“When Communications Concerning a Client Can Be Withheld From the Client” —

• “Sometimes conflicts arise between law firms and their clients that require lawyers within the firms to seek legal advice. Such situations may include instances where firm lawyers become concerned about potential legal malpractice claims. In such situations, firm lawyers may seek advice from another lawyer within their firm about how to handle the issue. In subsequent litigation with the client, however, such communications may not be protected from discovery, particularly where the firm lawyer whose advice is sought has been involved in the representation of the client.”
• “Magistrate Judge Barbara Moses of the Southern District of New York recently addressed this issue in Bonde v. Wexler & Kaufman, 2023 WL 8756986 (S.D.N.Y. Dec. 8, 2023).”
• “Wexler & Kaufman PLLC (W&K), a law firm, sought to withhold as privileged communications exchanged among W&K personnel and an outside IT consultant after the firm was sued by a former client, Carl Ulfsson Bonde, for legal malpractice.”
• “The case arose out of a spoofing incident where a cybercriminal duped a W&K lawyer into sending the cybercriminal money that belonged to Bonde. In advancing their privilege claim, defendants argued that the withheld communications were made by W&K attorneys acting as general counsel to the firm for the purpose of providing legal advice to the firm and its lawyers in the wake of the spoofing incident. One of the W&K attorneys, however, was simultaneously acting as Bonde’s lawyer.”
• “Moses ultimately concluded that defendants had not sustained their burden to demonstrate that the firm lawyers whose advice allegedly was sought were acting as general counsel to the firm in connection with the communications, and she ordered the communications produced.”
• “After plaintiff moved to compel, Wexler and Kaufman sought to defend the privilege claims on the ground that in connection with these communications, they had ‘assumed the role of general counsel’ and the communications reflected their advising the firm on possible malpractice exposure, preparing a defense to potential claims by Bonde, and reporting the matter to the firm’s insurance carrier. The parties submitted 10 of the challenged communications for in camera review.”
• “Bonde argued that the withheld communications should be produced for two reasons: (1) defendants had not substantiated their claim that the withheld communications involved the provision of legal advice to the firm (as opposed to actions undertaken on Bonde’s behalf to seek the return of the stolen funds), and (2) defendants were barred from invoking the privilege because ethically Wexler could not act as general counsel to the firm on a matter involving Bonde while simultaneously representing Bonde.”
• “Bonde argued that the withheld communications should be produced for two reasons: (1) defendants had not substantiated their claim that the withheld communications involved the provision of legal advice to the firm (as opposed to actions undertaken on Bonde’s behalf to seek the return of the stolen funds), and (2) defendants were barred from invoking the privilege because ethically Wexler could not act as general counsel to the firm on a matter involving Bonde while simultaneously representing Bonde.”
• “Aside from the ethical conflict, which Moses recognized ‘does not, standing alone, vitiate an otherwise available evidentiary privilege,’ she concluded that Wexler and Kaufman had failed to present sufficient evidence to substantiate that either of them had assumed the role of in-house counsel in connection with the challenged communications.”

“Lewis Brisbois Faces DQ Bid In Scooter Injury Suit” —

• “The plaintiffs in a lawsuit over a defunct scooter-sharing service in Pittsburgh want to disqualify Lewis Brisbois from representing scooter maker Segway in the suit because the firm is also seeking to represent service operator Spin in its parent company’s bankruptcy proceedings in Florida.”
• “In their disqualification bid, two people who were injured in accidents involving Spin scooters and the family of one rider who was killed cited an apparent conflict of interest. Their issue is with Lewis Brisbois representing Segway-Ninebot in the Pennsylvania state court case against Spin, Segway and the city of Pittsburgh at the same time a different attorney from the same firm is seeking to become ‘special counsel’ to Spin’s parent company, Bird Global Inc., in its Chapter 11 case for claims filed over similar injuries in Los Angeles, Chicago and other cities.”
• “The plaintiffs asked the Allegheny County Court of Common Pleas to bar Lewis Brisbois Bisgaard & Smith from continuing to represent Segway in their suit, which was still awaiting rulings on whether it could sever the claims against Spin so the rest of the case could move forward amid the bankruptcy court’s automatic stay.”
• “Alesia Truxell, as the representative of the estate of Lawrence Chertik Jr., along with Jacob Speller and Jennifer Vining, had sued Pittsburgh, Spin and Segway in September, claiming that the scooters were unsafe for the bumps and potholes of Pittsburgh’s roadways, especially at night when other cities restricted the scooters’ usage.”
• “The Pittsburgh plaintiffs said the firm could not represent Segway in a state court lawsuit including Spin at the same time that it represented Spin in its federal bankruptcy, claiming the parties could have adverse interests in the Pennsylvania case or could give Segway access to information about the plaintiffs that Spin held.”
• “They pointed to the factors in assessing potential conflict of interest that Pennsylvania’s Eastern District federal court had established in 1995’s Dworkin v. General Motors Corp. , which calls for a ‘wall’ between attorneys in the same firm who might represent conflicting clients.”
• “‘There is no indication of a ‘wall’ or ‘screen’ between counsel in the Los Angeles office… representing debtor Spin and counsel for the defendants, herein, Segway Inc. and Segway Discovery, Inc., nor is there any indication of a joint-defense agreement between defendants Segway, Inc. and Segway Discovery, Inc. and debtor Spin,’ the motion said.”