Thursday, August 2, 2012

Conflicts and Disqualification News

We're no strangers to food-related conflicts (recall this interesting ice cream conflict from a few months ago). Now comes another story from the that same franchise community news site Blue MauMau: "Marks and Klein Disqualified for Hiring Quiznos Lawyer." --
  • "After Marks & Klein represented 8,000 franchise owners in litigation and spearheaded a $206 million class action settlement, an appellate court ruled last week to disqualify the firm in representing another Quiznos franchisee. The high court cites a conflict in attorney-client privilege when the law firm hired one of the franchisor’s lead attorneys."
  • "Just months after the settlement was approved in August 2010, Bleiman crossed over to the other side, joining Marks & Klein’s legal team, despite his long history of defending Quiznos in litigation. The attorney had racked up 952 billable hours to Quiznos in 2006 and 2007, in connection with the four class lawsuits of Brunet, Siemer, Westerfield and Bonanno. He also billed another 1631 hours representing Quiznos and its affiliates in other matters."
  • "The judges said the lower court finding that Bleiman was not properly screened is not supported by the record. Therefore they concluded it wasn’t necessary for them to address whether Bleiman was properly screened, and instead took Marks & Klein to task on not having written screening procedures in place. 'Because Marks & Klein was already representing the plaintiffs [Mody] when Bleiman joined the team, it is inexplicable that written [screening] procedures were not established at the outset.'"
Fox Rothschild's White Collar Defense and Compliance blog writes: "Third Circuit Reminds That In Criminal Cases A Joint Representation Conflict Of Interest Is Not Avoided Simply Because The Clients Consent And Waive Any Conflict" --
  • "A recent illustration of the point is presented in United States v. Self, 681 F.3d 190 (3rd Cir. 2012), in which two brothers initially retained counsel from the same, small law firm. All disclosures and waivers necessary to meet the governing ethics rule were in place. After being questioned by the district court, the lawyer for one of the brothers had a change of heart and moved to withdraw from the case, agreeing that no ethical screen could practically be established to avoid a conflict between the two brothers and their partnered lawyers."
  • "After the first attorney was allowed to withdraw, the court turned its attention to the second attorney. While the second attorney insisted that his representation of the second brother would be unfettered by his firm's former representation of the first, he had during the joint representation period curiously changed positions on an important scheduling issue involving the timing of the trial; after indicating to the court that the second brother wanted to go to trial immediately, attorney number two then told the court that he had no objection to a continuance requested by his partner, attorney number one, for the first brother."
  • "This flip-flop on the timing of the trial led to the second attorney's being involuntarily disqualified by the district court, and led the Third Circuit to uphold the ruling."

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