Risk Update

Law Firm Risk Reading — New OCG Terms of Art (and Technology), Side-switching Lawyer Creates Un-screenable Conflict

An interesting potential term of engagement I’ve not seen discussed in the context of OCGs caught my eye, via the team at Osler: “A fresh take on applying decision trees to case assessments in litigation” —

  • “Although the idea of applying decision trees to civil litigation has been around for decades, most litigators have not integrated them into their practice. The reasons for this vary, including lawyers reluctant to think and communicate in term of numerical probabilities.”
  • “Using decision trees to model litigation gives lawyers an opportunity to communicate their case assessments in a compelling, client-centric way. Decision trees allow lawyers to explain a dispute visually, with easily digestible language and numbers. A single page can convey as much information as a lengthy written opinion. Advances in technology has made it easier for lawyers to develop decision trees and share them with clients”
  • “…using modern decision tree software typically requires minimal additional training. Law firm lawyers should also be reminded, prior to modelling any client’s matter, to check the client’s outside counsel guidelines to confirm using the software is permissible. In some instances, client consent may be required.”

Freeman Mathis Booted Off Suit Due To Atty ‘Switching Sides’” —

  • “A Georgia federal judge disqualified Freeman Mathis & Gary LLP from continuing to represent the Geo D. Warthen Bank against age and sex discrimination claims from a former employee, ruling that the former employee’s attorney created a conflict of interest when she moved to Freeman Mathis during the dispute.”
  • “Helton sued the bank, located in the city of Sandersville, in November 2021, alleging that the bank had violated the Age Discrimination in Employment Act and Title VII of the Civil Rights Act when it terminated her as vice president and compliance officer in October 2019. Judge Treadwell found that Emily Walker, now a Freeman Mathis associate, created a conflict that extended to Freeman Mathis when she joined the firm in August and didn’t seek a waiver from Helton.”
  • “When Walker was an associate at Cooper Barton & Cooper, she helped represent Helton against the bank.”
  • “‘In the court’s experience, rare is the client who would feel comfortable with her lawyer switching sides… Because Walker’s departure from Cooper Barton to FMG created an imputed conflict that Helton did not waive, and which could not be screened, FMG is no longer permitted to represent Warthen in this case,’ Judge Treadwell said.”
  • “The judge also found that the conflict cannot be remedied by Freeman Mathis’ blocking of Walker from the bank’s defense against Helton.”
  • “‘While the court agrees that screening Walker was sensible, it does not affect the outcome,’ Judge Treadwell said. ‘As Helton points out, the [Georgia professional rules] and the case law interpreting those rules are clear— ‘screening procedures will not cure the imputation of the conflict.””