Bressler Risk Blog

“Billion-Dollar Estate Suits Show Hazards of Funding Family Feuds” —

• “A litigation financier’s foray into a battle over a dead Saudi businessman’s multibillion dollar estate is a cautionary tale for outside funders investing in family fights.”
• “UK-based Therium Capital, eyeing a cut of a potential 10-figure settlement, bankrolled the wife and daughter of the late Saudi billionaire Osama Ismail Abudawood in an estate fight with his brothers. After at least 18 lawsuits in three countries, the pair are settling for a little more than one-third of what they say they were first allotted under Sharia law. Along the way, they stopped showing up in court, cycled through lawyers, and were ordered to pay more than $750,000 after being held in contempt.”
• “Funders typically stay away from estate cases because they are unpredictable and messy. A rare example of funders wading into family disputes came when Burford Capital, a major player in the industry, earned $103 million in 2021 on an investment in divorce proceedings involving a Russian billionaire.”
• “The family fight over his estate pitted Eleanor de Leon, Abudawood’s wife of 23 years, and Alaa Abudawood against his brothers, Ayman and Anas, who are directors of the company. De Leon and Alaa fought for a larger share of the estate, valued between $1 billion and $4 billion, after they said they were initially allotted 24% under Sharia law. They accused Abudawood’s brothers and business partners of diluting the company’s value.”
• “The fight included lawsuits in Saudi Arabia, the US, and the Cayman Islands. Ultimately, a California court in late June ordered de Leon and Alaa to finalize a global settlement worth just $88 million. When the pair refused to comply and skipped court dates, the judge appointed a power of attorney to execute the documents.”
• “Therium agreed to invest in the litigation in 2019. Litigation funding deals are often confidential. The investment wasn’t disclosed until February, when a lawyer representing the brothers alerted the court that an unidentified funder was backing de Leon and Alaa Abudawood.”
• “Therium, de Leon, and Alaa Abudawood did not respond to requests for comment. It’s not clear whether delays in the case impact Therium’s share of the settlement proceeds.”

“DQ’d Atty Denied Bid To Have Netflix Atty Held In Contempt” —

• “A California federal judge rejected a bid by a former Whitestone Law attorney to hold an attorney representing Netflix in a patent infringement case in contempt over harassment allegations, determining that the unwanted contact does not violate the order disqualifying his ex-firm.”
• “U.S. District Judge Jon S. Tigar rejected Joseph Zito’s allegations that Baker Botts LLP partner Rachael D. Lamkin, who represents Netflix, violated the order disqualifying Whitestone by contacting him with questions about the case.”
• “Citing 2013’s Am. Semiconductor Inc. v. California Assignments LLC , Judge Tigar said Lamkin was not the subject of the aforementioned order to disqualify and as a result, she cannot be held in contempt of an order that does not apply to her.”
• “‘Parties who were not parties to the action, were not named in the court’s preliminary injunction order, and were not in privity with, nor successors-in interest to, any entity subject to the injunction, could not be held in contempt for violating its terms,’ Judge Tigar’s order said regarding the Am. Semiconductor case.”
• “Zito said in his June 27 notice that earlier in the month, Lamkin emailed him and current Whitestone attorney Erik Lund regarding new requests for discovery of fund manager AiPi LLC in a Finnish inventor in his patent infringement case against Netflix and AiPi, a nonparty that paid some of the inventor’s legal bills. He wrote that ‘Netflix Attorney Rachael D. Lamkin is violating this court’s order and should be held in contempt.'”
• “Whitestone was disqualified from representing AiPi in March when Judge Tigar determined that the firm could not represent both the funder and inventor Lauri Valjakka, who it worked with as fill-in counsel for a deposition when his attorney from Ramey LLP was unavailable.”
• “Zito added that Lamkin continued to send her and Lund emails, eventually adding Whitestone attorney Ken Sheets to the mix. The content of the subsequent emails included an attempt to serve a notice to AiPi and an inquiry as to who’s currently representing the company, Zito said.”

“Georgia: Ethics Rules Do Not Apply To Lawyers As Fiduciaries” —

• “The Georgia Supreme Court has rejected a petition for voluntary discipline on the grounds that the ethical rules do not apply to lawyers acting in a fiduciary capacity:
  • “In the petition, Brown, who has been a member of the State Bar of Georgia since 1997, admits that she “may have” violated Rules 1.15 (I) (c) and 1.15 (II) (b) of the Georgia Rules of Professional Conduct (“GRPC”) while serving as the successor trustee of a South Carolina trust—even though the Bar acknowledges that she was acting only in a fiduciary capacity, and not as a lawyer, at the time. The Bar asserts that Brown violated Rules 1.15 (I) (c) and 1.15 (II) (b) and requests a suspension of between three and six months.”
  • “We ultimately conclude that Brown’s conduct did not violate Rule 1.15 (I) (c) or 1.15 (II) (b). As we explain below, the text of Rules 1.15 (I) (c) and 1.15 (II) (b) does not clearly indicate whether these Rules apply to lawyers when they are acting as fiduciaries not in connection with the legal representation of a client or otherwise in the practice of law.”
  • “Even after applying rules of statutory construction, either reading of Rules 1.15 (I) (c) and 1.15 (II) (b)—that they do, or do not, apply to lawyers acting as fiduciaries but who are not engaged in legal representation of a client or in the practice of law—is plausible. However, applying these Rules to lawyers when they are not practicing law would raise serious constitutional concerns, which we set out below.”
  • “As a result, under the canon of constitutional doubt, we interpret Rules 1.15 (I) (c) and 1.15 (II) (b) such that they do not apply to lawyers when they are acting as fiduciaries not in connection with the legal representation of a client or otherwise in the practice of law. Because Brown’s conduct at issue in this matter falls outside our interpretation of Rules 1.15 (I) (c) and 1.15 (II) (b), we conclude that Brown’s conduct did not violate those Rules. We therefore reject her petition for voluntary discipline.”

“Ethics Opinion 1268: Confidential information; publication of article about issues arising in a case handled by the lawyer” —

• “After the termination of the representation, a lawyer may publish an article that discusses legal issues in the representation, as long as the article does not reveal confidential information without the consent of the client.”
• “Confidential information does not include a lawyer’s ‘legal knowledge or legal research’ or information that is ‘generally known’ in the local community or in the trade, field or profession to which the information relates. But information is not generally known merely because it is available in court files.”
• “Rule 7.1(r) of the New York Rules of Professional Conduct (the “Rules”) encourages lawyers to speak publicly and write for publication on legal topics to help lay persons identify legal problems. Similar policy considerations apply to lawyers who speak or write for the legal community on legal issues that may arise.”
• “The inquirer’s concern is that Client A is wary of publicity and believes that publicity about the case could be damaging to his reputation. That raises the question whether the proposed article would violate any other provisions of the Rules.”
• “By its terms, Rule 1.1(c) applies during the course of the representation. Thus, Rule 1.1(c) does not apply to former clients.”
• “Different confidentiality rules apply once a client becomes a former client. The lawyer’s confidentiality duties to a former client are set forth in Rule 1.9(c), which prohibits a lawyer from using or revealing the former client’s confidential information unless there is an exception in Rule 1.6 (the confidentiality rule).”
• “The inquirer will therefore have to determine whether Client A remains a current client in the matter of the representation. In N.Y. State 1008 (2014), we addressed this issue, noting that whether a person is a current client or a former client is a mixed issue of fact and law that the Committee cannot resolve.”
• “As noted above, a lawyer’s duty of confidentiality to a former client is set forth in Rule 1.9(c), which depends on whether information is ‘protected by Rule 1.6.’ Rule 1.6(a) prohibits a lawyer from knowingly revealing ‘confidential information’ (as defined in Rule 1.6), or using it to the disadvantage of the client or for the advantage of the lawyer, unless the client gives informed consent.”
• “The inquirer states that Client A is worried about information the inquirer gained during or relating to the representation that is ‘likely to be embarrassing or detrimental to the client if disclosed.’ Whether any particular information meets this requirement is a question of fact that we cannot resolve.”
• “After the termination of the representation, a lawyer may publish an article that discusses legal issues in the representation, as long as the article does not reveal confidential information without the consent of the client.”

(Reminds me of issues raised in the client verdict PR story we noted last year.)

“Ex-Magellan Execs Waive Conflicts Over Past Shared Counsel” —

• “Two former Magellan Diagnostics executives charged with conspiring to hide defects in the company’s lead testing devices agreed on Friday to waive any potential conflict created by their prior joint representation by a Donnelly Conroy & Gelhaar LLP attorney.”
• “The waivers from former Magellan CEO Amy Winslow and former chief operating officer Mohammad Hossein Maleknia came during a brief remote hearing before federal Magistrate Judge Judith Dein.”
• “The government raised concerns about the situation in a motion filed late last month requesting a so-called Foster hearing into whether attorney George Vien could continue to represent Maleknia after he had previously also represented Winslow.”
• “‘I discussed this situation extensively with my client, Mr. Maleknia, and my former client, Ms. Winslow, and we answered all their questions,’ Vien told the judge Friday. ‘Given the status of the case and all the facts, we do not see any conflict, but both my client and my former client have said they would waive any potential conflict and want me to stay in the case.'”
• “Winslow’s current attorney, William J. Trach of Latham & Watkins, told the judge that he also had ‘extensive conversations’ with her and is confident that she understands the issue and is willing to waive any potential conflict.”
• “Judge Dein outlined some of the risks of having previously shared counsel, including hindering plea negotiations, any defense or sentencing request based on culpability of the other party, or a future appeal based on ineffective assistance of counsel.”
• “Asked by the judge if she understood that the risk to her is largely from any prior information she might have disclosed while represented by Vien, Winslow told Magistrate Judge Dein that she did.”
• “Maleknia and Winslow, along with former quality assurance director Reba Daoust, are facing charges of wire fraud, conspiracy to commit wire fraud, conspiracy to defraud a government agency and introduction of a misbranded medical device in what the U.S. Attorney’s Office for the District of Massachusetts says was a scheme to hide issues with Magellan’s LeadCare line of testing devices.”

New York: “Judicial Ethics Opinion 23-151” —

• “A judge may preside over Article 75 proceedings challenging employment arbitration awards, where the state agency employer was previously represented in-house by the judge’s law clerk’s spouse, but the judge must insulate the law clerk and make appropriate disclosures.”
• “A judge asks if it is ethically permissible to preside over certain Article 75 proceedings challenging employment arbitration awards, where the judge’s law clerk’s spouse, an in-house counsel at a state university, previously represented the employer at the arbitration. The Attorney General’s office, and not the law clerk’s spouse, will be representing the employer in the proceedings before the judge.”
• “A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). However, where disqualification is not required under objective standards, a judge ‘is the sole arbiter of recusal’ (People v Moreno, 70 NY2d 403, 405 [1987]).”
• “Where a member of the judge’s staff has a conflict, it is ordinarily sufficient to insulate the staff member and disclose the situation…”
• “After insulation and disclosure, disqualification is entirely within the judge’s discretion, even if a party objects, provided the judge can be fair and impartial… Here, too, we conclude the judge’s impartiality cannot “reasonably be questioned” simply because the law clerk’s spouse is employed by a party to the case before the judge and, as in-house counsel to that public sector employer, previously appeared in an earlier stage of the case. Instead, disclosure and insulation is sufficient.”

“Boies Backs Ex-Bankruptcy Judge ‘Immunity’ in Relationship Suit” —

• “Litigation surrounding a former Texas bankruptcy judge’s once-secret relationship with a local attorney should be dismissed, despite ‘appearance issues,’ top litigator David Boies said.”
• “Boies on Thursday filed papers asking a federal court to toss the case against his client, former judge David R. Jones, which was brought by the onetime CEO of a petroleum barge company that filed for bankruptcy before Jones four years ago.”
• “The motion to dismiss is the latest development in the scandal related to Jones and his longstanding romantic relationship with Elizabeth Freeman. She was Jones’ former clerk and a onetime bankruptcy partner at Jackson Walker, a law firm that regularly represented clients before him in court.”
• “Boies, 83, said in an interview with Bloomberg Law that judges are entitled to ‘absolute immunity’ for their decisions.”
  “‘It is designed to ensure judges know when they make a decision that that decision is not going to subject them to civil liability from an unhappy litigant,’ Boies said. ‘Or even the burden of having to defend themselves against an unhappy litigant.'”
• “Allegations of malice or corruption don’t render a judge’s actions an exception to judicial immunity, and Jones’ failure to disclose the relationship doesn’t make his actions in the Bouchard Transportation Co. Inc. bankruptcy non-judicial, Thursday’s motion said.”
• “‘are entitled immunity even when their violation of a recusal obligation was allegedly intentional or malicious,’ the motion said.”
• “The revelations involving Jones, once the busiest judge overseeing large corporate Chapter 11s in the country, have cast a shadow on the Houston bankruptcy court Jones built to prominence, and have prompted a Justice Department unit to try to recover millions of dollars from Jackson Walker, Freeman’s former firm.”

“Former Dolton lawyers sue competing attorney for defamation” —

• “After bowing out of representing the village of Dolton due to village trustees’ refusal to pay them, the Del Galdo law group is suing a lawyer representing those trustees for defamation.”
• “The Berwyn-based law firm claims Burt Odelson, of the Odelson, Murphey, Frazier and McGrath law group, made knowingly false statements about the Del Galdo group that led to the trustees turning against them as village attorneys.”
• “The opposing law firms both have extensive experience representing municipalities and government officials in the Chicago area. Michael Del Galdo, founding attorney of the Del Galdo firm, has long ties to the political operation Michael Madigan, the indicted former Illinois House speaker and Democratic Party chairman.”
• “According to the lawsuit, Odelson told attendees at a Feb. 22 Dolton Village Board meeting that Del Galdo had a conflict of interest in representing the village and had billed the village tens of thousands of dollars ‘in violation of Dolton’s corporate authorities.'”
• “Del Galdo said other statements he claims were defamatory include that they solely served as the village’s prosecutor, not village attorney, and that cases under Del Galdo’s representation had gone under default judgment.”

“Atty Agrees To Withdraw Mid-DQ Hearing In NC Biz Court” —

• “A real estate attorney on Wednesday [6/24] beat opposing counsel to the punch on a motion for disqualification in a dispute over a soured business partnership, opting instead to voluntarily withdraw his representation of one party but remain as counsel for another after a state Business Court judge pointed out conflicts with him providing services to both.”
• “The verbal agreement to withdraw by Jason Norman of Norman Legal PLLC came during a hearing in Mecklenburg County after North Carolina Business Court Judge Adam Conrad questioned whose approval Norman had sought in filing an answer on behalf of Golden Rooster LLC, a real estate investment company at the heart of the suit.”
• “Norman — who represents defendants Golden Rooster and member Khanh Ngoc ‘Katie’ Phan — conceded that he only consulted with Phan in seeking to file documents on behalf of the company, leaving the other member-owner, plaintiff Thao Phuong ‘Tiffani’ Bui, in the dark.”
• “Judge Conrad said one manager’s approval without the other is insufficient given that both Bui and Phan have equal voting rights when it comes to Golden Rooster — even if Bui and Phan are opposing parties in the suit.”
• “‘That seems like a problem to me — and that seems like a problem that would last throughout the course of this case,’ the judge said of Norman’s representation of both Golden Rooster and Phan.”
• “Norman subsequently agreed to pull his representation of Golden Rooster and remain as counsel for Phan, noting that Golden Rooster didn’t appear to be a necessary party.”
• “During Wednesday’s hearing, Bo Caudill of Villmer Caudill PLLC, who represents Bui, said his client never agreed to Norman representing Golden Rooster. If that weren’t enough, Norman’s representation of both the company and Phan was in clear violation of the rules of professional conduct, Caudill said.”
• “He argued that Bui, as a 50% owner, has a right to be informed about the status of the company’s representation, including directing strategy and making decisions about settlement offers. That inherently creates ‘difficult circumstances’ for Norman given that he is also representing Phan, Caudill told the court.”
• “In response, Norman claimed Bui did agree to his representation of Golden Rooster and only changed her mind when he advised that she wasn’t owed $68,000 as part of the buyout offer, at which point he said she “soured” on his services.”
• “‘The idea that she did not consent to hiring me as counsel for Golden Rooster belies the evidence,’ Norman said. ‘She directed it.'”
• “Judge Conrad then questioned whether Norman had circulated the answer he filed on Golden Rooster’s behalf to both Bui and Phan as equal partners in the business. Norman, however, said he did not send it to Bui because she was an ‘adversarial litigant.'”
• “According to Judge Conrad, therein lies the problem. ‘In the course of this dialogue, I think you can see there is a pretty substantial problem here with your continued representation of the company,’ he said.”
• “While Norman argued that his initial hiring was lawful, he conceded the judge’s point and said he didn’t ‘have a problem being removed from Golden Rooster’s representation.'”

“VEEVA SYSTEMS INC. v. TACT.AI TECHNOLOGIES, INC., AKTANA, INC.” —

• “Fairly universal principles of legal ethics tell us that a lawyer cannot defend her client in a lawsuit and then turn against that client in the same or a substantially related matter. But this rule is not a black hole inhaling anyone nearing the event horizon. A new client’s choice of counsel is entitled to respect. Former clients may give informed consent. And there’s nothing strange about lawyers working on many matters of a similar kind — that is the nature of specialization, which is a boon for clients.”
• “Many matters that seem somewhat similar do not really have the kind of relations that run counter to the recognized purposes of the ethical rules. Nor are the ethical rules weapons for deployment at a whim.”
• “Here, lead counsel for the defendants, Ms. Christa M. Anderson, Esq., used to represent Veeva at her old firm. Veeva — the former client — objects and moves to disqualify Ms. Anderson and her new firm. The focus is on a patent and trade secret case from about ten years ago where Ms. Anderson represented Veeva. Defendants argue that plaintiff failed to show the two matters are substantially related, and that plaintiff waived its objection.”
• “For the reasons set out below, we agree with Veeva and grant the motion. Ms. Anderson and her firm, Cooley LLP, are disqualified from their representation of defendants in this case.”
• “Ms. Anderson practiced at Keker from 1996 to 2022 and moved to Cooley in 2022. In 2013, she was lead counsel for Veeva in a patent infringement and trade secret misappropriation case brought by Prolifiq Software, Inc. against Veeva.”
• “The record offers a few details on Ms. Anderson’s role in Prolifiq. In support of its motion, Veeva filed several insightful documents as well as some partially unredacted billing records.”
• “In response — rather than seek an order compelling production of the complete records or otherwise digging in — Ms. Anderson filed a declaration averring that she possesses no relevant records and does not remember anything of substance about Prolifiq.”
• “Ms. Anderson’s billing entries — and entries of others on the team referring to Ms. Anderson — reflect her supervision of the Keker litigation team. (“case planning,” “case strategy,” with attendant meetings and correspondence with Veeva).”
• “The story picks up again in 2023 — after Ms. Anderson moved to Cooley — when she became lead counsel for Aktana in this dispute with Veeva.”
• “Ms. Anderson’s representation of Aktana was well known to Veeva. Between November 2, 2023 through the end of January 2024, she communicated more than 50 times with Veeva representatives including Mr. Faddis (recall: he was her point of contact when she represented Veeva).”
• “Although the parties were understandably guarded about the nature of these communications, it was made sufficiently clear during oral argument that they were exploring the possibility of settlement. For those first three months, Veeva never complained about Ms. Anderson’s involvement, and Ms. Anderson never sought Veeva’s informed consent to represent Aktana against it. Veeva’s reason is that Mr. Faddis did not remember what Prolifiq was about and their team did not investigate until Aktana moved to dismiss in mid-January 2024; Aktana’s reason is that it was not Ms. Anderson’s responsibility to say something”
• “The motion to disqualify. Veeva’s motion is simple enough: Ms. Anderson must be disqualified because she is violating the rule against being adverse to a former client in a substantially related matter without informed consent. DI 57 (relying on Model Rule of Professional Conduct 1.9). And because Cooley declined to screen Ms. Anderson from this case, Cooley must also be disqualified.”
• “There is no room for another result here. Because Ms. Anderson’s representation of Aktana against Veeva in this case violates Model Rule 1.9, we must grant the motion to disqualify her. And because her law firm, Cooley, has not accepted Aktana’s request to screen her or argued that screening would be an appropriate resolution, we must disqualify Cooley from representing Aktana in this matter as well. Veeva’s five-month delay in bringing this motion is not a good thing on the whole. But there was some brinksmanship on both sides here, and the facts do not amount to waiver. In the end, this ruling is not about who wore the white hat. It is required by the ethical rules.”

“Fourth Department – Motion to disqualify: Consumer Beverages Inc. v. Kavcon Development LLC” —

• “Background: The defendant appealed from an order that denied its motion to disqualify the plaintiff’s attorneys from representing the plaintiff in the underlying action to recover on a demand note. It is undisputed that, at the time the demand note was issued, the plaintiff’s attorneys represented both parties.”
• “Ruling: The Appellate Division affirmed. The court held that the defendant failed to demonstrate that the prior representation is substantially related to the present litigation. The court noted vague references to confidential information, but it does not explicitly contend that the plaintiff’s attorneys received specific confidential information substantially related to the litigation.”
• WATCH: Oral argument video

Naylor v. BAE Systems, Inc., Docket No. 1:24-cv-00536 (E.D. Va. Apr 04, 2024): “PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION TODISQUALIFY DEFENDANT’S COUNSEL” —

• “Groom currently represents the [BAE Systems Employees’ Savings and Investment] Plan. Groom has represented the Plan for several years. Groom receives from the Plan roughly $700,000 per year for legal services. The Plan has paid Groom more than $2 million for legal services over the past three years.”
• “Plaintiff alleges in her Complaint that Defendant breached ERISA’s duty of prudence by causing the Plan to pay excessive and unreasonable fees to the Plan’s third-party service providers, including Groom.”
• “Groom has appeared in this lawsuit as counsel for Defendant. Accordingly, Groom is simultaneously representing both the Plan and the Defendant in this case – defending against the Plan’s claims in this matter. Should Groom be disqualified from representing both the Plaintiff and Defendant in this lawsuit?”
• “Plaintiff alleges Defendant is violating a myriad of ERISA provisions and causing the Plan to suffer millions of losses. Among Plaintiff’s allegations is that Defendant is causing the Plan to pay Groom excessive and unreasonable fees both in relation to the services provided to the Planand in relation to the fees paid by retirement plans in general for ERISA compliance and legalconsulting services.”
• “Plaintiff identifies several retirement plans that paid Groom between $10,000 and $34,000 annually for the same or similar services that Groom provided to the Plan here for roughly $700,000 annually.”
• “Groom has represented the Plan for the entirety of the class period. Groom’s concurrent representation of the Plan and Defendant (who is seeking to defeat the claims of the Plan), creates an obvious irreconcilable concurrent conflict, specifically prohibited pursuant to Rule 1.7(a)(1)and (2).”
• “The conflict is even more glaring considering Plaintiff’s allegations that Defendant breached its duty of prudence to the Plan, among other ways, by causing the Plan to pay Groom millions of dollars in excessive and unreasonable compensation during the class period.”
• “The allegations pertaining to Groom’s excessive compensation make the conflict even more egregious and troubling. Groom is defiantly shirking the duties it owes to the Plan and instead seeking to help Defendant defeat the Plan’s claims and thereby protect the excessive fees that Defendant is causing the Plan to pay Groom. Groom’s ‘switching sides’ and seeking to protect the Defendant to the detriment of the Plan further bolsters the core claims in the operative Complaint that the Defendant breached ERISA’s duty of loyalty and prudence in connection with the administration of the Plan.”
• “Under ERISA, Defendant has the highest duties of loyalty known to law. Instead of respecting its duties of loyalty to the Plan, Defendant is insisting on using the Plan’s lawyers to defend against claims that Defendant breached its duty of loyalty to the Plan.”
• “Defendant’s disregard for its duty of loyalty to the Plan is on full display by insisting on having the Plan’s lawyers represent Defendant (who have gained confidential information about the administration of the Plan, while representing the Plan, and being paid millions of dollars by the Plan) in this action to the detriment of the Plan.”

“US judge’s financial conflict leads to revived lawsuit against big banks” —

• “A US appeals court threw out the dismissal of an antitrust lawsuit accusing 10 large banks of overcharging investors on corporate bonds, saying the trial judge should have been recused because his wife owned stock in one of the banks.”
• “The 2nd US Circuit Court of Appeals in Manhattan said that while US District Judge Lewis Liman ‘almost certainly unknowingly’ had a conflict of interest, his partiality could reasonably be questioned because his wife’s ownership of Bank of America stock created an ‘appearance of impropriety.'”
• “Tuesday’s unsigned decision came nearly three years after a Wall Street Journal investigation found that more than 130 federal judges had since 2010 violated federal law and judicial ethics by overseeing cases involving companies in which they or family members owned stock.”
• “Liman, an appointee of former President Donald Trump, was assigned the lawsuit in April 2020 and dismissed it with prejudice in October 2021, three months after his wife sold $15,000 of Bank of America stock.”
• “In February 2022, a court clerk alerted parties to the conflict, writing of the judge that the ‘ownership of stock neither affected nor impacted his decisions.'”
• “The banks said Liman’s failure to uncover his conflict didn’t require recusal or reviving the case. But the appeals court found a ‘legitimate risk’ that similar violations could undermine public confidence in the judicial process.”
• “US Supreme Court Chief Justice John Roberts highlighted in his 2021 annual report on the judiciary a need for judges to be vigilant about financial conflicts”

“Recusal Of Judge Who Reported Attorney Misconduct” —

• “The South Carolina Advisory Committee on Standards of Judicial Conduct opines on the recusal of a judge who reported an attorney to discipline authorities:
  • “A family court judge should recuse himself/herself from presiding over cases in which one of the attorneys is a person the judge reported for misconduct.”
  • “Rule 3E(1)(a) states that ‘[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where the judge has a personal bias or prejudice concerning a party or a party’s lawyer….’ While the judge may not have a personal bias, the rule is not solely limited to such bias, and certainly, reporting an attorney as required by Canon 3D(2) could be construed (even if it is entirely warranted) as bias if known to the parties and their counsel.”
  • “However, in the case of disciplinary proceedings, certain proceedings are confidential. For example, if it is determined that the complaint does not allege conduct that, if true, would violate the Rules of Professional Conduct, it will be dismissed without notice to the attorney. Rule 19(a), RLDE, Rule 413, SCACR.”
  • “Should the matter progress, the lawyer will receive a notice of investigation, including the initial complaint, and a request for a response. Id. However, the notice of investigation and initial complaint (and the attorney’s response) are not available to the public. Thus, the only person that could question the judge’s impartiality would be the attorney, and the attorney would have to reveal the investigation into his/her conduct, an act that the lawyer is not likely to want to do. Yet, if the matter was public, the judge’s impartiality would or could be called into question. Therefore, it would seem that the best course of action is for the judge to recuse himself/herself from presiding over matters in which the attorney appears.”

“New judge assigned to lawsuit over judicial retention ballot referral” —

• “A new judge has been assigned to a lawsuit challenging a legislative ballot referral that would end most judicial retention elections in Arizona.”
• “Progress Arizona is suing to prevent Senate Concurrent Resolution 1044 from appearing on the ballot. The group alleges SCR 1044 is unconstitutional because it bears a deceptive title and contains more than a single amendment to the state constitution.”
• “The measure states that only judges who have been convicted of a felony, declared bankruptcy or been found not to have followed judicial standards should stand for retention.”
• “‘It basically eliminates retention, but then it also really changes the makeup of the judicial performance review committee, and those are separate amendments that have to be voted on separately,’ said Jim Barton, an attorney for Progress Arizona.”
• “Kory Langhofer, an attorney for the legislative leaders intervening in the case, disputes the lawsuit’s claims. ‘The title of the act — Judicial Accountability Act of 2024 — is exactly what it is. It’s about judicial accountability,’ Langhofer said. ‘Regarding the separate amendment issue, I think when the court looks at it, it will find that everything is sufficiently interrelated and that it will qualify for the ballot.'”
• “Currently, trial judges in Maricopa, Pima, Pinal and Coconino counties, appeals court judges and Supreme Court justices are subject to Arizona’s retention election system.”
• “Citing this set of circumstances, Judge Joseph Welty, the presiding judge of the Maricopa County Superior Court, assigned the case to Judge John Napper, a Yavapai County judge.”
• “In Arizona’s rural counties, like Yavapai, judges are elected. Therefore, Napper is not subject to the retention election process the ballot referral seeks to change.”

New York Advisory Committee on Judicial Ethics: “Judicial Ethics Opinion 23-144” —

• “Question: May a full-time support magistrate in one county serve as a volunteer arbitrator in the small claims part of a different court in another county?”
• “Discussion: We have advised that service as a volunteer arbitrator in small claims court is not performed in a “private capacity” within the meaning of Section 100.4(F). Thus, the Rules Governing Judicial Conduct do not prohibit a full-time judge or quasi-judicial official from serving in that capacity, as long as such service does not conflict with official duties. We note that a support magistrate does not hear appeals, whether from the small claims part or otherwise, and the risk of any conflict is further reduced by the fact that the small claims part is in another county.”
• “Accordingly, we conclude this support magistrate may volunteer as an arbitrator in the small claims part of a different court in another county. However, the support magistrate should consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442; inside-ucs.org/oca/ethics/) for guidance on any issues that may arise under Part 50, including any administrative approvals that may be required.”

“Ex-Bankruptcy Judge Agrees to Jackson Walker Romance Questioning” —

• “A former judge tied up in litigation related to his relationship with a onetime Jackson Walker LLP partner agreed to let the Texas law firm depose him over key questions about the romance.”
• “Jackson Walker and David R. Jones, the former Houston bankruptcy judge, agreed to a seven-hour deposition on July 18 on topics related to his previously-secret relationship with attorney Elizabeth Freeman. The questioning will come as Jackson Walker battles a government effort to claw back more than $13 million in fees the firm collected in cases that were handled by Jones, while it employed Freeman.”
• “Chief Judge Eduardo V. Rodriguez of the US Bankruptcy Court for the Southern District of Texas signed off on the stipulation Tuesday.”
• “Jackson Walker has said Jones’ testimony is crucial in determining whether anyone at the firm was aware of the relationship. Jones previously criticized the request, saying its true purpose is to harass and embarrass him.”
• “The deposition agreement came a day after the Justice Department’s bankruptcy unit, the US Trustee’s office, forcefully pushed back against Jackson Walker’s argument that it didn’t violate any ethical rules in not disclosing the relationship because it didn’t know about the romance.”
• “The firm has also said it took internal steps to address the matter once it learned of the relationship. But its failure to to disclose the connection publicly shows that it knew it had an ethical problem but consciously decided to keep the romance a secret, the US Trustee said.”