Risk Update

Ethics and Risk — Ethics of Responding to Mistakes, Pastor Posits Personal Attorney-Client Relationship Produces Conflict Amid Abuse Allegations, Conflicts Concern Over Lawyer-Witness

Posted Dan Bressler

David Hricik at Mercer Law School recently: “wrote a paper on this topic and gave a CLE and thought it would be useful to pass it along. It is here: The Ethics of When Lawyers Make Mistakes”

  • “It goes through in a step-by-step way the way to approach fessing up to a mistake, as well as analyzing the different approaches that jurisdictions take to the issue.
  • “For example, some view the duty as arising from the need to keep a client reasonably informed, while others view it as part of a conflict-of-interest analysis.”
  • “That matters because breach of the duty depends on which source applies: if it’s to keep the client reasonably informed, it’s basically triggered by knowing the client has a malpractice claim, but if it’s a fiduciary duty that is the source, then it’s triggered by the lawyer’s interest conflicting with the client’s.”
  • “…it also addressed the critical issue of talking to your carrier and addresses a couple of related cases where lawyers’ duties were triggered by other sources.”

“Motion: Gateway Church lead counsel David Middlebrook ‘must be disqualified’” —

  • “Lawyers for Robert Morris, the former Gateway Church pastor who had an inappropriate relationship with a teenager decades ago, asked a Fort Worth judge to remove one of the lead attorneys representing the church in litigation over disputed financial payments.”
  • “In court documents filed Friday, Morris’ attorneys want the judge hearing the case to disqualify David Middlebrook, Gateway’s longtime outside general counsel, because he previously represented Morris in several matters, including giving Morris legal advice about the issues that are at the heart of the current dispute.”
  • “‘David Middlebrook represented Gateway Church and Pastor Robert Morris for years in connection with issues relating to Pastor Morris’s past relationship with Cindy Clemishire,’ lawyers for Morris stated in an 18-page motion. ‘Specifically, Pastor Morris sought, relied on, and followed Middlebrook’s legal advice in responding to CC or her lawyer in 2005, 2007 and 2011. Gateway now relies on those very same events and issues in this dispute, invoking them in an effort to evade its payment obligations to Pastor Morris.'”
  • ‘Middlebrook and his law firm must be disqualified due to his violation of Rule 1.09 and to avoid the appearance of impropriety,’ Morris’ lawyers argued in Friday’s motion. ‘Finally, Middlebrook also is a central fact witness to the events leading to this dispute and is barred from continued representation by Rule 3.08(b) as well.'”
  • “Oklahoma officials indicted Morris two months ago on five counts of lewd and indecent acts.”
  • “Last month, Morris told Gateway leaders that the church owed him millions of dollars in promised payments and retirement benefits. Lawyers for Morris sought to have the dispute settled via arbitration. In response, Gateway lawyers filed documents earlier this month in Tarrant County District Court to stop the arbitration proceedings, arguing that Morris’ improper conduct and the criminal charges nullify any prior agreement with the former pastor.”
  • “In the motion filed Friday, Morris’ attorneys point out that Middlebrook also provided legal representation to Morris on preparing estate-planning documents, helping create Morris’ nonprofit foundation and forming a living trust.”
  • “‘Throughout these engagements, Pastor Morris revealed confidential information to Middlebrook in the context of a personal attorney-client relationship — one separate from the lawyers’ representation of Gateway,’ Morris’ lawyers argued.”

“Prosecutors Ask Judge to Question Charlie Javice Lawyer Over Alleged Conflict” —

  • “Federal prosecutors are asking a judge to investigate whether or not an attorney for Charlie Javice, the founder of the student loan fintech start-up Frank, may have a conflict of interest, given that he represented her in a prior investigation unrelated to her pending fraud case.”
  • “David Siegal of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo is not accused of wrongdoing, according to the U.S. Attorney’s Office for the Southern District of New York. But prosecutors do want the judge to bar Siegal from cross-examining witnesses or making arguments relating to matters in which he was personally involved.”
  • “The case is before U.S. District Court Judge Alvin Hellerstein of the Southern District of New York. Prosecutors claim Javice willfully misled JPMorganChase into acquiring her start-up for $175 million. She has pleaded not guilty.”
  • “The alleged misconduct included misuse of corporate credit cards for personal use,and use of personal emails and devices for business purposes.”
  • “While Siegal at that point turned over some of Javice’s texts to Morgan investigators, prosecutors say they now know her messages contained significantly more responsive communications—including about the alleged fraud on J.P. Morgan.”
  • “Prosecutors say they intend to present some of those communications at trial and claim Javice caused Siegal to convey false information as part of his representation.”
  • “Siegal has agreed not to cross examine one of the investigators from Morgan, but has not agreed to ‘refrain from arguing to the jury regarding matters to which he was a witness,’ the letter reads.”
  • “Though they do not seek to disqualify him, prosecutors ask Hellerstein to hold a Curcio hearing, to address any potential conflicts that may arise as a sworn or unsworn witness at trial.”