Monday, November 2, 2015

Risk Ghosts, Ghouls and Ghastlies

Kudos to the risk experts at Hinshaw for taking a risk in their October newsletter and embracing the Halloween spirit with gusto. Such efforts at creative engagement should be rewarded, so we're dedicating this update to their legal leviathans (be they paranormal, paralegal or partner) and their fine fearsome work.

(For future harrowing Hinshaw updates, subscribe directly to their newsletter.)

Waiver of Conflict of Interest — Attorney Disqualification
Grovick Props., LLC v. 83-10 Astoria Boulevard, LLC , 2014 NY Slip Op 05627 (App. Div., 2d Dep't. Aug. 6, 2014) Risk Management Issue: What amount of detail must be included in a waiver of a future conflict of interest for it to be binding on the client and enforceable by the attorney?
  • "Because the conflict of interest waiver at issue in this case was clear and concise and it identified for Astoria, with specificity, the possible future conflict of interest, it was ultimately upheld. When drafting such waivers, it is imperative to thought fully articulate the language in the waiver and  identify in as much detail as possible any possible future conflicts of interest that will be waived."
Withdrawal of Attorneys — Engagement Letters
Robbins v. Legacy Health Sys., Inc., 177 Wash. App. 299 (2d Div. 2013)
Risk Management Issue: May a lawyer withdraw from a matter when the client is unwilling to pay the costs associated with the engagement?
  • "Robbins reaffirms an attorney's right to withdraw from a matter when the client fails to reimburse him or her for costs, if that withdrawal will not prejudice the client's case, based upon substantial hardship of the lawyer if forced to continue representation, as provided in most states' versions of the Model Rules of Professional Conduct 1.16. This case also underscores the need for clearly worded engagement letters that delineate the roles and
    responsibilities of both the attorney and the client..."
Conflict of Interest — Disqualification — The Importance of Timely Ethical Screening Before Undertaking the Representation
Signature MD, Inc. v. MDVIP, Inc., Case No. CV 14-5453 (C.D. Cal. Jan. 20, 2015)Risk Management Issue: A new matter comes in requiring immediate attention, but a conflict check reveals a prior representation of the adverse party. To the extent that screening may avoid or reduce the risk of disqualification, how quickly must a law firm implement the ethical screen?
  • "This ruling emphasizes the importance of implementing an ethical screen before undertaking the potentially problematic representation. In this case, the court required strict compliance with the rule even though the current and prior matter seemed only loosely related and the potentially tainted attorneys worked out of a different office."
See their complete write up for complete details. And may you face such risks, nevermore.

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