Tuesday, June 17, 2014

Conflicts: You Can Run, But You Can't Always Hide...


Interesting story via the New Jersey Law Journal: "Firm's Exit From Lawsuit Not Enough To Cure Conflict, Appeals Court Says" --
  • "Norris McLaughlin & Marcus, a major New Jersey law firm that withdrew from representing one side in a lawsuit just before oral argument on whether it had a disqualifying conflict of interest, still appears to have one, a state appeals court ruled on Wednesday."
  • "The firm’s representation of the landlord and a tenant in the commercial lease that lay at the heart of the lawsuit “presented prima facie evidence of a concurrent conflict of interest, waivable only by informed written consent, which has never been presented,” the court said in Comando v. Nugiel."
  • "Although the firm mooted any conflict by getting out of the case, its continued relationship with two parties outside the litigation continues to be a problem. Its representation of the tenant 'impinges upon its allegiance to protect' the landlord’s interests, 'raising a significant risk that the representation of one or more clients would be materially limited by the lawyer’s responsibilities to another client,' the court wrote. 'This may not continue.'"
In other conflicts news, expert Bill Freivogel highlights two interesting recent conflicts cases, including a Canadian decision:
  • "Koloff v. Metropolitan Life Ins. Co., 2014 U.S. Dist. LEXIS 80322 (E.D. Cal. June 10, 2014). Suit for employment benefits. Plaintiff had earlier filed another suit for the same benefits in 2011 (Case 1), but it was dismissed without prejudice on procedural grounds. Plaintiff then filed this case (Case 2). Defendant was aware of a possible conflict of Plaintiff’s law firm during Case 1 but made no motion. Moreover, Defendant waited four months before filing a motion to disqualify in this case. In this opinion the magistrate judge denied the motion because of the delay."
  • "Jajj v. 100337 Canada, 2014 ONSC 3411 (CanLII) (Super. Ct. Ont. June 5, 2014). In this opinion the court held that lawyers acting 'in association' are subject to the same rules on conflicts and disqualification as lawyers in the same law firm."

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