Thursday, August 19, 2010

Law Firm Conflicts & Confidentiality Roundup -- More in the News

New stories about law firm conflicts:
  • Crowell & Moring facing malpractice suit stemming form its representation of victims in the 1996 hijacking of Pan Am Flight 73: "The plaintiffs signed a joint prosecution agreement requiring them to waive any potential conflicts with other plaintiffs and to share recovery based on a formula in the agreement...the complaint asserts that the law firm had a conflict of interest when it represented U.S. nationals and non-U.S. nationals at the same time. It claims that the law firm knew that the prospects for recovery -- because of the likelihood government-directed settlement -- were much better for U.S. nationals than non-U.S. nationals but failed to disclose that information to the plaintiffs. 'C&M's conduct was motivated by its desire to maximize the possibility that it would receive fees under the C&M retainer,' the complaint alleges."
  • Balch & Bingham removed from BP oil case due to "potential" conflict: The Alabama Attorney General excused Balch from participating in the suit against BP because the firm had previously a firm that would likely be named in the suit along with BP. The AG said he: "...did not believe Balch Bingham has an ;actual conflict; but company officials agreed it would be in the best interest of the company and the state that the firm not be involved."
  • [via Legal Ethics Blog]-- An interesting decision concerning a lawyer who did non-legal work as an insurance adjuster for an adverse party. The judge denied the motion, citing, among other factors, the use of an effective ethical screen: "Here, the trial court, after hearing testimony, found the presumption of a transfer of confidential information from Reiche to the R. Rex Parris Law Firm had been fully rebutted by undisputed evidence that Reiche had not yet begun his employment with the firm and that effective screening had been implemented at the inception of the employment interview..."

Tuesday, August 10, 2010

More on Updating Conflicts and Screening Rules

A colleague forwarded a article in response to yesterday's post on New York's move to address multijurisdictional practice disciplinary and conflicts rules. Written by a partner at Hanson Bridgett, "As Firms Modernize, So Should Law on Conflicts" provides good summary and background of a case that made news earlier this summer: In Kirk v. The First American Title Insurance Company, 183 Cal.App.4th 776.

In this decision, which centered on a case of a laterally-moving lawyer with confidential information relevant to an adverse client, California's Second District Court of Appeal essentially ruled that: "If it’s done right, a non consensual screen will prevent vicarious disqualification... the court decided that evidence of an effective screen should be permitted to be presented to refute a presumption of vicarious disqualification."

And via Legal Ethics Forum, a pointer to an interesting article arguing against ongoing efforts to revise California Rules of Professional Conduct. See the linked article arguing: "Why the Proposed New Rules of Professional Conduct Should Be Rejected."

Monday, August 9, 2010

Move to Modify Conflicts and Displinary Rules for Multijurisdictional Practice

An interesting article in the New York Law Journal points out a move by the City Bar to modify conflicts and disciplinary rules to take into account the growing trend of lawyers practicing across jurisdictions. The proposed changes would let lawyers follow local rules for non-litigation matters brought out-of-state.

These changes would also relax conflicts and ethical screening restrictions in some instances where New York firms have London offices. For more information, see the text of the proposed changes.

Wednesday, August 4, 2010

Safeguarding Confidentiality: Ensuring Law Firm Technology, Policies and Practices Protect Sensitive Information

Insurance provider CNA just published an article on law firm confidentiality management in its regular newsletter: Safeguarding Confidentiality: Ensuring Your Technology, Policies and Practices Protect Sensitive Client and Firm Information by Ann Ostrander, Senior Director, Firmwide Loss Prevention, Kirkland & Ellis LLP. The article explores existing and emerging trends tied to information risk management.

Kirkland & Ellis selected and deployed IntApp Wall Builder to provide automated ethical screens, information barriers and general confidentiality management for the firm.

Tuesday, August 3, 2010

Conflicts -- What "Appearances" Are Enough to Warrant Disqualification?

Last week we pointed to an interesting story about a special master stepping down due to conflicts allegations before a motion to disqualify had been filed. The special master decided that the "lack of confidence" exhibited by the plaintiff was enough to impeded her ability to function effectively.
This week, a different story about arguing over appearances tied to the BP oil spill situation. It appears various groups are working to disqualify judged on the 5th U.S. Circuit Court of Appeals, the body ruling on challenges to the government's moratorium on offshore oil drilling.

In this case, appearances are tied to allegations that "...at least two of the empanelled 5th Circuit judges should have been disqualified from the case for having represented oil and gas interests while in private practice." And one of the interest groups has produced extensive documentation arguing its case. But the authors in this essay argue that disqualification-worth appearances should be tied to more than client advocacy.