Risk Update

Side-switching and Ethical Screens (Or Not) — Ethical Wall Works for Moved Mediator, Trademark Matter Moving to DQ

Posted Dan Bressler

“After $166M Verdict Reversed, Job-Switching Mediator Isn’t Cause for Firm’s Disqualification” —

  • “A New Jersey appeals court has rejected a motion to disqualify Wilentz, Goldman & Spitzer from representing the defendant in a high-stakes legal malpractice suit, where an arbitrator in the case joined the Wilentz firm.”
  • “Mazie Slater was initially represented in the suit by Margolis Edelstein, but in January 2021 it retained the Wilentz firm. A month later, Keefe was part of a team of six attorneys and seven legal professionals who moved from the Keefe Law Firm to Wilentz.”
  • “The firm of Nagel Rice, which represents Escobar in the malpractice suit, moved to disqualify Mazie Slater, claiming that the firm’s representation by Wilentz constituted a violation of New Jersey’s RPC 1.12. That rule says a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally as a judge, arbitrator, mediator or other neutral party, unless all parties to the proceeding have given written consent to the representation.”
  • “The appeals court found that former Superior Court Judge John Keefe’s decision to join Wilentz after mediating in the malpractice case does not warrant disqualification of another Wilentz lawyer, Brian Molloy.”
  • “The appeals court agreed with Lynott’s finding that disqualification of Molloy from representing Mazie Slater would be warranted, if not for the measures taken to screen Keefe from participating as a lawyer in the matter or receiving any cut of the fee from the case.”
  • “‘Having reviewed this record, we agree with Judge Lynott that plaintiff failed to carry her burden to prove that disqualification of the Wilentz firm is justified,’ the appeals court said in an unsigned ruling.”
  • “Escobar provided no basis ‘to second-guess the judge’s ruling that the procedures the firm has put in place are sufficient to ensure the mediator will not participate in defendants’ representation, or share in any fees earned by the firm for its services to defendants,’ the panel said.”

“Florida Law Firm Closer to Disqualification in Trademark Fight” —

  • “A law firm based in Florida shouldn’t be able to represent an online educational services agency in its trademark suit accusing a private company of using confusingly similar marks, a magistrate judge has recommended.”
  • “Independent public agency Florida Virtual School sued foreign for-profit company K12 Inc. in 2020, saying K12 used its marks to promote its materials and breached a settlement agreement stemming from a 2011 lawsuit with similar allegations.”
  • “K12 moved to dismiss GrayRobinson PA as plaintiff’s counsel, claiming that one of its attorneys previously represented K12 in the earlier suit. Stephanie Carman was privy to privileged information from when she worked for Hogan Lovells LLP, prior to joining GrayRobinson, the defendant alleged.”
  • “U.S. Magistrate Judge Embry J. Kidd of the U.S. District Court for the Middle District of Florida recommended approving that motion April 20, rejecting the argument that the matters aren’t substantially related.”
  • “The court noted that ‘perhaps the most revealing of the substantial relatedness of the matters’ is that the current complaint relates the instant action to the settlement agreement and prior litigation.”