Wednesday, March 8, 2017

Waivers standing there, frogs falling elsewhere (Disqualification News)

Hinshaw highlights: "Risk Management Issue: Can client A's waiver, given with informed consent, permitting lawyer to represent client A jointly with client B in the same matter be effective to permit lawyer's continued representation of client B in the future should lawyer no longer represent client A, where such continued representation will or may be adverse to now former client A?" --
  • "Because it was indisputable that the matters were "substantially related", the dispositive issue was whether Foltz had waived the apparent conflict of interest arising from Tom Cummings' current representation of Ryan. The engagement agreement's waiver provision stated that both Foltz and Ryan "hereby waive any actual or potential conflict of interest which currently exists or may arise out of Tom Cummings' representation of both of them." Foltz contended this provision was inapplicable to the instant case, however, because it only provided consent for Tom Cummings to represent him and Ryan at the same time, not for Tom Cummings to represent Ryan in the future should he no longer represent Foltz."
  • "The Court disagreed. Relying upon Oklahoma's statutory rules of contract construction, the Court did not construe the retention agreement and its waiver provision as narrowly as Foltz suggested. Foltz conceded that at the time Plaintiffs decided to hire Tom Cummings, both men "had competing interests for the same funds" at issue. With this recognition in mind, both plaintiffs agreed to waive any actual or future conflict of interest stemming from Tom Cummings' dual representation. The Court was satisfied that, with respect to Tom Cummings' current representation of Ryan, Foltz has given a knowing waiver, i.e., an 'informed consent' to such representation under Rules 1.7 and 1.9."
And, disqualification news: "Cooley DQ'd In Leapfrog’s Trademark Suit" --
  • "A California federal magistrate judge has granted Leapfrog Enterprises Inc.’s request to disqualify Cooley LLC from representing competing educational game company Epik Learning LLC in a trademark infringement suit."
  • "Magistrate Judge Elizabeth D. Laporte on Thursday decided that Cooley may not continue representing Epik in the case because the firm previously had a long-standing relationship with Leapfrog and had advised it in similar matters, but she refused to sanction the firm for not withdrawing sooner, saying the issue was not 'clear cut.'"
  • "In the opinion, the judge said it was a 'close call' but that the balance tipped in favor of Leapfrog because Cooley had acquired a substantial knowledge base of how the company operates over the years. Leapfrog said it considered Cooley its 'go-to firm' for two decades and that it has paid Cooley about $10 million in fees for various matters, but Epik contended that Leapfrog was late in speaking up about the potential conflict."

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