Bressler Risk Blog

“How Hospice Became a For-Profit Hustle” —

• “But at AseraCare, a national chain where Farmer worked, she solicited recruits regardless of whether they were near death. She canvassed birthday parties at housing projects and went door to door promoting the program to loggers and textile workers. She sent colleagues to cadge rides on the Meals on Wheels van or to chat up veterans at the American Legion ba. ‘We’d find run-down places where people were more on the poverty line,’ she told me. ‘You’re looking for uneducated people, if you will, because you’re able to provide something to them and meet a need.'”
• “It might be counterintuitive to run an enterprise that is wholly dependent on clients who aren’t long for this world, but companies in the hospice business can expect some of the biggest returns for the least amount of effort of any sector in American health care.”
• “Up to a point, the way Medicare has designed the hospice benefit rewards providers for recruiting patients who aren’t imminently dying.”
• “Almost immediately after the Asera-Care takeover, Farmer’s supervisors set steep targets for the number of patients marketers had to sign up, and presented those who met admissions quotas with cash bonuses and perks, including popcorn machines and massage chairs.”
• “Farmer’s bigger problem was that her patients weren’t dying fast enough.”
• “But Farmer’s company, like many of its competitors, had found ways to game the system and keep its money.”
• “Less than a year later, the Justice Department, after conducting its own investigation, intervened in the whistle-blowers’ complaint, eventually seeking from AseraCare a record two hundred million dollars in fines and damages.”
• “Before the trial started, the judge in the case, Karon O. Bowdre, disclosed that she’d had good experiences with hospice. Her mother, who had an A.L.S. diagnosis, had spent a year and a half on the service, and her father-in-law had died in hospice shortly before the trial. Principals in the case disagree about whether she disclosed that the firm handling AseraCare’s defense, Bradley Arant, had just hired her son as a summer associate.”
• “The defense team had petitioned Bowdre to separate the proceedings into two parts: the first phase limited to evidence about the ‘falsity’ of the hundred and twenty-three claims in question, and the second part examining, among other things, the company’s ‘knowledge of falsity.'”
• “The Justice Department objected to this ‘arbitrary hurdle,’ arguing that the purpose of the False Claims Act was to combat intentional fraud, not accidental mistakes. ‘The fact that AseraCare knowingly carried out a scheme to submit false claims is highly relevant evidence that the claims were, in fact, false,’ the government wrote. Nonetheless, in an unprecedented legal move, Bowdre granted AseraCare’s request.”
• “But the government lawyers seemed genuinely confused about what the judge would and wouldn’t allow into the courtroom during the trial’s ‘falsity’ phase.”
• “The judge’s prohibition on ‘knowledge’ during the trial’s first phase constrained testimony in sometimes puzzling ways. Richardson, for instance, could talk about admitting patients, but she couldn’t allude to the pressure she was under to do so. The audit by the Corridor Group that corroborated whistle-blower claims was forbidden because it wasn’t directly tied to the specific patients in the government’s sample.”
• “Its medical directors were part time, as is common in the industry, and workers testified that they’d presented these doctors with misleading patient records to secure admissions. One said that a director had pre-signed blank admissions forms. ‘Ask yourself: How could a doctor be exercising their clinical judgment,’ Wertkin told the jury at one point, ‘if he’s signing a blank form?'”
• “She needn’t have worried. Bowdre’s restrictions prevented Farmer from testifying about much of anything. ‘I felt like the judge did not want to know the truth,’ she said. ‘The whole time that I was on the stand, I kept thinking, Why would you not listen to the story?'”
• “After nearly two months of testimony, the jurors deliberated for nine days on phase one. On October 15, 2015, they found eighty-six per cent of the patient sample ineligible for some period of hospice care. Elated, Barger rushed out of the courtroom to call Farmer and tell her that the jury had come back overwhelmingly in the government’s favor.”
• “The next part never happened. A few days later, Bowdre made a startling announcement: she had messed up. The instructions that she’d given the jury had been incomplete, she said, and because of this ‘major reversible error’ she was overturning the jury’s findings and granting a request by AseraCare for a new trial.”
• “She invited the government to submit evidence other than Liao’s opinion to prove that the claims were false; the government replied that the record presented ample evidence of falsity. Five months later, in March, 2016, Bowdre granted summary judgment to AseraCare.”
• “It’s unusual for a judge to overturn a jury’s findings, order a new trial, and then declare summary judgment on her own accord, Zack Buck, a legal scholar at the University of Tennessee who studies health-care fraud, told me. The case, he said, ‘just kept getting weirder.'”
• “On September 9, 2019, the False Claims Act took a second hit when the U.S. Court of Appeals for the Eleventh Circuit published a long-anticipated ruling on the AseraCare case. The judges concurred with Bowdre that the government needed more than the testimony of an outside expert to prove a claim was false. However, they vacated Bowdre’s summary judgment, saying that the prosecution should have been able to present all its evidence, including AseraCare’s alleged “knowledge of falsity,” and sent the case back to her courtroom for a retrial. ‘When the goalpost gets moved in the final seconds of a game,’ the judges wrote, ‘the team with the ball should, at the least, have one more opportunity to punch it into the endzone.'”
• “The government did not appear enthusiastic about trying the AseraCare case for a second time before Bowdre, though.”
• “In February, 2020, eleven years after Farmer and Richardson filed their complaint, the government reached a settlement with AseraCare, for a million dollars. As in most such settlements, AseraCare paid the sum, admitted no wrongdoing, and was allowed to keep billing Medicare. Jack Selden, a partner at Bradley Arant who worked on the defense team, told the trade journal Law360, ‘When a case settles for $1 million where the claims have been for over $200 million, I think that speaks for itself.'”

“Lawyers Should Be Key Reporters in Anti-Money Laundering Efforts” —

• “As attorneys who have spent substantial portions of our careers working to combat money laundering and financial crime, we understand well the threat posed by the unchecked flow of dirty money. These transactions through the US financial system often stem from corruption, drug trafficking, and other serious crimes.”
• “It’s a discomforting, if instructive, truth that when crooks and dictators consider hiding their criminal proceeds in the US, their first stop is often, unfortunately, a lawyer.”
• “International standards have evolved to include legal professionals among those required to help prevent and report cases of money laundering. But loopholes in US anti-money laundering laws continue to exempt many gatekeepers in the financial system. This includes certain lawyers and accountants, as well as company agents and trust providers, who help clients anonymize and hide dirty money. America is nearly unique in this way.”
• “The Establishing New Authorities for Businesses Laundering and Enabling Risks to Security Act—or ENABLERS Act—is an amendment to the annual National Defense Authorization Act. It would close these loopholes by authorizing the Treasury Department to require certain categories of financial service providers to adopt anti-money laundering safeguards. This would include filing a notice when they suspect that a transaction is being used to launder funds.”
• “If passed, the ENABLERS Act would incorporate into federal law principles already established as official best practices by the international anti-money laundering standard setter, the Financial Action Task Force. These best practices require customer due diligence and record-keeping protocols for lawyers and other independent legal professionals and accountants who implement transactions for clients in corporate formation, money management, and similar business services.”
• “This team has worked extensively on money laundering matters representing a range of parties in many, often complex, situations and environments. We have zero concern that the ENABLERS Act would threaten attorney-client privilege, client confidentiality, or any principles governing the ethical obligations of attorneys and other professionals to their clients.”
• “Notably, the ABA’s model ethics rules already allow America’s lawyers to report criminal activity by clients to prevent a crime that would cause substantial injury to the financial interests or property of another, or to mitigate injury when the client has used the lawyer to do this. The ENABLERS Act is consistent with this framework.”
• “Lawyers are among the first defenders of our freedoms. They should be enlisted to help protect our financial system from being a conduit for criminal and kleptocratic funds. Congress has a crucial opportunity right now to bring lawyers in as partners in fighting financial crime.”

“Conflict of Interest? Attorney Disqualification Requested in Houston Real Estate Trust Fight” —

• “Citing potential ethics violations, counsel for the former head of a publicly traded real estate investment trust is asking a Houston judge to disqualify the opposing counsel because of his past relationship with a client.”
• “In Pillarstone, counsel for Mastandrea asked opposing counsel Alistair Dawson of Beck Redden to withdraw and Dawson refused, according to court documents. Mastandrea responded with the Nov. 14 filing of the disqualification motion.”
• “Peter Tropoli, Whitestone’s general counsel, told Texas Lawyer that Dawson is on the case at their request and he has never represented Pillarstone, which is the plaintiff. While Mastandrea is chairman of the board, he is not a named plaintiff.”
• “‘There is no conflict that would prevent him from continuing to represent Whitestone in this case,’ Tropoli said. ‘In our judicial system, when people are sued, they get to choose who represents them.'”

“Tucker Ellis Disqualified From Insurance Fight With Seaman Corp” —

• “Seaman Corp. got Tucker Ellis LLP disqualified as Zurich American Insurance Co.’s counsel due to a conflict of interest in a suit alleging it failed to fully defend it in a product liability case.”
• “Seaman sued Zurich and Everest National Insurance Co. after the insurers allegedly failed to provide a complete defense of the litigation, brought by Target Corp. Seaman moved to disqualify Tucker Ellis as Zurich’s counsel here, arguing that Lindsey Sacher—formerly employed by Calfee, Halter & Griswold LLP—represented Seaman in the same matter involving Target.”
• “Sacher has a former client conflict under Ohio Rule of Professional Conduct 1.9, according to US Magistrate Judge Amanda M. Knapp of the US District Court for the Northern District of Ohio. Knapp agreed with Seaman that Sacher had substantial responsibility for representing Seaman in the insurance coverage matter when she was with Calfee.”
• “Knapp also held that Sacher’s role in the underlying matter was substantial enough to impute the conflict to Tucker Ellis under the rules in Ohio.”

“Florida Supreme Court Justice Faces Second Motion to Disqualify This Week” —

• “Whitney Boan, an Orlando-based attorney, on Wednesday filed a new motion to disqualify Florida Supreme Court Justice Jamie Grosshans from presiding over litigation in which her husband is a member of the entity whose conduct is at issue.”
• “The cases underlying those motions are based on a dispute about whether several nominees meet residency requirements to fill vacancies on a new Sixth District Court of Appeal and a revamped Fifth District Court of Appeal.”
• “In the case against the Fifth District Court of Appeal Judicial Nominating Commission as a defendant, Boan claimed that Grosshans violated Canon 3E(1)(d)(i) of the Florida Code of Judicial Conduct because her spouse, Joshua D. Grosshans, is a member of the Sixth District Court of Appeal Judicial Nominating Commission.”
• “Boan added that even if an appellate judge determines that a motion for disqualification is not legally sufficient, a jurist could still voluntarily recuse if he or she believed that ‘such recusal would be in the best interests of the administration of justice.'”

“Abraham Watkins Sues Ex-Associate, Alleging He Took Confidential Information, Solicited Clients” —

• “Houston plaintiffs firm Abraham, Watkins, Nichols, Agosto, Aziz & Stogner has sued a former associate, alleging he solicited clients and copied files in preparation for a move to another firm, and then after he left, continued to use confidential client contact information.”
• “Abraham Watkins seeks up to $1 million in damages from Festeryga, now an associate at Ammons Law Firm in Houston.”
  “In a written statement, Alarcon said Festeryga ‘categorically denies’ the allegations.”
• ‘The central allegations in AW’s petition—that Mr. Festeryga secretly solicited clients while employed by AW and that he wrongfully retained client files—are false…What this case is really about is a law firm trying to fleece a young lawyer from a bonus that he earned after recovering a multimillion-dollar fee for the firm. Would-be associates of AW should take notice.'”
• “The firm also sought a temporary restraining order to, among several things, prevent Festeryga from destroying or distributing any information he took from his former firm, using any of its confidential or trade secrets information for any purpose, willfully or intentionally interfering with any of the firm’s clients relationships, communicating with any firm employee for the purpose of aiding or abetting disclosure of confidential or privileged information, or publishing or continuing to publishing any videos on social media or secretly recorded conversations.”
• “Dale Jefferson, who represents Abraham Watkins, said 333rd District Judge Brittanye Morris granted the TRO late Monday afternoon following a zoom hearing.”
• “As alleged in the original petition, Abraham Watkins managing partner Benny Agosto received information in September that Festeryga was leaving to join another firm and soliciting clients, and he confirmed on Sept. 27 with a client that the associate had told her she was ‘obligated’ to go with him to the new firm.”
• “That same day, according to the petition, Agosto confronted Festeryga about the information ‘that he was leaving the law firm, that he had already accepted other employment, that he was copying files, and that he was attempting to solicit AW [Abraham Watkins] clients to leave.'”
• “As alleged in the petition, Abraham Watkins sent Festeryga a demand that he return the information, but he has not done so and has instead continued to publicize private information on social media, including information about a confidential settlement.”

“Firms Could Face More Pressure From Insurers Following Public, Inadvertent Disclosures” —

• “The inadvertent disclosures in the Alex Jones trial and Jan. 6 investigation are likely to put more attention, and more pressure, on law firms’ technology competence.”
• “However, while many firms have legal malpractice insurance, Hinshaw & Culbertson partner Steve Puiszis, a member of the firm’s professional liability practice, noted that inadvertent disclosures aren’t always covered by these policies.’You get professional liability coverage to protect against errors or omissions that occur in the delivery of legal services,’ Puiszis said. ‘Depending on the nature of the policy, there can be exclusions written into the policy for privacy violations and perhaps the inadvertent disclosure of confidential information depending on how that exclusion is written.'”
• “Puiszis argued that this lack of coverage is another reason for lawyers to purchase cyber coverage.”
• “Recently, however, many firms have decided to forgo cyber insurance altogether, as policy coverage is shrinking and premiums are hitting record levels.”
• “Meanwhile, in some cases, an insurer can actually play a big role in helping prevent those mistakes in the first place. Take, for instance, mutual insurers. ‘We are a mutual, so it’s different. We have a unitary rating. So it’s not like their firms’ rates are going to change,’ said Mary Beth Robinson, senior vice president for loss prevention at the Attorneys’ Liability Assurance Society. ‘Instead, we go in there with education.'”
• “‘…We have a data security prototype policy that we circulate that our members have access to that talks about all kinds of things like inadvertent email transmission, dealing with highly sensitive information, document creation [and] cloud-based file sharing…We will turn firms away if we don’t think that they have adequate processes and policies and claims history to join… So, there is a process to be able to join and a minimum size,’ she said.”

(“Rollicking” risk review fun from two experts? Count me in!)

Thursday, December 15, 2022 | 12:00 noon – 1:00 p.m. CT

• Join Lucian Pera [Partner, Adams and Reese] and Trish Rich [Partner, Holland & Knight] for a rollicking one-hour review of the most important developments of the last year (or so) in legal ethics and lawyering.
• They will distill practical guidance from ethics opinions and case law from all over, and review what lawyers should know to protect their clients and themselves and practice more effectively.
• Topics will include:
  • Judicial ethics and recusal
  • Responding to negative online reviews
  • Crowdfunding
  • Dealing with bad client conduct
  • Cybersecurity
  • Plagiarism
  • Conflicts of interest
  • …and more!

Lucian and Trish promise more ethics fun in an hour than lawyers should be allowed to have.

Ethics CLE credits have been applied for. Approvals pending.

Register here

Remember this story about the lawyers being barred from attending entertainment events at Madison Square Garden and other venues due to some claim about professional rules? Here’s an update via Brian Faughnan: “Dot. Dot.Dash (3 updates)” —

• “…there has now been a ruling in that MSG case where the lawyers for MSG were badly misusing RPC 4.2 to justify barring certain attorneys from attending events at Madison Square Garden in New York City. The good news from a lawyer ethics standpoint is that the Court at least implicitly appears to grasp the flawed nature of the RPC 4.2 argument:
  • ‘The Court also believes that the balance of the equities continues to favor plaintiffs for the reasons previously indicated by this Court, that there appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.’
• “The bad news for the lawyer plaintiffs is that they still didn’t quite manage a win as the only thing they get to attend are concerts not sporting events. The bad news for legal ethics is that the MSG lawyers apparently still do not get it.”
• “According to this ABA Journal online article [“Lawyer can see Billy Joel but not Knicks at Madison Square Garden as result of judge’s ruling“], they are continuing to send letters to lawyers representing people in lawsuits against MSG that continues to assert a ban on lawyers as long as they are engaged in active litigation. The letters, however, at least do not appear to try to argue that the action is justified by New York’s 4.2.”

[If I were a lawyer caught in this web, and the resolution of a matter had some bearing on the ability to attend this Taylor Swift concert series I hear is quite popular, I confess I’d probably be receiving domestic pressure to settle. Thankfully, none of that applies. Though if anyone has a line on Bay Area tickets…#itsmehi]

[I’m the sort that also might be curious that if the grounds for this maneuver stood — revoking a license as the ticket providers put it — would mean that technology vendors involved in legal matters might be able to turn off licenses and access provided to adverse lawyers — since those lawyers might file a support ticket, for example, leading to “prohibited contact”… There goes your phone, word processor, and email server… Just thinking aloud…]

“Tom Girardi Scandal Prompts State Bar to Reconsider Misconduct ‘Snitch Rule’ for Lawyers” —

• “A state bar leader said Thursday that he wants the agency to revisit a potential rule that would require state-licensed attorneys to report colleagues who have committed professional misconduct.”
• “Ruben Duran, chair of the State Bar of California’s board of trustees, said in brief comments at the board’s regularly scheduled online meeting that ‘it’s time to reconsider’ the issue of a so-called snitch rule in light of the recent prosecution and disbarment of trial lawyer Tom Girardi. Duran referred the matter to the bar’s Committee on Professional Responsibility and Conduct, which, among other things, drafts ethics opinions and advises the board on related issues.”
• “Duran made no specific requests but mentioned the American Bar Association’s Model Rule 8.3, which requires a lawyer who ‘knows’ a fellow lawyer or judge has violated professional rules to notify the appropriate authorities.”
• “California lawyers have balked at adopting such a mandate for years, most recently during an overhaul of the Rules of Professional Conduct in 2017. A memo written by a rules drafting team at the time expressed concerns that mandated reporting would force lawyers to breach confidentiality requirements or possibly create a loyalty conflict with current and past clients.”
• “Attorney Carol Langford, who was a member of the rules revision committee, said she and her colleagues dug into issues surrounding a possible mandatory reporting requirement, including whether the perceived misconduct should have to rise to the level of a felony. In the end, she said, members were concerned about the rule’s enforceability, particularly a showing that a lawyer ‘knows’ misconduct was committed.”
• “‘Sometimes you have rules because you want to let people know you don’t like that type of conduct,’ Langford said. ‘But they’re hard to enforce.'”
• “George Cardona, the bar’s chief trial counsel, told the Los Angeles Times last month that he thought adoption of a mandatory reporting rule might help restore public confidence in the state bar.”

“Big Four auditors shut down legal ops in China” —

• “In a major development for Asia’s legal industry, PwC and Deloitte confirmed that they had closed their associated Chinese law firms. KPMG and EY have also closed, Law.Com reports, and both no longer have operational local law-firm websites.”
• “Several lawyers in the region said that the decisions were made after the firms were raided by local regulators. All four firms declined to comment on the raids.”
• “Foreign law firms are not permitted to provide law advice in China. Over the past few years, many international firms – including the Big Four – have allied themselves with domestic law practices, in the hope of being able to provide a more prolific China offering.”
• “None of the closures were made public, but they have been the topic of much debate in the local market as scores of employees have started to trickle back to local and international law firms.”
• “Some of the Big Four’s affiliated Chinese lawyers were given the option of integrating with the general advisory and consulting business, but the catch was that they will not be able to practice Chinese law or provide any legal services.”
• “Lawyers in the greater China market say that there is heightened sensitivity there now about financial auditing and data security, so what happened with the Big Four and their Chinese practices wasn’t entirely surprising.”
• “‘The issue at hand has been the same issue for a long time now,” said one Beijing-based partner at a US law firm. ‘How will the accounting firms provide legal advice without compromising data security, not to mention it’s a conflict galore,’ he added.”
• “The Big Four firms are familiar with resistance against their expansion into the legal sector. They are prohibited from advising on US law, and from offering legal services on American soil, the largest legal market in the world.”

[Ed: Odds we’ll see more of this flavor in 2023?] “Top Biden DOJ official going to work for law firm that defends Hunter Biden”  —

• “A top Biden DOJ criminal division official is going to work for the law firm that is defending Hunter Biden amid the Justice Department’s investigation into him.”
• “Nicholas McQuaid was appointed acting chief of the Justice Department’s Criminal Division for the Biden administration. McQuaid had been a partner at Latham & Watkins with Hunter Biden defense lawyer Christopher Clark and worked on cases with him until McQuaid took the job at the Justice Department, according to court filings reviewed by the Washington Examiner. “
• “McQuaid, who worked as acting assistant attorney general and then deputy assistant attorney general for the DOJ’s criminal division, returned to Latham earlier this month. However, the firm says he is not involved in any work involving President Joe Biden’s son.”
• “‘McQuaid did not represent Hunter Biden nor have any involvement in the matter when he was previously at Latham,’ a spokesperson for Latham told the Washington Examiner. ‘He also had no involvement in the Hunter Biden investigation while he was at the Department of Justice and he will not be representing Mr. Biden now that he has returned to Latham.'”
• “The DOJ hinted in February 2021 that McQuaid may have recused himself from the Hunter Biden case but did not say so directly. The DOJ told the Washington Examiner that McQuaid was ‘screened and recused from matters in which he has a financial interest or a personal business relationship, including matters involving his former law firm.'”
• “‘Obviously, there is a potential conflict of interest, but it would depend on (a) how much — if any — involvement McQuaid had in L&W’s representation of Hunter, and (b) how much interaction U.S. Attorney Weiss has with the Criminal Division at Main Justice regarding the Biden investigation,’ Andrew McCarthy, a contributing editor at National Review and a former prosecutor, told the Washington Examiner.”

“Paul Weiss Drops Ex-FTX CEO Bankman-Fried Due to Conflicts” —

• “Paul Weiss said Friday it has stopped representing embattled crypto mogul Sam Bankman-Fried, citing conflicts of interest.”
• “Bankman-Fried, the former CEO of bankrupt crypto exchange FTX, is losing the firm’s help as US lawyers for the platform claim he is disrupting reorganization efforts through ‘incessant and disruptive tweeting.'”
• “‘We informed Mr. Bankman-Fried several days ago, after the filing of the FTX bankruptcy, that conflicts have arisen that precluded us from representing him,’ Paul Weiss counsel Martin Flumenbaum said in a statement.”
• “Flumenbaum is a longtime litigator whose past clients include the junk-bond trader Michael Milken and AIG. He currently represents Christian Larsen, the chairman of blockchain company Ripple Labs.”
• “Court filings show that the exchange engaged with the law firm as its liquidity crisis became ‘increasingly dire.’ FTX and its vast network of related companies, including trading house Alameda Research, have estimated their assets and liabilities to between $10 billion and $50 billion. Bankman-Fried, once worth $16 billion, has seen his assets wiped out.”
• “Bankman-Fried and several celebrity promoters of the exchange were also hit with a class action on Thursday accusing them of perpetrating a fraud designed to take advantage of ‘unsophisticated investors.’ The complaint, filed by the Moskowitz Law Firm and Boies Schiller on behalf of investors, alleges Bankman-Fried violated U.S. securities laws and that American consumers sustained over $11 billion worth of damages.”

A reporter who spoke with Mr. Bankman-Fried, tweeted a not safe for work summary of his take regarding the dialogue with his former counsel, for those curious. [And here is one of those ads mentioned in the last bullet, maybe Larry David had the right idea after all?]

“Disciplinary Commission issues advisory opinion for law firms on imputed conflicts of interest” —

• “The Indiana Supreme Court’s Disciplinary Commission on Friday published a nonbinding advisory opinion focused on Rules of Professional Conduct Rule 1.10, which outlines when a law firm is prohibited from representing a client based on imputed conflicts of interest.”
• “In short, the commission reminded law firms should decline to represent, or withdraw from representing, a client when any individual lawyer at the firm (or joining the firm) is conflicted from the representation.”
• “This is the situation unless the conflict is personal to that lawyer, or unless the affected clients have provided informed consent, the commission wrote.”
• “‘When a lawyer departs a firm, the firm can represent parties adverse to the departing lawyer’s client unless the matter is the same or substantially related to the one the departing lawyer worked on while at the firm, or others remaining at the firm have information that would preclude representation under Indiana Professional Conduct Rules 1.6 and 1.9,’ the advisory opinion states. ‘A firm is not required to withdraw from a case if a lawyer joining the firm worked on behalf of an adverse party if the lawyer was not the primary lawyer on the case; the lawyer is effectively screened from the case at the firm; and sufficient written notice is provided to affected clients.'”
• “The disciplinary commission further wrote that when potential conflicts inevitably arise in practice, firms need to have effective conflict check procedures, including, ‘carefully screening matters against the client matters of incoming and outgoing lawyers; taking steps to avoid entering an appearance on a case when a Rule 1.10 conflict exists; and, when possible, avoiding disqualification of the firm from current matters.'”
• More details and scenarios in their advisory opinion.

“Leon Black’s law firm fights disqualification bid in Russian model’s case” —

• “A law firm defending billionaire investor Leon Black in a defamation and sexual misconduct lawsuit is fighting to keep its role in the case, after Black’s accuser said the firm should be disqualified for hiring a New York prosecutor who once investigated him.”
• “Last month Ganieva said Perry Guha should be thrown off the case because the law firm had recently hired Illuzzi-Orbon from the Manhattan District Attorney’s Office, where she led the trial division.”
• “Illuzzi-Orbon received confidential information about Black, the former head of private equity firm Apollo Global Management Inc, when Ganieva reported his alleged sexual misconduct to Manhattan prosecutors last year, Ganieva alleged. Allowing Perry Guha to stay on as Black’s counsel would be a flagrant ethical violation, she argued.”
• “But in an affidavit filed Tuesday in New York County Supreme Court, Illuzzi-Orbon said she is ‘completely walled off’ from Perry Guha’s work on Black’s case.”
• “Perry Guha separately called Ganieva’s move to disqualify it ‘shameful,’ saying it was not based on any actual conflict. Samidh Guha, a partner at Perry Guha, said in a statement the disqualification motion is ‘a cynical litigation tactic that has no basis in law or fact.'”
• “Illuzzi-Orbon told the court she could not publicly confirm or deny any investigation of Black by the Manhattan District Attorney’s Office. She added that her former office ‘had no concerns about the propriety of my work with Perry Guha or my conduct.'”
• “Lawyer Jeanne Christensen, a partner at Wigdor representing Ganieva, said Perry Guha’s filings this week indicate that they did not ‘give notice’ about Illuzzi-Orbon’s hire ‘or implement any screening formally in their office for months.'”
• “Last month, Black filed a separate lawsuit against Ganieva and her law firm Wigdor, alleging Ganieva broke a confidentiality agreement she had with him. That case is also pending in New York County Supreme Court.”

“California Lawyers Union Sues to Void State Use of Outside Firms” —

• “California’s Civil Rights Department violated state contracting law when it outsourced legal services for two high-profile discrimination lawsuits, according to a complaint filed Wednesday by the union representing state-employed attorneys.”
• “‘CASE and its members have been irreparably harmed by the Board Decision as it authorizes the outsourcing of legal work that could and should be performed by CASE members, who are rank-and-file civil service attorneys employed by the State of California,’ according to the complaint.”
• “The Civil Rights Department, then known as the Department of Fair Housing and Employment, sued Riot Games in 2020 on behalf of female employees who said they faced sexual harassment, unequal pay, and other forms of gender bias. Three years later, the agency went after Activision over similar allegations.”
• “The agency hired the two firms because the civil-service lawyers faced potential conflicts of interest in each of the video game company lawsuits, according to the civil rights agency.”
• “In the Activision case, state-employed attorneys faced a potential conflict due to their previous work with the federal Equal Employment Opportunity Commission.”