Risk Update

Disqualifications — Tales of Two Motions (One Survived, One Strategic, Judicial Scolding)

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Brief Introductory Call with a Law Firm is Not Enough to Disqualify It From Representing Another Party in the Lawsuit” —

  • “Lawyers often get phone calls from prospective clients seeking guidance on various issues – general legal inquiries, asking a variety of general questions about laws, codes, regulations, and statutes, or questions concerning a pending or anticipated litigation. But a brief introductory conversation with a prospective client regarding an issue cannot disqualify the attorney from representing another party in that litigation. Or can it? Stay tuned to see how Justice Andrea Masley recently ruled on this very issue.”
  • “Plaintiff moved pursuant to 22 NYCRR § 1200.00, Rules of Professional Conduct 1.18 to disqualify defendant’s counsel, Herrick Feinstein LLP (“Herrick”) based upon the fact that plaintiff had an initial consultation with Herrick, which consisted of two brief telephone calls and the exchange of documents, all of which were provided to the defendant by plaintiff . Rule 1.18, entitled “duties to prospective clients” governs this initial interview process. New York law requires disqualification for disclosure of information that “embrace[s] substantive issues related to the” action and that was “made in confidence” to facilitate the provision of legal services, as the Court of Appeals long held in Seeley v. Seeley.”
  • “Following the brief introductory call, plaintiff sent the Herrick partner a follow up email containing information pertaining to the project and providing a list of potentially adverse parties so Herrick can run a conflict check. Plaintiff also attached a three page document, which consisted of a letter from plaintiff to defendant, enclosing surveys of the structure.”
  • “In her Decision and Order, Justice Masley determined that plaintiff “has a heavy burden of showing that disqualification is warranted.” Justice Masley determined that the documentary evidence corroborates the Court’s conclusion that plaintiff’s evidence was insufficient to warrant Herrick’s disqualification due to conflict. The Court held that plaintiff failed to establish that Herrick received any confidential information from plaintiff that could be significantly harmful to plaintiff in the pending litigation. In fact, the Court reasoned that the alleged documents that were provided to Herrick were not confidential because they were intended for and sent to Fortis by plaintiff.”

Kane Kessler Scolded By Judge For DQ Bid Against Storch” —

  • “A New York federal judge on Monday slapped Kane Kessler PC and its counsel for a bid ‘clearly devoid of merit’ to disqualify its opposing counsel in litigation where a New Jersey-based nonprofit organization accuses the firm of engaging in attorney misconduct.”
  • “U.S. District Judge Paul A. Engelmayer wrote Monday that Kane Kessler’s disqualification bid against Storch Amini PC is ‘transparently strategically motivated,’ as Kane Kessler and its counsel, Furman Kornfield & Brennan LLP, fail to establish that the lawyers for Oorah Inc. would need to be disqualified because they may need to testify over their knowledge of the underlying matter to an extent that would implicate their ability to serve as advocates for their client.”
    The judge also wrote that he was ‘constrained to admonish’ Furman Kornfield, holding that he expects the firm to ‘aspire to rigorous accuracy and a high level of professionalism and care.'”
  • “‘At various points, the court found statements of fact in defendants’ briefs inexact and incomplete, if not misleading,’ Judge Engelmayer wrote. ‘Particularly in a litigation in which the defendant is a law firm accused of making false and misleading statements to a court and opposing counsel, defense counsel’s factual imprecision ill behooves its client’s interests.'”
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Risk Update

Divorce Matter & Information Security Disparagement + Late Disqualification Action Leads to Presumed Waiver,

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Edelson: Disqualify wife’s divorce lawyers, because might aid Johnson & Bell disparagement case vs Edelson” —

  • “Chicago class action lawyer Jay Edelson, who is mired in divorce proceedings, wants his wife’s attorneys kicked off the case, because he alleges they could feed sensitive information from the divorce to the Chicago firm Johnson & Bell, which is suing Edelson on grounds he wrongfully disparaged their practice.”
  • “‘In light of the unrestrainably antagonistic nature of the relationship between Johnson & Bell on one hand and Edelson PC and Jay, on the other, this honorable court should presume that Johnson & Bell will exploit any advantage available to it in its pursuit of retribution against Edelson PC and Jay,’ Edelson said in a recently filed motion.”
  • “Johnson & Bell specializes in defending corporations against lawsuits, like those brought by Edelson and other plaintiffs’ law firms. Johnson & Bell sued Edelson in 2017 in Cook County Circuit Court, alleging Edelson disseminated “lies” about the firm’s allegedly inadequate data security to the Wall Street Journal and the professional publication American Lawyer.”
  • “In addition, Johnson & Bell alleged Edelson and his firm have violated ethical duties, abused court processes and ‘engaged in a self-serving publicity tour spreading their lies and defamatory statements.’ Johnson & Bell also alleged Edelson preys on businesses with nuisance suits to extort settlements.”

BRB: That firm’s name rang a bell… Indeed, we noted the related story concerning their information security practices and news back in April.)

via Bill Frievogel: Patrolmen’s Benevolent Ass’n v. New York State Employment Relations Bd., 2019 WL 4491669 (N.Y. App. Div. Sept. 19, 2019)

  • “This is a complaint by Union against Board for declaratory judgment seeking the disqualification of an arbitrator. The current arbitration arises out of the failure of Union and City to agree on a contract in 2017. The arbitration panel comprises three members, two of them selected by the parties, and the third (“neutral”) agreed upon by the parties.”
  • “The City selected the arbitrator subject to this suit, Lawyer Linn. Union seeks Linn’s disqualification. The problem is that Linn had performed consulting services for Union over a period of years, until 2003, on issues similar to those in the current arbitration. In 2014 the city appointed Linn as its arbitrator in a Union matter similar to this one.”
  • “Union sought Linn’s disqualification at the outset of the 2014 arbitration. The State Employment Board advised it had no authority to disqualify Linn. The parties proceeded to arbitration, and Union took no further action regarding disqualification, nor sought review of the award.”
  • “On to this case: The trial court denied disqualification. In this opinion the appellate court affirmed, holding, among other things, that Union’s failure to follow through on its objection to Linn in the 2014 arbitration amounted to a waiver of Linn’s conflict in the current arbitration. Given the identical parties and similarity of the issues to those in the 2014 arbitration, the failure to pursue disqualification then should count as a waiver for purposes of the current arbitration.”
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Risk Update

IP Conflicts — Soccer Trademark Spat + Whisky Glass Design Meets Bolkiah Principles Discussion

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Quinn Emanuel Attorney Can Stay as Counsel In U.S. Soccer Spat”

  • “An attorney with Quinn Emanuel Urquhart & Sullivan can stay on as counsel for the U.S. Soccer Federation Foundation in its trademark dispute with U.S. soccer’s governing body, a federal judge ruled Sept. 25.”
  • “Robert Raskopf isn’t conflicted due to prior work on trademarks for the U.S. Soccer Federation because the matters aren’t the same, Judge Timothy J. Kelly wrote for the U.S. District Court for the District of Columbia.”
    Raskopf had worked for a law firm in the 1980s that registered two trademarks for the federation, ‘neither of which is at issue in this case,’ the court noted.”
  • “He later moved to White & Case, which maintained the trademarks at issue in this case for the foundation, it said. Raskopf and another attorney at White & Case who “mainly handled” those trademarks later joined Quinn Emanuel, taking the work with them. In 2011, however, the foundation transferred the trademark work to another firm. Raskopf and Quinn Emanuel are now representing the foundation in a trademark ownership dispute, the court said.”

And via Bill Freivogel, commentary on: Glencairn IP Holdings Ltd. v. Product Specialties Inc (Final Touch), 2019 EWHC 1733 (IPEC) (High Ct. Eng. & Wales May 7, 2019) —

  • “In this case Glencairn is suing Final Touch and others for infringement of its registered design and of an EU trade mark dealing with the shape of a whiskey [sic] glass. Final Touch hired the law firm, Virtuoso, for defense.”
  • “The problem is that Virtuoso just last year defended another defendant, Dartington, in a very similar case brought by Glencairn. Glencairn moved to disqualify Virtuoso in this case, claiming that Virtuoso would have learned confidences during a mediation of the earlier claim that would prejudice Glencairn in this case.”
  • “Bottom line: In this opinion the court denied the motion. The court decided that the possibility that Glencairn would be harmed was remote. Among other things, the opinion contains interesting discussions about whether a screen would work in a small firm and whether Bolkiah principles can be applied to confidences held by non-clients.”

(And now I’m reading up on this whisky glass…)

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Risk Update

Breakups — Lawyer Laterals, Attorney Departures, Firm Dissolutions, Client Poaching, Legal Recruiters & Associated Risk Drama

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I’ve been accumulating a growing list of stories about when things go sour in terms of lateral risk, lawyer departures, firm fights and breakups — and then things go really sour. Kicking off this week with some of the more interesting and relevant examples on my list.

Kennedys Beats Appeal In Client Poaching Suit” —

  • “An attorney failed to establish that a Kennedys lawyer poached his clients in a freight business dispute, as he didn’t back up his ‘bald assertions’ that his former clients were fed lies, a New Jersey state appellate court held Monday.”
  • “Horowitz alleged that after he encouraged his clients GMG Transportation Inc. and GMG Transwest Corp. to hire Furman as local counsel, Furman suggested to the companies that if they didn’t fire Horowitz, they would lose the case. Furman worked at the time with Carroll McNulty Kull LLC, which later merged with Kennedys.”]
  • “But other than disputed telephone conversations, Horowitz failed to introduce specific evidence in his amended complaint that substantiated his assertions, according to the appellate court, which declined to allow discovery so the lawyer could attempt to find more information.”

Bitter Divorce: When Law Firm Breakups Go Sour” —

  • “Partner departures from a firm are often civil, if not amicable, and pass without public incident. But the defection of a partner from one firm to another can be the catalyst for a fraught dispute over fees, returned capital or the circumstances of their exit.”
  • “Provisions in a partnership agreement designed to dissuade defections can form the basis of a post-departure lawsuit. This was the case when a former Roetzel & Andress LPA shareholder sued the firm in October 2015, accusing it of trying to enforce an allegedly unlawful noncompete clause in his contract after he left the firm for FisherBroyles LLP.”
  • “‘The shareholders’ agreement brazenly attempts to impose an unlawful noncompete restraint on the practice of law by an attorney by purporting to financially punish a departing shareholder who attempt[s] to continue practicing law in any geographic area where Roetzel maintains an office,’ Menzies said. The parties settled quickly and the matter was resolved in December 2015, a few months after Menzies filed his complaint.”

NJ Atty Ducks Cost Of Removing Name From Ex-Firm’s Videos” —

  • “Begelman & Orlow PC must reimburse a former name partner for half the cost of removing references to him from its marketing videos but the law firm can continue using a video showing the back of his head, a New Jersey state appeals court said Tuesday.”
  • “That portion of the ruling was at odds with an earlier consent order in the case, which required the defendants to ‘remove from their website any reference to the plaintiff … and remove [his] images as well,” and which stated that the defendants ‘shall cease using plaintiff’s name in any way whatsoever,’ according to the two-judge panel.”

Recruiter Sues Windels Marx, Seeking $3 Million for IP Group Placement” —

  • “A headhunting firm has sued the tri-state law firm of Windels, Marx, Lane & Mittendorf for $3 million, claiming the law firm failed to pay a placement fee for an IP group move from Budd Larner.”
  • “‘Austin & Devon did everything it promised to do—it introduced Windels Marx to a group of talented attorneys that the firm liked enough to hire,’ the complaint said. ‘But despite reaping the rewards of Austin & Devon’s work, Windels Marx will not honor its promises.'”
  • “The recruiting firm said it signed a contract with Windels Marx in 2013 that put a 12-month time limit on any obligation to pay Austin & Devon in the case of associates who were referred to the firm, according to the complaint. But because partner and group moves typically entail lengthy negotiations, no such limit applied, Austin & Devon claims.”
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Risk Update

Security, Compliance & Client Risk — Will Any International Law Firm Practice in China Come 2020?

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What happens to international law firms practicing in China on January 1, 2020? Can that even be a thing anymore? Will new appointees be “inserted” at firms? Will client outside counsel guidelines take note and evolve?

Read why many are concerned about new security rules taking effect: “China’s new cybersecurity rules ban foreign companies from using VPNs to phone home” —

  • “The latest move is the long-threatened extension of Chinese spying powers over foreign companies, whose employees are to be prohibited from using working VPNs to communicate with their non-Chinese offices. These employees will now be left to use the same censored internet as Chinese citizens, and every trade secret and confidential communique they transmit to their home offices will be open to capture, inspection and use by Chinese authorities and the state industries they have long supported by funneling proprietary foreign corporate data to domestic competitors.”
  • “The Chinese ‘Cybersecurity Law’ enables Chinese authorities to access any data on any server or personal computer, even those used by foreign firms.”
  • “Moreover, a new Foreign Investment Law that takes effect in 2020 will eliminate any special dispensations currently enjoyed by foreign firms (for example, foreign firms are presently exempt from rules that allow the Chinese state to insert political appointees within the executive ranks of companies to monitor their operations — this will no longer be the case as of Jan 1).”
  • “As Steve Dickinson points out on the China Law Blog, the ability of Chinese firms to spy on all communications between Chinese and offshore offices of US firms compromises US companies’ ability to comply with US laws restricting the export of “sensitive technologies” — the fact that the Chinese state can simply plunder these technologies from US companies’ servers means that whether or not the US companies turn their trade secrets over, they can still be presumed to be in the hands of the Chinese state and military and the Chinese companies that are closely aligned with them:
    • “Under the new Chinese system, trade secrets are not permitted. This means that U.S. and EU companies operating in China will now need to assume any “secret” they seek to maintain on a server or network in China will automatically become available to the Chinese government and then to all of their Chinese government controlled competitors in China, including the Chinese military. This includes phone calls, emails, WeChat messages and any other form of electronic communication. Since no company can reasonably assume its trade secrets will remain secret once transmitted into China over a Chinese controlled network, they are at great risk of having their trade secret protections outside China evaporating as well.”
    • “The U.S. or EU company may have an enforceable agreement with the Chinese recipient of its confidential information. So trade secrecy is protected with respect to that authorized recipient. But if the secret is easily available to the Chinese government, there is no real trade secret protection.”
    • “By giving the Chinese government and its cronies full access to its data, the U.S. or EU company may very well be deemed to have illegally exported technology to China and it could face millions of dollars in fines and even prison sentences for some of its officers and directors. There is an inherent conflict between foreign laws mandating a company not transfer its technology and China’s laws which effectively mandate that transfer.”
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Risk Update

Risks of Acting as Replacement Counsel

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I always find something worthwhile in this article series published by Dentons partners Shari Klevens and Alanna Clair: “Consider the Risks When Acting as Replacement Counsel” —

  • “Although the attorney’s representation may start in the middle of a lawsuit, it is still generally a new representation for the attorney’s law firm. Thus, while replacement counsel may feel the need to take urgent action, problems can arise where attorneys fail to follow their firm’s typical client intake procedures.”
  • “However, law firms have client intake procedures for a reason. In some situations, there may be conflict issues that need to be resolved. The firm may have a standard required engagement letter to govern the scope of the representation as well as other issues. Even where the representation begins in a hurried manner, taking the time to follow the firm’s standard procedures for opening matters can help reduce the overall risk.”
  • “One of the biggest risks for replacement counsel is that deadlines will get missed or forgotten in the transition. Accordingly, as one of the first tasks for replacement counsel, it is helpful to independently identify any deadlines that may need to be addressed. Replacement counsel may expect that the client or prior counsel will identify any imminent deadlines. However, the risk can be severe if the replacement counsel does not separately confirm whether there are any other deadlines or that the reported deadlines have been calculated correctly.”
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Risk Update

Ex-Client Conflicts Clash, Client Files in the Garbage Can

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Weil, Ex-Client Clash Over Possible Conflicts in Insys Work” —

  • “A former sales executive at Insys Therapeutics who is seeking a new trial after a racketeering conviction has cited new evidence that he said shows his ex-lawyers at Weil, Gotshal & Manges kept him in the dark about potential conflicts posed by its simultaneous bankruptcy work for Insys.”
  • “‘Weil could not be loyal to both clients. Mr. Simon never provided his informed, written consent to this arrangement. Worse, when he asked his trial counsel, Weil partner Steven Tyrrell, what the Insys engagement would mean for him, Tyrrell responded, ‘nothing, really,’’ said Simon’s defense attorneys Daniel Marx and William Fick.”
  • “But Weil denies that there was any conflict, said it took steps to avert the possibility of one and said Simon was fully informed about its work for Insys. Tyrrell said in an affidavit filed Sept. 16 that he told Simon about the pending bankruptcy representation in August 2018, and ‘Simon stated he understood my explanation, had no questions, and voiced no objection.'”
  • “Tyrrell also said Weil implemented an ethical screen ‘to avoid any appearance of impropriety,’ according to a Weil memo filed in court. He said his firm circulated memos to the team working on Simon’s defense and on the Insys bankruptcy that instructed them not to have any discussions or share or access any files concerning each others’ matters.”

Personal medical files discovered unshredded and dumped at landfill” —

  • “Dozens of file boxes packed with private, confidential medical information were dumped at a Bay Area landfill, angering people whose names, addresses, medical history and prescription drug information was on display for anyone to see.”
  • “That’s when she called 2 Investigates, which traced the files to a San Francisco law firm, Leach & McGreevy LLP and called the group for comment. Attorney Rick McGreevy said ‘nothing was being (improperly) disclosed’ and ‘most people don’t go digging around at the dump.'”
  • “That comment didn’t sit well with UC Hastings legal ethics professor and attorney Richard Zitrin. ‘I just go ouch. It makes me flinch,” Zitrin said. “Somebody’s not stopping to think it through.'”
  • “California law details that lawyers are required to protect the privacy of their clients and any state resident. Additionally, a California ethics opinion says an attorney should shred, erase or modify personal information to be sure it can’t be seen by others.”
  • “The California State Bar said it is considering sending a warning letter to all member attorneys reminding them documents must be destroyed and not simply tossed in the garbage can.”
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Risk Update

Conflicts News — Netflix + Comedian (with a Malpractice Twist), A Settled Conflicts Suit, and A Sex Cult Conflict

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Judge to Hear Motion to Toss Gordon Rees’ Defenses in Legal Malpractice Case” —

  • “Attorneys for plaintiff Terry Hodges say Gordon Reese attorneys, including named partner Roger Mansukhani, changed their stories over whether they searched for relevant texts, emails or chats tied to claims the firm concealed a conflict of interest from Hodges when it represented him in the underlying litigation.”
  • “The texts were sought to bolster Hodges’ claim that Gordon Rees—which represented him in a dispute with Netflix and fellow funnyman Chris Tucker—concealed that it was also representing Netflix, even after it learned it had a conflict.”
  • “Gordon Rees’ lawyers responded that the issue is a red herring designed to ‘avoid a determination of the merits’ of the case and that the reason none of the texts from 2015 were found or searched for is because the lawyers in question either do not use texting for work or routinely delete any texts.”
  • “Hodges’ filed the underlying lawsuit in 2015, claiming that Tucker owed him for years of writing and production tasks and had promised him co-producer credit for Netflix’s 2015 ‘Chris Tucker Live.’ Hodges’ complaint said the firm only disclosed the conflict after it had engineered Netflix’s dismissal from the suit and accepted thousands of dollars in fees before dumping Hodges.”

Morgan Lewis Settles $30M Pa. Suit Over Alleged Conflict” —

  • “Morgan Lewis & Bockius LLP has inked a settlement to end a $30 million lawsuit accusing the firm of working against a client’s interests by helping to build a case against it on behalf of a Wisconsin-based hospital system.”
  • “The deal ends claims by a Willis Towers Watson unit as it sought to recoup fees paid to Morgan Lewis before it learned that the firm was assisting counsel for Meriter Health System Inc. put together a suit against the the unit. The claims involved an allegedly flawed retirement plan designed by a Willis Towers Watson predecessor.”
  • “Morgan Lewis has denied liability in the case brought against it by Towers Watson and argued that the company had signed an agreement when it retained the firm allowing Morgan Lewis to represent parties with adverse interests.”

Sex cult leader Keith Raniere will not be sentenced until 2020: judge” —

  • “Raniere, 58, wore his hair buzzed short and a pair of oversized tan jail scrubs on his small frame during the brief proceeding. He was brought into court in handcuffs for discussions relating to a potential conflict of interest involving one of his attorneys, Teny Geragos.”
  • “At some point after Raniere’s conviction, Geragos applied for a job at the U.S. Attorney’s office in Brooklyn — the office that handled the NXIVM prosecutions. Raniere is required to waive the conflict if he wishes to proceed with Geragos on his defense team. Her father, Mark Geragos, is a Los Angeles-based celebrity attorney… The parties were told to file arguments and return to court on Oct. 31 for the conflict hearing to go forward.”
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Risk Update

OCGs: Outside Counsel Guidelines, Terms of Engagement, Positional Conflicts, Landmines and Trojan Horses — Trends & Strategies for Pushing Back

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This article is truly worth reading in full. It goes into great detail, collecting examples and insight from several law firm GCs and risk leaders. I highly recommend it: “Terms of Engagement” —

  • “With risk management increasingly fraught, avoiding client conflicts is key. Many law firms now have dedicated general counsel to review the terms of engagement letters, which include conflict provisions, and advise partners on negotiating waivers where appropriate.”
  • “[Terry Burgoyne, general counsel at Osler Hoskin & Harcourt LLP] says they will sometimes ask for an “issue-conflict” guarantee. “They’ll sometimes say you have to notify them before you take a position on behalf of another client — in a totally unrelated case — that be might contrary to the way they’d like that issue to be resolved. On those we push back almost universally. ‘For one thing, you don’t know the issues they care about. And we have no way of searching for that, for issues we can’t identify later on.'”
  • “…he says Osler walks away from ‘a not immaterial amount’ of work, between 5% and 10% of potential engagements, for conflicts reasons.”
  • “Clients, too, are getting more and more sophisticated about conflicts and, from the law firm’s point of view, both in a good and bad way. [Says Kenneth Crofoot, general counsel of Goodmans LLP]: ‘I find clients are more understanding in many cases that waiving conflicts is appropriate and that firms have systems to put up walls and insulate information, which means everyone on a matter can get the counsel of their choice. On the bad side, a lot of client terms of engagement we’re seeing from large international corporations are pretty onerous.'”
  • “When he talks about onerous, he’s talking about boilerplate that can be 40 pages long, ‘with conflicts expressed much more widely than under our law. They extend to every single entity that’s part of their empire; there can be 500 or more companies involved — which is a bit of a problem to put into your conflict system.'”
  • “‘They provide that it can be a conflict for us to represent a party or take a stance in any proceeding that’s inconsistent with their business interests. When you consider that would cover all these 500 companies, how are we supposed to know what their current business interests would be in all those operations? We have no way of tracking that.'”
  • “The model Norton Rose uses is not a GC, but five regional compliance offices with teams that oversee regional and global conflicts as well as other risk-management issues. In addition, the firm has a section that does nothing but look at the reputational risk of potential new clients.”

From the Legal Ethics and Malpractice group at Harris, Wiltshire & Grannis comes: “How Corporate Counsel Can Push Back on Outside Counsel Guidelines by Citing the Ethics Rules” —

  • “In recent years, clients have begun to insist that their corporate counsel sign Outside Counsel Guidelines (“OCGs”) that restrict a lawyer from providing services to competitors of the client, even if the work is unrelated to the work being performed for the client and the lawyer has no confidential client information relevant to the work. Those OCGs have also begun to define the “client” as all subsidiaries, affiliates, or parent companies of the entity to which the lawyer’s services pertain. Both trends restrict a lawyer from representing a host of potential clients in the future. How can outside corporate counsel push back?”
  • “The two trends cited above directly implicate ABA Model Rules of Professional Conduct 5.6, 1.7 and 1.9.[1] By citing these Rules, and the restrictions they impose, corporate counsel may gain headway in negotiating more permissive OCGs.”
  • “ABA Model Rule 5.6 (“Rule 5.6”) prohibits a lawyer from entering into any post-employment non-compete agreements with her law firm because they infringe on a client’s right to choose her lawyer and a lawyer’s professional autonomy… OCGs that prevent a lawyer from representing any client competitor—whether true adversity exists or not—do the very thing Rule 5.6 prohibits. While a traditional non-compete is imposed on the lawyer by her firm, OGCs are non-competes in disguise being imposed on the lawyer by her client. Importantly, both non-competes have the same effect: they limit a lawyer’s professional autonomy and limit the client’s ability to choose a lawyer.”
  • “Similarly, OCGs that define the client to include all subsidiaries and affiliates of a company also implicate the Rules. ABA Model Rule 1.7, Comment 34 notes, ‘A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary… Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter.’ Courts have held that the existence of an attorney-client relationship with one corporate affiliate does not create an attorney-client relationship with all corporate affiliates. “
  • “Procedurally, consider implementing firm-wide rules that govern what terms your firm will accept in OCGs and having a designated management committee member negotiate all OCG terms. Having an established protocol for negotiating OCGs will reduce the need for the client relationship or billing partner to negotiate terms and potentially harm the relationship. In addition, make sure that a firm employee is keeping track of OCGs the firm agrees to in order to run additional as-needed conflict checks, e.g., agreeing to represent a company and its subsidiaries alters the firm’s conflict profile. That employee should also ensure compliance with Most Favored Nation (“MFN”) agreements with existing clients, because agreeing to certain terms in OCGs may require the firm to offer similar terms to current clients under existing MFNs.”

And, published last year by CNA, but just now crossing my desk, comes this article authored by two lawyers from the Professional Responsibility Group at Frankfurt Kurnit Klein & Selz: “Fighting the Trojan Horse: Managing Outside Counsel Guidelines” —

  • “If there is one thing keeping law firm general counsel awake at night, it is the myriad of outside counsel guidelines (OCGs) that may be floating around the firm… These OCGs differ from client to client, may be dozens or hundreds of pages in length and, as shown below, may incorporate requirements that the firm cannot meet.
  • “Moreover, many firm lawyers treat the OCGs in a cavalier manner, neglecting either to read them or to send them to their firms general counsel. Even where the firm requires review and approval of OCGs as part of its client intake process, the firm may fail to keep track of the precise terms to which it has agreed with any specific client, or may fail to follow up to ensure that each OCG is followed.”
  • “Moreover, the OCGs may contain terms or conditions that the law firm cannot satisfy, because those terms and conditions either exceed the firm’s resources or are inconsistent with ethical or other legal obligations.”
  • “In this article, we will discuss five common issues that can arise with OCGs and what firms can do to address them”
  • The article covers:
    • Expanded Conflicts Policies
    • Cyber Security Requirements
    • Billing Guidelines
    • Indemnity Provisions
    • Erecting the Dam: Controlling the Flow
  • “OCGs can contain a number of risk management landmines for law firms. As outlined above, OCGs can significantly alter the power dynamic between the lawyer and client and may expose the firm to additional liability that may not be covered by the firms malpractice insurance. Law firms should, therefore, ensure that any OCGs are reviewed and approved in advance by the firm’s general counsel or management committee so that the firm can address any problematic provisions prior to the representation and also monitor what the firm has agreed to with a particular client. This strategy will help ensure a successful and constructive professional relationship.”
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Risk Update

Playbook Conflicts and Anesthesiologists v. Hospital DQ Dust-up

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(Hat tip back to Karen Rubin for additional analysis, including a quote from Bill Frievogel, to further connect some of my best sources): “No DQ for company exec-turned-lawyer; “playbook” theory doesn’t play” —

  • “The California court of appeals has denied a bid by an employment discrimination defendant to disqualify the plaintiff’s legal team. The name partner in the law firm representing the plaintiff was formerly the employer’s chief operating officer — but the court rejected the assertion that his firm should be disqualified merely based on his knowledge of the employer’s ‘playbook.'”
  • “Based on Ritchie’s former role with the company, defendant O’Gara Coach moved to disqualify his firm, asserting that in his former role Ritchie was directly involved in policy-making, discussed strategy in pending employment claims with the company’s outside counsel, and was responsible for workplace policies when Wu’s claims arose.”
  • “But under California law, said the appeals court, a law firm is not subject to disqualification merely because ‘one of its attorneys possesses information concerning an adversary’s general business practices or litigation philosophy acquired during the attorney’s previous relationship with the adversary.'”

“As ethics authority Bill Freivogel puts it at his always-useful Freivogel on Conflicts site, the issue in the playbook analysis is ‘when does a lawyer learn enough about the former client’s thought processes and procedures that the new representation may be deemed ‘substantially related’ to the former one,’ thus requiring disqualification under Model Rule 1.9(a) and its state counterparts.”

Anesthesiology Company Wants Hospital Attys DQ’d” —

  • “A Michigan-based anesthesia service has asked a federal court to disqualify attorneys representing a group of local hospitals in a dispute over an alleged violation of a noncompete clause, saying the law firm representing the hospitals advised the company on the business strategy at the heart of the suit.”
  • “Anesthesia Associates of Ann Arbor, or A4, argued Friday that Honigman LLP advised the company in 2018 on whether a potential strategy for pursuing payment from third parties based on an implied contract would violate the terms of a noncompete agreement with Trinity Health Corporation.”
    “As a result, A4 argued, Honigman should not be allowed to represent Trinity in its suit over that same strategy, especially since the law firm worked for A4 for months before disclosing that it also represented Trinity.”
  • “‘Honigman was engaged to and directly provided legal advice to A4 on the exact negotiation strategy that it now alleges is a material breach of A4’s agreements with Trinity, without first disclosing that the firm’s representation of A4 may be materially limited by its obligations to Trinity,’ the motion said.”
  • “In a motion to disqualify filed Friday, however, A4 said that during the process of reevaluating its relationship with Aetna and Blue Cross, Honigman advised the company on a potential “implied in fact” contract strategy that would allow A4 to collect balances directly from third-party payors without having to bill patients. Honigman began advising on this strategy in May 2018, according to the motion. In August 2018, however, the law firm told A4 for the first time that it also represented Trinity. Afterward, A4 decided to part ways with Honigman, according to the motion.”
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