Bressler Risk Blog

“Jumio, FaceTec liveness IP legal tussle accelerates with new motion” —

• “There is new sauce on the ongoing legal beef between Jumio and FaceTec over a patent for liveness detection technology.”
• “Having already had Jumio’s original legal counsel, Perkins Coie LLP, disqualified, FaceTec filed a motion to have its replacement disqualified, too.”
• “But Jumio is arguing to a California court that there’s no reason to disqualify law firm Morrison & Foerster LLP, because they really didn’t have much to do with Perkins Coie.”
• “Perkins was disqualified earlier in the year for having previously worked with and represented FaceTec in matters ‘substantially related’ to the litigation. In effect, FaceTec says the firm communicated confidential information about its biometric technology to Jumio; specifically, patents covering FaceTec’s flagship biometric liveness detection product, ZoOm. It now says that Morrison & Foerster LLP, which had some overlap with Perkins, should not be able to access documents prepared by Perkins, and that it should also be disqualified, to boot.”
• “Jumio disagrees. ‘FaceTec’s motion depends on the fundamentally incorrect assertion that the disqualification of one firm raises an ‘irrebuttable presumption’ that its co-counsel must be disqualified,’ says Jumio’s motion to dismiss the request. ‘But courts in this district have repeatedly held that the disqualification of one firm does not automatically compel the disqualification of co-counsel, particularly where, as here, co-counsel had no contact with any lawyer at the disqualified firm who possessed the adversary’s confidential information.'”
• “Furthermore, ‘Morrison has been representing Jumio in disputes with FaceTec relating to the same technology at issue here for four-and-a-half years.'”

David Kluft notes: “Can I force a judge to recuse from my cases by sending her an insulting private letter?”

• “A NY judge received a private letter from a lawyer accusing the judge of personal animosity towards the lawyer and threatening to file a public recusal motion unless the judge privately ‘agreed’ to recuse.”
• “The Committee on Judicial Ethics committee opined that the judge under no circumstances could privately “agree” to recuse, and doesn’t have to recuse at all unless in her discretion she doesn’t think she can be fair and impartial. The judge need not but may report the attorney to the Attorney Grievance Committee.”
• Text of the full opinion here.

“Lima Accuses Foley Hoag Of Conflict In $200M Award Case” —

• “The Peruvian city of Lima has urged a D.C. federal court to vacate its confirmation of about $200 million in arbitral awards favoring a highway contractor, saying the municipality’s former counsel at Foley Hoag LLP concealed a conflict of interest.”
• “The Metropolitan Municipality of Lima argued in a Wednesday memorandum that it had relied on Foley Hoag for years to protect its interests in multiple arbitrations and annulment proceedings against highway contractor Rutas de Lima SAC related to a major toll road concession in the city.”
• “But the capital city of Peru discovered only after losses in arbitration and before the court that Foley Hoag also represented affiliates of Brookfield Asset Management Inc., the parent company of Brookfield Infrastructure Partners, the majority Rutas stakeholder, according to the municipality.”
• “‘This conflict was deemed important enough that Foley confidentially disclosed this conflict to the Republic of Peru while soliciting work in a separate arbitration over the concession contract — while trying to minimize it as only a ‘potential’ conflict — but never informed MML of the conflict, in violation of its professional ethical and contractual obligations to MML,’ the Metropolitan Municipality of Lima said.”
• “The alleged conflict tainted Foley’s representation of Lima, with devastating results, according to the municipality.”
• “‘MML lost two Foley-led arbitration proceedings resulting in adverse awards of approximately $200 million,’ Lima asserted in its 50-page memorandum.”
• “As an example of the undisclosed conflict, the memorandum claims that Foley didn’t seek a pause in arbitration proceedings pending resolution of Peruvian criminal investigations over alleged bribery tied to the concession contract. Nor did Foley adequately prepare a key witness on corruption claims related to a Brazilian court’s 2016 sentencing of Odebrecht SA’s CEO, Marcelo Odebrecht, to 19 years in prison, Lima’s memorandum said.”
• “Lima’s Wednesday memorandum asks U.S. District Judge Ana C. Reyes to vacate judgment under Federal Rule of Civil Procedure 60(b), which governs relief of a party from a final judgment or order. Judge Reyes issued a decision in March 2024 enforcing the arbitral awards made to Rutas de Lima, now worth approximately $200 million.”
• “‘Relief under Rule 60(b) is warranted,’ the memorandum argues. ‘MML was deprived of meaningful representation because Foley, burdened with an undisclosed conflict of interest, undermined MML’s defenses. Foley’s acts, omissions and conflicts, taken together, resulted in the entry and confirmation of adverse awards.'”

In the UK: “The solicitors’ duty to advise on their own negligence” —

• “In limited circumstances solicitors have a duty to advise their client that they may have been negligent. Allegations of breach of that duty normally arise in the context of claims which are brought after the normal six-year limitation period, and after three years from the date of knowledge. One may think that such claims would be rare, but in my experience they are not that unusual. There are, though, limited reported cases on the issue, and the recent case of Evans v Hughes Fowler Carruthers [2025] EWHC 481 (Ch) is therefore of some interest.”
• “Evans v Hughes Fowler Carruthers was a successful appeal by the claimant on an application to strike out her claim. Ms Evans instructed the defendant (‘HFC’) and Mr Howard QC in her ancillary relief proceedings which were before Mostyn J. HFC also acted for Lady Mostyn in her divorce from Mostyn J. In April 2012, when his judgment in Ms Evans’ case was in draft, it was alleged that HFC and Mr Howard QC had emails as a result of acting for Lady Mostyn in which the Judge had made disparaging comments about HFC and Mr Howard QC. This gave rise to an obvious conflict, and HFC and Mr Howard QC could not continue to act. Ms Evans instructed Farrers and new Leading Counsel, and a successful challenge was made to set aside Mostyn J’s judgment. This enabled HFC and Mr Howard QC to act for Ms Evans again, and there was a further trial before a different judge and a judgment in May 2013, with consequential matters continuing until 2018.”
• “There were two categories of negligence alleged. The first was that in 2011 and 2012 Ms Evans was not sufficiently advised of the risks of continuing her action before Mostyn J, and in particular she was not told that there was a special arrangement approved by the President of the Family Division that cases involving HFC would, if the clients desired it, be automatically transferred from Mostyn J to another judge. If the allegation was correct, and Ms Evans could prove that she would have sought a different judge, then the costs of the first trial were wasted and would be recoverable in damages.”
• “However, those allegations were statute barred, as the claim was brought in 2021. The Judge below who had struck out the claim held (and this was not appealed) that Ms Evans had actual knowledge by July 2012 that HFC had not advised her to have her case moved to another Judge, and thus she could not rely on section 14A of the Limitation Act 1980. That section does not, of course, require knowledge that the impugned act or omission was negligent.”
• “The second category of negligence was necessary to circumvent this limitation defence. Ms Evans alleged that she was not told that she might bring a claim against HFC for their earlier negligence in 2011.”
• “On appeal, Adam Johnston followed Bacon J.’s formulation in Cutlers Holdings and concluded that Ms Evans had a real prospect of showing that HFC knew or ought to have known that there was a significant risk that their earlier conduct was negligent. He rejected the point that had impressed the judge below that that the breach was not flagged up by Farrer & Co, Mr Howard QC, or the SRA, as there may have been reasons for that, such as the limitation on the scope of Farrers’ retainer.”
• “Why does there have to be actual or ostensible knowledge by the solicitor that there was a significant risk, rather than any risk, that their earlier advice was negligent, and what does this mean? Adam Johnson J concluded at [43] that a fanciful or spurious risk was not enough to trigger the duty, following the conclusion in Cutlers that the risk had to be substantial, without expressly explaining why.”
• “One reason may be that this duty arises only in a relatively exceptional case. Neuberger J held in Gold that it would, otherwise the provisions of the Limitation Act would be evaded in many cases in an artificial way, and that it would give rise to some sort of implied general retainer. Bacon J in Cutler made a parallel with a solicitor having no duty to advise the client of a risk of litigation where the risk was spurious or fanciful.”
• “It makes sense that spurious or fanciful risks should not give rise to any duty. If substantial merely means not spurious or fanciful, which it would appear it does from the reasoning in Cutlers and Evans, then there is no real difficulty with this test. Solicitors’ duties should not be over onerous, and a client needs to know what is really material. Perhaps most significantly, if the risk is spurious or fanciful, or not substantial, the clients will normally have to incur expense in instructing new solicitors.”
• “I would add one point. For the same reasons, the duty should only be imposed if the risk of causation being established was substantial, as well as the negligence. Suppose a solicitor gives negligent advice that the client’s claim has limited prospects of success because he fails to take into account a point of law; the client then comes back six months later for more advice, perhaps because there are new potentially relevant facts, and the solicitor gives the correct advice, including on the point of law. Unless the delay was over the expiry of a limitation period, no loss would normally have been caused by it. The solicitor should have no duty to advise the client on his earlier negligence. Even if he did, it would be causally irrelevant.”

“Basic Ethics Breaks Supreme Court Because Too Many Justices Have Book Deals” —

• “The good news is that the Supreme Court took its self-imposed, entirely toothless ethical code seriously and multiple justices recused themselves from a major copyright case implicating publishers paying them hefty sums for their books. The bad news is… apparently the Supreme Court just can’t hear major copyright cases because they have too many conflicts of interest with publishers paying them hefty sums for their books. “
• “The case is Baker v. Coates, where author Ralph Baker alleged that fellow author Ta-Nehisi Coates plagiarized from Baker’s Stock Exchange in Coates’s The Water Dancer. As part of the lawsuit, Baker named a hodgepodge of media entities as defendants from Oprah to Disney to MGM to Apple. At a certain point, a caption populated with deep pockets creates potential conflicts.”
  • “24-6839, BAKER, RALPH W. V. COATES, TA-NEHISI, ET AL.: Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances ‘the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.’ Justice Alito, Justice Sotomayor, Justice Gorsuch, Justice Barrett, and Justice Jackson took no part in the consideration or decision of this petition.”
• “As Fix the Court notes, four of the six recusing justices have had or will have books published by Penguin Random House, a subsidiary of a media conglomerate called Bertelsmann, a named defendant. Justices Sotomayor, Gorsuch, Barrett, and Jackson have books with Penguin. The fact that the Supreme Court’s weak ethical guidelines don’t require justices to explain their recusals(Opens in a new window) — even if it intended to inspire that sort of transparency — it’s not immediately clear what prompted Alito to recuse himself.”
• “But still, it should be a problem that the highest court in the land is paralyzed in the face of major media conglomerates. Given that antitrust hasn’t done a particularly good job of policing the media space, these conflicts will only deepen as long justices keep writing books.”
• “And why DO we have justices constantly writing books while still serving the public? It’s a function of paying a public servant salary while allowing aristocratic role. In a normal job where the public trust might be implicated, an official might wait until they retire to cash in on big money book deal. But when life tenure transformed from ‘insulation from partisan whims’ to ‘confirmation-to-grave job security,’ the justices stopped envisioning a memoir-fueled retirement at a reasonable age and decided to start writing early and often as a salary supplement.”

David Kluft notes: “Can the federal government order government contractors to disclose whether they hired a law firm the President doesn’t like?” —

• “A portion of an executive order required government contractors to disclose if they did business with a certain law firm, with the aim of punishing and intimidating the firm and its clients to satisfy the President’s personal grudge.”
• “D.D.C. Judge Beryl Howell found that this order impinged the firm clients’ First Amendment right to engage in private association, and thus needed to be narrowly tailored to support a substantial government interest.”
• “Judge Howell found that the government attorneys ‘misrepresented’ the scope of this provision, ‘confusingly .. ignored’ the government’s burden, and made “zero effort” to explain a substantial interest. The provision was enjoined.”
• The decision.

“Goodwin Procter Meets EEOC Demand to Supply Diversity Data” —

• “Goodwin Procter axed relationships with major diversity, equity, and inclusion nonprofit organizations that seek to diversify the legal profession in the wake of federal scrutiny.”
• “The firm sent the Equal Employment Opportunity Commission more than 200 pages worth of information that it had demanded, according to documents obtained by Bloomberg Law. The agency, directed by President Donald Trump, wrote to 20 law firms March 17 asking them to hand over information on their diversity initiatives and hiring decisions going back 10 years.”
• “‘These changes, in combination with the firm’s past and ongoing demonstrated commitment to EEO, reflect that the firm’s policies and actions are in accord with the commission’s current guidance,’ a lawyer for Goodwin told the agency.”
• “Texas Attorney General Ken Paxton led a coalition of states that asked the 20 firms to send them the same information. Allan Bloom of Proskauer, who is guiding Goodwin in the EEOC probe, asked for the information to be kept confidential in an April 15 letter to Paxton obtained by Bloomberg Law.”
• “The EEOC also requested specific, identifiable data of past fellowship recipients and those promoted to partner, including names, phone numbers, race and gender. The firm declined to hand over identifiable data but did share anonymously fellowship recipients’ race, gender, school, grade point average and location of the office where they worked.”
• “Reed Smith is in talks with the EEOC over its requests, Perkins Coie declined to respond to the request until its suit contesting a punitive executive order was resolved, according to letters obtained by Bloomberg Law. Hogan Lovells, another firm that was probed for details, requested an extension past the April 15 deadline.”
• “Six firms who also received the EEOC letter— Kirkland & Ellis, Latham & Watkins, Simpson Thacher, A&O Shearman, Skadden, and Milbank— made deals with Trump that included free legal services, in exchange for being released from the probe.”

“KPMG Law Firm Faces California Blockade With Fee Shares Bill” —

• “A California bill aims to throw a wrench into plans by KMPG and law firms backed by outside investors to operate in the state from their perches in Arizona.”
  “The measure (A.B. 931), already passed by the state Assembly, would ban California lawyers and firms from sharing legal fees with ‘out-of-state alternative business structures.’ It was introduced less than two weeks before KPMG won approval to launch a law firm in Arizona under the state’s alternative business structure program, positioning it as the first Big Four accounting, tax, and consulting company to compete head-on with law firms in the US.”
• “KPMG, whose size and reach makes it a competitive threat to Big Law, plans to use staffing agencies and co-counseling relationships with other law firms to serve clients outside of Arizona. The California bill would effectively close off access to the Golden State, an important legal services market.”
• “‘We’ve seen an attempt by some of the ABS’s to come in through the back door over the border to California,’ said Nancy Drabble, CEO of Consumer Attorneys of California. The professional organization for plaintiff’s attorneys is a key backer of the legislation, which Drabble said was designed to prevent large corporations, private equity companies, and hedge funds participating in the Arizona alternative business structure system from entering California through alliances with lawyers in the state.”
• “Litigation funders, private equity, and marketing agencies have flocked to Arizona, which eliminated a rule preventing non-lawyers from owning law firms and created an alternative business structure licensing program. California and other major legal markets have so far declined to enact similar changes, which would open up law firms to direct outside investment and could allow them to go public.”
• “‘There is always a risk that when one state, particularly a big state, passes a law, other states will look at it,’ said Boris Ziser, a partner at Schulte Roth & Zabel and co-head of the firm’s finance group, who has helped set up around half-a-dozen alternative business structures in Arizona. ‘That’s one of the unfortunate byproducts of a bad law.'”
• “KPMG wants to expand some of the legal work it’s already doing outside of the US, including large scale integrations following mergers and acquisitions by its clients. But that would likely require at least some ability to operate in the country’s largest markets, which are outside of Arizona.”
• “The main focus of the legislation is on regulating consumer legal funding—deals in which funders purchase the right to receive a portion of settlements or awards from individual consumers’ legal claims in the state.”
• “It would regulate consumer legal funding agreements and ban attorneys from accepting clients from referral services that are not certified lawyers. The measure excludes lenders and special purpose entities that invest in a consumer legal funding company.”
• “Gov. Gavin Newsom in 2022 signed a law that blocked the California Bar from tinkering with the rules banning non-lawyer ownership of law firms. The move halted discussions of a possible regulatory ‘sandbox,’ like that in Utah, to experiment with alternative business structures.”

David Kluft notes: “Can I brag about the appeal I won for a current client during a pitch to a new prospective client?”

• “Oregon Ethics Opinion 2024-24 opines that non-confidential client information can be discussed during a client pitch, but lawyers must be mindful that some public information may be confidential as to the lawyer, and that could include relatively innocuous data such as the identity of a client or the existence of a legal dispute even if it’s on the public docket.”
• “Why can such information be confidential? Because even if it is publicly available it still may not be generally known, and it be embarrassing or detrimental to the client depending on the context. If you want to discuss client confidential information during a pitch, the client’s informed consent is required.”
• Read the opinion here.

“Judge allows Dallas defense lawyer to stay on Texas 7 case, despite alleged conflicts” —

• “The attorney representing Randy Halprin will remain on his defense team, despite witnessing the execution of another member of the Texas Seven, a judge ruled Monday. The Dallas County district attorney’s office wanted lawyer Heath Harris kicked off the case, arguing his work as a former prosecutor disqualified him from representing Halprin. But state District Judge Lela Lawrence Mays said there wasn’t proof the purported conflict of interest merited removing Harris.”
• “Harris previously held a high-ranking position in former District Attorney Craig Watkins’ administration. Harris, alongside Watkins, attended the 2012 lethal injection of George Rivas, the man described as masterminding the prison break. In their 60-page motion from March, prosecutors also painted a picture that Harris was involved in the Texas Seven’s post-conviction proceedings.”
• “Harris has said he had no involvement in Halprin’s prosecution decades ago and that he would zealously fight to stay on the case; at a hearing last week, Harris testified in his own defense — and cross-examined himself.”
• “‘I never thought there was a conflict,’ Harris told The Dallas Morning News on Tuesday. ‘I didn’t do any work on the Texas Seven case — I’m trying to work as hard as I can to separate (Halprin) from the actions from the Texas Seven.'”
• “The latest ruling is the finale to a spate of legal challenges over conflicts of interest. Prosecutors first sought to oust Harris and then the DA’s office wanted to recuse itself because a prosecutor worked for a law firm that handled Halprin’s post-conviction defense two decades ago.”
• “Jim Coleman, a professor at Duke University’s law school who runs the Center for Criminal Justice and Professional Responsibility, said a judge should err on the side of not making a mistake that could be appealed: ‘Capital cases are not where you want to be out on the cutting edge of the law, particularly one with a long history where there have been errors.'”
• “‘Why not cure something before it can become an issue?’ he said. ‘Why would you force relationships that might appear questionable?'”
• “Brian Owsley, an associate professor at UNT Dallas College of Law, said the DA’s office appeared to ask to recuse itself in good faith and the judge exercised her discretion. If he’s convicted, Halprin has waived his right to appeal based on the DA’s alleged conflict, according to court records.”
• “People facing death should have lawyers they are confident in, said Bruce Green, a professor and director of the Stein Center for Law and Ethics at Fordham University’s law school.”
• “‘If there’s no objection from the defendant — and they want this lawyer — and the lawyer thinks they can do a good job, then interfering in that relationship is problematic,’ Green said. “

“Elon Musk Opposes Law Firm’s Hiring of SEC’s Former Crypto Enforcement Unit Head” —

• “…Elon Musk is opposing a move by plaintiff-side firm Bernstein Litowitz Berger & Grossmann LLP to hire Jorge Tenreiro, the former chief litigation counsel of the U.S. Securities and Exchange Commission.”
• “In a court filing, Musk argued that Tenreiro had a significant role in an SEC enforcement action against him related to the same issues as a securities fraud lawsuit filed by Bernstein Litowitz concerning Musk’s acquisition of Twitter, now called X.”
• “The law firm announced last month its intention to hire Tenreiro and sought approval from the judge overseeing the shareholder lawsuit for its proposed conflict screening measures to ensure Tenreiro would not work on the case. However, Musk contended in his filing that Tenreiro’s involvement in the SEC’s investigation into him was substantial, including recommending and advancing the enforcement action based on the same conduct alleged in the private litigation.”
• “In 2022, former Twitter shareholders filed a lawsuit against Musk, alleging he delayed disclosing his accumulation of a significant stake in the company to keep stock prices low, saving him approximately $143 million. Musk later acquired Twitter and privatized it, renaming the platform X. During the same period, the SEC, under the Biden administration, also initiated legal action against Musk, claiming he failed to file a timely beneficial ownership report after acquiring more than a 5% stake in Twitter in 2022.”
• “At the time of the SEC’s lawsuit against Musk, Tenreiro served as the agency’s chief litigation counsel, having previously led its cryptocurrency and cyber unit. Musk’s filing stated that Tenreiro participated in discussions about the investigation and reviewed a memorandum recommending that the SEC pursue enforcement action.”
• “Bernstein Litowitz has maintained that Tenreiro’s role in the SEC’s investigation was minimal and emphasized that he would not participate in their lawsuit against Musk. The firm argued that its conflict screening procedures would prevent any issues, noting that defendants in other cases involving Tenreiro’s prior SEC work had approved similar measures.”
• “Musk, however, expressed concerns about the feasibility of effective screening, citing the close-knit nature of Bernstein Litowitz’s securities fraud practice and its relatively small New York office. He also pointed to Tenreiro’s social media activity, noting that the former SEC official had ‘liked’ posts critical of Musk, suggesting bias.”
• “In a court declaration last month, Tenreiro disclosed that he contacted Bernstein Litowitz about employment opportunities after being reassigned to the SEC’s information technology department in February. He accepted a buyout offer and left the agency on April 4. Bernstein Litowitz stated in April that Tenreiro has no memory of confidential government information related to the SEC’s case and does not possess nonpublic information that could disadvantage any defendant in the litigation.”
• “The law firm has requested that the judge approve its conflict screening procedures to proceed with hiring Tenreiro.”

“The hidden reason law firms that cut deals with Trump may regret it” —

• “It is shameful and alarming that nine leading Big Law firms caved when President Trump threatened their financial bottom lines. But putting aside potential criminal exposure — both a perpetrator and a target may be guilty of bribery, for example — these timorous law firms may soon face practical problems that, ironically, affect their financial well-being.”
• “The firms have a serious conflict-of-interest problem that has been hiding in plain sight.”
• “A core element of the ethical rules that bind all lawyers in the U.S. is the understanding that a lawyer may not represent a client if that representation conflicts with the interests of other clients the lawyer represents, or other commitments made by the lawyer. Professional ethics requires that law firms must avoid such conflicts.”
• “Having reached agreements with Trump, these law firms have now expressly aligned themselves with the interests of the federal government. The professional rules against serving two or more masters therefore should disqualify these firms from doing any work against the federal government.”
• “The firms siding with the administration also represent important clients, many with claims against federal agencies. In such cases, if the government seeks to disqualify a law firm because of this obvious conflict, it ought to win.”
• “If these law firms agreed to represent the federal government directly, as Trump announced, this would create an unmistakable conflict. Each American law firm is treated as a single entity, so each lawyer’s client is thus also the firm’s client. And there are few if any large law firms that don’t have cases against the federal government and therefore may not represent the government — even in unrelated matters. If Trump insists on direct representation, as he has touted, any law firm would have to drop all its other clients who oppose the government.”
• “The rules forbidding professional conflicts may sometimes be waived, but any such waiver must come from both parties. Even if a firm’s clients were willing to agree to conflicted representation, why would the government ever waive a conflict in a vigorously disputed matter?”
• “The firms that agreed to Trump’s deal are now in a very precarious position. Engaging in a conflict of interest without a proper waiver violates professional ethical rules in every state, and a firm’s lawyers thereby would risk serious professional sanctions.”
• “It should therefore be extremely difficult for these firms to continue their work when the federal government is an adverse party. Paradoxically, such a major financial hit is far more likely than any possible criminal law exposure resulting from the deals. Trump and his minions need not fear any prosecution by the current Department of Justice.”
• “Nonetheless, the firms that publicly aligned their interests with the federal government have demonstrated that they will compromise to please the president. This is shaky ground. The lingering threat of soft sanctions inevitably infuses the firm’s representation. If the agreement influences the judgment of any lawyer in the firm, this is a conflict situation.”
• “In addition, those law firms that reached an agreement with Trump must worry about possible malpractice claims should any cases against the government go wrong. If there is the slightest evidence that the law firm walked on eggshells in their representation of any private client, the stench of unethical conflicts of interest might follow. Even ignoring the moral and reputational dimensions of these firms’ agreements, their bottom lines may suffer as well.”

“R.I. Supreme Court Ethics Advisory Panel: Attorneys – Former employer – Conflict” —

• “Where an attorney wishes to represent a client in a suit against a town school district represented by a law firm that previously employed the attorney, the Rules of Professional Conduct do not prohibit the attorney’s representation of the client, as the attorney did not acquire any material information about the town while working for the law firm.”
• “‘The inquiring attorney formerly worked for a law firm that represents school districts in a variety of legal matters, including disputes relating to special education. The inquiring attorney did not participate in any special education matters during his or her time at the firm; rather, he or she provided legal research to partners in a supporting role, handled public records requests, and occasionally appeared at hearings and other proceedings on behalf of clients.”
• “‘Now at a new firm, the inquiring attorney wishes to represent parents and guardians in special education disputes with school districts. He or she has received a client referral, of a guardian concerned that his or her grandchild’s educational rights are being violated (the ‘Client’). The school district in question (the ‘Town’) is currently a client of the inquiring attorney’s former firm and was so during the inquiring attorney’s tenure there. The inquiring attorney reports that he or she did not handle any matters for the Town during his or her time at the former law firm and has no independent knowledge of the Client’s matter. …”
• “‘It is the Panel’s opinion that the inquiring attorney is not prohibited under the Rules of Professional Conduct from representing the Client.. Of particular relevance to here is Rule 1.9(b), which prohibits an attorney from representing a prospective client when three (3) factors are met. First, the matter must be the same or substantially related to one in which the attorney’s former firm had previously represented a client. Second, the former client’s interests must be materially adverse to those of the prospective client. Third, the attorney must have acquired information about the former client protected by Rules 1.6 and 1.9(c) that is material to the matter. The prohibition in Rule 1.9(b) may only be overcome by obtaining the written informed consent of the former client.'”
• “‘While there is no question that the Client’s and Town’s interests are necessarily adverse given the nature of the parties’ dispute regarding the Client’s grandchild’s educational rights, it is unclear from the facts as described by the inquiring attorney whether the Client’s matter is the same or substantially related to one in which the inquiring attorney’s former firm represented the Town. Even if it is, however, the facts indicate that the inquiring attorney never handled any matters for the Town during his or her time at the former firm, including the Client’s case, and has no independent knowledge of the matter. Therefore, the third element cannot be met…”
• “‘Accordingly, the Panel concludes that the inquiring attorney may represent the Client without needing to obtain the informed written consent of the Town…'”

“Philly Judge Under Fire For Promoting Wife’s Cheesesteak Biz” —

• “Pennsylvania’s judicial ethics board has accused a Philadelphia judge of using his position on the bench to promote a cheesesteak restaurant opened by his wife and named in honor of his late parents.”
• “Judge Scott DiClaudio was charged by the Pennsylvania Judicial Conduct Board on Tuesday for allegedly playing up his position on the Philadelphia County Court of Common Pleas in a series of articles and other media reports about his wife’s eatery, Shay’s Steaks, and during interactions with customers.”
• “The activity, the board said in a complaint, constituted abuse of his office for the advancement of his own economic interests and failed to promote public confidence in the judiciary.”
• “Judge DiClaudio is currently on probation in the Court of Judicial Discipline following a previous ethics case in which the board brought charges over his alleged failure to participate in litigation over money he owed to a suburban social club. The judge was ordered to serve a two-week suspension in 2021 as a result of the ethics case.”
• “According to the new complaint filed this week, in the months after Jackee DiClaudio opened Shay’s Steaks in March 2024, the restaurant was featured in newspaper articles, local news segments and podcasts with direct references to and puns about Judge DiClaudio’s day job as an elected official.”
• “The complaint makes note of one article saying Judge DiClaudio may have been addressed in the courtroom as ‘Whiz Honor.’ In a television news segment, the host enters the restaurant and identifies Judge DiClaudio as a judge.”
• “In January, the complaint says, Judge DiClaudio participated in a podcast to promote the restaurant and spent some time talking about his judicial philosophy and dealing with mental health issues in the courtroom.”
• “Documents accompanying the complaint include pages of reviews from social media and online review websites where customers describe meeting Judge DiClaudio and mention his position. In one incident, the complaint alleges, a customer was invited to watch Judge DiClaudio in the courtroom.”
• “Judge DiClaudio began his 10-year term with the Philadelphia Court of Common Pleas in 2016 and is up for retention in the 2025 general election in November.”

“DOJ’s New Biglaw ‘Conflict’ Policy: A Masterclass in Retaliation Theater” —

• “In an effort to keep piling indignity upon the legacy of the Department of Justice, Deputy Attorney General (and apparently Librarian of Congress somehow?) Todd Blanche just unveiled a policy redefining ‘conflict of interest’ to mean ‘dared to sue us’ — directing that the Justice Department’s ‘private counsel’ program can no longer hire any firm that ‘contemporaneously are directly adverse to the United States — for example, active litigation against Administration policies or representing clients in active litigation against Administration policies.'”
• “The edict cites the Model Rules, which do identify as a conflict, ‘the representation of one client will be directly adverse to another client.’ Though since representing a law firm challenging an executive order has no substantive connection to helping the civil division collect debts — the point of the private counsel program — the announcement stretches the interpretation of ‘conflict’ like flubber. “
• “There are around 20 Am Law 200 firms currently tussling with the government by the National Law Journal’s reckoning. That includes firms targeted by Trump executive orders that had the self-respect not to surrender, the firms representing those firms, as well as the firms representing the wrongfully deported or Harvard or people illegally fired by [Elon Musk].”
• “Except… who cares? The flipside of running an administration built on illegal retaliation is that it creates enough potential business to more than offset losing out on any private counsel work the DOJ might throw that way. When Trump closes a door, he opens several more and they all lead into courtrooms. “
• “Does anyone actually think we’ve seen the end of law firms slapped with vindictive executive orders or universities receiving funding threats? There’s going to be work everywhere… The only practical effect of this decision is leaving the DOJ without anyone trying to take on private counsel business.”

“‘Prior knowledge’ clause bars legal malpractice action” —

• “A professional liability insurance policy did not cover a malpractice claim brought against an attorney who drafted a company’s standard noncompete agreement before representing one of the company’s principals against allegations that she breached the agreement, a Superior Court judge has held.”
• “Defendant John Tocci provided employment counseling to Flexible Fundamentals for several years, during which he drafted its noncompete agreement and advised ‘FlexFun’ on the agreement’s implementation and enforceability.”
• “In 2021, FlexFun sued principal Errion McGrath, claiming she violated her noncompete by starting a competing entity.”
• “When FlexFun learned that Tocci was defending McGrath and other defendants in its action, it sought to disqualify him, citing a conflict of interest. A trial judge allowed the motion and the Appeals Court upheld the disqualification, stating that the record showed he had confidential information from his prior representation of FlexFun that he could have used against his former client.”
• “FlexFun subsequently brought a malpractice claim against Tocci and his firm.”
• “Plaintiff AIX Specialty Insurance followed with an action seeking a declaration that a ‘prior knowledge limitation’ in Tocci’s policy barred coverage because he had a reasonable basis to foresee the malpractice claim before the applicable policy period began.”
• “Judge Peter B. KruppJudge Peter B. Krupp, sitting in the Business Litigation Session, granted the motion.”
• See: AIX Specialty Insurance Company v. Tocci, et al., Lawyers Weekly No. 09-057-25

“Doctors Want Stay Of DQ Bid Amid Spine Center ERISA Deal” —

• “Doctors and other former employees of Atlanta-area Polaris Spine and Neurosurgery PC have agreed to settle their ERISA claims alleging the center botched the distribution of their retirement benefits, also seeking a stay of Polaris’ bid to have their Holland & Knight counsel disqualified over an alleged conflict.”
• “Plaintiffs Emily Joy Taylor, Carri Thier, Christopher Tomaras, Raymond Walkup and Shane Mangrum filed a notice of settlement in Georgia federal court Monday, ending claims they first launched in January 2023 under the Employee Retirement Income Security Act.”
• “‘Plaintiffs request that, pursuant to its inherent power to control its docket and in the interests of judicial economy, this court stay the pending motion [to] disqualify plaintiffs’ counsel through and including May 5, 2025,’ the notice says.”
• “The notice came while Polaris is seeking to have Holland & Knight removed from representing the former staff, arguing the law firm had previously represented the spine center.”
• “Polaris and Steuer told the court in their December motion that Holland & Knight spent more than a year serving as corporate counsel for the spine center, ‘during a highly litigious time period,’ and that allowing the firm to continue representing the ex-employees would violate Georgia rules of conduct.”
• “Holland & Knight represented the practice amid a heated ownership dispute from May 2020 into July 2021, Polaris said, arguing the dispute underlies the ERISA case, and therefore the law firm should not be permitted to represent the doctors.”
• “‘Defendants will pursue discovery into the origin and impact of the partnership dispute, and the impact of the dispute on Polaris, including its financial ability to contribute to, or even rely on advisors to actively manage, the Polaris retirement plan,’ Polaris and Steuer said in the disqualification bid. ‘These matters, in which Holland & Knight represented Polaris, are critical to the background of this dispute.'”
• “In an opposition filed in January, Holland & Knight called the disqualification bid a ‘purely tactical move,’ telling the court there was not a ‘substantial relationship’ between the firm’s previous representation and the ERISA matter.”

“Pork Producers Want Ruling Tossed Over Clerk’s Conduct” —

• “Pork producers and Agri Stats Inc., which are defending themselves against a major price-fixing suit, are calling on the Minnesota federal judge overseeing the case to recuse himself and vacate his recent rulings, accusing one of his clerks of having inappropriate relationships with plaintiffs’ attorneys in a new filing this week.”
• “On Monday night, a group of the food companies and the agricultural data company Agri Stats said U.S. District Judge John R. Tunheim’s law clerk previously worked for firms representing direct purchase plaintiffs in the case, has a standing offer to join another firm that has repeatedly taken on what the firm calls ‘Big Agriculture’ and even publicly engaged with social media posts related to the case.”
• “They moved for Judge Tunheim to wipe away his denial of their summary judgment bid and recuse himself from the case altogether.”
• “‘Defendants are compelled to seek this relief in light of recently disclosed facts confirming that one of the Court’s law clerks performed substantive work [on the case] … despite being sufficiently conflicted,’ the companies said in their new filing.”
• “According to the motion, the clerk ‘has worked for three different entities suing protein producers for antitrust violations based on Agri Stats.’ On top of that, the companies said one of the leading plaintiffs’ firms in the pork case has offered the clerk a job.”
• “And while the filing redacts exactly how it claims the clerk engaged with the social media posts, it mentions an announcement on social media that the clerk’s former employer had sued Agri Stats and a post by the plaintiffs’ attorneys in the pork case made ‘within days of the oral argument’ on the companies’ Daubert motions.”
• “The filing also claims the clerk ‘publicly embraced plaintiffs’ attorneys in this case in the courtroom immediately following oral argument on the Daubert motions.'”
• “‘The law is clear,’ the companies said. ‘Under 28 U.S.C. [Section] 455(a), recusal is required if a judge’s impartiality might reasonably be questioned by the average person on the streets who knows the relevant facts. A law clerk’s conduct, moreover, can be imputed to a judge.'”
• “And it’s especially true when, as was the case for the Daubert and summary judgment motions, the clerk helped the judge with the relevant decisions, the companies said.”
• “‘The appearance of impropriety is even more palpable given that only the barest facts regarding the clerk’s conduct have recently been disclosed to Defendants, despite months of requests,’ the companies said.”
• “According to the defendant companies, the clerk worked as a summer associate at Lockridge Grindal Nauen PLLP when the firm was lead counsel for antitrust litigation accusing major poultry companies and Agri Stats of conspiring to artificially inflate the price of broiler chickens.”
• “In that case, the companies said, the firm even submitted a fee petition requesting payment for the clerk’s work. The firm is now suing the pork producers on behalf of direct purchaser plaintiffs.”
• “The clerk also worked for a time at Robins Kaplan LLP, which, according to the pork producers and Agri Stats, has a pending offer of employment to him. Robins Kaplan, the companies said, is a ‘leading plaintiffs’ firm that touts antitrust litigation against ‘Big Agriculture’ as a core part of its practice.'”
• “According to the motion, the clerk also publicly engaged with a LinkedIn post announcing that one of his contacts was joining the Minnesota Attorney General’s office — where the clerk had also worked before his job with Judge Tunheim — and that attorney general’s office was joining the U.S. Department of Justice’s case against Agri Stats. He’s even continued to have ‘active social media interactions with plaintiffs’ attorneys in this case’ during his clerkship.”
• “On Monday night, the companies said this was ‘the first time defendants had any inkling of any potential conflict related to the clerk.'”
• “The companies quickly asked the plaintiffs about the clerk and flagged his prior work to the court in December. According to Monday’s filing, the defendants didn’t receive any response from the court. They even filed a motion asking for a sealed conference to be held regarding the potential conflict, but still got no response.”

“NY Bill Aims to Exclude Trump Work From Bar Pro Bono Hours” —

• “Free legal work for President Donald Trump wouldn’t count towards pro bono legal hours required for New York bar admission under a new bill quickly gaining steam in Albany.”
• “The measure, printed Thursday in the waning weeks of New York’s legislative session, exempts free legal work ‘performed pursuant to an agreement with the federal government’ from the required 50 hours law graduates must show to become barred.”
• “If passed, the measure would present another challenge for firms that have struck deals to provide free legal work for the president. Law school graduates regularly begin jobs before they’re barred as lawyers and rely partly on their employers to help them meet New York’s bar admission requirements including pro bono hours.”
• “Nine of the country’s largest law firms—a group that includes Paul Weiss, Kirkland & Ellis, Skadden, and Simpson Thacher—pledged $940 million in legal services for causes Trump supports, such as combating anti-semitism, assisting veterans, and ‘ensuring fairness’ in the justice system. They made deals to avoid executive orders like those aimed at other firms with ties to lawyers who have investigated or sued the president and to resolve federal probes into diversity recruiting programs.”
• “Trump wants to use the firms to defend police officers accused of misconduct, work on tariff issues, and help revive the coal industry, the president said. Several of the firms’ leaders said in internal communications that they would retain the right to choose the clients and matters they take on.”
• “It makes sense that there are attempts to regulate pro bono work for lawyers, according to David Glasgow, executive director of NYU Law’s Meltzer Center for Diversity, Inclusion, and Belonging. ‘It does seem to me that there should be some limiting principle to make sure that pro bono hours are actually being used in the public interest,’ Glasgow said. ‘I do not think that whatever this administration decides it wants to do fits within the definition of public interest.'”

“Proposed Formal Opinion Interim No. 20-0001 (Lawyer as Expert Witness)” —

• “The [California] State Bar seeks public comment on Proposed Formal Opinion Interim No. 20-0001 (Lawyer as Expert Witness). Deadline: August 18, 2025, 11:59 p.m. (90 days)”
• “Proposed Formal Opinion Interim No. 20-0001 considers: May a lawyer ethically testify as an expert witness in matters involving current or former clients of the lawyer or the lawyer’s law firm?”
• “The opinion advises that a lawyer may ethically testify as an expert witness in a matter adverse to a former client provided that the lawyer’s testimony does not (1) injuriously affect the former client in any matter in which the attorney formerly represented the client; (2) disclose information acquired by virtue of the representation which is protected by Business and Professions Code section 6068, subdivision (e) or rule 1.6; or (3) use such information to the disadvantage of the former client. In certain circumstances, however, judicially developed principles of disqualification may prevent a lawyer whose testimony would be permissible under the Rules of Professional Conduct from serving as an expert witness.”
• “The opinion also advises that no ethical principle bars the law firm of a lawyer that has previously testified as an expert witness from subsequently representing a client who is adverse to the party on whose behalf the lawyer previously testified. If the lawyer remains under contractual or other confidentiality obligations stemming from the lawyer’s prior expert role and respecting those obligations would significantly limit the firm’s representation of the firm’s client, then the law firm must obtain the client’s informed written consent prior to the representation under rule 1.7(b). Even if there is no material limitation conflict under rule 1.7(b), the law firm is required to make written disclosure of the lawyer’s continuing legal obligation to the adverse party under rule 1.7(c)(1).
• “Finally, the opinion advises that a lawyer should carefully consider, in conjunction with law firm management, whether a lawyer can ethically serve as an expert witness against a current client of the lawyer’s law firm in an unrelated matter. Even if a lawyer does not disclose or use confidential information of the law firm’s current client, the potential expert retention may implicate rules 1.4. 1.6, 1.7, and duties of loyalty, for the lawyer, the law firm, or both. Depending on the circumstances, informed written consent under rule 1.7(b), or written disclosure of the relationship under rule 1.7(c)(1), may be required.”

“Lateral Partner Moves: Ethical Obligations of Lawyers and Law Firms” —

• “This article explains the ethical issues faced by laterally moving partners and their firms in light of recent guidance by the New York State Bar Association and the New York City Bar Association. See New York RPC 1.4 comments 7b-7g; New York City Bar Association Eth. Op. 2023-1, ‘Ethical Obligations of Lawyers and Law Firms Relating to Attorney Departures’ (June 20, 2022).”
• “What Confidential Material Can Be Shared With the New Firm Prior to Resignation? As noted above, unauthorized pre-resignation disclosure of confidential information to a suitor firm can be a breach of fiduciary duty. But a recruiting firm requires disclosure of certain information prior to making an offer. Recruiting firms have an obligation to run conflict checks before hiring lateral lawyers.”
  The New York State Bar Association has provided a road map of sorts as to what information may ethically be disclosed to the suitor firm. According to the NYSBA, a laterally moving partner may disclose:
  • (i) the identities of clients or other parties involved in a matter; (ii) a brief summary of the status and nature of a particular matter, including the general issues involved; (iii) information that is publicly available; (iv) the lawyer’s total book of business; (v) the financial terms of each lawyer-client relationship; and (vi) information about aggregate current and historical payment of fees (such as realization rates, average receivables, and aggregate timeliness of payments).
• “What Files May the Departing Partner Take? Departing partners may not take firm documents or files which do not belong to them. And the departing partner needs client permission to remove client files.”
  “In Gibbs, the departing partners were permitted to take copies of their chronological correspondence files and other documents that they own. Gibbs v. Breed Abbot & Morgan, 271 A.D.2nd 180 (1st Dept., 2000). However, the same lawyers breached their fiduciary duties by sharing with their suitor firm confidential firm records about associate compensation, billable hours, hourly rates and bonuses.”
  “Lawyers may take with them ‘contact information for clients and others with whom the departing lawyer worked.’ NYC Bar. Ass. Eth. Op. 2023-1. Accord, ABA Eth. Op. 489. These ‘should be provided as these are critical for conflict purposes and consistent with the departing attorney’s rights to move and continue to practice law and obligation to contact such clients.’ According to the American Bar Association, ‘a departing lawyer [may] retain names and contact information for clients for whom the departing lawyer worked while at the firm, in order to determine conflicts of interests at the departing lawyer’s new firm and comply with other applicable ethical or legal requirements.’ ABA Eth. Op._489 at 4.”
  “According to the City Bar a lawyer may bring with them: ‘the lawyer’s personal records, address/contact file, research materials and copies of transactional and litigation publicly filed documents.’ NYC Bar Ass. Eth. Op. 2023-1. In addition, lawyers may remove copies of ‘their personal (as opposed to firm) form files, copies of litigation and transactional documents that have not been publicly filed.'”

“Bradley Arant Faces DQ Bid In Georgia Mall Rent Dispute” —

• “A mall has urged a Georgia federal judge to disqualify Bradley Arant Boult Cummings LLP from representing a tenant in an unpaid rent dispute, arguing that the law firm has a conflict of interest because it has represented the mall’s sister corporation in similar litigation.”
• “‘The decision makers, decision processes, policies, goals, and strategies for Oxford, Hull, and Racine overlap and are intermingled and in many instances are identical,’ the mall said.”
• “The mall said that disqualification would ‘protect the integrity of the judicial process, maintain public confidence in the legal profession, and safeguard the confidences of plaintiff.’ In the current matter, the mall has argued in its complaint that its tenant, a sports chain, owes it about $389,378 in unpaid rent.”
• “‘The continued representation of defendant by Bradley Arant in the instant case creates a substantial risk that confidential information obtained during the prior representation has been or will be used in the instant action to the disadvantage of plaintiff, against whom Bradley Arant’s current client is adverse,’ the mall said.”
• “The mall also asked the court to ban Bradley Arant from ‘disclosing any confidential information obtained during its prior representation of plaintiff’ and said it had access to and made records of confidential information in the prior litigation. The mall said that information included ‘the structure of Hull and its affiliate companies, confidential information from witnesses… all three of whom are likely witness[es] in the instant matter.'”

Rachel Wasserman, principal of Wasserman Business Law in Toronto and an economic policy fellow at the Canadian Anti-Monopoly Project and Social Capital Partners, writes: “Letting Private Equity Buy Law Firms May Stifle Service, Mobility” —

• “Private equity firms are quietly buying up and consolidating dental, accounting, medical, and veterinary practices, turning smaller independent firms into corporate chains. These firms offer professionals handsome payouts in exchange for ownership of their practice. Law firms are the final frontier for these consolidators. Recent developments in Arizona may finally give private equity the door into the legal industry that it’s been waiting for.”
• “If we allow for private equity ownership of law firms, it isn’t unreasonable to expect a similar result as we are seeing in other professions—lower quality of service and work for clients and lower job satisfaction for lawyers. As these firms consolidate, it will be even harder for independent lawyers to compete against the economies of scale of these corporate behemoths.”
• “In the longer term, this could mean less upward mobility for future generations of lawyers. It isn’t impossible for equity participation to disappear entirely if these corporate chains take over the market, which could also lead to the commodification of our profession. On the bright side, at least a handful of already rich partners and investors will have gotten even richer.”
• “The scale advantage that once insulated big law is disappearing. Thanks to AI and legal technology, large-scale projects such as due diligence and discovery no longer require armies of associates. Boutique firms, with lower overhead and without the burden of luxury offices and top-heavy compensation structures, are now able to compete, offering sophisticated legal services at a fraction of the price. We don’t need investment capital or consolidation to make law firms more efficient—the future lies in decentralization.”
  Firm Ownership Matters”
• “Legal regulatory bodies have largely prohibited nonlawyers from owning law firms, but these protections are starting to erode. Regulatory rollbacks often operate under the guise of altruism, purporting to promote access to justice. But maybe large multinationals and investors who have been shut out from this high-margin industry are just looking for access to more profits?”
• “Once law firms are controlled by private equity, such firms will be required to juggle fiduciary duties to both their investors and their clients. Private equity’s interest in owning law firms is merely a means to an end. Whether it’s practicing law or manufacturing widgets, these firms seek out the most lucrative investment opportunities for their investors and themselves.”
• “To understand the impact private equity ownership could have on the legal profession, we don’t have to look far. There are countless examples of PE firms’ impact on other professions that have already undergone significant PE consolidation.”
• “A study published in the Journal of the American Veterinary Medical Association found that veterinarians working for large corporations reported more pressure to generate revenue than independent practices. An employee at two different corporate vets recounted that one of them had five price increases in one year, each between 3% and 6%, with no justification provided.”
• “Medical care also has suffered under private equity ownership. When private equity buys a hospital or physician practice, costs usually rise, as do the number of costly procedures and serious medical errors.”
• “Thinking law firms wouldn’t be faced with similar issues would be naive. Lawyers are no more virtuous than the countless veterinarians, doctors, and other professionals who have sold their practices to investors. Many senior partners have already built immense personal wealth, and if private equity begins consolidating law firms, they’ll undoubtedly be enticed by the same kinds of lucrative offers that younger lawyers will be unable to match.”
• “Clients come to us for independent, expert advice—not guidance shaped by firm profitability. We can’t allow the legal profession to be stripped of its integrity and independence in the name of efficiency and returns.”
• “Lawyers must not only resist private equity control within our own profession—we must also stand alongside other professionals facing the same threat. Our skills, our judgment, and our commitment to the public trust are needed now more than ever.”