Sunday, August 6, 2017

Risk News (Catch Up Edition: Screens, Privilege, President, Plots and More)



I thought it might be interesting to share a set of stories I found interesting enough to flag, but didn't get around to posting in June. So here's a bit of a grab bag worth exploring. In some instances, news has developed since the original stories posted, so there's a bit of before and after here. Treats inside:


  • "In deciding a disqualification motion based on a conflict of interest resulting from a lateral hire, the U.S. District Court for the Eastern District of California recently adopted a screening-friendly approach in National Grange of the Order of Patrons v. California Guild, No. 2:16–201 WBS DB, 2017 WL 2021762 (E.D. Cal. May 12, 2017) and National Grange of the Order of Patrons v. California Guild, No. 2:14–676 WBS DB, 2017 WL 2021731 (E.D. Cal. May 12, 2017)."
  • "The court reviewed the evidence and found that, although Ellis Law Group had "not been perfect in their efforts to isolate Valenti," there was proof that Valenti 'has not actively participated in this case.' The court decided against disqualification."
  • "The court stated that it must apply California law when reviewing a motion to disqualify. It turned to Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th 776 (2d. Dist. 2010), as the most recent California appellate decision to address this kind of disqualification issue."
  • "In so holding, the court stated that it was "guided in part by the Ninth Circuit's admonition" that courts should give consideration to a client's right to counsel of choice. The court also stated that the relevant issue was whether Valenti had, in fact, shared confidential information, and not the eight-lawyer size of the Ellis Law Group."
"Estate Asks Court to Disqualify Holland & Knight From Representing Wilmington Trust" --
  • "Holland & Knight allegedly violated three professional conduct rules, according to a motion filed last week to disqualify the firm from representing one of the nation's largest financial institutions in cases related to the estate of a deceased Coral Gables man... arguing the firm simultaneously represented adverse parties, communicated with Ramos concerning the litigation without appropriate disclosure and then used the information to file a petition to seize the proceeds of the sale."
  • "Another Holland & Knight attorney, Scott Ponce, began in January 2016 to work on a summary judgment to be filed against Lisa Ramos. While that was pending, the firm asked Ponce to represent Andy Ramos in unrelated litigation. Ramos spent days informing Ponce about his matters, said Jeff Gutchess, a founding partner of full-service boutique AXS Law in Wynwood, who leads the trial and litigation teams."
  • "Holland & Knight argues otherwise. 'The simple fact is there is no conflict of interest between our representation of Symx Healthcare Corporation in a contract dispute while simultaneously representing a creditor in an unrelated matter where one of the defendants in the matter was the wife of a shareholder of Symx," Holland & Knight said in a written statement. "Additionally, the claim that we learned confidential information is erroneous. Over a year ago there was a preliminary discussion about the possible engagement of the firm in connection with estate planning for Mr. and Ms. Ramos. That engagement was declined by the firm due to a potential conflict. That potential conflict was, or at least should have been, well known to the Mr. and Ms. Ramos because the litigation for which they seek to disqualify Holland & Knight had already been pending for over five months.'"
"3 Reasons Litigators Fear the Calif. Gibson Dunn DQ Ruling" --
  • "The California Supreme Court’s recent refusal to take up the disqualification of Gibson Dunn & Crutcher LLP amid a privilege dispute in a malpractice litigation has experts worried the case will create a new privilege minefield and invite sanctions for long-accepted practices around waivers and otherwise confidential materials shared with nonlawyers."
  • "Last year, a California judge disqualified Gibson Dunn from defending McDermott Will & Emery LLP from allegations that the firm had improperly helped one member of a family, who was in a dispute with his siblings and father, grab control of a family fortune. A split appellate panel agreed in April that Gibson Dunn crossed a hard ethical line when it treated an old email shared with a McDermott lawyer and nonattorneys before the case was filed as fair game, despite objections from the other side that the communication should be protected under attorney-client privilege."
  • "Among legal ethics experts, the decision has raised eyebrows because California’s Fourth Appellate District panel appeared to apply litigation-focused rules on inadvertent disclosures and waivers to information provided to a lawyer by its own client rather than opposing counsel. Ethics experts have since questioned the court’s reasoning that giving lawyers some discretion to make a call on waivers absent a court’s direction opens the door to abuse."
  • "Others have said the court seemed to apply attorney rules and conventions on potentially inadvertent disclosures — typically, an errant discovery hand-over or attorney email about a current case — to a widely shared document provided by a client. If that kind of reasoning were to spread to other courts, it would disrupt the basic assumption lawyers work under that a client’s own files, particularly documents obtained long before litigation began, are unlikely targets of privilege challenges."
And, plenty of ink has been spilled on Presidential matters, including: "Trump's Russia lawyer faces conflict-of-interest questions over $296m Kushner deal" --
  • "The lawyer privately advising Donald Trump on the investigation into Russia’s interference in the 2016 election is head of a law firm that was involved in the sale of a prestigious piece of New York real estate to Jared Kushner, the US president’s son-in-law, in a deal that could fall under the spotlight of the same inquiry."
  • "An investigation by the Guardian has found that Kasowitz’s law firm, Kasowitz Benson Torres, legally represented the owners of the former New York Times building in Times Square, Manhattan, in a 2015 deal in which part of the property was sold to Kushner for $296m."
  • "Questions have already been raised about possible conflicts of interest between the lawyer’s role as Trump’s private attorney in the Russian inquiry and his work for various other clients, among them Russia’s largest bank OJSC Sberbank, which he represents in a corporate dispute lodged in US federal court."
And, since that news, several related udpates including:
Biglaw Associate Indicted On Felony Charges Over Plot To Extort Partners Pleads Not Guilty
  • In late June, the Biglaw world was rocked by scandalous allegations against a former associate at Dentons. Michael Potere had been fired by Dentons, and allegedly decided to exact his revenge against the firm by threatening to leak sensitive information taken from the email account of the managing director of the firm’s Los Angeles office (although no partner names have been released, this is most likely Joel Siegel) — information that ranged from emails between partners to the firm’s quarterly financial reports to associate reviews — to Above the Law, unless he was paid $210,000 and given an expensive piece of artwork.
  • Potere was indicted on extortion and attempted extortion affecting interstate commerce as well as transmitting threatening communications with intent to extort, and he faces up to 22 years in prison for these two felony charges. He pleaded not guilty to those felony charges yesterday, with the assistance of his public defender, Asal Akhondzadeh.

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