Bressler Risk Blog

“Decision of the Day: Court Declines to Disqualify Defendant’s Counsel, No Conflict of Interest Exists” —

• “In the underlying action, plaintiff contended that Somerset Production Co. LLC amended its operating agreement to add a company half owned by defendant called Berea Oil and Gas Corp., which effectively allowed defendant to dominate Somerset.”
• “Plaintiff contended that defendant diverted Somerset’s funds for his own personal use. Defendant’s counsel Barclay Damon represented Somerset in 2015 during the time of defendant’s alleged misappropriation of Somerset’s funds.”
• “Plaintiff therefore asserted that Barclay provided legal services to both defendant and Somerset in connection with several transactions that go to the heart of plaintiff’s allegations and must be disqualified since an there is an obvious conflict of interest.”
• “The court noted, among other things, that plaintiff alleged that defendant overcharged Somerset for the use of a drilling permit and did not allow Somerset to enjoy the benefits of that permit, adding that whether Barclay was counsel when the well was first purchased in n 1987 is irrelevant to these allegations and do not present a conflict.”

“EQT Can’t Nix Its Former Atty From Abandoned Gas Well Suit” —

• “EQT Corp. has failed to block its former attorney and an ex-employee from representing plaintiffs in a proposed class action over ‘abandoned’ natural gas wells, with a federal judge determining the bids looked like attempts ‘to foreclose an employee that they terminated from securing any meaningful employment’ in the industry.”
• “On Wednesday, U.S. District Judge John Preston Bailey dismissed EQT’s attempts to disqualify its previous legal counsel Brian Swiger and former employee Bryant ‘Wayne’ Bowman II from representing landowners who sued the company on the grounds it depleted land values and created health hazards by abandoning 12,000 natural gas wells in Appalachia.”
• “EQT accused Swiger, now an attorney for Bailey and Glasser LLP, and Bowman, a non-lawyer member of the plaintiffs’ legal team, of using insider information to aid the case against it and co-defendant Diversified Energy Co. PLC, but Judge Bailey wrote in his back-to-back Feb. 22 orders that EQT’s arguments were ‘unavailing.'”
• “In response to the requested disqualification of Swiger, Judge Bailey wrote that EQT was not able to provide examples that he worked on cases that would have provided him insider information pertinent to the current proposed class action.”
• “As for the requested disqualification of Bowman, a 22-year employee of EQT, Judge Bailey wrote that, ‘Inasmuch as Mr. Bowman is not an attorney, it would appear that his duty to preserve confidential information is governed by contract… this court finds no ethical violation on the part of Mr. Bowman or the plaintiffs’ law firms.'”
• “A proposed class of West Virginia property owners led by Mark McEvoy and James and Susan Tawney filed their complaint against Diversified Energy Co. PLC and EQT in July 2022, accusing Diversified of leaving them with “unplugged, inoperative and abandoned wells” that posed hazards to their health and lowered the value of nearby properties.”

“State High Court Questions Whether Attorney’s Delayed Motion to DQ Judge Was Prompted by Adverse Ruling” —

• “The Ohio Supreme Court has denied an affidavit to disqualify a probate court judge, chastising the plaintiff’s counsel for failing to file the affidavit until nearly three years after becoming aware of a potential conflict of interest.”
• “Schlichter, counsel for the Clarke siblings, raised a potential conflict of interest between the bank and Hamilton County Judge Ralph E. Winkler of the Probate Division. He alleged that Fifth Third managed money for Winkler’s benefit and received a fee during the probate case, and created an ‘appearance of impropriety.'”
• “While Schlichter filed the affidavit of disqualification against Winkler on January 3, 2023, several actions had taken place in the case before then and after learning of the possible conflict of interest.”
• “In April 2018, Schlichter entered a motion granting summary judgment to Fifth Third, followed by the First District Court of Appeals partly remanding the case back to the trial court. The Ohio Supreme Court declined to accept the Clarkes’ appeal to the First District decision in April 2020, and in June denied their motion for reconsideration.”
• “Counsel for Fifth Third Bank, Jessica K. Baverman of Vorys Sater Seymour & Pease in Cincinnati, Ohio, signed an affidavit on January 7, 2021, as a response to the disqualification attempt. However, Baverman contended that from then until September 2022, the Clarkes’ legal team did not raise the issue of impropriety or recusal.”
• “In her opinion, Kennedy cited previous examples of recusal matters in the state, namely In re Disqualification of Dezso from 2011, which established that affiants have a burden to prove that their affidavits are timely filed. Further, In re Disqualification of Froelich, Donovan & Welbaum in 2015 stated that a delay in filing an affidavit of disqualification ‘constitutes an ‘independent ground’ for denying the affidavit.'”
• “On September 8, 2022 Schlichter filed a motion for Winkler’s recusal, asserting the same conflict of interest and appearance of a conflict. Winkler denied the motion less than a month later, finding no reasonable observer would question his impartiality.”
• “Dezso‘s language states that ‘[i]t is well settled that an affidavit of disqualification must be filed as soon as possible after the affiant becomes aware of circumstances that support disqualification and that failure to do so may result in waiver of the objection.'”
• “Referring to the Jan. 7, 2021 telephone conference where Schlichter merely ‘raised the issue”’ of impropriety, Kennedy clarified that this did not substitute the need for a timely affidavit.””[Kennedy noted] ‘An affiant’s delay in filing an affidavit of disqualification until after receiving an adverse decision may suggest that the disqualification request was prompted by the adverse decision rather than the judge’s personal connection to the underlying case as alleged in the affidavit.'”

“Florida Court Orders Trial Judge to Disqualify Herself” —

• “Florida’s Third District Court of Appeal told a Miami state court judge that she should disqualify herself, when it granted a writ of prohibition but withheld issuance of the writ.”
• “‘Because the judge was disqualified from the earlier case, it was pretty cut and dried that she be disqualified from this one,’ Andrew Berman, a partner at Young, Berman, Karpf & Karpf, said about the case in which Miami-Dade Circuit Judge Beatrice Butchko was disqualified.”
• “Berman, an ethics expert not involved in the case, explained that Butchko was disqualified because she was previously disqualified for prejudging the truthfulness of Nathaniel D. Callahan, a shareholder in the Fort Lauderdale office at Am Law 100 firm Akerman. Callahan is one of the lawyers for the defendant, Bank of New York Mellon, in the current case and an earlier foreclosure one.”
• “That earlier case involved the same bank attorney, Callahan, and the same opposing counsel, Bruce Jacobs, but a different homeowner. In other words, Callahan argued that Butchko’s prior actions predisposed her to believe Jacobs over him and his clients.”
• “Jacobs, the managing partner at Jacobs Legal, represents the plaintiff, Marko Dejanovic, the foreclosed homeowner. Jacobs said the Third DCA failed to provide a ‘legal or factual basis for humiliating” Butchko by granting the bank’s petition and called the appellate court ruling “a constitutional crisis playing itself out in real time.'”
• “And during the evidentiary hearing on the motion [in the prior action], the petitioners presented conflicting testimony in relation to the identity of the current loan servicer, previous reporting showed. But the Third DCA ruled that Butchko failed to finish the hearing before signing the proposed order to show cause. Butchko’s order set an arraignment date while advising the petitioners that the penalties under consideration included ‘jail, adjudication, [and] probation.'”
• “Callahan did not respond to a request for comment. In a sworn motion to disqualify that Callahan filed in the circuit court in November, he argued that a reasonably prudent person would fear that the presented facts, taken as true, would place that person in fear of not receiving a fair and impartial trial.”
• “And in the petition for writ of prohibition, multiple attorneys at Akerman, including Nancy W. Wallace, a partner in its Tallahassee office, argued that Butchko’s disqualification was necessary ‘to ensure that justice is dispensed fairly and impartially in this case, and to preserve and strengthen the public’s confidence in the judicial system.'”

“Ex-State Bar Executive Scrutinized in Girardi Probe Continued Work as Conflict Counsel” —

• “Robert ‘Bob’ Hawley, the former acting executive director of California’s state bar, worked as a conflict counsel for the attorney-oversight agency even as he was under scrutiny for allegedly intervening in a previous disciplinary case against disgraced trial lawyer Tom Girardi.”
• “A state bar spokesman confirmed that Hawley served on the agency’s special deputy trial counsel panel from May 2019 to December 2021. Members of the pool of private attorneys handle ethics complaints against lawyers when the Office of Chief Trial Counsel recuses itself due to a potential conflict.”
• “Rick Coca, a senior program analyst for the state bar, said Hawley was appointed to four matters as a conflict counsel. He did not submit invoices for his work and he was not paid for it, Coca said… Coca declined to say whether bar officials had reviewed any of Hawley’s work as special deputy trial counsel but added that ‘all appropriate action will be taken.'”
• “Hawley’s employment ‘ended independent of any conclusions’ reached by an investigation of the state bar’s handling of complaints against Girardi by Halpern May Ybarra Gelberg, Coca said. The law firm’s report, released to the public on Friday, detailed efforts by Girardi to ingratiate himself with state bar employees even as the agency fielded more than 200 complaints against him over four decades.”
• “The report concluded that while he worked as deputy and acting executive director at the state bar, Hawley ‘ghost wrote’ case analysis memos for matters sent to conflict counsel, ‘passing them off as the work product of the independent conflict counsel, including on a Girardi case.'”
• “The report said that in one ‘shocking’ case involving Girardi, Hawley ‘hand-selected’ a special deputy trial counsel to investigate the complaint, then wrote a recommendation to close it and, while serving as acting executive director, presented that recommendation to the bar’s board of governors in 2015 as if the conflicts attorney had authored it. Executive directors, the report noted, are not supposed to play a role in the chief trial counsel’s decisions.”
• “‘Although we did not find any evidence that Hawley recommended closure of the Girardi case based upon any connection he had to Girardi, Hawley’s actions completely undermined the state bar’s conflict-of-interest procedures and call into question the handling of other conflict cases during Hawley’s tenure,’ the report said.”
• “The latest revelations about Hawley follow state bar officials’ assurances at a press conference Monday that they have instituted policy changes and training that will prevent lawyers from currying favor with agency employees charged with investigating them for wrongdoing.”

“Lawyer’s interests were conflicted in comedy club suit against NYC Council member: ruling” —

• “A former New York City government lawyer violated conflict-of-interest rules after he represented an iconic comedy club in its lawsuit against a City Council member who accused the night spot of antisemitism, according to an agency ruling.”
• “First, Yosef’s defamation suit on behalf of Manhattan’s Comic Strip Live was dismissed by a judge. Then, the Conflicts of Interest Board ruled that Yosef had no business filing the lawsuit at all, as he was a city employee at the time.”
• “Local law prohibits a city employee from acting as an attorney against the interests of the city in litigation to which the city is a party. That law applies whether the attorney is paid or not.”
• “In 2022, Yosef represented Comic Strip Live in a lawsuit against City Council Member Julie Menin (D-Manhattan) and a news site that covers her Upper East Side district. At dispute in the case were news articles and Menin’s comments accusing the club of being antisemitic.”
• “The courthouse heckling of the club — which helped launch the careers of Jerry Seinfeld, Eddie Murphy, Chris Rock and Adam Sandler — is rooted in its owners’ decision to post a social media message that included hashtags about vaccine mandates and about Nuremberg, a reference that offended some Jewish groups.”
• “Menin subsequently published a letter in which she excoriated Comic Strip Live for ‘antisemitic sentiments expressed in your latest Instagram posting.'”
• “The club sued Menin and the web site over the ‘defamatory statements,’ seeking $1 million in damages. Menin never spoke with them before posting the tweet or publishing the letter, according to the lawsuit.”
• “Menin, who was once commissioner of the city agency that employed Yosef, said she “can’t even believe that a city attorney … would not only violate a central ethical tenet but also exercise such poor legal judgement in filing a utterly baseless and frivolous defamation claim against me for $1 million for calling out a clearly anti-Semitic tweet.”
• “Under city charter rules, Yosef could face civil fines of up to $25,000 for representing the club in its lawsuit against Menin.”

“General magistrates need not recuse themselves when former colleagues appear before them” —

• “General magistrates are not required to automatically disqualify themselves from cases in which a recently resigned magistrate appears as counsel of record, according to the Judicial Ethics Advisory Committee.”
• “Acting March 1 in Opinion 2023-02, the advice comes following an inquiry from a judicial officer who wanted to know, if a former magistrate joins a private law firm that regularly appears before the court, whether that would require the remaining magistrates to automatically disqualify themselves.”
• “The inquirer cited former JEAC opinions 04-06 and 10-36 as precedent, which outlined recusal or disclosure based on a judicial officer’s prior legal employment. In those instances, the JEAC opined that ‘[t]wo years is a reasonable period of time for a judge to disqualify himself or herself from hearing any cases handled by the judge’s former law firm, so long as at the end of two years there are no financial ties between the judge and former law firm.'”
• “In this instance, the JEAC said it could answer the inquiry “fairly succinctly,” that magistrates are not required to automatically disqualify themselves.”
• “The opinion went on to say that in the context of judicial ethics, a general magistrate is more akin to a constitutional officer than to an attorney at a law firm or governmental agency.”

“Ritz-Carlton Atty DQ’d For Conflicts In Tipping Suit” —

• “The ‘specter of impropriety’ has disqualified an attorney from serving as defense counsel shortly after his appearance in Miami federal court caused a magistrate judge, his former longtime colleague, to recuse herself from a case brought by a proposed class of Ritz-Carlton customers alleging the hotel chain hid automatic tipping on bills.”
• “U.S. Magistrate Judge Lisette M. Reid on Wednesday disqualified Peter Valori from appearing as counsel for Ritz-Carlton and also recommended that the recusal of Magistrate Judge Melissa Damian be upheld. The two were blocked from appearing in court together due to their nine-year working relationship at the boutique firm Damian & Valori LLP.”
• “Judge Damian recused herself from the suit in November, one day after Valori submitted a notice of appearance to serve as co-counsel representing Ritz-Carlton.”
• “Judge Reid said the defense’s argument for retaining Valori ‘essentially invites this court to ignore the elephant in the room: Of all the qualified attorneys admitted in this district, why did [the] defendant choose the one whose appearance would almost certainly lead to either a judge’s recusal or a motion by plaintiff to disqualify counsel?'”
• “The proposed class also thought that argument was a stretch, accusing Ritz-Carlton of ‘judge-shopping’ in order to drop a magistrate judge who had so far shown favor to plaintiffs.”
• “The claims in the suit date back to a complaint filed by a Ritz-Carlton customer named Michael Fox in 2017. Fox claimed that customers who ‘purchased food and/or drinks at a restaurant, bar, mini-bar, lounge and/or other public food service establishment owned, operated and/or controlled by defendant in the state of Florida’ were charged an additional gratuity or service charge, in violation of state law.”

“Decision of the Day: Court Finds for Herrick, Feinstein in DQ Bid for Firm in Federal Legal Malpractice Case” —

• “Herrick, Feinstein filed a motion for disqualification of the Pennsylvania-based Alan L. Frank Associates from representing a party in a legal malpractice suit originated in the U.S. District Court for the Southern District of New York that is now in pending arbitration.”
• “The Frank firm allegedly worked as counsel for respondents whose interests are adverse to each other—one sued the other for malpractice in the past and the other was a former law partner of the petitioner.”
• “The firm alleged that such representation was an unethical conflict of interest and, therefore, respondent’s counsel should be disqualified from representing one of the respondents.”
• “Special Referee Diego Santiago found that the attorney in question, while their representation at issue may have been well-intentioned, placed petitioner in an untenable situation where their confidences could be in jeopardy.”

“Lululemon Attys Deride Nike DQ Bid As ‘Tactical Maneuver‘” —

• “Attorneys from Knobbe Martens representing Lululemon in a textiles patent suit brought by Nike said Tuesday the shoe behemoth’s attempt to disqualify the firm from the case was only a courtroom tactic and did not present an actual conflict of interest.”
• “The law firm responded to Nike’s Feb. 23 letter claiming that Knobbe had represented the company in more than 100 legal matters that collectively generated almost $1 million in legal fees and allegedly involved advising Nike on “a wide range of patent procurement,” including on matters related to the Flyknit shoe series at issue in the case.”
• “Nike said Knobbe partner Craig Summers obtained confidential information about Nike while working on those patents and could use that information to Lululemon’s advantage in this case.”
• “But Knobbe partner and ethics committee chair Paul Stewart said in Tuesday’s response that Nike’s claims were false and that none of the Knobbe partners who worked for Nike in the past were familiar with the patents involved in the present suit.”
• “‘When Knobbe represented Nike from 2014 to 2019, Lululemon was not even in the business of making shoes and there would have been no conceivable Nike claim for infringement against Lululemon,’ Stewart wrote. ‘Moreover, during the latter part of that time period, Knobbe already had been representing Lululemon and thus could not have been providing Nike with advice adverse to Lululemon absent a waiver from each.'”
• “Knobbe ran a ‘conflict check’ when it became aware of the suit and did not find any work that was related to the patents or technology mentioned in the suit, according to the letter.”
• “‘In an abundance of caution, Knobbe took two precautionary steps. First, Knobbe created an ethical wall precluding the Lululemon attorneys from accessing Knobbe’s old Nike files, and precluding the former Nike attorneys from speaking with the Lululemon attorneys about the Nike litigation,’ the letter reads. ‘Second, Knobbe removed Mr. Summers from the Lululemon litigation team to eliminate even the appearance of impropriety.'”

“Gibson Dunn Partner Clears Name in Qatar Hacking Case, No Conflict of Interest Found” —

• “Zainab Ahmad, a partner at Gibson, Dunn & Crutcher and a former U.S. Department of Justice prosecutor, has denied having a conflict of interest in defense of a man accused of hacking emails on behalf of Qatar by a former fundraiser for Donald Trump… Broidy alleged that Ahmad had a conflict of interest because she had investigated the alleged hacking while working for Special Counsel Robert Mueller. In August, Gibson Dunn withdrew from the defense of Chalker and his company, leading to speculation about a possible conflict of interest.”
• “In a hearing last October, U.S. District Judge Mary Vyskocil, overseeing the case, expressed skepticism about Gibson Dunn’s withdrawal and allowed Broidy to move to sanction the firm. Gibson Dunn has now filed a motion urging Vyskocil to deny that motion, arguing that the firm acted in good faith and had no conflict of interest.”
• “Ahmad stated in a sworn declaration that she was not involved in any investigation into Broidy and never learned confidential information regarding any issue relevant to the pending litigation. Gibson Dunn said that Chalker and his company decided to go with a different firm for their defense, not because of any purported conflict of interest but purely based on their business interests.”
• “Broidy’s lawsuit alleged that Qatar’s government hired Global Risk Advisors to hack his emails, some of which were leaked to the media. Qatar, Chalker, and the company have all denied his claims. In a Feb. 23 motion for sanctions, Broidy’s lawyers argued that Gibson Dunn should pay hundreds of thousands of dollars in fees they incurred for investigating and prosecuting the potential conflict.”
• “The case raises important questions about conflicts of interest in legal defense work and the role of former government prosecutors in private practice. Ahmad’s previous work for Special Counsel Robert Mueller, who investigated Russia’s interference in the 2016 U.S. election, has drawn scrutiny from Broidy’s lawyers and Judge Vyskocil. However, Ahmad’s declaration suggests that she did not work on any investigation involving Broidy or the alleged hacking of his emails.”
• “Overall, the case underscores the importance of ethical conduct in the legal profession and the need for lawyers to avoid even the appearance of conflicts of interest. While Ahmad has denied any conflict, the fact that Gibson Dunn withdrew from the case has raised questions about the firm’s motives and led to accusations of wrongdoing. As the case unfolds, it will be interesting to see how Judge Vyskocil rules on Broidy’s motion for sanctions and whether Gibson Dunn will face any further consequences.”

“Partner secretly worked on deal with his firm on opposite side” —

• “An experienced partner who secretly worked on the purchase of a property where his firm was acting for the seller has been fined £32,000 for a lack of integrity.”
• “Mr Wright, admitted in 1991, was one of three partners at London firm Ashley Wilson when a fee-earner began acting on the sale of a property for £1.8m. The memorandum of sale listed Mr Wright as acting for the buyer, a friend of his.”
• “It was then agreed that the firm should not act for both, as there was a potential conflict, and would continue acting just for the seller.”
• “The buyer moved to South London firm NC Morris, which, unbeknown to Ashley Wilson and the seller, was given instructions for what followed by Mr Wright.”
• “Two days before completion, NC Morris claimed that the selling agent had misdescribed the property, causing the buyer to offer too much. Ashley Wilson refuted this and, when the buyer failed to complete, served a notice to complete.”
• “The investigation discovered that Mr Wright had paid the deposit on the property, instructed NC Morris throughout and drove the threatened legal action, at one point telling the fee-earner at NC Morris that the pre-action letter needed to be more aggressive as well as attending conferences with counsel.”
• “Mr Wright admitted that he had acted where there was an own-client conflict and with a lack of integrity. He also admitting instructing NC Morris to make two payments totalling £53,000 to third parties that were not involved in this or any other transaction.”
• “In mitigation, Mr Wright offered his ‘sincere apologies’ and admitted his conduct ‘fell below the high standards of a solicitor in practice.'”
• “The solicitor said he took ‘some responsibility’ for this but said the firm should have advised the seller of its relationship with the buyer, ‘particularly when it was clear to all parties that a dispute had arisen.'”
• “‘Mr Wright was motivated by his desire to reduce the purchase price of the property to his benefit and the detriment of the firm’s client,’ the SDT [Solicitors Disciplinary Tribunal] said. ‘His conduct was in direct conflict with the duties he owed to his firm’s client…'”

“U.S. Chamber blames judges, arbitrators and lawyers for mass arbitration ‘abuses’” —

• “In more than a decade of litigation to entrench corporations’ power to impose arbitration on consumers and employees, the U.S. Chamber of Commerce has steadfastly championed arbitration as a fair and efficient alternative to class actions.”
• “But when thousands of workers and consumers actually file demands against a company to have their nearly identical claims arbitrated? That’s not fair or efficient. It’s “blackmail,” the Chamber’s Institute for Legal Reform said in an extremely provocative new report.”
• “The 80-page paper, entitled “Mass Arbitration Shakedown: Coercing Unjustified Settlements,” argued that mass arbitration, in which plaintiffs’ lawyers file hundreds or even thousands of nearly identical demands against a defendant, is the ’21st century equivalent of the abusive class actions that characterized the last part of the 20th century.'”
• “The business model, according to the report, has nothing to do with the validity of claimants’ demands. Instead, the Chamber asserted, plaintiffs’ firms rely on the leverage of hefty arbitration fees – which can quickly escalate to tens of millions of dollars when thousands of people file demands — to force corporations into settlements that are ‘wholly unrelated to the claims’ merits.'”
• “The report, written by Mayer Brown lawyers Andrew Pincus, Archis Parasharami, Kevin Ranlett and Carmen Longoria-Green, asserted that plaintiffs’ firms may be skirting an array of ethical rules in their mass arbitration campaigns.”
  “Among other potential pitfalls, the Chamber cited conflicts of interest among clients who diverge on accepting settlement offers; restrictions on client solicitation; and prohibitions on representing out-of-state clients.”

“Choice-of-law questions for state ethics rules examined in new ABA opinion” —

• “Lawyers admitted to multiple jurisdictions may be subject to different ethical requirements in the different states in which they are licensed to practice law, according to a new ABA ethics opinion.”
• “A March 1 ethics opinion from the ABA’s Standing Committee on Ethics and Professional Responsibility provides a comprehensive analysis of which jurisdiction generally controls in these instances.”
• “The governing rule noted in Formal Opinion 504 is ABA Model Rule of Professional Conduct 8.5, which provides in subsection (a) that: ‘A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs.'”
• “A March 1 press release from the ABA is here.”
• “Thus, for litigation matters, a lawyer is subject to the rules of the jurisdiction of the court before which they are litigating a case. For other matters, the rule generally provides that the rules apply in which the lawyer’s conduct happened unless ‘the predominant effect of the conduct is in a different jurisdiction.’ A difficult part of this rule determines when the predominant effect of the lawyer’s conduct is in a different jurisdiction.”
• “For example, the opinion addressed a scenario in which a lawyer-client relationship is formed in State X, and the fee agreement is signed there. The client resides in State X, and the lawyer will work from their office in State X, but the litigation will happen in State Y, another state where the lawyer is licensed.”
• “According to the opinion, while a lawyer is generally subject to the ethics rules of the jurisdiction when appearing before a tribunal, Comment 4 to Model Rule 8.5 explains that “conduct in anticipation of a proceeding not yet pending before a tribunal” is covered by Model Rule 8.5(b)(2), not Model Rule 8.5(b)(1).”
• “In other words, drafting a fee agreement is conduct not yet pending before a tribunal, rather than litigation before a tribunal. This means that Model Rule 8.5(b)(2) would govern, and the question becomes where is the predominant effect of the lawyer’s conduct. The opinion noted that the lawyer and the client would reasonably regard that as State X, rather than State Y.”
• “The opinion provides similar detailed analysis of the other four scenarios.”

Not accustomed to finding conflicts news in the gossip rags, we noted: “Bryan Kohberger Lawyer’s Secret Conflict-Of-Interest Hearing Revealed! See Why She Was Allowed To Take The Case!” —

• “For those who don’t know, the man accused of brutally murdering four University of Idaho students in that shocking November massacre was assigned a public defender named Anne Taylor. The assignment almost immediately caused a swell of controversy — as it came to light the lawyer had also represented three different parents of the murder victims!”
• “She had to hand that case over to someone else in order to represent Kohberger — after all, it would be something of a conflict of interest to represent an accused murderer AND a parent of the victim at the same time.”
• “But, uh, why wasn’t it a conflict of interest already? Why didn’t they get another public defender?? One big reason is that Taylor is one of only 13 public defenders in the entire state approved to handle capital cases — ones where prosecutors may seek the death penalty. Hence why she would have been chosen. But what about the conflict? All we knew before was that she had a behind-closed-doors meeting with the judge in the case, Megan E. Marshall.”
• “NewsNation‘s Brian Entin got hold of the court transcripts, and it turns out it wasn’t just Taylor and Judge Marshall. This was a full hearing with both attorneys AND Kohberger in attendance, held back on January 27. It began with the court stating that conflicts of interest were handled on a case-by-case basis, and it was usually up to the attorney and client if they felt comfortable proceeding.”
• “Taylor explained her argument as to why this was not a conflict. She explained that as head of the Kootenai County Public Defender’s Office, her name was on every document at the office — but that didn’t necessarily mean she had personally represented the client.”
• “However, she said, that was a formality, and she ‘had no contact or relationship with Ms. Kernodle, and has not met with her or provided any legal advice.’ She further noted ‘most of what the media is reporting’ on the cases was ‘untrue.'”
• “As for the legality, Taylor also pointed out she discussed the matter with the prosecutor’s office and the Idaho State Bar, and everyone had determined that it was all fine. Ultimately the judge checked with prosecutor Ashley Jennings and with the defendant. Both said it was fine with them; Kohberger explicitly agreed he wished to continue with Taylor as his attorney.”

“Judge: Miske Can Keep A Key Defense Attorney” —

• “Accused racketeering boss Michael J. Miske will retain at least one of his original criminal defense attorneys after a federal judge decisively rejected an attempt by federal prosecutors to disqualify Miske’s two lead counsels, Thomas Otake and Lynn Panagakos, due to alleged legal conflicts of interest.”
• “In a court order filed in Honolulu’s U.S. District Court Tuesday morning, Judge Derrick K. Watson ruled the government had failed to back up its generalized and ‘speculative’ allegations about supposed conflicts, and failed to provide evidence of any actual conflict. “
• “The judge’s order concerning Panagakos repeatedly characterized the government’s allegations about conflicts as speculative at best, and ruled the government ‘has not come close’ to establishing the existence of a disqualifying conflict of interest.”
• “Otake filed a motion to step away from the case on Jan. 13, after being informed two prior clients are expected to be called as government witnesses in the trial of Miske and six remaining co-defendants.”
• “The dispute over whether legal entanglements created conflicts for Panagakos and Otake began in mid-January, when prosecutors filed a motion asking the court to disqualify Panagakos and Otake, arguing ‘each have multiple, significant conflicts requiring their disqualification.'”
• “In their 40-page motion, prosecutors point to two sources of conflict. First, according to prosecutors, both attorneys ‘are percipient and material witnesses to the genesis, receipt, filing, and use of two fraudulent character letters submitted to this Court in support of Mike’s motion for pretrial release, and in the case of Ms. Panagakos, she directly dealt with Miske and his subordinates in the filing of these letters.'”
• “Prosecutors cited an additional conflict on the part of Panagakos, pointing to a string of WhatsApp texts from February 2018, in which Miske told an associate he had been at the ‘doctor’s office,’ a code word referring to his attorney’s office, where he was shown documents indicating another insider, Lance Bermudez, appeared to have ‘flipped’ and could no longer be trusted. Miske warned his associate not to take calls from anyone ‘inside’ because Miske could ‘guarantee’ they were recorded, and included a photo of an office door showing the office number, which is the address of Panagakos’ office.”
• “Further, Panagakos said the allegedly fraudulent reference letters did not require disqualification since neither she nor Otake can be considered a ‘likely’ or a ‘necessary’ witness at trial ‘because the court can take judicial notice of the filing of the letters and the email supplies the chain of custody for admissibility.'”
• “Although Panagakos raised a number of additional issues, Watson found it unnecessary to go beyond the basics. ‘First, other than speculative possible conflicts that may arise in the future, the government has presented no actual conflict that presently exists between Miske and his counsel with respect to the alleged ‘fraudulent’ character letters,’ Watson wrote in his order.”
• “With regard to prosecutors’ allegations about Miske’s meeting with his ‘doctors,’ Watson said he ‘is not convinced that Panagakos is one of the ‘doctors’ referenced.’ Even if she were, Watson wrote in his order, Miske’s subsequent text messages do not create a conflict between Panagakos and Miske, or anyone else, ‘let alone one that should result in Panagakos being disqualified, even if the government is correct in representing that the communication depicts a piece of how Mike allegedly controlled his associates.'”

“New York says presumption for sharing confidential information in joint representations does not apply retroactively” —

• “Joint representations can present a host of ethical issues for lawyers to navigate including what to do with the clients’ file upon termination of the representation. The NYSBA’s Committee on Professional Ethics recently issued Opinion 1249 which explains that in a joint representation, the presumption is that the lawyer will share confidential information received from one client with the other co-client(s).”
• “That presumption, however, does not extend to confidential information the lawyer received from a client prior to the start of the joint representation. In general, when the joint representation terminates, the clients are entitled to receive copies of the confidential information exchanged with the lawyer during the joint representation but are not entitled to confidential information shared by one client prior to inception of the joint representation.”
• “The inquiry in the Opinion came from a lawyer whose longtime client requested the lawyer then also represent his Wife in their joint estate planning matters. The lawyer agreed and had them sign a joint engagement letter that included language explaining that, because the representation was a joint representation, no communication that either co-client had with the lawyer could be kept confidential from the other co-client.”
• “…Accordingly, the Wife’s communications and documents in the file was to be turned over to the Husband. But as to the Husband, the file produced to the Wife should only include communications and documents from the period after the joint representation commenced. There is no presumption of sharing regarding communications made or documents provided by the Husband prior to the joint representation.”
• “As the inquiry in Opinion 1249 illustrates, circumstances amongst joint clients can change and there may be confusion about what to do with the file upon termination. It is crucial to include in your joint engagement letter which types of communications will be disclosed to each co-client, including how conflicts could arise, and what would happen in the event of a dispute between the co-clients. Your client needs to know what they are signing up for before they agree to a joint engagement—and so do you. Before agreeing to take on any type of joint representation, you must familiarize yourself with how your jurisdiction views confidentiality in the joint representation context.”

“Dechert Ex-Partner Leak, Hack Allegations Threaten Firm Damage” —

• “Dechert will soon start to find out how much damage the law firm faces from an onslaught of accusations against former UK partner Neil Gerrard, including that he leaked information about a client to authorities and aided a hacking operation.”
• “A British court March 6 will begin a trial to decide how much Dechert owes a former client that operated mines in Kazakhstan. A judge has found Gerrard breached his duty by giving information about the client, a subsidiary of Luxembourg-based Eurasian Resources Group, to UK fraud investigators.”]
• “Dechert separately faces two more UK trials next year, and two US lawsuits, stemming from Gerrard-led representation for one of the United Arab Emirates. The firm is accused of aiding a hacking operation that targeted perceived enemies of the emirate, Ras Al Khaimah.”
• “The spate of allegations has ensnared other lawyers at the firm, two of whom have exited in recent months, while raising questions about how many dollars in damages and reputational costs Dechert will rack up before litigation tied to Gerrard is finished.”
• “‘Law firms have brands just like anybody else,’ said James Jones, a senior fellow at Georgetown University Law Center and former Arnold & Porter managing partner. ‘It can certainly take a toll.'”
• “Dechert has denied allegations of impropriety and is aggressively defending itself in the UK trials and against the US lawsuits. Dechert has also distanced itself from Gerrard, a one-time star lawyer the firm recruited in 2011 who retired nine years later. Counsel for the firm last year stopped representing Gerrard as an individual in the lawsuits.”
• “Eurasian had hired Gerrard to aid an internal probe after an anonymous whistleblower alleged corruption in its Kazakhstan operation. The company later alleged Gerrard ended up working against Eurasian by leaking information to UK investigators and the media in an effort to expand the probe—all in a bid to increase his fees.”
• “The UK opened a criminal investigation of the mining conglomerate’s activities in Kazakhastan and Africa in 2013, and that probe is ongoing, according to court documents.”
• “But a London judge last year found Gerrard acted in ‘reckless breach of duty’ by giving up information on his client to the UK investigators. The judge also concluded that Gerrard instigated leaks to the news media and gave wrong advice to his client about potential criminal liability.”
• “A US aviation executive, Farhad Azima, who said he had been working with Massaad to publicize human rights abuses in the UAE, claimed that as part of Gerrard’s work his emails were stolen and posted online.”
• “Separately, he filed suit in the US, saying a hacking enterprise involving several parties, as well as a cover up that he claims Gerrard led and Dechert aided, violated the RICO Act.”
• “Jay Solomon, a former Wall Street Journal foreign affairs reporter, filed a similar lawsuit, alleging the leak of his correspondence with Azima cost him his job.”