Risk Update

Conflicts News (Waivers, Disqualifications & Non-conflicts DQ)

It wouldn’t be a Bressler Risk Blog if I didn’t crib updates from the unmatchable Bill Freivogel. So with a hat tip and clear credit to him (and some more to come) let’s have a look at what he’s seeing on the conflicts front:

  • “Cedar Rapids Bank & Trust Co. v. Mako One Corp., 2019 WL 1283988 (8th Cir. March 21, 2019). Corp. hired Law Firm to draft a tax credit bond to finance a building restoration project. Bank purchased the bond. When a default occurred, Bank hired Law Firm to bring this foreclosure proceeding against Corp. Corp. moved to disqualify Law Firm. The trial court denied the motion. In this opinion the Eighth Circuit reversed, based upon an “inadequate” written advance waiver signed by Law Firm, Corp., and Bank, before hostilities broke out. The court said “the letter makes no pretense to elucidate any risk involved,” only that the parties’ interests “are or may be adverse.” The letter also contained an unfortunate drafting error. There is more, but the reader should get the idea by now.”
  • “Re: Nat’l Prescription Opiate Litig., 2019 WL 1274555 (N.D. Ohio March 19, 2019). From 2009 until 2017 Carole Rendon (“Rendon”) was a lawyer in the office of the U.S. Attorney for the N.D. of Ohio (“the Office”). During that period Rendon represented the Office in an opioid task force, which included health professionals, state and local law enforcement, and others. Included were City of Cleveland (“City”) and Cuyahoga County (“County”). In 2017 Rendon left government and joined Baker & Hostetler (“B&H”). After Rendon joined B&H, City and County joined in lawsuits against opiode providers, including Endo Int’l PLC (“Endo;” full name from press account). Rendon appeared for Endo. City and County moved to disqualify Rendon and B&H. In this opinion the court granted the motion. The court found that Rendon did not violate Ohio Rule 1.11(a), but did violate Rule 1.11(c). The court relied in significant part on a letter from a Senior Trial Counsel from the Office claiming that City and County did share relevant nonpublic information with Rendon while she was on the task force.
  • And see also Law.com on: “Judge Disqualifies Baker & Hostetler Partner From Defense of First Bellwether Opioid Trial
  • “Jarvis v. Jarvis, 2019 WL 1254013 (Cal. App. March 19, 2019). Todd Jarvis and James Jarvis are the 50% owners of Jarvis Properties, a limited partnership (“LP”). They are at odds over what to do with property in the LP. James filed this action for partition against Todd and LP. Todd hired a lawyer for himself and and hired a different lawyer, William Roscoe, to represent LP. A California statute provides, in effect, that a 50% owner cannot act on behalf of a partnership. Therefore, James moved to disqualify Roscoe. The trial court granted the motion. In this opinion the appellate court affirmed. The court could not nail down precedent for this situation. While repeatedly emphasizing that this was not a conflict of interest situation, the court discussed California conflicts law extensively. The court did not say how LP’s successor lawyer should be selected but seemed confident that the trial court would figure something out under its “inherent and equitable powers.

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