Risk Update

Lateral Movement Fight — “Poached” Partner and Arbitration Agreements, Lawyer Impairment Response Ethics Opinion

Jones Day Loses Bid to Squeeze Rival Orrick Over Firm’s Paris Partner Poach” —

  • “A District of Columbia judge has refused to force Orrick, Herrington & Sutcliffe to disclose certain internal information to Jones Day, which accused a former longtime practice-leading partner in Paris of breaching his partnership agreement after he departed for the rival law firm two years ago.”
  • “Jones Day lawyers asked a District of Columbia Superior Court judge in November to enforce an arbitral subpoena against San Francisco-based Orrick as part of an underlying proceeding involving the former partner. Many of the filings in the court case were redacted, leaving very little information available publicly. A judge sealed a telephonic hearing in April, denying ALM the opportunity to listen to the proceedings.”
  • “Bühler, according to the newly filed court order, ‘transacted his employment arrangement with Orrick around the time he was representing a Jones Day client before an arbitral tribunal.’ An Orrick partner was a member of the arbitral tribunal. Jones Day asserted that Bühler did not tell the firm about a potential conflict of interest.”
  • “One of the parties involved in the arbitration—the court ruling did not reveal any client names and attorney names—questioned the fitness of the arbitrator to remain on the panel, and the arbitrator was replaced. The arbitrator’s name also was not revealed in court papers.”
  • “Jones Day has accused Bühler of a material breach of his partnership agreement and has argued he must forfeit any compensation that is due to him. Jones Day also contends that the firm is entitled to a ‘set-off of all costs incurred and damages arising out of Mr. Bühler’s purported actions.'”
  • “The Williams & Connolly team for Orrick asked D.C. Superior Court Judge Alfred Irving Jr. to spurn Jones Day’s effort to enforce the arbitral subpoena. Irving concluded he did not have ‘general jurisdiction’ over Orrick and could not therefore compel the firm to respond to the subpoena Legg issued.”

Lawyers, Colleagues Can’t Ignore Impairment, Ethics Opinion Says” —

  • “Lawyers whose mental impairment affects their ability to practice law, as well as their colleagues who are aware of the problem, can’t ignore it because of ethical duties to firm clients, a California State Bar ethics advisory opinion said.”
  • “‘These ethical obligations may include, but are not limited to, communicating significant developments related to the lawyer’s conduct to the client and promptly taking reasonable remedial action to prevent or mitigate any adverse consequences resulting from an impaired lawyer’s actions,’ the bar said.”
  • “The California opinion proposed a scenario involving a rainmaker at a law firm who appeared confused about a client matter that had been ongoing for two years, couldn’t argue a motion on the client’s behalf; and didn’t communicate a settlement offer to the client. A subordinate attorney at the firm noticed the behavior and approached the impaired attorney, who denied any problems existed and stressed that the firm couldn’t lose the client.”
  • “The impaired lawyer’s “proposed course of conduct involves, at a minimum, reckless, grossly negligent or repetitive violations of the duties of competence and diligence,” the opinion said. Further ethics rules that may be implicated include ones on client communication; conflicts of interest; and terminating representation, it said.”
  • “Even though the impaired attorney won’t take any steps to deal with the issue, every lawyer in the firm who knows about it has an ethical obligation to protect the firm’s clients, the opinion said.”
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