Bressler Risk Blog

Closing the circle, we reach “Done.” First up, the day after : “Disqualified Attorney Reprimanded” —

• “In a complaint certified to the Board of Professional Conduct on November 30, 2017, relator, Cleveland Metropolitan Bar Association, alleged that Hackerd committed several ethical violations by representing the former spouse of a former client in a child-custody case and opposing the former client’s motion to disqualify him from that representation.”
• [Ed: Fascinating that the opposition to a motion was flagged as an additional ethical violation.]
• “Sanction. ‘Based on our independent review of the record in this case and our precedent, we agree that Hackerd’s continued representation of Mr. Krenn in violation of the trial court’s disqualification order violated Prof.Cond.R. 8.4. Given this single rule violation, the absence of any aggravating factors, and the presence of significant mitigating factors, we agree that a public reprimand is the appropriate sanction in this case.'”

Next: “HCCA successfully moves to disqualify Southern Inyo bankruptcy attorney” —

• “Judge Frederick E. Clement ruled on April 10 that Ashley McDow and the law firm Foley & Lardner, which she works for, would be disqualified in the district’s bankruptcy case after HCCA argued that her prior work on HCCA matters represented a conflict of interest.”
• “‘I would direct the Court’s attention to the August 29 hearing, where Ms. McDow asked this court to order the parties to mediation, in which she made numerous negative statements about her former clients, accusing them of bad faith, accusing them of failing to provide information as necessary, accusing them of slowing down the bankruptcy proceeding,’ Brandon Krueger, a legal malpractice attorney representing HCCA, said during the April 10 proceeding.”
• “McDow had previously worked for the Baker Hostetler law firm, including on matters related to the Management Services Agreement, the main contract between HCCA and the Southern Inyo district.”
• “The Baker Hostetler firm was preferred by HCCA and its CEO, Dr. Benny Benzeevi, until Bruce Greene, an attorney with the firm, wrote in September 2017 that it would “commence termination” of its services to him and any of his companies. Billing statements show that McDow billed HCCA 37.2 hours for activity related to Southern Inyo, Krueger said. Those hours included negotiations with Southern Inyo regarding the contract.”

And finally, for firms fighting internally: “Fifty-Percent Owner of Partnership Has Standing to Seek Disqualification of Partnership Counsel to Protect Partnership Interests” —

• ” A general partner has standing to seek disqualification of an attorney who was being paid and directed by the other general partner. Further, the trial court did not abuse its discretion by ordering the disqualification, because the representation may not have been in the partnership’s best interest.”
• “The appellate court determined General Partner 2 had standing to seek the attorney’s disqualification despite the fact that General Partner 2 did not have a current or former attorney-client relationship with the attorney. The disqualification motion was based on the attorney’s lack of authority to act on behalf of the partnership, as opposed to disqualification based on a conflict of interest which would require a current or former attorney-client relationship.”
• ” Significance of Decision. Lawyers and law firms should have a baseline understanding of the partnership’s requisite authority to hire counsel prior to consenting to represent the partnership. This baseline inquiry and understanding will minimize the likelihood of a lawyer or law firm consenting to represent a partnership without the proper authorization from the partnership and risking a dispute and potential disqualification at a later date.”

Today we’re about disqualifications that didn’t (or haven’t yet) hit their marks. Several interesting ones to share. (And I’ll note that I am not left handed…)

First, an IP matter. (An area I’m finding myself spending a bit more time. For any curious about the latest operational and policy developments by the USPTO, I’ve done a bit of recent writing here, pardon the self promotion.) Regarding our DQ theme, we have: “Pierce Bainbridge Scolded But Dodges DQ In Patent Suit” —

• “A New York federal judge has ruled that a Pierce Bainbridge attorney stepped over the line by recording a conversation with an employee for a Chinese company that is being sued for patent infringement by a company the firm represents, yet said the firm could still stay on as counsel in the suit.”
• “‘[The attorney] went beyond general attendance or commercial transactions and asked specific, targeted questions related to the scope of Xiaomi’s business operations in New York,’ the judge said. ‘This line of questioning is reminiscent of that in a deposition.'”
• “In a motion Dareltech filed immediately after Judge Hellerstein’s order, the company said the employee Hecht and an investigator spoke with in fact worked for Xiaomi Technology Inc., a separate company that was not added to the suit until January. Thus the employee was not a represented party, the motion said.”
• “In a seeming effort to counter this, Hecht attended a promotional event in December with an investigator, the decision said. While there, Hecht questioned Xiaomi employees about the company’s New York presence, and were told that the company had a division based in Manhattan, but that it was ‘a secret operation,’ according to the decision.”

Next up: “Federal Judge Rejects Motion by DOJ to Disqualify Defense Attorneys in Illegal Drug and False Marketing Case” —

• “A South Florida judge has rebuffed an attempt by the Department of Justice to prohibit two Miami attorneys from representing their clients in federal court.”
• “U.S. Magistrate Judge William Matthewman denied a prosecution motion to disqualify the defense counsel for dietary supplement company Blackstone Labs and its CEO Phillip Braun on Monday. The department’s April 1 motion asked the court to bar attorneys Benedict Kuehne and Michael Davis from representing the defendants in the Southern District of Florida.”
• “The agency’s motion contended the Kuehne Davis Law litigators ‘should not be allowed to handle the charged case because the firm also represented a number of company employees as fact witnesses during the grand jury investigation.'”
• “However, Matthewman’s 17-page order rejected the DOJ’s motion and allowed Kuehne and Davis to appear as defense counsel. The judge asserted the three conflict-laden witnesses cited by the prosecution are no longer represented by Kuehne Davis Law.”
• See the text of the order here.

Next, from Hinshaw: “No Harm, No Foul: Disqualification Not Warranted When City Attorney Obtained Privileged, But Irrelevant, Communications During Internal Affairs Investigation” —

• City of San Diego v. The Superior Court of San Diego County, D073961 (Cal. Ct. App. 4th Dist. Modified Jan. 7, 2019)
• “During an internal affairs investigation concerning the leak of a confidential police report, the Police Department of the City of San Diego (the “City”) questioned a police detective about communications she had with an attorney who was representing her in a harassment and retaliation lawsuit against the city.”
• “Under the threat of discipline and termination, the detective invoked the attorney-client privilege. After the detective was informed the City Attorney had determined the privilege did not apply, the detective disclosed the privileged communications during a second interview with the Department and the City Attorney.”
• “The appellate court found that the City Attorney violated the attorney-client privilege and the rule of professional conduct prohibiting an attorney from communicating with a represented party about a pending matter.”
• “However, as disqualification is a drastic remedy meant to be prophylactic and not punitive, the appellate court reversed the trial court’s order disqualifying the City Attorney, determining that disqualification was not warranted because the transcript of the interview established there was no genuine likelihood that the City’s misconduct would provide it with an unfair advantage or in any other way affect the outcome of the proceedings before the court.”

And finally, from Scotland: “Client fails in appeal against decision to dismiss complaint against lawyer as ‘time-barred’” —

• “A disgruntled litigant whose complaints against a Scots lawyer and a law firm were rejected as time-barred has had an appeal against the decision dismissed.”
• “A judge in the Inner House of the Court of Session held that the Scottish Legal Complaints Commission (SLCC), in exercise of its ‘gatekeeping or sifting function,’ was entitled to exercise to its discretion by reaching the conclusion which it did.”
• “Lord Menzies heard that the applicant John Innes was seeking leave to appeal against the SLCC’s determination that the applicant’s complaints against a solicitor employed by Pinsent Masons were each time-barred in terms of rule 7 of the Rules of the Scottish Legal Complaints Commission.”
• “‘The applicant did not identify any exceptional reasons why the complaint was not made sooner, either in his response to the commission or before this court, and the commission could find none. Similarly, the applicant provided no information about any exceptional circumstances relating to the nature of the complaint and the commission could find none.'”
• Full text of the ruling here.

Sunday’s interesting update notwithstanding, we’re running a new risk blog experiment (it’s pretty low risk) — welcome to Theme of Week: Disqualifications. Today’s DQ stories focus on running disputes, and there are several to share.

First up, a fascinating example with no facts to evaluate, making many all the more curious: “Huawei says will fight U.S. prosecutors’ motion to disqualify its lawyer” —

• “Huawei Technologies said it will ‘vigorously oppose’ a motion filed by U.S. prosecutors on Thursday to disqualify its lead defense lawyer from a case accusing the Chinese company of bank fraud and sanctions violations.”
• “According to a filing in the U.S. District Court in Brooklyn, New York, the U.S. government sought to remove James Cole from the case. Cole was the No.2 official at the Justice Department between 2011 and 2015, a period when the United States was obtaining information on how Huawei might have been doing business in Iran in violation of U.S. sanctions.”
• “The filing did not make public why it is seeking to remove Cole from the case. In a letter to the court, prosecutors said they had filed a sealed, classified motion to disqualify Cole and expected to file a public version by May 10.”
• “Cole, the former U.S. deputy attorney general, is now a partner at law firm Sidley Austin in Washington. He declined to comment.”

Next, a disputed duked out: “BakerHostetler Can’t Overturn Opioid MDL Disqualification” —

• “BakerHostetler will remain disqualified from representing Endo Pharmaceuticals in two bellwether cases in the multidistrict opioid litigation, an Ohio federal judge ruled Monday, saying the drugmaker waited too long to cry foul.”
• “The ruling from U.S. District Judge Dan Aaron Polster rejected Endo’s newly raised objection to his consultation with the U.S. Department of Justice about confidential information that BakerHostetler partner Carole Rendon viewed while serving on a DOJ task force related to the opioid crisis.”
• “In addition to criticizing the DOJ consultation, Endo accused Judge Polster of improperly basing BakerHostetler’s disqualification on his own experience as a federal prosecutor. The drugmaker pointed to Judge Polster’s recollection of mistrust decades ago between local and federal law enforcement and his stated concern that Rendon’s side-switching could revive that mistrust.”
• “But Judge Polster on Monday deemed that faultfinding tardy as well, saying he had “made it clear” at February’s hearing that he would rely on his own experience when deciding whether to boot BakerHostetler.”
• “‘If Endo had any problem with the court drawing on its own experience, the time to object was at the hearing or, at the latest, immediately thereafter,’ the judge wrote. ‘At no point during the hearing, or at any time in the intervening 41 days between the hearing and the [disqualification], did Endo … object in any way,’ Judge Polster wrote, concluding that ‘Endo has therefore waived any objection it might have had.'”

Finally, a withdrawal before a ruling: “Sen. Steve Santarsiero resigns from law firm after ethics dig” —

• “[Pennsylvania] State Sen. Steve Santarsiero has resigned as partner with law firm Curtin & Heefner after an attorney representing the Rockhill Quarry accused him of a conflict of interest. Santarsiero says the charge is unfounded and was meant to intimidate him.”
• “State Sen. Steve Santarsiero resigned as a partner in the law firm of Curtin & Heefner earlier this month, writing in a letter he did so to ‘avoid so much as the appearance’ of a conflict of interest over a dispute regarding the controversial Rockhill Quarry in East Rockhill.”
• “Santarsiero’s letter was in response to Robert Gundlach Jr., an attorney at Fox Rothschild LLP representing the quarry. Gundlach raised the prospect of a conflict of interest in a pair of his own letters, noting Curtin & Heefner also provides legal representation to area residents opposed to the quarry.”
• “In his letter, Gundlach charged Santarsiero ‘may have engaged in conduct that constitutes a ‘conflict of interest’’ under the state Ethics Act. He cited a section of the law that says a lawmaker cannot use information gained through the privilege of offices to monetarily benefit himself, a family member, or an associated business.”
• “In a phone interview, Santarsiero forcefully denied any ethical issue. He said he had not been an equity partner at Curtin & Heefner, and instead was compensated on an hourly basis and for work brought into the firm, none of which he said involved the quarry. Since his senate term officially began last Dec. 1, Santarsiero said, he had had no ‘substantive’ conversations with or provided any information to attorneys at the firm regarding the quarry.”

An interesting story relating to lateral movement of staff and movement of client data (or metadata): “In dispute over client list with former employee, Webb Law Firm of Pittsburgh loses motion for judgment” —

• “A judge in the Allegheny County Court of Common Pleas last year ruled against a law firm that was sued by one of its former employees for breach of contract and tortious interference.”
• “Alexander worked at the firm for five years but was terminated in April 2016. Two months later, he emailed Michael Somerhalder, the firm administrator, requesting a list of application numbers, client names, applicant names, assignee names and inventor names for all patent applications that Alexander worked on while he was with the firm, the suit says. Alexander says he wanted the information for another job he was applying for at Reed Smith. The list of clients was a stipulation if Alexander wanted to work at Reed Smith, he claims. Reed Smith did not return a message seeking comment.”
• “The Webb firm denied Alexander access to those records and the plaintiff was unable to procure the job at Reed Smith, the lawsuit says. ‘There is no language in the offer letter discussing any duty on the part of Webb to comply with the Pennsylvania rules or the USPTO rules, let along supply plaintiff with the client list he requested,’ Webb firm lawyers said in court documents.”
• “The Webb firm also contacted the Pennsylvania Bar Association Ethics Counsel to inquire if it had an obligation under the Pennsylvania Rules of Professional Conduct to provide the list requested by plaintiff. Webb was told it did not have such an obligation, it says.”
• “Alexander said in filings that professional conduct rules impose an ethical obligation upon Webb to produce the requested listing of client names and impose an ethical obligation plaintiff to avoid conflicts of interest based on the requested information.”

“Michigan Supreme Court proposes changes to attorney rules in light of new technology” —

• “The Michigan Supreme Court on Monday proposed adding technological competency to the list of required skills under the state’s rules of professional conduct for attorneys.”
• “Attorneys would be required to engage in continuing education within the realms of developing technology. Attorneys would also be held to a higher standard in regard to confidentiality when transmitting information electronically. It would be required for attorneys to take reasonable measures to prevent the unwarranted dissemination of client information.”
• See the text of the proposed new rules: here.

Not a law firm (yet)… but are we witnessing the birth of a trend? “$10 trillion custodian Northern Trust is exploring shutting off external email for thousands of its employees as it tries to thwart cyber threats” —

• “Northern Trust, which oversees roughly $10 trillion, is looking at restricting the ability of some employees to send email outside the company as it beefs up its cybersecurity, according to a top executive at the company who requested anonymity because the policy hasn’t yet been formalized.”
• “The Chicago-based firm is exploring limiting external email to only employees who work with clients and other groups outside the company to avoid potential privacy breaches.”
• “Right now, the firm’s email system cautions employees not to send any information externally, with warnings that pop up about sending such a message. These warnings are typically disregarded, the executive said, so the firm is thinking about taking more drastic measures.”

“Re-Fingerprinting Of California Lawyers Turns Up Thousands Of Criminal Records” —

• “The State Bar of California has received more than 6,000 criminal history reports to review as a result of the ongoing re-fingerprinting of lawyers in the state.”
• “Slightly more than 2,200 of the records involve attorney convictions for which the bar had no previous record, according to data from early March. Almost all of those crimes were misdemeanors, and less than one percent were felonies.”
• “The 20 previously unreported felonies have already been sent to the bar’s Office of Chief Trial Counsel for review and possible disciplinary action.”
• “Re-fingerprinting is underway because the California bar was required by a 1989 law to ensure the retention of submitted fingerprints so it could receive notifications of attorney arrests and convictions, but the agency did not seek to comply with the statute until recent years.”

It can be fascinating to observe how other professions and industries navigate their own conflicts landscape, and how those rules evolve (or are created) over time. For those similarly fascinated (and similarly interested in what show runner David Simon has to say): “Why Hollywood Writers Are Firing the Agents They Love” —

• “Now the Writers Guild of America is fighting back. The union represents about 13,000 screenwriters—some 8,500 of whom have agents—and it provides them with health and pension benefits and advocates for writers’ interests with studios and producers. Last week, the guild sued the four biggest talent agencies—WME, Creative Artists Agency, ICM Partners, and United Talent Agency—on the grounds that their packaging practices violate California and federal laws by pitting the financial interests of the agencies against those of their clients. The union also instructed its members to fire their agents after failed negotiations on a new industry code of conduct to replace the compact that governs how agents represent writers.”
• “David Simon, the creator of The Wire and Homicide: Life on the Street, recently wrote an impassioned blog post, reprinted on Deadline, about the inherent conflict that packaging presents: ‘The problem is that the agency incentive to package shows and provide larger payments to themselves has obliterated any serious thought about aggressively negotiating on behalf of any writer, or actor, or director, large or small. Why bother to fight for 10 percent of a few dollars more for this story editor or that co-executive producer when to NOT do so means less freight on the operating budgets of the projects that you yourself hope to profit from? Why serve your clients as representatives with a fiduciary responsibility and get the last possible dollar for them, when you stand to profit by splitting the proceeds of a production not with labor, but with management—the studios who are cutting you in on the back end? Why put your client’s interest in direct opposition to your own?'”

More in the tune of legal ethics, I’ve been fascinated to see some stories percolate on the theme of access to the law — not representation, the actual words. Here are a few stories and updates of that ilk:

“Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws” —

• “When we last checked in with Carl Malamud and his Public.Resource.Org, they were celebrating a huge victory in Georgia, where the 11th Circuit had ruled that of course Malamud was not infringing on anyone’s copyrights in posting the “Official Code of Georgia Annotated” (OCGA) because there could be no copyright in the law.”
• “Last week Malamud sent a letter describing how the state is now trying to block him from purchasing a copy of the OCGA. He’s not looking for a discount or any special deal. He wants to buy the OCGA just like anyone else can. And the state is refusing to sell it to him, knowing that he’s going to digitize it, put it online and (gasp) make it easier for the residents of Georgia to read their own damn laws…”
• More history on this issue, and a call for interested parties to sign on to an amicus brief heading to the Supreme Court.

“Can the law by copyrighted” —

• “The question is at the center of a lawsuit involving YC-backed UpCodes and the nonprofit that develops the most widely used building codes in the U.S… UpCodes wants to fix one of the building industry’s biggest headaches by streamlining code compliance. But the Y Combinator-backed startup now faces a copyright lawsuit filed against it by the International Code Council, the nonprofit organization that develops the code used or adopted in building regulations by all 50 states.”
• “The case may have ramifications beyond the building industry, including for compliance technology in other sectors and even individuals who want to reproduce the law. At its core are several important questions: Is it possible to copyright the law or text that carries the weight of law?”
• “UpCodes’ first product, an online database, gives free access to codes, code updates and local amendments from 32 states, as well as New York City. For building professionals and others who want more advanced search tools and collaboration features, UpCodes sells individual and team subscriptions.”
• “It argues that its use of building codes is covered by fair use. The ICC, on the other hand, claims that products like UpCodes’ database harm its ability to make revenue and continue developing code. The ICC wants UpCodes to take down the building code on which it claims copyright, and has also sued for damages.”
• “A lawsuit filed by the state of Georgia’s Code Revision Commission in 2015 sought to stop it from publishing the Official Code of Georgia Annotated (OCGA) after founder Carl Malamud purchased a hard copy of the OCGA, scanned it and sent copies on USB sticks to Georgia legislators. The Code Revision Commission argued that the annotations they wrote placed it under state copyright, but the Eleventh Circuit ruled in Public.Resource.org’s favor last year.”
• “One difference between the Public.Resource.org cases and UpCodes’ is that Public.Resource.org is a non-commercial group, a fact that strengthens their fair use argument. UpCodes, on the other hand, is a commercial company, which will become part of the fair use analysis if their case makes it to trial.”

Colorful titls from Above the Law at the end: “PACER, Or Your First Amendment Right To Go F**k Yourself For $0.10/Page” —

• “Many have complained, but few have complained as eloquently as Seamus Hughes, the deputy director of George Washington University’s Program on Extremism. His op-ed for Politico is definitely worth reading. It highlights everything wrong with the PACER system, including its amazing profitability.”
• “This money is supposed to be used to improve PACER and fund other U.S. Courts’ efforts. A visit to PACER makes it clear none of that money is being routed towards making PACER less awful. At least one federal court has ruled the way the U.S. Courts spend this money is illegal.”

Any firm can find itself making risk news for any number of reasons. This one just happens to have had several hits on radar this week:

“Bill Cosby is fighting a $6.7 million lawyer bill” —

• “Cosby says he hired Quinn Emanuel to represent him after ‘public claims of sexual misconduct against [him] began to snowball at the end of 2014,’ and that the firm ended up working on 10 different matters representing Cosby. At that point, Cosby had the firm on a retainer. However, Cosby claims that the partner in charge of his cases, Christopher Tayback, son of actor Vic Tayback, did not talk to Cosby about the specifics of the retainer contract prior to its signing.”
• “Cosby is now serving three to 10 years in a state prison after he was convicted last year of drugging and sexually assaulting Andrea Constand at his home 15 years ago.”
• “Cosby also accused AIG and Quinn Emanuel of failing to disclose a conflict of interest for not revealing the fact that the insurance company had previously and was continuing to use the firm’s services on other legal matters, and the firm had knowledge that AIG had filed declaratory relief actions against Cosby — seeking to avoid having to cover his legal fees to be paid to the very same firm.”

“In Fight to Stay in Case Against Former Client Uber, Quinn Emanuel Faces Skeptical Judge” —

• “The federal judge who will decide whether lawyers at Quinn Emanuel Urquhart & Sullivan get to pursue an antitrust case against former client Uber Technologies Inc. greeted a lawyer from the firm with extreme skepticism and a flurry of difficult questions Friday.”
• “U.S. Chief Magistrate Judge Joseph Spero of the Northern District of California opened a hearing on Uber’s motion to disqualify the Quinn Emanuel lawyers by raising concerns about the similarities between the lawsuit he’s overseeing and an earlier suit where Quinn played the defense role for Uber.”
• “Uber’s lawyers at Gibson, Dunn & Crutcher filed their motion to disqualify the Quinn lawyer in February. Uber contends that Quinn Emanuel represented it in at least 20 cases from 2012 to 2016 that delved into competition issues similar to the ones in the Sidecar case.”
• “Spero also took issue with language included in declarations by Quinn lawyers, including firm co-founder and chairman John Quinn, which said that they ‘had no particular recollection’ of discussing antitrust issues that in-house lawyers at Uber claimed the firm had advised on. ‘My presumption has got to be that if the lawyer doesn’t remember it and the client does, that the client is right,’ Spero said.”

“Soccer Charity Says Bid To DQ Quinn Emanuel A Distraction” —

• “A soccer charity is pushing back on a bid to disqualify Quinn Emanuel from a trademark dispute against the U.S. Soccer Federation, calling the request a baseless distraction.”
• “The move to disqualify Quinn Emanuel Urquhart & Sullivan LLP comes in a suit by the charity, called the U.S. Soccer Federation Foundation Inc., which is aiming to prove it can legally use the name after USSF pushed the charity to give it up in November. According to the charity, Raskopf was an associate with the now-shuttered Townley & Updike in the early 1980s when the firm was hired by USSF to obtain certain trademarks.”
• “‘The mere existence of decades-old, uncontested registrations for non-foundation marks, for which other Townley & Updike personnel were primarily responsible, cannot bar Quinn Emanuel’s representation of the foundation for the simple reason that any such facts are irrelevant to this case,’ the charity wrote. The charity added that at the time, Raskopf was only four years out of law school, and the documentation doesn’t even establish what actual work, if any, he did with those trademarks.”

“Quinn Emanuel Gets Suit Brought by Partners in NYC Spinoff Routed to Arbitration” —

• “If the decision by a New York state judge stands and Quinn Emanuel prevails in arbitration, Selendy & Gay partners could be forced to turn over 10 percent of the fees they got from former Quinn Emanuel clients in the 18 months after they departed.”
• “Partners at Selendy & Gay had argued that Quinn Emanuel’s effort to make them turn over a share of the legal fees they took with them violated state ethics rules, but Manhattan Supreme Court Justice Saliann Scarpulla ruled this week she could not evaluate that dispute.”
• “In an emailed statement, Phillip Beck of Bartlit Beck, which represented Selendy & Gay’s partners alongside the firm of Vladeck, Raskin & Clark, saw a silver lining in the decision. He noted that the judge acknowledged his side’s arguments that Quinn Emanuel was simply using the fees provision as a cudgel to convince Selendy & Gay to not try to poach its associates.”
• “Quinn Emanuel founder John Quinn previously told ALM that he wasn’t too worried about the dispute. ‘Last year was the best year we have ever had and, by reports, they have done well also,’ he said in an email for a February article. ‘The dispute is only about money and will eventually be resolved one way or another for an immaterial amount.'”

Yesterday we shared an update from the world of records, and with today being Arbor Day we have a timely related story about paper to share. (Technically, it’s Arbor Day in the United States — our international readers in mind, I have now confirmed that the holiday is celebrated across the world, though at different times based on local climate and custom).

FileTrail, which has a clear commercial interest in advancing the cause of records management, published: “Beyond Paper: Automating the Destruction of Physical Records,” arguing not just for the risk mitigation benefits of keeping up with disposition, but also the economic benefits:

• “This Arbor Day, we encourage all law firms to reflect on the state of their paper-based archives and in reducing the total volume of paper generated in the future.”
• “In recent years, a growing number of law firms have been moving to “paperless” or paper-light systems, with electronic records regarded as the “official” record of the organization. Certainly, law firms have come a long way in reducing their usage of paper and helping to save trees — striking a positive note this Arbor Day. But for many firms, the elephant in the room is the large volume of physical records that have accumulated over decades — extremely costly to store and difficult to manage.”
• “Many firms know they need a large-scale purge of physical records but procrastinate. Often, their hesitation is that it will take too long to go through each box to identify which files can safely be destroyed.”
• “You may be shocked to find out the potential cost savings. One firm we work with estimated that by destroying 43,000 boxes — starting with physical records from client matters that have been closed for ten years or more — it would save more than $114,000 per year in storage costs and recoup the cost of destruction in less than two years.”

Another flavor of original content to share with the community this week. Last we highlighted an in-depth interview on industry risk trends. This week I wanted to highlight a piece on our sister site Off the Record, featuring our discussion with John Churchill, Record Department Manager, Nelson Mullins.

As he notes, clients and prospects are increasingly requesting more detailed information in RFPs about information governance policies and procedures, including records management:

• “As a result, the role of Records Management has become more prominent. The attorneys, Risk and General Counsel all value what we do now. Similarly, the CIO and the Security team also value our input and are trying to ensure that we’re more integrated with Security.”
• “Legal technology is changing the role of the records manager. We’re expected to have a more well-rounded view. Records staff are now expected to be more technically savvy. It’s offering growth opportunities, including re-training. Most of the team is really up for the transition.”

See the entire interview for more detail on the evolving structure, role and prominence of record/IG at his firm, and how the organization is navigating its own path to becoming more ‘paper light.’

“5th Circuit Strikes Gibson Dunn’s Pro-Obamacare Brief for Recusal Issue” —

• “A federal appeals court on Monday blocked the law firm Gibson, Dunn & Crutcher from filing a pro-Obamacare amicus brief because the submission would have caused the disqualification of an unidentified judge.”

• “The U.S. Court of Appeals for the Fifth Circuit’s order pointed to a newly amended federal rule for appellate litigation and to a local court rule, both of which address circumstances where a court can reject an amicus brief if allowing it would force a judge to recuse.”

• “Former Gibson Dunn partner James Ho was confirmed in 2017 to a seat on the Fifth Circuit… firm. Ho’s wife, Allyson Ho, is a Gibson Dunn partner in Dallas.”

• “James Ho, who’d been a Gibson Dunn appellate partner continually since 2010, said in a U.S. Senate questionnaire at the time of his confirmation: ‘For a period of time, I anticipate recusing in all cases where my current firm, Gibson, Dunn & Crutcher, represents a party.’ He also said he would recuse in any case where his wife represents a side and that he would ‘evaluate any other real or potential conflict, or relationship, that could give rise to appearance of conflict.'”

• “An amendment to the federal rules of appellate procedure that took effect in December 2018 said ‘a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.’ Several appellate courts had adopted local rules forbidding the filing of an amicus brief that could cause the recusal of one or more judge, and the new federal rule harmonized how courts were handling amicus briefs and recusals. There was some opposition to the proposed rule, including the argument that amicus-based recusals are rare and the fact that the rule could ‘prove wasteful if an amicus curiae pays an attorney to write a brief which the court then strikes.'”

“Developer On Hook For $5.2M Despite Atty DQ, 8th Circ. Says” —

• “A law firm that previously represented a historic Iowa building’s owner should have been disqualified from representing a bank suing the developer over lease payments, but the owner still must face a $5.2 million judgment despite the conflict of interest, the Eighth Circuit ruled Thursday.”

• “Winthrop had represented Mako in 2011 and 2012 on a $6 million tax credit bond offering related to a $17 million restoration project for Badgerow. But U.S. District Judge Leonard T. Strand said the law firm’s representation of CRBT in the present case was acceptable because of a conflict of interest waiver signed by both the bank and Mako.”

• “The appeals panel disagreed. Finding that the waiver — inked years before the litigation — was not signed by Mako with ‘informed consent,’ the panel said it did not lay out the ‘advantages, disadvantages, risks or benefits’ Mako would face by allowing Winthrop to serve as counsel for CRBT. But despite the insufficient waiver, Mako was not adversely affected by Winthrop’s representation of CRBT, the appeals court said, citing First Circuit precedent.”