Risk Update

Risk News — Disqualification Dispute, Poached Partner Lateral Subpoena Fight, CA/SF DA Ethical Wall Debate

Worker Fights AutoZone’s Bid To DQ Atty In Bias Suit” —

  • “A former AutoZone employee suing the company for discrimination has told a Pennsylvania federal judge that his lawyer’s reference to a previous confidential settlement, which the auto parts retailer claims is grounds for disqualification, was necessary to prove the company was retaliating against him for protected activity.”
  • “AutoZone argued in a July 15 motion to disqualify that the reveal of the confidential settlement by David Koller, Newman’s attorney, in filing a second claim alleging retaliation was not only a breach of that contract but also revealed a conflict of interest between Koller and his client.”
  • “But Koller argued in a motion in opposition Thursday it was necessary to reveal the parties had agreed to a settlement because any monetary aspect of the agreement could be evidence of AutoZone’s motive to retaliate against Newman for his second challenge. Koller also noted the settlement agreement had a clause stating the agreement itself couldn’t prevent Newman’s additional court filings with the employment commission.”
  • “‘There is no issue of joint representation where interests of co-parties could conflict,’ the motion said. ‘There has been no actual harm to date. Plaintiff may yet prevail in his defense against the counterclaim and to permit any defendant to argue for disqualification because a plaintiff may have received bad legal advice is to grossly misstate and warp the rules of professional conduct.'”

Jones Day’s Subpoena of Orrick Over Poached Partner Must Be Enforced, Court Rules” —

  • “Judges Kim Wardlaw, Sandra Ikuta and Bridget Bade reversed a district court order that denied Jones Days’ petitions to compel Orrick to comply with a summons, which stemmed from international arbitration Jones Day commenced against one of its partners in its Paris office, who allegedly violated an agreement when he left the firm for Orrick in 2019.”
  • “The central issue on appeal was whether the federal trial court in California has the power to enforce the subpoena against Orrick, a third-party in the dispute, even though the District of Columbia is the designated ‘seat’ in Jones Days’ arbitration agreement with the ex-partner. “
  • “According to a court order, former Jones Day partner Michael Bühler negotiated his employment with Orrick around the time he was also representing a Jones Day client before an arbitral tribunal, of which an Orrick attorney was a member. Jones Day said Bühler didn’t inform the firm of the conflict of interest. The Orrick arbitrator was eventually replaced, but Jones Day’s client wanted the firm to pay for the costs of the delayed proceedings.”

State Won’t Take Charge of Criminal Cases Involving Mayor Breed’s Brother and DA Brooke Jenkins’ Family

  • “The California Attorney General’s Office declined to take over two controversial cases in which San Francisco District Attorney Brooke Jenkins raised concerns about potential conflicts of interests.”
  • “Hours after taking office as San Francisco’s District Attorney on July 8, Brooke Jenkins’ office sought to have two cases transferred to another jurisdiction because of a potential conflict she feared would tarnish her public image.”
  • “One case involves Mayor London Breed’s brother Napoleon Brown and the other stems from charges against two men accused of killing Jerome Mallory, the cousin of Jenkins’ husband.”
  • “‘My stance has not changed and I will continue to have no involvement in either case to avoid any appearance whatsoever of a conflict,’ Jenkins said. ‘I am exploring whether other local agencies may be an option. Regardless, these cases will be handled according to the law and with integrity.'”
  • “‘There has been nothing to suggest that she is not fulfilling that ethical duty,’ the AG’s letter read. ‘Nevertheless, out of an abundance of caution, and under your guidance, DA Jenkins has been walled off from Mr. Brown’s case to avoid any public perception of a conflict of interest.'”
  • “But Pam Herzig, who represents Mitchell, contends that there remains enough of a conflict of interest that the district attorney’s office should not prosecute the case. The larger issue, according to Herzig, was that Jenkins publicly spoke about the case as she campaigned for the ultimately successful recall of her former boss, District Attorney Chesa Boudin.”
  • “The letter doesn’t describe accurately the issues of the conflict of interest, Herzig contends, adding that it specifically did not mention Jenkins’ repeated statements about the case.”
  • “‘Her opinions as to charging decisions and appropriate punishment are in the public record,” Herzig said. “It is impossible to see how ‘walling’ her off from the case resolves that conflict, as her deputies have been made aware of her position. The letter does not address that in any way.'”