Risk Update

Tales of Two Disqualification Motions — One Chat with a Rival, One “Slam Dunk” Conflict

Posted Dan Bressler


“SD Supreme Court suspends Avon attorney for violating conflict of interest rules”

  • “https://www.mitchellrepublic.com/news/crime-and-courts/4961338-SD-Supreme-Court-suspends-Avon-attorney-for-violating-conflict-of-interest-rules.”
    “The court found that Scott Swier violated three professional conduct rules by taking cases in conflict with the interests of former clients and failing to properly ensure the attorneys he employed didn’t also participate in misconduct.”
  • “The decision rendered by the court and written by Chief Justice David Gilbertson is blistering regarding Swier’s behavior and management of his law firm, which was described as ‘haphazard,’ and described his oral arguments to the court as resembling an infomercial for his law firm and his time before the court as ‘lacking in sincerity and remorse.'”
  • “One of the complaints regarding Swier was over a Chamberlain woman’s contested will, brought forward by Mitchell attorneys Jack Theeler and Richard Rylance. A judge in the case had ordered that Swier’s firm stop representing Shirley Hickey’s daughter, Kristina Lippert, in the case, because Hickey herself had been a former client of Swier’s firm. Theeler had previously provided legal services to the Hickey family and was contacted in 2017 to review Hickey’s estate plan.”
  • “The judge in that case said the actions of the Swier Law Firm were a ‘slam dunk’ conflict of interest and disqualified the Swier firm from the case. After Theeler was appointed as Hickey’s counsel by court order, Swier’s firm did not withdraw from representing Lippert and later billed the estate of Shirley Hickey and her living trust more than $144,000 in legal fees over an 18-month span in 2017 and 2018. Two associates of the firm were also disciplined by the State Bar’s Disciplinary Board.”
  • “‘Our review of the record left the Court with the impression that Swier ignored what he knew were conflicts, was too slow to take corrective measures, and showed no true remorse,’ Gilbertson wrote.”
  • “The court decision said Swier admitted the allegations in the formal accusation and does not dispute the facts.”

“Atty’s Chat With Rival Not Enough For DQ Bid In Cabinet Row” —

  • “A Washington federal judge has denied a bid to disqualify a law firm after one of its attorneys inadvertently spoke with a lawyer who represented a cabinetmaker involved in a trademark dispute with the firm’s client, determining that the shared information was not shown to be ‘significantly harmful.'”
  • “AAA Cabinets & Millwork Inc. failed to show that the information that Lee & Hayes PC learned about the dispute involving its client, the Kitchen Cabinet Manufacturers Association, amounted to more than “de minimus harm” and crossed the threshold of ‘significantly harmful,’ according to Wednesday’s order by U.S. District Judge Salvador Mendoza Jr.”
  • “AAA alleged in November that Matthew Ries, its outside counsel, called Chris Lynch, the Lee & Hayes attorney, in May; Ries had once been a student of Lynch. Ries ‘divulged detailed confidential information’ after Lynch assured him that a conflict check was not necessary before they spoke, as he purportedly was personally aware of all trademark matters at the firm, according to AAA’s motion to disqualify.”
  • “When Lynch began to speak with another Lee & Hayes attorney about his conversation with Ries, he quickly realized Ries’ client was likely involved in a trademark dispute with the KCMA, so he screened himself from further participation in the matter, according to the opposition brief.”