likely be a necessary witness, but rather that Fine would likely be the key witness with unique knowledge upon which both his and Marshall Grant’s liability may hinge. Further, the trial court’s Findings reflect concern about Fine’s ability to operate and advocate objectively in this tripartite role of litigant, lawyer, and key witness as illustrated by Fine’s behavior and demeanor in this case including Fine’s own acknowledgment: ‘he was angry about being sued by Plaintiff and therefore his filed motions may reflect his emotional feelings…'”

“Eckert Seamans Gets Fraud Charges Cut from Conflict Suit” —

  • “A federal court trimmed fraud claims from a gaming company’s lawsuit accusing its former lawyers at Eckert Seamans Cherin & Mellott LLC of hiding a conflict of interest, but it gave the plaintiff an opportunity to revise the suit.”
  • “U.S. District Judge Jennifer Wilson partly granted Eckert Seamans’ motion to dismiss parts of the lawsuit that Pace-O-Matic had filed over the firm simultaneously representing POM in Virginia and gaming rival Parx Casino in Pennsylvania, reasoning that even if the firm had denied any involvement with litigation adverse to POM’s interests, POM hadn’t shown that it took the firm at its word and suffered because of it.”
  • “‘The court finds the allegation of reliance lacking in this case. There is no averment that POM altered its intended course of action because of Eckert’s representations, and POM does not explain how it relied on these representations,’ Judge Wilson wrote in her opinion Thursday.”
  • “The court dismissed without prejudice POM’s claim of fraud, as well as its request for a declaratory judgment that the firm had violated ethical rules and its fiduciary duty. She denied motions to dismiss a request for punitive damages, or a declaration that the firm should be barred from representing POM’s rivals in the future.”
  • “Georgia-based POM had hired Eckert Seamans to represent it in a lawsuit in Virginia in 2016, where the firm argued that POM’s game machines required the use of skill and therefore weren’t illegal gambling. At the same time, Eckert Seamans was also representing Greenwood Gaming & Entertainment, which operates as Parx, in Pennsylvania. But in 2018, when POM filed two lawsuits in Pennsylvania over the removal of its games, Eckert Seamans — allegedly working with another firm — took the opposite position and argued in an amicus brief for the casino operator that POM’s devices were gambling machines and should be barred.”
  • “The court had initially refused to let Eckert Seamans duck the request for a preliminary injunction, deriding the firm’s claim it was no longer representing Parx as “pinky promises,” but the two sides eventually reached an agreement to resolve the injunction in January 2022, Judge Wilson noted.”