Bressler Risk Blog

I was pleased to catch up recently with my friend and colleague Marie-Claire Le Houerou and hear more about an interesting risk project she has in the works.

MC just celebrated her first anniversary at Intapp, having previously served as director of new business intake at Baker McKenzie for seven or so years prior.

One of the strategic projects she is managing is the development and running of a survey on a topic we’ve regularly covered on the BRB – firm policies, practices, and priorities around client due diligence and anti-money laundering.

(Actually, my understanding is that this will likely take the form of two surveys — one directed to regulated jurisdictions such as UK/EMEA, and another to unregulated jurisdictions such as US.)

I asked MC about her objectives and she told me: “My hope is to generate information and peer insight I always wanted in my roles as a client onboarding and risk professional.”

To help shape the questions and content covered in that exercise, I offered to put the word out to readers who might be interested in sharing their interests in and questions about these topics.

So if you have some input you’d like to share with MC, or just want to make sure you’re invited to participate in the survey itself, readers can reach out to her at: marie-claire.lehouerou@intapp.com.

ILTA just published: “Security at Issue: State of Cybersecurity in Law Firms” —

• Law firms store some of the most sensitive information available regarding material business transactions (e.g., mergers, acquisitions, and tax returns), civil/criminal prosecution, and personal transactions (e.g., divorces and wills), and lawyers have an ethical responsibility to protect this data. Due to fears of losing this sensitive information and pressing court dates that often cannot be moved without system access, law firms are highly motivated to succumb to an attacker’s demands when their files are encrypted by ransomware, or they are threatened with the public exposure of that data.”
• “Toward the end of 2021, nearly a third of law firms surveyed reported a breach within the year; and 36% reported past malware infections, according to an American Bar Association report.”
• “Only 15.5% of responding firms of all sizes believed they had some security gaps, or that their security needed significant improvement; the rest believed they were relatively to extremely secure. This, unfortunately, does not track with either our experience from our assessments (which always yield some significant risk factors), the previously mentioned study that showed a third of firms suffered breaches in a single calendar year, or security gaps  uncovered throughout the survey. We believe this is a definitional problem by what is meant by ‘secure’ and what achieving true defensibility looks like.”
• “Nearly three-quarters of respondents believed they were more or much more secure than their industry peers. This obviously defies mathematical logic; while we can possibly hedge our results with the likelihood that those taking the survey were more confident in their security (and thus more willing to participate), we find this still unlikely. We think it more likely that we are seeing a definitional glitch in what ‘average’ looks like.”
• “The data shows IT professionals fear their users’ behaviors more than they fear the threat actors themselves, and believe these behaviors are the greatest challenge to their security. They also believe users are the biggest impediment to improvement through their resistance to change and education.”
• “When asked what the top three threats to security are in the firm, the top response at 39.4% (and 40% in the ILTA Technology Survey) was user behavior and lack of training to prevent this harmful behavior. User behavior/training arose as a greater concern than ransomware or any threat actor tactic that would exploit these key drivers of organizational productivity.”
• “Users are viewed as the greatest impediment to change. In our survey, 59% said user inconvenience was the greatest roadblock to implementing more stringent security controls (with cost being the second greatest concern).”

“DeSantis-linked PR shop ditches PGA Tour amid LIV Golf merger blowback” —

• “The Ron DeSantis-connected PR shop Clout Public Affairs has dropped the PGA Tour as a client, after it announced its plans to merge with the Saudi-funded LIV Golf.”
• “The firm had been working with both the PGA Tour and the families of 9/11 victims who had been agitating against LIV Golf for its Saudi ties. It was one of a number of public relations or lobbying shops that had cashed in on the high-profile feud between the storied PGA Tour and the controversial upstart LIV Golf.”
• “Clout Public Affairs, which had become embroiled in the legal battle between LIV and its client PGA, had been subpoenaed by LIV and accused the golf league of trying to track the 9/11 families.”

A fascinating and detailed review and analysis by Ropes & Gray, for those interested: “The Securities Litigation Review: SEC Enforcement: A Practical Guide For Private Fund Managers” —

• “All private fund advisers, whether with venture capital, private equity, hedge, debt, credit, real estate, hybrid, or other focus, must stay attuned to this attention on the private fund industry by the Securities and Exchange Commission (SEC) and, in particular, to the actions of its Division of Examinations (EXAMS) – formerly, the Office of Compliance Inspections and Examinations – and the Division of Enforcement (Enforcement).”
• “With more than 5,500 registered investment advisers (totalling over 35 per cent of all registered investment advisers) managing 50,000 private funds, with gross assets said to exceed US$21 trillion, and with an active SEC Chair, private fund advisers can expect the years to come to be replete with rulemaking and enforcement focused on the private fund industry.”
• “In this landscape, EXAMS likely will sharpen its focus on conflicts of interest the SEC believes are inherent in the private fund industry and which, the SEC believes, contribute to the perceived problematic issues discussed in the Private Fund Proposed Reforms. These include, for example, those related to portfolio valuation and resulting fee calculations, as well as conflicts related to liquidity. A resurgence of SEC enforcement against private fund advisers is likely to follow.”
• “One of the common themes discussed in SEC guidance – and seen in examinations and enforcement matters – is the SEC suggestion that the private fund industry presents unique regulatory challenges and conflicts of interest because of its business model.”
• “The SEC has long suggested that this model results in conflicts beyond those faced by typical investment advisers. Indeed, in a February 2015 speech, the SEC said that nearly all SEC enforcement matters involve examining whether an adviser has a conflict of interest and, if so, whether the adviser eliminated or disclosed that conflict.”
• “According to the SEC, conflicts of interest include situations where there is a ‘facial incompatibility of interests, as well as any situation where an adviser’s interests might potentially incline the adviser to act in a way that places its interests above clients’ interests, intentionally or otherwise.'”
• “Notably, under this model, the SEC has suggested that a conflict of interest does not require that an investor be harmed by the conflict, or that the adviser intended to cause harm to the investor. It only requires the possibility that an investment adviser’s interests could run counter to those of its investors.”
• “In the SEC’s view, fund documents often contain insufficient disclosure on material terms, for example on fees and expenses, including relating to their allocation and affiliated fees and expenses; valuation procedures; and investment strategies and protocols for mitigating certain conflicts of interest, including investment and co-investment allocation.”
• “Private fund advisers should be aware of significant areas of enforcement that have accelerated in the new administration, including undisclosed fees and expenses, misallocation of expenses, valuation of investments as that relates to calculation of fees, inadequate disclosure of financial conflicts, and conflicted relationships with third parties.”

And professors Ian Gow (University of Melbourne) and Stuart Kells (La Trobe Business School) opine: “The Big Four firms are incapable of unwinding their own deep-seated conflicts” —

• “The Big Four – PricewaterhouseCoopers, EY, Deloitte, KPMG – are the global behemoths of the professional services industry. With nearly 1.5 million staff and US$190bn in annual revenue, they dominate markets for accounting, auditing and tax-related advice.”
• “The recent high-profile crash of Project Everest – EY’s $600m attempted demerger – saw that firm’s angry partners demand more effective governance structures to protect their interests.”
• “EY’s Everest was an attempt to separate auditing, which is about transparency and integrity, from services such as tax minimisation advice that are less about the public interest and more about private profit. The demerger would have addressed a fundamental conflict.”
• “As the failure of EY’s Project Everest showed, the Big Four are probably incapable of unwinding their own deep-seated conflicts. Sooner or later, the task of imposing structural changes will fall to governments and regulators around the world.”
• “By rejecting demergers on their own terms, the Four have effectively chosen uncontrolled and possibly chaotic break-ups on someone else’s terms and someone else’s clock. The Big Four can’t say they weren’t warned – the issues have been clear from calamities stretching back decades.”
• “‘First in, first out,’ usually styled ‘Fifo,’ is a term familiar to all accountants; it relates inventory produced to inventory sold. The Big Four’s approach to strategy, risk management, and governance brings to mind a nearby acronym: Fafo, ‘f… around and find out.’ That is an uncomfortably apt description of the Big Four’s headlong drive towards profit through aimless diversification.”

“Paul Hastings Conflict Waiver Has One Exception—and Coke Says It Applies, Making Document Invalid” —

• “The Coca-Cola Co. is trying to nullify the conflict waiver it signed with Paul Hastings by seizing on its one exception: matters that are ‘substantially related’ to matters it currently handles for Coke.”
• “The primary Paul Hastings lawyer working for Coke, Jonathan Drimmer, handles human rights matters around the globe. Coke says that’s all about protecting Coke’s reputation, the same issue at stake in SuperCooler’s $100 million fraud lawsuit against Coke.”
• “Los Angeles-based Paul Hastings began representing SuperCooler in March when it hired three Cahill Gordon & Reindel lawyers who brought the lawsuit. Atlanta-based Coke complained Paul Hastings ‘abandoned its ethical obligations’ and asked a federal court to disqualify the law firm.”
• “U.S. Magistrate Judge Robert Norway asked Webb: ‘Just to be clear … your position is that Mr. Drimmer’s representation in the matters that he’s handling is more than just protecting the company from general reputational harm; it’s harm that stems from those particular matters?'”
• “‘Precisely,’ Webb responded. ‘And that’s why this lawsuit is so problematic, because, on the one hand, Mr. Drimmer’s defending the Coca-Cola Company’s reputation, and then down the hall, with (Paul Hastings’ SuperCooler) lawyers, they’re attacking it. And that really ultimately shows that even though, clearly, Mr. Drimmer isn’t doing trademark or trade-secret misappropriation work for the company … we never said he was. It’s the core values and the principles of the company that he defends are the same value and principles that they are now attacking in no uncertain terms.'”
• “The engagement letter Coke signed in 2021 with Paul Hastings on human rights matters gives the firm wide latitude to work with any client it wishes so long as the subject is ‘not substantially related to a matter in which we have represented you.'”
• “Paul Hastings argues Coke’s efforts to link Drimmer’s human rights work and the SuperCooler litigation are a legal stretch.”
• “Charles Duggan, a Davis Polk partner representing Paul Hastings, said Florida’s Rules of Professional Conduct and ethics rules ‘generally doesn’t allow for such broad generalities to characterize one representation as substantially related’ to another.”
• “Coca-Cola also is arguing that its guidelines for outside counsel supersede the engagement letter with Paul Hastings and that firms effectively consent to those guidelines when they file a claim through is billing portal. Those guidelines state that Coke does not consent to advance waivers, unless signed by general counsel Monica Howard Douglas or associate general counsel Bonds.”
• “Moreover, Coke said the advance waiver in the engagement letter it signed with Paul Hastings two years ago was too unspecific for it to have anticipated or given its consent for the law firm to represent a company suing Coke for $100 million. It argues that the waiver is so general to be unenforceable.”

“Role of nonlawyer assistants in client intake addressed in new ABA ethics opinion” —

• “Lawyers may train nonlawyer legal assistants to handle client intake matters, but they must ensure that such assistants’ conduct is compatible with the lawyer’s professional obligations, including giving clients an opportunity to consult with the lawyer about questions, according to an ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility released Wednesday.”
• “Formal Opinion 506 acknowledges that nonlawyer assistants—such as paralegals, legal assistants and others—provide great services to lawyers. But lawyers can run into ethical problems if they delegate too much to these assistants and do not ensure that the assistants’ conduct complies with the ethical rules.”
• “‘While the benefits of using nonlawyer assistants are many, without proper policies, training and supervision in place, this delegation could lead to ethical violations and unfortunate consequences for clients and lawyers,’ according to the opinion, noting that the practice ‘must be carefully and astutely managed.'”
• “Lawyers may train nonlawyer assistants to handle much initial client intake information, such as obtaining initial information about the prospective case, run an initial conflicts check, answer general questions about fees, and even obtain the prospective client’s signature. In other words, nonlawyer assistants often can handle general questions from prospective clients.”
• “However, when the questions become more specific about legal services, those questions may have to be directed to the lawyer. And prospective clients should have the opportunity to consult with the lawyer. The bottom line is that ‘the prospective client [should] always [be] offered an opportunity to discuss the fee agreement and scope of representation with the lawyer.'”

Full opinion: “Formal Opinion 506: Responsibilities Regarding Nonlawyer Assistants” —

• “A lawyer may train and supervise a nonlawyer to assist with prospective client intake tasks including obtaining initial information about the matter, performing an initial conflict check, determining whether the assistance sought is in an area of law germane to the lawyer’s practice, assisting with answering general questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on the fee agreement provided that the prospective client always is offered an opportunity to communicate with the lawyer including to discuss the fee agreement and scope of representation.”
• “Because Model Rule 5.5 prohibits lawyers from assisting in the unauthorized practice of law, whether a nonlawyer may answer a prospective client’s specific question depends on the question presented. If the prospective client asks about what legal services the client should obtain from the lawyer, wants to negotiate the fees or expenses, or asks for interpretation of the engagement agreement, the lawyer is required to respond to ensure that the non-lawyer does not engage in the unauthorized practice of law and that accurate information is provided to the prospective client so that the prospective client can make an informed decision about whether to enter into the representation.”
• “A lawyer’s delegation of prospective client intake tasks to a nonlawyer or the lawyer’s use of technology to assist with the initial intake of clients provides significant benefits and increased efficiency to lawyers.”
• “While the benefits of using nonlawyer assistants are many, without proper policies, training, and supervision in place, this delegation could lead to ethical violations and unfortunate consequences for clients and lawyers. The practice must be ‘carefully and astutely managed.'”
• “Whether a nonlawyer may answer a prospective client’s specific question depends on the question presented and what would be considered to be the practice of law in the jurisdiction. That is important because Model Rule 5.5(a) prohibits lawyers from assisting others in practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. As Comment [2] notes, the definition of the practice of law is established by law and varies from one jurisdiction to another. Lawyers should understand how it is defined in their jurisdiction and take care that the supervised nonlawyers understand that definition and how it limits what nonlawyers may do.”
• “For example, whether a nonlawyer may answer a question relating to fee or cost calculation or how payments can be made may depend on whether the question requires the application of law to the facts of the case, as opposed to a question that merely asks about a firm procedural matter. When the question presented would require the application of law to facts, a nonlawyer also may convey a client question to the lawyer, have the lawyer determine the answer to the question, and then relay the lawyer’s answer to the client, again, depending on the complexity of the question posed. The lawyer will be responsible for determining if the inquiry is best answered by the lawyer communicating directly with the client, so the lawyer can gather more information to make an informed recommendation.”

“Law firm denied coverage for search warrant compliance” —

• “Where the government executed a search warrant at a law firm, that wasn’t a ‘claim’ under the firm’s insurance policy. The warrant authorized law enforcement to carry out the search and seizure without regard to any response by the target of the warrant.”
• “The law firm of Brown Goldstein Levy LLP, or BGL, and one of its partners, Joshua Treem, filed suit against their insurer, Federal Insurance Company, when it refused to provide coverage for costs appellants incurred after the government investigated Treem, executed a search warrant at BGL’s office and notified Treem that his representation of certain clients may present a conflict of interest.”
• “The district court held that there was no ‘Claim,’ as that term is defined in the insurance policy, and alternatively that any costs appellants incurred were excluded from the policy’s definition of ‘loss.'”
• “The district court concluded, ‘[s]earch warrants are not forms of ‘relief,’ but rather constitute judicial authorization — based upon a finding of probable cause — to conduct searches of places and things.’ The district court further held that because ‘[t]he Government did not seek to redress any diminution of its legal rights, nor did it seek remedy for any harm brought upon it by [appellants] in its pursuit of the Search Warrant,’ the warrant application was not a demand or request for relief against the insured. This court agrees with the district court.”
• “In support of their argument that the search warrant is a ‘Claim,’ appellants cite several cases which hold that subpoenas are written demands or requests for relief. But a subpoena differs from a search and seizure warrant in that it does command the recipient to comply.”

“A Tenth Of An Hour” —

• “In this appeal from summary judgment in a breach of contract action, defendants argue plaintiff law firm violated rules of professional conduct by failing to disclose in its retainer agreement the unit of incremental billing – one tenth of an hour – it would utilize during the course of representation. Plaintiff and defendants entered two retainer agreements, both of which disclosed a required initial deposit, the hourly rates of each attorney at the firm, and which party was responsible for certain administrative costs.”
• “Plaintiff represented defendants for more than two years pursuant to the parties’ retainer agreements, sending monthly and bimonthly invoices throughout the duration demonstrating work billed in increments of one-tenth of an hour. When defendants refused to remain current with outstanding fees, plaintiff ceased representation and instituted the breach of contract action. The trial court granted summary judgment. Defendants urged reversal on appeal.”
• “The court affirmed summary judgment as properly granted, and held the retainer agreement was lawful and ethical where, among other things, it sufficiently apprised the clients of the express terms of the agreement in accordance with RPC 1.5(b), and the parties’ course of conduct for two years demonstrated assent to those terms.”
• “Defendants argue a retainer agreement must explain which increment of time–for example, one-tenth of an hour–the law firm will be utilizing despite hourly rates and initial deposits being otherwise clearly defined. The trial court noted a dearth of case law, statutes, and comments to the rule addressing this issue and ruled AMG was entitled to summary judgment for breach of contract. We agree.”

“A Multistate Analysis of the Ethical Rules Governing Attorneys Working Remotely” —

• “The COVID-19 pandemic, along with government stay-at-home orders, required millions of professionals to work from home, including attorneys. However, as the pandemic comes to an end, many attorneys wish to continue to work from home. In response, law firms across the country now offer a flexible working environment, with many settling on a hybrid working schedule and some offering fully remote positions.”
• “However, remote work poses unique issues for managing personnel and supervising attorneys. Careful attention must be paid to the applicable rules of professional conduct regarding where the attorney lives and works to ensure that the attorney fully complies with these rules. This article offers insights into some of the major ethical concerns presented by remote legal work. It then provides some advice to supervising attorneys in order to avoid violating applicable ethics rules.”
• “Managing partners’ most crucial consideration regarding remote work should be whether the practice would be viewed as the unauthorized practice of law (UPL). Attorneys not licensed by a governing state cannot practice law in that state. Accordingly, the following questions arise: If a lawyer is licensed to practice law by state A but lives in state B, would the lawyer violate the UPL rule of state B when the lawyer works remotely from home on matters exclusively dealing with state A?”
• “ABA Model Rule 5.1(a) requires supervising attorneys to ‘make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.’ Hence, managing attorneys have an ethical responsibility to ensure the ethical issues identified above are addressed if any attorneys at their firm work remotely. But how can lawyers effectively supervise other lawyers remotely? Below is some advice to follow.”

“Tracing Key Legal Developments in the UK’s AML Regime” —

• “Prateek Swaika and Sagar Gupta of Boies Schiller Flexner discuss the regulatory framework of UK’s anti-money laundering regime and explore key legal developments.”
• “In response to the Russian military action in Ukraine, the UK government has continued to impose stringent sanctions and strengthened its anti-money laundering regulations aimed at targeting Russian financial and trade sectors, state-owned media and individuals connected with the Russian government. In turn, this has influenced the attitude, risk appetite and risk exposure of businesses in recent months.”
• “Considering the heightened scrutiny and evolving regulatory landscape, businesses (including accountants, consultants and lawyers) in the UK are facing ever-increasing oversight and must be careful not to run afoul of AML regulations. This includes instituting and maintaining up-to-date policies and procedures designed to promote and achieve AML compliance.”
• “Businesses, particularly small to medium ones, are likely to come under increasing pressure to maintain strict compliance with an ever-growing number of compliance checks and obligations.”
• “We anticipate that this area will continue to see reform, such as with the passing of the Economic Crime and Corporate Transparency Bill, which remains under consideration in Parliament.”
• “This legislation provides for increased investigation and enforcement powers for Companies House, brings crypto assets within the scope of civil forfeiture orders, legislates against the misuse of limited partnership structures and permits businesses to share information to combat economic crime.”
• “Given that AML and sanctions have been front and center of the UK government’s legislative and regulatory agenda in recent months, it is unsurprising that regulators such as the Solicitors Regulation Authority (SRA) are also being given more teeth in order to ensure AML compliance among practitioners.”
• “These changes have brought the role of AML compliance officers in businesses and law firms into sharp focus. With the increased regulatory enforcement owing to the geopolitical situation in Europe, it is likely that businesses will continue to be closely monitored and scrutinized for their AML compliance, including the conduct of AML compliance officers.”
• “With increasing focus on customer due diligence and verification of ultimate beneficial owners, due to the legislation described below, it is likely that firms will need to conduct a lookback review of customer due diligence files and take appropriate action. In view of this increasing compliance burden, it is imperative for AML officers to maintain ongoing dialog with their business teams to promote information sharing and risk reporting.”

“American Lawyers Can Cater to the Corrupt. The ABA Should Act” —

• “Congress narrowly fell short of passing a bill requiring attorneys perform the same safeguards as others to prevent money laundering. The ABA lobbies against these changes but should fight for reform, says Scott Greytak of Transparency International US.”
• “An international law enforcement task force created in the wake of Russia’s invasion of Ukraine recently announced an alarming accomplishment: A guilty plea from an ‘enabler’ of international money laundering and sanctions evasion. The accused had admitted to helping an associate of a known Russian oligarch dodge rules adopted in response to an ‘threat to the national security and foreign policy of the United States.'”
• “Who was this mastermind, who’d helped move millions in dirty money across the world? Was it a Russian operative, covertly channeling illicit transactions from a bunker in Belgorod?”
• “No. It was a New York City lawyer, sitting at his desk. And if the US’s largest association of lawyers, the American Bar Association, continues to have it its way, every lawyer in America will remain exempt from the US’s most important anti-money laundering law.”
• “American lawyers are often the go-to middlemen for criminals looking to move and hide their dirty money in the US. And for good reason—neither federal law nor the model ethics rules put out by the ABA require lawyers to know who their clients are, to conduct due diligence on those clients, or to stop working with them if they suspect they’re using their services to commit a crime.”
• “Unlike every bank in America, American lawyers are not subject to the US’s most important anti-money laundering law, the Bank Secrecy Act. This is true even when they’re providing services that are financial in nature, such as incorporating a company for a client, setting up a trust for a client, or managing a client’s money—none of which require a law license. Adding insult to injury, the ABA’s Model Rules of Professional Conduct do not require American lawyers to have any BSA-grade anti-money laundering safeguards.”
• “Given the razor-thin margin that kept the Enablers Act from becoming law, and perhaps needing to mitigate the reputational damage wrought by its controversial lobbying campaign to block the reform, the ABA recently proposed some changes to its Model Rules. But as with so much legal fine print, the devil is in the details.”
• “If, from that assessment, the lawyer “learns” that the client or potential client seeks to use the lawyer’s services to commit a crime, and the client essentially cannot be persuaded otherwise, the lawyer must decline or terminate the representation.”
• “Note first how this language (and associated comment) do not actually use the words ‘due diligence’ or even ‘client.’ There is intention in this choice. The term “due diligence” carries with it known industry usage and standards, particularly in the context of the BSA.”
• “Note also how the proposal doesn’t require that lawyers have any specific due diligence policies or procedures. Instead, it simply alludes to lengthy guidance documents…”
• “Altogether, the American Bar Association is essentially saying, ‘Hey, we already have ethics rules that address the use of lawyers to launder money. But here’s some more guidance to show how they work.’ But as we all know by now, these rules have failed. Instead, the ABA’s latest proposal serves only as another reminder that what’s needed is action from Washington.”

“A Failure to Decentralize: A Messy 4 Months at Lewis Brisbois Has Roots in Belated Succession Planning” —

• “Although talks of reconfiguring Lewis Brisbois Bisgaard & Smith’s governance structure and management personnel had been underway for years, it took the departure of more than 150 lawyers so far this year to serve as an impetus for action.”
• “For years, partners and executives have complained about the firm’s opaque leadership, unilateral decision-making and lack of succession planning, sources with knowledge of the firm, some of whom agreed to speak to The American Lawyer on the condition of anonymity, said.”
• “Abrupt shifts that have taken place within the last month at the Am Law 100 firm, including Lewis’ resignation and the dissolution of the executive committee, speak to the challenges of tactfully transitioning leadership from the founding generation to a new one, according to lawyers and consultants interviewed for this story.”
• “Grievances of opaque management spilled over into the public square last week when a 2019 letter by former chief operating officer Robert Kamins to California state authorities surfaced, alleging financial impropriety and asset-hoarding by longtime chairman Bob Lewis and other ‘insiders’ at the firm. (Firm leaders have denied the allegations.)”
• “The letter claims Kamins discovered ‘questionable practices which he reasonably believed violated the law,’ and alleges that following his termination, the firm ‘continued to make operational changes that—rather than stopping the unlawful conduct—have further solidified the control of the Firm in the hands of those who are behind the unlawful conduct.'”
• “Within the last 10 years, two cybersecurity groups acquired by the firm have left, most recently, the firm’s 44-person cyber group who left for Constangy, Brooks, Smith & Prophete. In 2014, a team of cyber lawyers from now-defunct Nelson Levine opened the firm’s Pennsylvania office before starting cybersecurity boutique Mullen Coughlin two years later.”
• “In a 2021 interview with The Legal Intelligencer, leaders of Mullen Coughlin said it was founded by partners who sought to evade the constraints of larger firms—namely, territorial competition for clients and origination credit, pressure to maintain a sizeable book of business and inefficiency in checking for conflicts of interest.”
• “‘We need to be fast on conflict checks, and when you’re at a firm with 1,000-plus lawyers, you can’t,’ John Mullen said, adding that in Big Law, there are ‘too many lawyers with too many clients who keep them as clients forever.'”
• “Competition for cybersecurity legal professionals comes from all sides, and law firms can be viewed as a training ground from which higher-paying companies can recruit.”
• “Departures and leadership changes have come as a shock to some number of Lewis Brisbois employees, who received an email May 5 from firm leaders apologizing for failing to give notice about the departures and changes before they were publicized by media outlets like The American Lawyer.”
• “Emails downplaying the seismic exits have been circulated this month seeking to instill morale among employees in the face of seismic exits and media attention, sources inside the firm said.”

And more: “Ex-Lewis Brisbois partners resign from new firm after racist, sexist emails found” — “The name partners of U.S. law firm Barber Ranen have resigned after their former law firm Lewis Brisbois Bisgaard & Smith found dozens of emails that showed the lawyers using racist, sexist, homophobic and antisemitic language while they were there, according to Barber Ranen’s chief executive officer.”

“Federal judge who ruled against DeSantis will recuse himself from Disney case” —

• “A federal judge who has a history of ruling against Ron DeSantis is stepping aside from presiding over a high-profile case where Disney sued the Florida governor.”
• “The state previously pushed to disqualify U.S. Chief District Judge Mark Walker based on comments he made in court about the ongoing dispute between the entertainment giant and Republican governor. DeSantis, who mounted a presidential bid, has made his fight with Disney a key part of his political brand.”
• “Walker on Thursday called the motion filed by the state ‘meritless.’ But he said he’ll remove himself from the case because he discovered last week that an unidentified ‘third-degree’ relative of his owns 30 shares of Disney stock.”
• “‘Even though I believe it is highly unlikely that these proceedings will have a substantial effect on The Walt Disney Company, I choose to err on the side of caution — which, here, is also the side of judicial integrity — and disqualify myself,’ Walker wrote in a 14-page order. ‘Maintaining public trust in the judiciary is paramount, perhaps now more than ever in the history of our Republic.'”
• “Walker, who was appointed to the bench by former President Barack Obama, has presided over several contentious legal fights in the past several years that have involved DeSantis, former Gov. Rick Scott and the GOP-controlled Florida Legislature.”
• “The result of Walker’s decision is that the Disney lawsuit has now been reassigned to U.S. District Judge Allen Winsor, an appointee of former President Donald Trump who once worked as Florida’s solicitor general under then-state Attorney General Pam Bondi.”

“Judge presiding over Big Oil climate change lawsuit reveals connection to plaintiff’s eco lawyers” —

• “The Hawaii state judge presiding over a high-stakes climate change case between the City of Honolulu and several multinational oil corporations is facing calls for recusal over his indirect relationship to plaintiffs.”
• “Mark Recktenwald, the chief justice of the Hawaii State Supreme Court, quietly disclosed this month that he presented for an April course in collaboration with the Environmental Law Institute (ELI) Climate Judiciary Project. According to the ELI, the project is designed to educate judges across the country on how to handle climate change litigation that comes before them.”
• “The ELI, though, boasts numerous connections to Sher Edling, the eco law firm representing Honolulu and a number of other jurisdictions, including Minnesota, New Jersey, New York City, and San Francisco, in similar climate nuisance cases against oil corporations in which plaintiffs argue the fossil fuel industry has spearheaded a decades-long campaign of deception about global warming risks.”
• “In his disclosure earlier this month, Recktenwald publicly shared the slide deck for his ELI presentation titled ‘Rising Seas and Litigation: What Judges Need to Know About Warming-Driven Sea Level Rise.”‘ The chief justice spoke about a number of ongoing climate nuisance suits and discussed arguments plaintiffs have made in court, the slide deck showed.”
• “Recktenwald’s disclosure notably failed to mention that he also presented at a December ELI webinar titled ‘Hurricanes in a Changing Climate and Related Litigation.'”

“Law Firm Mergers, Pitched as Benefiting Clients, Also Can Bring Headaches, Conflicts” —

• “When Allen & Overy and Shearman & Sterling announced their merger plans Sunday, they said it was ‘driven by clients’ needs for a seamless global offering of the highest quality and depth.'”
• “But Brennan and other in-house veterans who have experienced mergers say there also can be dark sides, such as new conflicts, administrative hassles and cultural tensions.”
• “Kimberly DeCarrera, who was a legal chief and chief financial officer for a nearly a decade before starting her own fractional general counsel business, said conflicts checks are always the No. 1 concern for legal teams when news of a law firm merger breaks. ‘Obviously there are headaches any time a relationship changes,’ DeCarrera said.”
• “She recalled being in the middle of a case when the law firms representing both sides decided to combine. ‘It wasn’t a bet-the-company type of case, but how do you handle that process?’ DeCarrera said.”
• “Conflicts are becoming increasingly unavoidable as more firms combine, said Brennan, who was an associate general counsel at Carvana before joining Axon in 2021. ‘There’ve been so many mergers that it’s almost inevitable that every big firm is going to be representing our primary competitor,’ she said.”
• “‘As these mergers continue to happen, law firms and clients need to be prepared. The conflicts piece is really the biggest con. And being flexible and finding a way to draft language and create understandings that both clients feel comfortable with is really important.'”
• “Sometimes firms may have to cut ties with clients if they can’t work around conflicts.”

“Judges join lawyers in the bear pit” —

• “While we catch our breath as change and challenge rain down on our profession, we may take cold comfort from the fact that we are not alone: judges are beginning to feel the heat, too, from the evolving expectations of a society under stress.”
• “You may wonder what that has to do with us, but the Financial Times reported last week that High Court judges had invested in controversial tax avoidance schemes which were challenged by HM Revenue & Customs, including one judge who has ruled on tax avoidance cases – and each has retained their interests in the schemes after taking their positions as High Court judges. Whatever one’s take, it is clearly not of the same order as the allegations against the justice of the US Supreme Court.”
• “The UK does not require its judges to make systematic disclosures about their interests. The UK Guide to Judicial Conduct, which is written by judges themselves, merely requires judges to make ad hoc disclosures to parties in particular cases if the judge views they have any conflict of interest or if they believe there is the risk of an appearance of a conflict of interest. In other words, judges decide for themselves.”
• “We lawyers have been under heavy pressure for years over our alleged role in facilitating tax avoidance, for instance following the Panama and Paradise Papers’ leaks. This has led to a serious debate about our ethics, for instance when something is lawful but viewed by others to be wrong. Judges have different roles, but it surely cannot be long before there is a beefed up and binding code of conduct for our judges.”
• “Lawyers are private actors, with an element of choice. Judges are state actors who have been seen as above the fray. But as the two examples of tax avoidance and climate change show, judges are now as much in the mêlée as we are.”

Chances are, you’ve read about: “A lawyer used ChatGPT to prepare a court filing. It went horribly awry.” This ripple, which I hope wasn’t drafted by an AI, caught my eye: “Federal Judge Requires ‘Mandatory Certification Regarding Generative AI’” —

• “All attorneys appearing before the Court must file on the docket a certificate attesting either that no portion of the filing was drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence was checked for accuracy, using print reporters or traditional legal databases, by a human being.”
• “These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations.”
• “Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why.”
• “Accordingly, the Court will strike any filing from an attorney who fails to file a certificate on the docket attesting that the attorney has read the Court’s judge-specific requirements and understands that he or she will be held responsible under Rule 11 for the contents of any filing that he or she signs and submits to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing.”

“Ohio Doctor Takes Dinsmore DQ Fight To 6th Circ.” —

• “An Ohio doctor told the Sixth Circuit Thursday that it should undo his employer’s win in his retaliation suit against it, as the lower court did not rule on his bid to disqualify Dinsmore & Shohl LLP as the hospital’s counsel for previously representing him in a suit against a ‘rogue orthopedic surgeon’ he had blown the whistle on.”
• “Dr. Charles Mehlman, also an orthopedic surgeon, had claimed in his 2020 complaint that his employer, Cincinnati Children’s Hospital Medical Center, sought to ‘punish him’ for speaking up about the now-infamous Dr. Abubakar Atiq Durrani and his practice of performing unnecessary spinal surgeries on patients, including children. Mehlman was deposed by plaintiffs who sued Durrani for malpractice, and he was represented by Dinsmore & Shohl LLP at the time, which he said in his brief should have disqualified it from representing the hospital in his retaliation suit.”
• “When Mehlman filed his retaliation suit after receiving a two-week suspension ‘without notice or other form of process,’ the hospital retained Dinsmore & Shohl as its legal counsel and ultimately secured an early win in January despite Mehlman’s motion to disqualify the firm, which the lower court did not address, his brief states.”
• “‘The district court should have ruled on Dr. Mehlman’s motion to disqualify counsel prior to ruling on defendants’ motion for summary judgment because a motion for disqualification has the potential to alter the course of proceedings substantially,’ Mehlman said.”
• “According to the brief, the district court shirked its precedential requirement to decide on his disqualification motion before making a dispositive ruling like a summary judgment grant, and it was inappropriate for the court to allow Dinsmore & Shohl to represent the hospital since Mehlman’s claims were ‘inextricably linked’ to the Durrani depositions the firm had represented him for.”

“California Ethics Group Tells Judges Not to Party With Lawyers” —

• “California judges should refrain from attending law firm celebrations at the firm’s offices with complimentary food and beverages under a draft ethics advisory out for comment.”
• “The California Supreme Court’s Committee on Judicial Ethics Opinions’ draft opinion follows a request on whether a judicial officer could attend a 50th anniversary celebration.”
• “‘A judicial officer’s presence at such an event may suggest that the judicial officer has a special relationship with the law firm, which may undermine the impartiality of the judiciary or convey the impression that the law firm is in a position to influence the judicial officer’s judicial decisions,’ the draft said.”
• “In a footnote, the draft said attending a law firm celebration ‘is distinguishable from attending a bar association or legal education event sponsored by law firms. Such activities do not generally undermine judicial impartiality, and a specific exception to the gift prohibition applies.'”

“PwC in the firing line and AFP drawn in as Senate asks hard questions about conflict-of-interest drama” —

• “PwC gets paid millions to get companies and governments out of trouble, but it’s in the middle of an international crisis after a former tax partner used confidential Treasury information to make millions for the consulting firm.”
• “‘PwC was brought in as a trusted adviser and expert to help shape [new] laws,’ says columnist and author Tom Ravlic. ‘They’ve taken that knowledge and then used it to undermine them almost immediately.'”
• “Now PwC Australia’s biggest client — the federal government — is seething.”
• “About a decade ago, the government asked PwC tax expert Peter-John Collins to help it design laws to better tax multinational companies. Large companies, particularly tech giants, were shifting profits from higher-taxing countries like Australia to others like The Netherlands and Singapore with lower tax rates.”
• “Mr Collins signed multiple confidentiality agreements, specifying the knowledge could not be disclosed. But he shared the secret knowledge within PwC, helping the firm create a system for those companies to avoid paying the new taxes.”
• “The company used the scheme to make money and win new clients, then gloated about it. The Tax Practitioners Board was damning in its assessment of Mr Collins, saying he ‘did not act with integrity’ and disqualifying him from working in the field for two years.”
• “The board said he signed multiple confidentiality agreements and it was clear the Treasury information was being disclosed on a confidential basis.”
• “But will there be criminal or civil charges? That’s unclear, according to UNSW business law expert Dr Scott Donald. That’s because the allegation so far is that PwC benefited from a breach of a confidentiality agreement. An agreement we haven’t seen.”
• “So far, all we know is that PwC won $2.5 million in fees from new clients when it marketed the arrangements. (There is no suggestion the clients were aware of how the information was obtained).”
• “Dr Donald says that’s underquoting what probably occurred, because the firms create value by having close relationships with government and ‘being able to interpret, anticipate, perhaps even influence the way that government sets up various regimes, whether it’s tax or other sorts of (policy) and then being able to then sell that information that knowledge off to their clients. ‘So the profit that they make isn’t $2.5 million. It’s actually much larger than that, because they have a whole business. This is what they do.'”
• “People working in finance are blown away by the scandal, because there are clear rules about confidentiality and managing conflicts of interest — particularly when you have your hands on other people’s money.”

“Warnings raised as PwC paid $8.7m to collect Australian aged care data while helping to set industry prices” —

• “The Consultancy firm PwC will be paid $8.7m to collect sensitive commercial data from aged care providers while helping the Australian government set new service prices, despite simultaneously charging the industry for advice on pricing.”
• “Senators and unions have warned the contract, which could give PwC access to protected pricing information subject to secrecy provisions, is fraught with potential conflicts of interest that may be difficult to avoid.”
• “PwC will collect ‘cost and activity data’ from facilities across the country and develop a new costing framework for the federal government.”
• “At the same time, another division in PwC is selling consultants to the aged care industry who can ‘benchmark your organisation against others in the industry,’ or ‘assist service providers to remain viable and accountable to their service costs and pricing.'”
• “PwC’s work with government is under renewed scrutiny after the global firm allegedly profited from sharing confidential government tax policy with clients. This $8.7m contract with IHACPA was signed days before those allegations were first published by the Australian Financial Review.”
• “The government spokesperson said PwC was required to immediately disclose any conflicts of interest and failure to do so could result in the contract being terminated. But Rice said relying on PwC to disclose conflicts of interest was not an adequate response given its extensive work with the aged care industry.”
• “A PwC spokesperson would not comment on the IHACPA contract, but stressed the firm had ‘strict conflict and risk management processes’ that were ‘always followed rigorously before an engagement is commenced.'”
• “In a submission to an ongoing inquiry into the government’s use of consultants, PwC’s chief executive, Tom Seymour, apologised for the tax policy breach reported in January. ‘We have taken extensive steps to both raise awareness of the significance of these issues across all partners and staff in the firm and have invested further in policies and training which address these matters to protect against future recurrence,’ Seymour said.”

“Climate Authority Under Fire for Conflict of Interest After PwC Scandal” —

• “The Minister for Climate Change and Energy has been urged to review potential conflicts of interests at Australia’s key climate change agency in light of the integrity scandal at PwC and the consulting services sector.”
• “In a letter to Minister Bowen, the Australia Institute has raised concerns regarding appointments to the Climate Change Authority (CCA) and highlighted legal questions raised by potential conflicts of interest held by CCA board members, including the chair of the agency, Grant King.”
• “Australia Institute research has revealed the extensive overlap between industry and government in Australia, and the risk this puts to independent policymaking. The senate inquiry raises the question of whether scrutiny must go beyond consulting firms being employed by government agencies, to conflicts of interest within government agencies themselves.”
• “‘We believe there are serious integrity questions regarding conflicts of interest at the highest levels of climate policy making in Australia,’ said Polly Hemming, Director of the Climate & Energy Program at the Australia Institute.”
• “‘The PwC scandal and the Inquiry into consulting services has shown us that potential conflicts of interest are not always disclosed, let alone managed… The public should have access to a transparent register of declared interests by statutory officials. Then they could decide whether conflicts were being managed appropriately or not.'”