Wednesday, March 30, 2016

Conflicts (Waived or "Egregious")




via BNA comes two interesting conflicts updates. First: "Conflict Waiver Saves Day Pitney From Ouster in Later Dispute" --
  • "A conflict waiver bars a plaintiff from claiming that defense counsel must be disqualified due to its previous concurrent representation of the plaintiff and the defendants, a federal magistrate judge decided March 2 (Radici v. ICF Mercantile, LLC, D.N.J., Civ. No. 2:14-cv-07133 (SRC) (CLW), 3/2/16)."
  • "The decision supports the enforceability of advance waivers in which a new client gives up the right to seek a firm's disqualification in subsequent disputes with another specified client of the firm."
    "Magistrate Judge Cathy L. Waldo of the U.S. District Court for the District of New Jersey enforced the conflict waiver the plaintiff signed when he retained the Day Pitney LLP law firm. Waldo rejected his argument that he didn't know enough to give informed consent."
    "The waiver letter stated that the firm would concurrently represent Radici in the visa application process while also advising Ronner in his negotiations with Radici relating to ICF. It also said that in the event of a dispute among them, Day Pitney would stop representing Radici and would represent ICF and Ronner in the dispute."
    "The magistrate judge singled out this language in the waiver letter as important: '[Radici] will not use [Day Pitney’s] representation of him in the Visa Application Matter nor this consent and waiver as a basis on which to disqualify [Day Pitney] from representing ICF or Mr. Ronner on the Member matters, including any litigation that may arise between ICF and/or Mr. Ronner, on one hand, and Mr. Radici on the other.'"
And on the flip side: "Litigation Boutique May Be Disqualified for 'Egregious' Conflict" --
  • "Citing a conflict 'so egregious that it is unwaivable,' a federal judge in Santa Ana has issued a preliminary ruling disqualifying the recently formed litigation boutique Hueston Hennigan from a multi-million dollar healthcare fraud case that’s been in the headlines for years."
  • "In the civil case in front of Guilford, Hueston Hennigan name partner John Hueston has been representing the State Compensation Insurance Fund (SCIF), a worker’s compensation insurer instituted by the California state government, on claims it was defrauded of hundreds of millions of dollars as the the result of a complex kickback and fraudulent billing scheme that dates to the 1990s. Separately, the firm’s other name partner Brian Hennigan has been representing Paul Randall, who faces federal criminal charges that he participated in the scheme to defraud the fund."
  • "The Court now faces a relatively simple question,”  U.S. District Judge Guilford wrote. 'Can a single law firm represent both the victim and the victim’s alleged perpetrator at the same time and in the same litigation? The answer is clear: No... But for some reason, the lawyers at Hueston Hennigan did not see the clarity of that answer. In doing so, they may have lost sight of a bedrock of our adversary legal system: the duty of loyalty.'"

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