“You’re running conflicts checks on your law firm’s marketing content before publishing it, right?” —

• “Are you and your law firm running conflicts checks on your and your colleagues’ thought-leadership marketing content? Yes, really, I am talking about running conflicts checks on your and your colleagues’ blog posts, bylined articles, and client alerts before they’re published.”
• “If you are not running conflicts checks on this marketing content, you and your law firm run the risk of that content coming back to bite both of you in the rear in two distinct ways.”
• “Positional conflicts. Admittedly, it is highly unlikely that a piece of thought-leadership marketing content will create a positional conflict under a jurisdiction’s rules of professional conduct. But that doesn’t mean your opposing counsel or their client won’t make that argument to a court.”
• “A positional conflict arises if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s (or their law firm’s) effectiveness in representing another client in a different case.”
• “A classic example of this is when Lawyer A makes a legal argument before an appellate court on behalf of Client A that is inconsistent with how Lawyer A’s colleague at their firm, Lawyer B, is arguing for another firm client, Client B, in a separate matter at a trial court that is bound by that appellate court’s decisions.”
• “If a law firm does not perform conflicts checks on its thought-leadership marketing content, Lawyer C could write a blog post or client alert advocating for Position X without realizing that their colleague Lawyer D is currently arguing the exact opposite of Position X on behalf of Client D before a trial court in an active lawsuit.”
• “Rest assured that if Lawyer D’s opposing counsel or Client D’s adversary read Lawyer C’s blog post or client alert, they would consider asking the court or the official presiding over the proceeding to disqualify Lawyer D from representing Client D due to a purported conflict.”
• “While this could cause a headache for Lawyer D and Client D, and perhaps some drama between them, this situation is unlikely to be considered a true positional conflict.”
• “However, in a situation with the perfect set of facts, a court could hold that a piece of thought-leadership marketing content was ‘action on behalf of one client’ if the author of the content was publishing the content in order to influence the Court of Public Opinion to get a better legal outcome for the client.”
• “The second way a failure to run conflicts checks on your firm’s thought-leadership marketing content could come back to bite you and your firm in the rear is by creating content that is cited by your or your colleagues’ opposing counsel in support of their clients’ legal positions against your firm’s clients.”
• “This situation is not as severe as a positional conflict that runs afoul of your jurisdiction’s ethics rules. But this situation is both more likely to happen and more likely to impact your firm’s bottom line by potentially upsetting clients to the point that they fire your firm.”
• “By now it should be clear to you that if your law firm is of a certain size, it is worth conducting conflicts checks on the firm’s thought-leadership marketing content. But how?”
• “My recommendation is to create a pre-publication conflicts check system. This system will necessarily be different than a client conflicts check system because you will need to do more than reviewing your firm’s previous and current clients, adverse parties, etc.”
• [Read on for specific policy/process recommendations.]

Above the Law spotlights PR & Reputation Risk Meeting Streisand effect: “Jones Day Whines About Law Review Article… So Now We’re All Going To Go Read That Law Review Article” —

• “A law review article is like posting party invitations on Friendster in 2022. Alas, the Streisand Effect is a law review’s best friend, and thanks to a Jones Day partner’s three-page letter to the author, a lot of people are about to check out W. Bradley Wendel’s “Lawyer Shaming” from the Illinois Law Review.”
• “Professor Wendel of Cornell Law School, wrote the piece inspired by the efforts of the Lincoln Project to shame firms directly or indirectly involved in Trump’s challenges to the 2020 election, though the article as a whole delves into nagging questions of a lawyer’s professional responsibility when dealing in problematic representations.”
• “Despite being a timely and important topic, this article likely wasn’t getting much attention, but it caught the eye of Kevyn Orr at Jones Day! And he decided to send Professor Wendel a THREE-PAGE letter about it!”
• “…Jones Day, in fact, represented the Pennsylvania GOP committee in litigation aimed at DISENFRANCHISING Pennsylvania voters. See, they didn’t ‘allege voter fraud’ they simply argued that the courts should throw out the winning ballots as illegal from the start! Oh, Distinction? You forgot your difference.”
• “Orr can quibble that throwing out mail-in ballots from overwhelmingly urban areas still subject at the time to COVID restrictions doesn’t count an ‘attack on democracy,’ but (a) it totally does, and (b) doesn’t make Wendel’s article inaccurate for noting that people criticized Jones Day for this.”
• “Why drag all of this out into the open over a law review article that no one was going to read? We can’t answer that for Jones Day…”
• “Jones Day’s activity didn’t involve phony affidavits or allegations about Italian space lasers or whatever. Nor does anyone suggest the firm would ever sully itself with that kind of work. But it was engaged by Republicans in lawsuits intended to change the results as tabulated. Jones Day may not like being looped in with kooks like Rudy and Powell because its lawsuit attacking ballot rules was more ‘professional’ in tone.But even Best in Show gets fleas when lying down with the other dogs.”

“Atty’s In-House Work For Housing Co. DQs Firm In Mold Suit” —

• “The Georgia Court of Appeals has ruled that a Wakhisi-Douglas LLC senior attorney’s in-house experience with First Key Homes of Georgia LLC created a conflict of interest that disqualified the firm from continuing to represent a man suing First Key over mold in a rented home.”
• “Presiding Judge M. Yvette Miller said in an order on Monday that Wakhisi-Douglas attorney June James had handled legal work during her time with Key First that was substantially similar to the case she is now helping to pursue on behalf of client Kobree Robinson, and that the incident at the heart of Robinson’s suit had taken place while James was still employed by the housing provider. Chief Judge Brian M. Rickman and Judge Trea Pipkin agreed with Presiding Judge Miller.”
• “Robinson sued First Key and Cerberus SFR Holdings II LP in May 2021 alleging that he and his wife suffered side effects from renting a home that was contaminated with mold, and that the companies ignored complaints about the situation. The appellate court’s decision on Monday handed a win to First Key and Cerberus, which had asked the judges to reverse a trial court’s refusal to disqualify the Wakhisi-Douglas firm from handling the case.”
• “‘James worked with outside counsel to gather information regarding any communications with residents that filed lawsuits against the company,’ Presiding Judge Miller said. ‘She would also review the resident’s legal complaint and would speak to the property manager and outside counsel to prepare for litigation.'”