Risk Update

Law Firm Disqualification News — Palpable Parental Puzzle & Potential Pyramid, Privilege Preserved

“‘Palpable and Significant Risk’: Law Firm Disqualified From Federal Suit” —

  • “U.S. Magistrate Judge James Wicks of the Eastern District of New York on Wednesday took the unusual step of granting a motion to disqualify counsel in a case seeking damages from Nassau County and several law enforcement officers in a wrongful conviction case.”
  • “Wicks found that Sokoloff Stern, a firm representing the defendants, also represented a Nassau County assistant district attorney who raised concerns about the police conduct at issue in the case.”
  • “The plaintiff in the case, Josiah Galloway, was wrongfully convicted of shooting a taxi driver and spent 10 years in prison before the Nassau County District Attorney’s Office’s Conviction Integrity Unit in 2018 reinvestigated the case and moved to vacate the conviction and dismiss the indictment.”
  • “Wicks found that the Nassau ADA ‘is more aligned with plaintiff in this matter than with defendants,’ noting that she said in a deposition that she credited the testimony of an eyewitness that cut ‘directly’ against the defendants’ argument.”
  • “If the plaintiffs’ attorneys from Elefterakis, Elefterakis & Panek called the ADA at trial and confronted her with her testimony in the deposition, the defense counsel would be placed ‘in the impossible position of having represented a witness earlier in the proceedings who, now before a jury, is testifying directly against the defendants… Such circumstances would fly far beyond the mere image of impropriety and would instead pose a palpable and significant risk of taint to the trial,’ Wicks wrote.”

For anyone else who has watched the recent documentary “LuLaRich” (streaming free on Amazon Prime), here’s some recent related news: “Reed Smith Beats DQ Bid Over Privileged LuLaRoe Docs” —

  • “A California appellate panel has backed a lower court’s ruling that Reed Smith LLP shouldn’t be disqualified from a suit against clothing retailer LuLaRoe, agreeing that its attorneys followed the necessary privilege obligations when handling documents leaked to the firm anonymously by an opposing firm’s legal secretary.”
  • ” In a unanimous unpublished decision Friday, the three-judge panel declined to disqualify Reed Smith from representing Providence Industries LLC in the manufacturer’s contract dispute case against LuLaRoe LLC, finding that the attorneys’ decision to notify opposing counsel of the leaked documents was ‘exactly’ what the precedential privilege law instructs.”
  • “‘There is no evidence compelling the conclusion that Reed Smith has used or is likely to use the documents at any point in the litigation,’ the appellate panel said.”
  • “In 2019, Reed Smith began getting anonymous correspondence that seemed like “the musings of a disgruntled person who was following” the Providence v. LuLaRoe case, according to the panel. Given the public nature of the case, the documents did not raise eyebrows, the firm said, according to the panel. The letters were later determined to have been sent by a legal secretary at Floratos Loll & Devine PLC, which was serving as outside general counsel to LuLaRoe, the panel said.”
  • “‘Within days’ of the Sept. 19, 2019, receipt of the fourth letter, Houston and Rivas ran it by Reed Smith’s in-house counsel and the California State Bar’s ethics hotline, the panel said.”

And something else that caught my eye, for those inclined: “Lawyer Lies and Political Speech” —

  • “ABSTRACT. Lawyer lies designed to sabotage valid election results are not protected political speech under the First Amendment. Ethics rules governing candor and frivolous litigation require sanctions, if not disbarment. Moreover, the duty of candor should be extended from the courthouse to the public square when lawyer lies threaten our democracy. “Lawyer lies pervade politics regardless of party, though to be sure, they became more noticeable in the Trump Era. In the aftermath of the 2020 election, lawyers desperate to alter the outcome of validly cast votes spewed outrageous lies. Their election fraud lies stand apart from those made by lawyers earlier in President Trump’s Administration because of the consequences at stake.”
  • “This Essay contends that ethics rules governing candor in the courtroom and frivolous litigation require sanctions for lawyer lies designed to sabotage valid election results. Further, it makes the case for extending the duty of candor to the public square when those lies threaten extreme harm. Lies may be justifiable in political dealings and in the practice of law, but the legal profession should not tolerate them when pressed on behalf of government officials aiming to undo legitimate election results, whether in the courtroom or in the court of public opinion. While this Essay focuses on the lies told following the 2020 election, the analysis here similarly applies to past elections, and especially to future elections.”
  • “Despite pledges and promises to seek truth, lawyers sometimes must engage in dishonesty to fulfill duties to their clients. For example, ethics rules explicitly permit lawyers to obscure the truth during negotiations.”
  • “Lawyers acting in political roles, whether representing a government official or holding office themselves, frequently confront significant tensions surrounding honesty.”
  • “Lying occurs regularly in the practice of law, though perhaps not as often as it does in politics. The codes governing ‘ethics’ for lawyers allow communications that many would find dishonest and unethical in other contexts.”
  • “Professional conduct rules not only permit lawyer lies, but in some instances may require less than candid speech, if not outright lies. For example, bluffing in negotiations is expected and the failure to do so may risk violating the duty of competent representation. Lawyers are allowed to argue contrary positions in different jurisdictions at different times for different clients. A District of Columbia Bar Ethics Opinion authorizes lawyers working in an intelligence or national security capacity to
    ‘act deceitfully’ if required for engagement in clandestine activities.65 And the Colorado Supreme Court revised its rules to explicitly permit lawyers ‘to advise, direct, or supervise others, including clients, law enforcement or investigators’ in ‘engaging in investigative deceit.'”