Risk Update

Risk Roundup — Bill’s Risk Report, Bio Risk & Billing Risk

Some recent, relevant spots from Bill Freivogel:

Woroch v. Northfield Trim & Door Inc., 2023 ONSC 218 (CanLII) (Super. Ct. Ont. Jan. 9, 2023).

  • “Company is owned by Family Members. In 2012 Family Members entered into a shareholders’ agreement prepared by Lawyer while representing Company. The agreement included an employment agreement for Plaintiff (also a Family Member) to be President. The shareholders’ agreement also contained a buy/sell provision.”
  • “In 2021 a transaction occurred under the buy/sell provision. A dispute arose between Plaintiff and Company and other Family members as to the meaning and enforcement of the shareholders’ agreement. Lawyer withdrew as counsel to Company and immediately took Plaintiff’s side in the dispute.”
  • “The dispute ripened into this proceeding, in which Lawyer is adverse to Company and Family Members. Defendants moved to disqualify Lawyer.”
  • ” In this opinion the court granted the motion. The court held that Lawyer’s earlier representation of Company, including preparation of the shareholders’ agreement, was sufficiently related to this case, which is about the interpretation and enforcement of the agreement. Moreover, there was no showing that Lawyer had not learned relevant Company confidences while representing Company. The court seemed influenced by the rather shady (not dishonest) way Lawyer went about the business of firing Company with no advance notice and commencing to do battle for Plaintiff. Among other things, the case has a strong whiff of hot potato.”

Joint Representation (posted January 16, 2023) N.Y. Op. 1249 (Jan. 5, 2023).

  • “Lawyer currently represents H and W simultaneously in estate planning. It is always a good idea to provide in an engagement document that Lawyer will keep no secrets of one joint client from the other. Authorities (including the Committee’s opinion) suggest that even absent a written provision, there is normally an expectation that Lawyer will share the information. Suppose, however, Lawyer learned something from, or about, H during an earlier single representation of H. This opinion says that the usual duty to reveal does not apply in the current joint representation.”

Changing Firms (posted January 9, 2023) Cole-Palmer Instrument Co. v. Prof’l Labs., Inc., No. 0:21-cv-61756-GOODMAN[CONSENT] (S.D. Fla. Jan. 6, 2023).

  • “Florida Rule 1.10(c)((1)&(2) appears to be identical to Model Rule 1.10(b)(1)&(2). This is a rare reported decision applying that rule.”
  • “Lawyer was at Firm 1 for about one year. Firm 1 represents Plaintiff. Defendant is claiming that Lawyer briefly represented Defendant on a matter related to this case and moved to disqualify Firm 1. In this opinion the magistrate judge denied the motion. The analysis is so fact-dependent, we will spare readers with a recitation of those facts.”
  • “First, the judge held that Lawyer and Firm 1 never represented Defendant. Last, the judge held that, in any event, the matters were not substantially related and that any information received by Lawyer and Firm 1 from, or about, Defendant was now public.”

Recreation Of Billing Records Led To Overbilling” —

  • “The Ohio Disciplinary Counsel and Respondent have reached a consent agreement for public reprimand in a case of overbilling by a court-appointed counsel for indigent defendants” —
    • “Between at least 2019 and 2021, when it was time to submit a fee application form, respondent would recreate the time he had spent on a case by reviewing the case docket and his incomplete handwritten notes, and he would estimate both the time he had spent on a particular task, as well as the date on which he had performed the task.”
    • “Respondent’s failure to maintain accurate and contemporaneous time records led to him filing numerous incorrect fee application forms with the Hamilton County Court of Common Pleas and the Hamilton County Municipal Court that reflected excessive amounts of hours on certain days.”
    • “In early 2021, the OPD became aware that several Hamilton County attorneys were generating a significant number of hours for court-appointed work. Accordingly, the OPD conducted an audit on fee application forms submitted by those attorneys on or after January 1, 2019. (Exhibit 3.)”
    • “Respondent’s fee application forms indicate that on August 7, 2019 – the day that respondent billed for a total of 27 hours – he spent 14.1 hours ‘in court’ on behalf of his clients even though the Hamilton County courts are only open to the public for eight hours a day (8:00 a.m. to 4:00 p.m.) Monday through Friday. (Exhibits 4 and 6.)”

US lawyer urged clients to infect opposing counsel with ‘nasty disease’” —

  • “A US lawyer advised his clients to have someone with Covid or another ‘highly infectious, nasty disease’ lick and handle an envelope being sent to opposing counsel, it has emerged.”
  • “The extraordinary request was revealed in a ruling that condemned the behaviour of Colorado bankruptcy lawyer Devon Barclay in acting for two debtors and banned him from operating in the US Bankruptcy Court of Colorado for three years.”
  • “At the start, Mr Barclay and his firm failed to execute a written contract with the debtors. ‘In any event, Mr Barclay commenced the debtors’ Chapter 7 bankruptcy case by forging the debtors’ signatures on the petition, statement of financial affairs, and schedules.'”
  • “He engaged in an ‘egregious pattern’ of misbehaviour in trying to have the case dismissed, lying ‘repeatedly’ to the trustee in bankruptcy and trying to manipulate the bankruptcy filing fee system ‘to cause the bankruptcy case to be dismissed.'”
  • “The lawyer told his clients: ‘If either of you have Covid or some other highly infectious, nasty disease — or if you know someone who does — please make sure they lick the envelope and handle it as much as possible.'”
  • “The US Trustee – a federal office that oversees bankruptcy cases – brought the misconduct action against Mr Barclay and his firm, although neither participated.”
  • “The judge said it deserved “severe sanctions”. He suspended Mr Barclay from practising in the Colorado bankruptcy court for three years and ordered that he cease advertising bankruptcy law services during that time.”