Risk Update

Risk News and Opinion — Disqualification Dispute, Inadvertent Disclosure Discussion

USAA Slams Akerman DQ Bid In Medicare Repayment Row” —

  • “The United Services Automobile Association shot back on Tuesday against MSP Recovery Claims’ bid to disqualify Akerman LLP from representing USAA in their dispute over Medicare secondary payer claim reimbursements, arguing that the conflict of interest allegations are speculative and come years too late.”
  • “USAA argued that MSP Recovery — an assignee of Medicare Advantage organizations that provide health care to Medicare enrollees — had four years to bring up its allegations that Akerman has violated the Florida Bar’s conflict of interest rules by representing other insurers with connections to the same claims. MSP Recovery has known of this speculative conflict of interest since at least March 2017, according to USAA’s response.”
  • “‘Rather than immediately seek to disqualify Akerman in 2017, 2018, 2019 or 2020, plaintiffs have continued to actively litigate against Akerman, including in this case,” USAA said. “By continuing to litigate against Akerman and defendants for four years, without seeking disqualification, plaintiffs have waived the right to do so.'”
  • “The company said that MSP Recovery also has no legal basis for demanding Akerman’s disqualification because the motion is based on hypothetical assertions that MSP Recovery thinks Akerman could make in the future.”
  • “Akerman’s attorney Angel Cortiñas declined to comment aside from pointing to an order issued on Tuesday by U.S. District Judge Cecilia Altonaga, who is overseeing a similar case by MSP Recovery, in which she denied a motion to disqualify Akerman.”
  • “‘Plaintiff indicates there is yet-to-be-developed evidence — not presently before the court — that ‘would be applicable to the issues reflected in plaintiff’s motion to disqualify,” the judge said. ‘Plaintiff should consider filing its motion to disqualify when it is prepared for the court to resolve it, not before.'”

Why Taking Another Look at the Risk of Inadvertent Disclosure at Your Firm Might Be Worthwhile” —

  • “A lawyer and non-lawyer business partner own a business. These two have a falling out and litigation ensues. The non-lawyer business partner and other third parties have access to and are continuing to use one of the business’s shared calendars. The lawyer can therefore see when any of these folks schedule an appointment, to include appointments relating to the litigation. In the course of posting an appointment with the attorney who now represents the non-lawyer business partner, one of the third parties cut and pasted in information from an email between their attorney and the nonlawyer business partner. Of course, the lawyer was able to view this sensitive and privileged information.”
  • “While we commonly think about inadvertent disclosure in the context of sending an email to the wrong person or not being as attentive or thorough as called for during a document review process in response to a discovery order, the above story is an example of why it might be worthwhile to take another look at how an inadvertent disclosure might occur at your firm. After all, you can’t address a potential problem until you first recognize that a potential problem exists.”
  • “Taking time to think through how someone at your firm might slip up means you really do need to understand the inherent risks that come with the digital tools and tech devices in use at your firm. (Also see Comment 8 to ABA Model Rule 1.1 Competence.) For some, this may not be the easiest of tasks. However, it seems to me that the time spent trying to avoid a problem is time better spent than the time spent having to deal with the fallout of an actual problem that was never addressed — all for want of any effort to look for it.”
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