Risk Update

Conflicts Tales — Discovery Rules Violation + Conflict = Disqualification Fight, Anti-Semitic Client Communication + Conflict = Suspension

Posted Dan Bressler

“Firm Faces Threat of Disqualification After Appeals Court Says It Violated Discovery Rules” —

  • “A firm defending an anesthesiologist in a malpractice suit faces possible disqualification from the case for its work representing a non-party doctor who gave deposition testimony in the matter.”
  • “The Superior Court determined Scranton firm Scanlon, Howley & Doherty violated a rule limiting the discovery of parties’ treating physicians when it took on the plaintiff’s surgeon as a client.”
  • “Senior Judge Dan Pellegrini said the firm ran afoul of the rule by engaging in ex parte communication with surgeon Dr. Eugene Kim.”
  • “According to the opinion, Oh signed a waiver of potential conflict of interest upon retaining Scanlon Howley, and Hayes sent a letter to opposing counsel informing them of the representation. Plaintiffs counsel Angelo Theodosopoulos of Messa & Associates did not raise concerns about a conflict until approximately six months after Hayes sent the letter, at which point Theodosopoulos said Scanlon Howley had never been authorized to speak with Kim, the opinion said.”

“Anti-Semitic Letter, Conflict Draws Indefinite Suspension” —

  • “The Maryland Court of Appeals has indefinitely suspended an attorney for a conflict of interest and because she had ‘…sent an antisemitic and highly offensive 20-page letter to a client and then later knowingly and intentionally misrepresented to Bar Counsel that she had sent the letter by mistake..”
  • Attorney Grievance Commission of Maryland v. Amber Lisa Maiden:
    • “Ms. Maiden created a conflict of interest by making herself a co-claimant along with Mr. Riese for the purpose of asserting a cause of action under 42 U.S.C. § 1981…”
    • “Ms. Maiden also created a conflict of interest by claiming a 50% share of any punitive damages Mr. Riese might obtain. Although a “reasonable contingent fee,” “subject to Rule []1.5,” is permitted as an exception to the general rule prohibiting an attorney from acquiring a proprietary interest in a cause of action, Md. Rule 1.8(i)(2), Ms. Maiden’s demand for a 50% share of any punitive damages award was premised at least in part on her status as a co-claimant with Mr. Riese—and her stated belief that she was a more appropriate recipient of those damages than he was—not on her legal work. Ms. Maiden thus violated Rules 1.7 and 1.8(i) by creating a conflict of interest without obtaining Mr. Riese’s written informed consent.”
    • “With respect to the antisemitic and highly offensive nature of Ms. Maiden’s statements, the excerpts recited above speak for themselves. The 20-page letter is laced with statements that are offensive, demeaning, personally insulting, profane, and premised on harmful religious, racial, and ethnic stereotypes.”
    • “The Commission recommends that Ms. Maiden be indefinitely suspended from the practice of law. Ms. Maiden neither responded to that recommendation nor offered a contrary recommendation.”
    • “Ms. Maiden’s conduct was brief in time but extensive in volume and severity, and her offensive statements were sent to and intended to be read by their subject, who was also her client. It is also notable that neither Basinger nor Markey involved other violations, such as the significant conflict-of-interest, competence, and dishonesty violations at issue here, which further call into question Ms. Maiden’s fitness to represent clients at this time.”