Risk Update

Disqualifications Denied — Gently-chided Tactical Conflict Considerations, Ex-wife’s Attorney DQ Reviewed

Posted Dan Bressler

“COA reverses disqualification of Fishers attorney representing ex-wife in child support matter” —

  • “An Indiana attorney who was disqualified from representing his ex-wife in her post-dissolution matter from a previous marriage was not prevented from doing so a second time because the basis for his first disqualification no longer existed, the Court of Appeals of Indiana has ruled.”
  • “Fishers attorney Robert E. Duff of Indiana Consumer Law Group entered an appearance for Lydia in the matter in 2020 before Brian moved to disqualify Duff on grounds of violation of professional conduct rules. Lydia was married to Duff from 2013 to 2019 and at the time was pregnant with Duff’s child.”
  • “Specifically, Brian alleged that Duff’s representation of Lydia violated Professional Conduct Rule 3.7 and that Duff had spoken to the GAL on Lydia’s behalf about parenting time and would likely be a ‘necessary’ witness at the parenting-time hearing.”
  • “The Hamilton Circuit Court disqualified Duff and the parties subsequently came to an agreement about parenting time, eliminating the need for a hearing.”
  • “Eight months later, in June 2021, Brian sought reimbursement for his alleged overpayment of child support. Duff again entered an appearance for Lydia, to which Brian moved to disqualify Duff on the sole basis that he had been ‘previously disqualified from representing’ Lydia. However, he raised no new grounds to support his motion.”
  • “The trial court again entered an order disqualifying Duff and certified the issue for interlocutory appeal. But the Court of Appeals of Indiana in a Tuesday decision reversed and remanded, finding the trial court abused its discretion in Robert E. Duff and Lydia Rockey v. Brian Rockey, 21A-DR-1750.”
  • “‘…Because the second post-dissolution matter is different from the first post-dissolution matter and the basis for the first disqualification no longer existed, the trial court abused its discretion in disqualifying Attorney Duff from representing Mother in the second post-dissolution matter,’ Vaidik concluded.”

“Norton Rose Avoids DQ In $340M COVID Coverage Suit In NY” —

  • “A New York federal judge gently chided Norton Rose but said it was time to move on from an issue that’s been delaying an insurance case…U.S. District Judge John G. Koeltl said that while a conflict certainly existed, Gartner had failed to show that it was likely to have any effect on the insurance coverage litigation. Judge Koeltl also noted there were several signs that ‘tactical considerations may have played a role’ in Gartner’s decision to highlight the issue.”
  • “U.S.-based Gartner Inc.’s disqualification bid centered on the fact that while Norton Rose’s Australia unit was helping subsidiary Gartner Australasia with pandemic-related layoffs in spring 2020, Norton Rose Fulbright US LLP was representing U.S. Specialty Insurance Co. and another insurer that sued Gartner Inc. in May in Texas federal court.”
  • “Those Texas lawsuits, as well as the New York lawsuit filed by Gartner, concern whether or not the insurers must cover up to $340 million worth of losses caused by the cancellation of dozens of Gartner events due to COVID-19.”
  • “‘While [Norton Rose US] should have obtained a waiver from Gartner Australasia or Gartner when it undertook to represent [U.S. Specialty], that conduct does not warrant disqualification on the facts of this case,’ Judge Koeltl said.”
  • “Judge Koeltl said under the relevant guidelines the situation laid out by Gartner does technically amount to a conflict, due to how closely Gartner and its Australasia unit are interconnected, the research giant failed to show that it amounts to anything in practice.”
  • “Judge Koeltl said there was no evidence that any information had been shared between the attorneys handling the insurance dispute and the Gartner Australasia layoff work, and in any case the layoff information isn’t relevant at all to the insurance litigation.”
  • “Judge Koeltl also noted Gartner had floated the idea of dropping the disqualification issue if U.S. Specialty would agree to move all the cases to New York, among other things, and concluded that ‘tactical considerations’ were at least in part driving the disqualification dispute.”