“Baker McKenzie, Ex-Client Embroiled In Litigation Over Retainer Agreement Breach” —

• “A breach of contract lawsuit that is playing out in California state court raises issues about billing practices and disclosures in Big Law, as Baker McKenzie stands accused of breaching retainer agreement by not notifying its client when fees and costs reached a certain threshold.”
• “California-based workplace services company SBM Management Services alleges that the global giant violated a provision in a retainer agreement that required SBM to be alerted when the firm neared ‘specific spending milestones,’ in a suit that was refiled Monday in San Francisco County Superior Court after being initiated in Sacramento in February.”
• “Specifically, SBM claims that during the agreement period, Baker McKenzie failed to adhere to a requirement that the law firm would inform SBM when expended attorneys’ fees and costs reached $15,000 intervals.”
• “This included a situation in December 2021 in which Baker McKenzie allegedly incurred more than $200,000 in fees and costs without first communicating the charges to the plaintiff.”
• “SBM’s suit states that the company considered ‘in good faith’ waiving its right to a jury trial and submitting the fee dispute to binding arbitration, but that it ultimately declined to do so.”
• “Meanwhile, Baker McKenzie had filed a countersuit days after SBM first filed its complaint over claims that its former client breached the agreement itself when it failed to pay the law firm for legal services rendered. That suit seeks also seeks relief for unjust enrichment.”
• “The countersuit states that SBM did not initially contest itemized legal billings in one of the underlying complaints for which Baker McKenzie was providing defense work until ‘many months’ after the legal services were performed, and that SBM furthermore refused, in bad faith, to abide by the arbitration provisions in the parties’ fee agreement.”
• “In the countersuit, Baker McKenzie claims that it is owed more than $500,000 in unpaid fees, costs and late charges.”

The ABA asks: “May a Defense Lawyer Cross-Examine a Former Client?” —

• “During the course of representing a defendant, a defense lawyer may discover that they previously represented a prosecution witness in a prior, unrelated criminal case. Especially for public defenders, this is not an uncommon occurrence. For example, a lawyer has a new client charged with assault and later learns that a former client, whom the lawyer represented in an unrelated burglary case two years earlier, is named in the police report as a key witness. In such a situation, may the lawyer cross-examine the former client? Some authorities say no, while others say a defense lawyer may, if certain conditions are met. In this column, we analyze the different approaches and conclude with our position.”
• “The National Association of Criminal Defense Lawyers (NACDL) maintains a defense lawyer should never be allowed to cross-examine a former client in an unrelated matter. An NACDL policy position states that the primary concerns are the duty of loyalty to current and former clients, the use of confidential client information against the former client, and avoiding an appearance of impropriety. Some ethics opinions and courts recognize a mandate to avoid appearance of impropriety being inherent in the duty of loyalty under the Sixth Amendment, even if the applicable ethics code contains no such ban. For example, State Bar of California Formal Ethics Op. 1980-12 (1980), which adopts the categorical ban, explains that even if defense counsel believe they do not have confidential information that could be used against the former client, the former client would likely be concerned and think otherwise. The opinion states that ‘[a]ttorneys involved in the administration of justice must avoid as much as possible the appearance of impropriety as well as impropriety in fact.'”
• “Wisconsin Ethics Op. EF-20-02 (2020) addresses the consent of both the current and former clients. In considering whether a public defender could cross-examine a former client, the opinion states that one must first determine if it is reasonable to assume that the attorney has confidential information that would be helpful in cross-examining the former client. The opinion considers a hypothetical involving a public defender representing a client charged with robbery when a former client, whom the lawyer had represented in felony drug cases, is a prosecution witness. The opinion states that it would be reasonable to assume that the lawyer had access to former client information, such as substance abuse issues, that would be useful in cross-examining the former client. In this scenario, the opinion states that continued representation of the current client ‘is theoretically possible’ if there is informed consent of the current and former clients. Consent of the current client is required under Rule 1.7(a)(2) due to the ‘significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to . . . a former client.’ Consent of the former client is required under Rule 1.9(c)(1) in order for the attorney to use the confidential information against the former client. While the opinion states that consent of the former client is theoretically possible, it is doubtful that ‘the former client would consent to the disclosure of information relating to the representation to attack her credibility.'”
• “We believe the categorical ban on cross-examining a former client whom the attorney represented in an unrelated matter is the best approach for a number of reasons. First, the approach that would permit such cross-examination if only the former client consents ignores the lawyer’s duties to the current client. The current client’s representation could still be materially limited by the lawyer’s responsibilities to the former client. It is too difficult to determine if the attorney has information learned in the representation of the former client that the attorney may decide not to use against the former client in cross-examination, thereby undercutting adequate representation of the current client. We also believe that consent of only the former client is unrealistic. A former client could not give informed consent unless an independent lawyer advises the former client of the risks of being cross-examined by their former lawyer, whose goal will be to undermine their testimony and discredit them. We think it is unrealistic to have an independent lawyer advise the former client. Who would bear the cost of having such independent representation for the former client? Surely, it could not be the current client, nor would such assistance of counsel be required by the Sixth Amendment.”
• “Second, the approach that would permit cross-examination of a former client if both the former and current clients give informed consent is impractical. As stated previously, consent of the former client is unrealistic. In addition, consent of the current client is impractical. As the cases adopting the categorical ban on cross-examining a former client demonstrate, there will be a presumption that the attorney has learned confidential information that should be used against the former client. Courts are not likely to accept the consent of the current client, concerned that there would likely be an ineffective assistance of counsel claim down the road if the current client is convicted.”

“Federal courts warn of e-filing scam targeting attorneys” —

• “The Administrative Office of the U.S. Courts has issued an alert warning that attorneys across the country are being targeted with fake electronic filing notifications in emails purporting to come from the federal judiciary’s Case Management/Electronic Case Files system.”
• “According to the U.S. Judiciary’s IT Security Office, the fake notices of electronic filing prompt recipients to reply immediately. Recipients are then sent an email containing a link to access fake case documents that direct users to a malicious website.”
• “To avoid becoming a victim of the scam, the office advises lawyers to always validate cases and case documentation directly through their local federal court’s CM/ECF system, adding that they should never download attachments or click on links from unofficial or questionable sources.”