Risk Update

Conflicts News — Maui Lawyer/Legislator Picks a Path, Phone Case Conflict Call Challenged

Keith-Agaran to retire from Senate as law firm pursues fire lawsuits” —

  • “Central Maui’s longtime state Sen. Gil Keith-Agaran announced he will retire Oct. 31, saying he didn’t want questions over conflicts of interest to be a “distraction” as his law firm prepares to represent clients in lawsuits over the Lahaina fire.”
  • “Keith-Agaran’s position as a lawmaker and an attorney could have put him in a questionable spot if his law firm had represented residents or businesses suing the state over the fires. Keith-Agaran’s firm, Takitani, Agaran, Jorgensen and Wildman, is among three firms that filed a lawsuit on Aug. 17 alleging that the Lahaina fire started when Hawaiian Electric’s power lines came in contact with brush. The three firms hosted a presentation and sign-up on Sunday for residents and business owners impacted by the fire.”
  • “Keith-Agaran, who faced questions from local media about the potential conflict of interest before announcing his retirement Wednesday, said he spoke to the staff of the state Ethics Commission ‘to get a feel on whether or not there was going to be issues.’ He said based on conversations with the commission staff, he felt he would have had to choose between his family and community and protecting the state.”
  • “‘Right now it’s theoretical. But I think they were sort of suggesting that even the appearance of a conflict is enough to raise a violation or create a violation. To me that’s a distraction from the real pain and the real issues that people are going through,’ Keith-Agaran said Wednesday afternoon.”
  • “When asked if he stepped down to avoid a potential conflict of interest, Keith-Agaran said, ‘Yeah … Given what we’re all going through right now, that’s just not something that’s worthwhile in the larger scheme of things for my family and for my law partners.'”
  • “Colin Moore, director of the University of Hawai’i Public Policy Center, said he wasn’t “terribly surprised” by Keith-Agaran’s decision. ‘I think it’s a pretty clear calculation here where you’re a plaintiffs attorney. This is potentially the case of a lifetime,’ Moore said Wednesday afternoon. ‘There’s just going to be millions and millions of dollars at stake. I’m sure that he doesn’t feel that he can represent his clients and be in the Legislature without questions of the ethical implications of that and just being dogged by reporters. I can’t say I’m terribly surprised.'”

Otter Says No Conflict For Atty In Phone Case Patent Dispute” —

  • “Otter Products says a rival’s effort to disqualify Merchant & Gould as its counsel in a patent dispute doesn’t hold up, arguing in Colorado federal court that there’s no real conflict because the law firm represented a different company from the patent holder and plaintiff when it helped write an application for the same patents in the suit.”
  • “…Otter Product LLC said its attorney, James W. Beard of Merchant & Gould PC, had represented Otter in patent suits for more than a decade before the lawsuit filed in June by Jefferson Street Holdings LLC, which does business as Cradl Ltd.”
  • “Cradl alleged in a motion filed in July to disqualify Merchant & Gould from representing Otter in the case that the law firm worked on the application for the patents for Elizabeth Inc., predecessor in interest to Cradl, with all the patents sharing the same specification that Merchant & Gould attorneys drafted. Cradl said both Elizabeth Inc. and Cradl are owned by Dining.”
  • “But the distinction between the companies is key, Otter said in its brief opposing the motion. ‘Fundamentally, Jefferson Street is not and was not a client of Merchant, and therefore there is no protectible ‘attorney-client relationship’ between plaintiff and merchant,’ Otter said in the brief.”
  • “Otter argued that the assignment of a patent doesn’t also transfer an attorney-client relationship related to that patent. Otter also argued that the patents had been transferred through a series of entities before ending up with Jefferson Street Holdings, with two of them not being tied to Elizabeth Inc. and not appearing to sell phone cases. Otter also argued that Elizabeth Inc. still exists as its own entity and isn’t the parent company of Jefferson Street Holdings.”
  • “Beyond that, Otter said the engagement letter that Elizabeth Inc. signed stated that ‘representation of the company in this matter will not give rise to any conflict of interest in the event other clients of the firm are adverse to any of the company’s affiliates.'”
  • “And just because attorneys who worked on prosecuting the patents for Elizabeth Inc. work at the same firm as Beard doesn’t automatically mean there’s a conflict, Otter said, arguing that ‘the record informs no substantial risk that confidential information obtained by’ Merchant attorneys while prosecuting the patents for Elizabeth Inc. would be useful in the Cradl case.”