Risk Update

Quandaries and Quagmires — Trending Legal Ethics and Risk Management Issues

Chuck Lundberg recently shared his latest thinking in Minnesota Lawyer: “Quandaries and Quagmires: Trending: legal ethics and risk management,” covering key developing stories including Varsity Blues and  The Epstein case:

  • “To be sure, dealing with alleged conflict situations like this is a recurring issue for lawyers. Significantly, conflict allegations are all too common in legal malpractice cases. And all too dangerous — a conflict allegation can turn a simple, vanilla malpractice case into a serious matter, aggravating compensatory damage exposure and potentially implicating punitive damages. So I imagine that the esteemed BigLaw defense counsel in the Varsity Blues cases at a minimum (1) had outside ethics counsel check the potential conflicts every which way before undertaking the representation and (2) retained independent outside counsel to advise each client about the risks and benefits of waiving the conflict.”
  • “In my view, however, an even more important law firm risk issue was raised at the very outset of the Varsity Blues case. At 6:30 am on Tuesday March 12th, the day the scandal broke, Gordon Caplan, the co-chairman of megafirm Willkie Farr & Gallagher, was arrested and charged with criminal conspiracy to bribe college admissions officials to gain college admission for his daughter… On the same day, Law360 also ran a critical story, quoting several ethics experts and crisis management and PR strategy consultants, all saying that the firm’s response was too little, too late. One said the law firm’s first misstep was the fact it took a whole day to respond publicly to news that was generating enormous media attention. Others said the law firm’s statement did not go far enough in condemning the alleged behavior. Some even went so far as to say placing Caplan on leave was not a strong enough response from the firm in light of the allegations, and that a resignation would be better when it comes to preserving the firm’s brand. “From a spin control standpoint, the sooner he is referred to as a former co-chairman and attorney at the firm, the better,” said one of the consultants.”


  • “Another recent blockbuster news story, the Jeffrey Epstein prosecution for child sex trafficking, presents a very different kind of risk management issue: Can a lawyer be criticized for negotiating too good a deal for the client? Put differently, would a legal malpractice claim alleging that one’s lawyer got the client ‘too good a deal’ state a claim for relief?”
  • “In any event, the 33-page written record of the long negotiations in the Order vacating the non- prosecution agreement is fascinating to read and should be an instructive story for many lawyers.8 One imagines that at least one of Epstein’s Dream Team of lawyers had the presence of mind to tell him, ‘Jeff, I just want you to know that there’s a possibility that the whole settlement could be vacated years from now because we got the feds to agree to too much, including not to tell the victims about the agreement. Are you sure you want to take that risk?'”