Home/Table of Contents
This & That - Part I
This & That - Part III

This and That is now three pages, Part I, Part II, and Part III.  The contents of these pages are as follows:

Part I - (click here)

 - Attorney-Client Privilege/Work Product
 - Confidentiality - Duty under Ethics Rules

Part II (this page)

 - Communicating with Represented Party - Rule 4.2
 - Conflicts - Uncategorized

Part III (click here)

 - Liability - not Conflicts-Related
 - Temporary Lawyers
 - UPL
 - Other

Communicating with Represented Party - Rule 4.2

Permissible to contact in-house lawyer.  ABA Op. 06-443 (Aug. 5, 2006); D.C. Bar Ass’n, Ethics Op. 331 (2005); N.Y. City Op 2007-1 (undated); In re Grievance Proceeding, 2002 WL 31106389 (D. Conn. July 19, 2002); Restatement § 100 cmt. c.

ABA Op. 11-461 (Aug. 4, 2011).  In this opinion the Committee affirmed the right of a lawyer to advise a client regarding the client's communication with the other party.  The opinion further says that the lawyer may prepare a written agreement to be signed by the other side, which the client would present to the other side.  The opinion has drawn thoughtful comment, some of it negative.  Stay tuned.

Board of Prof. Respons. v. Melchior, 2012 Wyo. LEXIS 4 (Wyo. Jan. 6, 2012).  Recall the controversial ABA Op. 11-461 (2011) (just above) where the committee expanded what a lawyer could do to prepare a client to meet with the other side, who was represented.  This included preparing an agreement to take to the other party.  This disciplinary case involved similar conduct.  The only difference was the offending lawyer had told the other lawyer he would not file the agreement.  Then, he did.  The lawyer admitted to violating Rule 4.2 and agreed to a public reprimand.  This opinion does not mention the ABA opinion.

Contacting in-house lawyer grounds for revocation of pro hac vice status.  Logan v. Cooper Tire & Rubber Co., 2011 U.S. Dist. LEXIS 88622 (E.D. Ky. Aug. 9, 2011).

Court construes "matters outside the representation" exception in Comment [4] to Rule 4.2.  Crum v. State of Alabama, 2006 U.S. Dist. LEXIS 72161 (M.D. Ala. Oct. 2, 2006)

Comprehensive opinions on what types of employees may and may not be interviewed without the employer's lawyer's permission.  Snider v. Superior Court, 7 Cal. Rptr. 3d 119 (Cal. App. 2003); Palmer v. Pioneer Inn Associates, Ltd., 59 P.3d 1237 (Nev. 2002).

Massachusetts high court adopts majority view as to contacts with current and former employees of the other side.  Patriarca v. Center for Living & Working, Inc., 778 N.E.2d 877 (Mass. 2002).

World Healthcare Systems, Inc. v. SSI Surgical Services, Inc., Healthcare Systems, Inc. v. SSI Surgical Services, Inc., 2011 U.S. Dist. LEXIS 61208 (E.D. Tenn. June 7, 2011).  In response to Defendant's motion for summary judgment, the lawyer for Plaintiff ("lawyer") filed an affidavit of Defendant's former CEO.  The CEO had signed a confidentiality agreement while with Defendant, but Lawyer did not know that.  Defendant moved to strike the affidavit and disqualify Lawyer.  In this opinion the court ordered certain parts of the affidavit stricken because they contained matter that either violated the confidentiality agreement, were privileged, or were subject to work product.  The court did not disqualify Lawyer.  [Note: we have long wondered whether a lawyer who is interviewing a current or former employee of the other side should ask, as a matter of routine, whether the employee had a confidentiality agreement with the employer.  We have also wondered what the effect on all this should be of the confidentiality provisions in Section 8.05 of the Restatement of the Law of Agency.]

Adopts majority rule on contacting former supervisory employees.  Clemons v. City of Detroit, 2010 U.S. Dist. LEXIS 50824 (E.D. Mich. May 24, 2020).

Ohio opinion follows Comment to Model Rule 4.2 on dealing with corporate employees.  Ohio Op. 2005-3 (Feb. 4, 2005).

Improper to claim blanket representation of all an organization's constituents.  Col. Op. 120 (2008); Ohio Op. 2005-3 (Feb. 4, 2005); Utah Op. 04-06 (Dec. 2, 2004); McCargo v. Texas Roadhouse, Inc., 2011 U.S. Dist. LEXIS 4314 (D. Col. Jan. 12, 2011); Rivera v. Lutheran Med. Center, 2008 N.Y. Misc. LEXIS 6060 (N.Y. Misc. Oct. 16, 2008).  And, in Koo v. Rubio's Restaurants, Inc., 135 Cal. Rptr. 2d 415 (Cal. App. 2003), restaurant chain managers brought class action against employer relating to overtime.  When the plaintiffs' counsel tried to discover the identities of all the managers, the employer's law firm responded that it represented not only the employer, but also all the managers.  It almost backfired when the plaintiffs' counsel moved to disqualify employer's counsel.

Contact with in-house lawyer, but no resolution of in-house issue.  Tylena M. v. Heartshare Human Services, 2004 U.S. Dist. LEXIS 10398 (S.D.N.Y. June 7, 2004).

Discusses nuances of client contacting other party versus the lawyer; lawyer attempt to do something through client that he could not do himself. In re Anonymous, 819 N.E.2d 376 (Ind. Dec. 23, 2004); and In re Pyle, 91 P.3d 1222 (Kan. 2004).

Lawyer not disqualified where contact was initiated by sophisticated opponent.   Pioneer Resources Corp. v. Nami Resources Co., LLC, 2006 U.S. Dist. LEXIS 32484 (E.D. Ky. May 22, 2006).

OK to talk to other side's lawyer - even former lawyer.  Ferguson v. Southern Highlands Golf Club, LLC, 2006 U.S. Dist. LEXIS 68002 (D. Nev. Sept. 21, 2006).

New Jersey's unique version of Rule 4.2: "litigation control group."  In re PMD Enterprises, Inc., 215 F. Supp. 2d 519 (D.N.J. 2002).  New Jersey’s version of Model Rule 4.2 is unique in that it protects from ex parte contact members of a party’s “litigation control group.”  In this case the court revoked a lawyer’s pro hac vice admission because he had caused his investigator to attempt to hire as an expert a former employee of the other side, who had been designated a member of the company’s “litigation control group.”  (The offending lawyer’s situation was not helped by the fact that his conduct had been criticized in many court opinions.)

N.Y. City Bar Op. 2002-3 takes modern view on advising client on communications with the other side.

Organizations.  Wisconsin in line with majority.  Wis. Op. E-07-01 (Eff. July 1, 2007).

Lawyer for patient may communicate with treating doctor who is employee of defendant hospital.  Lee Memorial Health System v. Smith, 2011 Fla. App. LEXIS 575 (Fla. App. Jan. 28, 2011).

P.T. Barnum's Nightclub v. Duhamell, 766 N.E.2d 729 (Ind. App. April 23, 2002).  The court held that Rule 4.2 does not prohibit contact with former employees of an opponent.  The court went on to state that while Rule 4.4 prohibits the lawyer from inducing a violation of the attorney-client privilege, neither Rule 4.2 nor Rule 4.4 apply to situations where the former employee gives privileged information to the lawyer if the communication is "inadvertent or unsolicited."

Illinois opinion says Rule 4.2 applies to non-litigation situations.  Ill. Op. 04-02 (April 2005).

Lawyer against city discusses case with city council members at open meeting of council; no disqualification.  Jackson v. City of San Antonio, 2003 U.S. Dist. LEXIS 23350 (W.D. Tex. Dec. 22, 2003).

Massachusetts adopts majority rule on contact with former employees.  Clark v. Beverly Health and Rehabilitation Services, Inc., 797 N.E.2d 905 (Mass. 2003).

General Counsel asked employee for information about alleged misconduct by other employees.  When he refused, the employee was fired.  The General Counsel knew the employee had a lawyer, but the court held that the lawyer represented the employee on a matter not related to the misconduct of other employees.  Thus, the General Counsel did not violate California's version of Rule 4.2.  Burrahm v. IMPCO Technologies, Inc., 2002 Cal. App. Unpub. LEXIS 4682 (Cal. App. Jan. 22, 2002).

Lawyer disciplined for writing letter to other side complaining about other side's lawyer's conflict.  In re Baker, 758 N.E.2d 56 (Ind. 2001).

Lawyer could contact director of opponent corporation, even though counsel for the corporation objects, if director's personal lawyer consents.  La Jolla Cove Motel & Hotel Apts., Inc. v. Superior Court, 17 Cal. Rptr. 3d 467 (Cal. App. 2004).

Lawyer representing self not exempt from Rule 4.2.  In re Haley, 126 P.3d 1262 (Wash. 2006).  First impression in Washington.  Court cited several decisions from other jurisdictions.  That was also the conclusion in In re Lucas, 2010 N.D. LEXIS 190 (N.D. Sept. 29, 2010), and Hawaii Op. 44 (2003).

Use of lying investigator with hidden recording device to interview adversary's employees causes violation of Rules 4.2 and 8.4(c) and exclusion of evidence.  Midwest Motor Sports d/b/a Elliott Power Sports, Inc. v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003).  But, in In re Hurley, No. 2007AP478-D (Wis. Feb. 11, 2009), a discipline case, the court found that such conduct by a criminal defense lawyer did not violate a rule.

Lawyer for a party in marriage dissolution should have confirmed that the other party was no longer represented.  In re Capper, 757 N.E.2d 138 (Ind. 2001).

Other side's corporate secretary off limits.  Featherstone v. Schaerrer, 34 P.3d 194 (Utah 2001).

Lawyer suing railroad for crossing accident not disqualified even though he represents the engineer of the train in question in another accident case against the railroad.  Railroad had claimed that the unrelated representation of the engineer enabled the lawyer to have ex parte communications with the engineer about this case.  Skidmore v. Gateway Western Ry. Co., 776 N.E.2d 333 (Ill. App. 2002).

Confusing decision.  Lawyer not disqualified for communicating with former managerial employee of corporate opponent who is current employee of wholly-owned subsidiary of corporate opponent.  Allstate Ins. Co. v. Bowne, 817 So. 2d 994 (Fla. App. May 29, 2002).

Lawyer violating Rule 4.2 not disqualified where subject of conversation not related to the case.  Vertical Resources, Inc.  v. Bramlett, 837 A.2d 1193 (Pa. Super. 2003).

Suing hospital while representing a nurse at the hospital on unrelated matter does not implicate Rule 4.2.  Piedmont Hospital, Inc. v. Reddick, 599 S.E.2d 20 (Ga. App. 2004).

Lawyer receiving privileged communications from his own client disqualified.  Court approves ABA Op. 94-382 (1994).  Court relies, in part, on client's NDA with the employer/defendant.  Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001).  The court in Arnold v. Cargill, Inc., 2004 U.S. Dist. LEXIS 19381 (D. Minn. Sept. 24, 2004) relied heavily on Jain.  Lawyer obtained privileged documents from former employee of other side.  In Arnold v. Cargill Inc., 2004 U.S. Dist. LEXIS 22796 (D. Minn. Nov. 8, 2004), the same court allowed the disqualified law firm to share certain information with the client's prospective new lawyer.  But, in Arnold v. Cargill, Inc., 2007 U.S. Dist. LEXIS 89146 (D. Minn. Dec. 4, 2007), the court denied fees to the disqualified lawyers.

Admonishing former employee not to reveal privileged information proves helpful.  Muriel Siebert & Co. v. Intuit, Inc., 868 N.E.2d 208 (N.Y. 2007) .

Explains role of privilege in Rule 4.2 situations.  Smith v. Kalamazoo Ophthalmology, 322 F. Supp. 2d 883 (W.D. Mich. 2004).

What disqualified lawyer can share with prospective new lawyer.  Arnold v. Cargill Inc., D. Minn., Civ. No. 01-2086 (DWF/AJB), 11/23/04.

Plaintiff's lawyer may talk to adjuster for casualty insurance company insuring the defendant.  N.Y. Op. 785 (Feb. 1, 2005).

District court holds that Maine follows majority rule on contacts with former employees.  Frank v. L.L. Bean Inc., 377 F. Supp. 2d 233 (D. Me. 2005).

Contacting in-house lawyer.  D.C. Bar Op. 331 (Oct. 2005).  The committee held that a lawyer may contact the in-house lawyer of an organizational opponent even though the opponent has outside counsel.

“You ain’t got no stinking lawyers.”  (Borrowing from The Treasure of the Sierra Madre.)   Best Deals on TV, Inc. v. Naveed, 2007 U.S. Dist. LEXIS 43762 (N.D. Cal. June 11, 2007).  This is a suit by an employer against former employees alleging RICO violations, fraud, and related causes of action.  “Approximately ten minutes” after serving the defendants with the complaint, summons, and a motion for TRO, lawyers for the plaintiff began interrogating the defendants about the case.  One of the defendants objected saying that the defendants should be able to talk to their own lawyers.  (It was pretty clear from the motion papers that they had not yet hired lawyers.)  The plaintiff’s lawyers persisted in the interrogation.  The defendants moved to disqualify the plaintiff’s lawyers for violating California’s version of Model Rule 4.2 (Cal. Rule 2-100(A)).  The court denied the motion in this opinion.  The court enforced the literal language of the rule, “represented by another lawyer.”  Because the defendants were not “represented” at the time of the interrogation, the interrogation was proper.

Contact with administrative assistant of high-ranking officer not a violation of Rule 4.2.  EEOC v. Hora, Inc., 2007 U.S. App. LEXIS 15705 (3d Cir. June 29, 2007).

Class actions; permissive opinion on contacting class members.  ABA Op. 07-445 (April 11, 2007).

Violating duty of confidentiality can be cause of action.   Elkind v. Bennett, 958 So. 2d 1088 (Fla. App. 2007).

Wisconsin adopts majority view of contacting agents of represented organizations.  Wis. Op. E-07-01 (July 1, 2007).

OK to talk to other side's treating doctor, but must comply with HIPAA.  Arons v. Jutkowitz, Nos. 147, 148, & 153 (N.Y. Nov. 27, 2007).

Purchasing opposing party's product and discussing it with technician supervising installation gets law firm in hot water.  Microsoft Corp. v. Alcatel Bus. Systems, 2007 U.S. Dist. LEXIS 93048 (D. Del. Dec. 19, 2007).

The fact that employee's statements may be evidentiary admissions by employer does not make employee "untouchable" (our word) by other side's lawyers.  Mendez v. Hovensa, L.L.C., 2008 U.S. Dist. LEXIS 28122 (D.V.I. March 31, 2008).

Where Party is Pro Se, OK to Talk to Her.  McMillan v. Shadow Ridge at Oak Park Homeowner’s Ass’n, 2008 Cal. App. LEXIS 1191 (Cal. App. Aug. 4, 2008).

Lawyer's alleged violation of California's version of Rule 4.2 does not invalidate settlement.  Myerchin v. Family Benefits, Inc., 76 Cal. Rptr. 3d 816 (Cal. App. 2008).

Party assigned CFO, rather than paralegal or assistant, to attend document production; placed hidden video camera to record document review; motion denied.  Data Capture Solutions-Repair & Mktg., Inc. v. Symbol Technologies, Inc., 2008 U.S. Dist. LEXIS 83595 (D. Conn. Oct. 17, 2008).

Speaking to non-supervisory employee of other side not a violation.  Knox v. Dynamic Nursing Services, 2009 Cal. App. Unpub. LEXIS 1029 (Cal. App. Feb. 6, 2009).

Not OK to write to the other party and other party’s lawyer at same time.  N.Y. City Op. 2009-1 (undated).

Court did not disqualify lawyer, but referred 4.2 violation to disciplinary authorities.  American Plastic Equip., Inc. v. Toytrackerz, LLC, 2009 U.S. Dist. LEXIS 27790 (D. Kan. Mr. 31, 2009).

Griffin-El v. Beard, 2009 U.S. Dist. LEXIS 81028 (E.D. Pa. Sept. 8, 2009).  Lawyers in one case may contact an opponent about matters in another case, in which the opponent is not a party and is not represented.

Philadelphia Op. 2009-2 (March 2009).  Lawyer may not, under Rule 8.4(c), cause another person to ingratiate that person into adversary's Myspace or Facebook account.

Fuhr v. School Dist. of City of Hazel Park, 2009 U.S. Dist. LEXIS 106740 (E.D. Mich. Nov. 16, 2009).  Individual plaintiff hired investigators to interview officers of other side.  Court found violation of 4.2 and ordered information gathered not to be used -- did not disqualify plaintiff’s lawyer.

Matusick v. Erie County Water Authority, 2010 U.S. Dist. LEXIS 15161 (W.D.N.Y. Feb. 22, 2010).  Employer’s lawyer barred from instructing “non-party, non-policymaking” employees from talking to the plaintiff’s lawyer.

Rebel Communications, LLC v. Virgin Valley Water Dist., 2011 U.S. Dist. LEXIS 21489 (D. Nev. Feb. 15, 2011).  The plaintiff sued the defendant over a dispute regarding a lease.  The defendant moved to disqualify the plaintiff's lawyer ("Lawyer") on two grounds.  The first ground was that Lawyer discussed this case with the defendant's former general counsel after he was no longer general counsel, allegedly in violation of Nevada Rule 4.2.  In this opinion the magistrate judge held that a former employee is not covered by Rule 4.2.  The court also held that even if the general counsel had been a current employee, there was no showing that he possessed the type of authority to make the contact a violation.  The second ground was that Lawyer represented the General Manager of the defendant in connection with his termination by the defendant.  The magistrate judge held that because there was no showing that Lawyer obtained confidential information from the General Manager about this case, Lawyer should not be disqualified.

Mori v. Saito, 2011 U.S. Dist. LEXIS 49218 (S.D.N.Y. May 9, 2011).  This is a suit by investors against defendants that the investors claimed had defrauded them.  One of the plaintiffs received a series of threatening-sounding late-night calls from someone who misrepresented who he was.  During one of the calls that plaintiff was able, using a speaker phone, to allow her lawyer to listen in.  The lawyer just listened.  The defendants moved to disqualify the plaintiff's lawyer, alleging that the caller was a plaintiff, and that the lawyer's listening in was a violation of of New York's then version of MR 4.2.  In this opinion the magistrate judge denied the motion to disqualify.

CSX Transp., Inc. v. Gilkison, 2011 U.S. Dist. LEXIS 130118 (N.D. W. Va. Nov. 9, 2011).  Law Firm represented a number of plaintiffs against Railroad in asbestos cases.  In this case Railroad is suing Law Firm for fraud arising out of the asbestos cases.  In this opinion the court ruled that West Virginia's version of MR Rule 4.2 does not prohibit Railroad's lawyers from contacting Law Firm's former clients, but does prohibit Railroad from contacting Law Firm's current clients.  The court also ruled that Law Firm could not represent former clients when they are deposed in this case because of the material-limitation provision of West Virginia's version of MR 1.7(a)(2).

Dixon-Gales v. Brooklyn Hosp. Center, 2012 N.Y. Misc. LEXIS 1088 (N.Y. Sup. Ct. March 7, 2012).  Medical malpractice case against Hospital and others.  Plaintiff's investigator interviewed one of the nurses on duty at the time of the alleged malpractice.  Defendants objected.  In this opinion the court held that the nurse was among those not to be interviewed, pursuant to then N.Y. DR 7-104(a)(1), predecessor to N.Y. Rule 4.2.

Engstrom v. Goodman, 2012 Wash. App. LEXIS 439 (Wash. App. March 5, 2012).  Lawyer received an E-mail from the client on the other side of a case saying she no longer wanted her lawyer.  Lawyer responded to the client and had her sign a declaration.  In this opinion the appellate court upheld a $3,000 sanction against lawyer for violating Washington's version of MR 4.2.  The court said Lawyer should either have forwarded the E-mail to the other lawyer or called it to the attention of the court.

Conflicts - Uncategorized

Terrific book devoted to conflicts of interest.  R. Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases (2003).  This book is excellent and comprehensive and is essentially about conflicts of interest.  Now, the 2005 Supplement is out.  It is more than 350 pages in length and cites approximately 500 cases, including cases published this year.  Both the book and the Supplement are musts for lawyers dealing with conflicts issues.  Here’s where you get them: Banks & Jordan Law Publishing Company, P.O. Box 7651, Berkeley, CA 94705, phone 510-849-0145.

Presumption of disqualification.  The Attic Tent, Inc. v. Copeland, 2006 U.S. Dist. LEXIS 57601 (W.D.N.C. Aug. 14, 2006).

Rule 11 sanctions ($8,000+) for frivolous  motion to disqualify.  Doe v. Fulton-DeKalb Hosp. Auth., 2006 U.S. Dist. LEXIS 76624 (N.D. Ga. Oct. 19, 2006).

28 U.S.C. § 1927 sanction for frivolous motion to disqualify.  De Dios v. Int'l Realty & RC Invests., 2011 U.S. App. LEXIS 7421 (9th Cir. April 11, 2011) ($12,000); Kelly v. CSE Safeguard Ins. Co., 2011 U.S. Dist. LEXIS 79776 (D. Nev. July 21, 2011) (“motion entirely reckless and frivolous”). 

Lawyer as beneficiary of will he drafted.  In the Matter of the Succession of Walters, 943 So. 2d 1165 (La. App. 2006); In re Estate of Southwick, 850 N.E.2d 604 (Mass. App. 2006).

Firm cannot defend patent case if partner gave non-infringement opinion.  Crossroads Systems (Texas), Inc. v. Dot Hill Systems Corp., 2006 U.S. Dist. LEXIS 36181 (W.D. Tex. May 31, 2006).  In Celerity, Inc. Ultra Clean Holding, Inc., 476 F. Supp. 2d 1159 (N.D. Cal. 2007) , the court did not hold the firm could not defend the case but found broad waiver.

Patent cases.  Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., 2007 U.S. Dist. LEXIS 7775 (S.D. Fla. Feb. 2, 2007); and  Landmark Graphics Corp. v. Seismic Micro Tech., Inc., 2007 U.S. Dist. LEXIS 6897 (S.D. Tex. Jan. 31, 2007).  Law firms litigating over patents they had prosecuted.  The courts did not treat them as "underlying work" problems, but rather as lawyer-as-witness problems.

Disagreement with client over strategy can be conflict of interest.  Heck-Johnson v. First UNUM Life Ins. Co., 2006 U.S. Dist. LEXIS 26265 (N.D.N.Y. May 4, 2006).

Party cannot sue other party's lawyer for negligence because to do so would create a conflict for the lawyer with her client.  CSX Transportation, Inc. v. Gilkison, 2007 U.S. Dist. LEXIS 18875 (N.D. W. Va. March 16, 2007).

New York City Bar opinion tackles use of one client’s confidences for another client.  ABCNY Op. 2005-2 (March 2005).

Gifts from clients.  N.H. Op. 2011-12/7 (April 2012).  This opinion discusses the various types of gifts or bequests from client to lawyer that may fall within the proscriptions of Rule 1.8(c).  It also discusses various types of family relationships that could render the gift permissible.

Violation of ethics rule creates rebuttable presumption of malpractice.  Azzar v. Tolley, 2004 Mich. App. LEXIS 2979 (Mich. App. Nov. 2, 2004).

Lawyers for plaintiffs can negotiate a settlement for the clients and at the same time negotiate with the defendants for their fees.  Ayers v. Thompson, 358 F.3d 356 (5th Cir. 2004).

"Clear sailing" agreements.  Stokes v. Saga Int’l. Holidays, Ltd., 376 F. Supp. 2d 86 (D. Mass. 2005).

"Potential Conflicts" in California.  Glahn & Hirschfield v. Taylor, 2004 Cal. App. Unpub. LEXIS 3249 (Cal. App. April 7, 2004).

Conflict must cause "actual prejudice" to justify disqualification.  Smith v. Coleman, 2004 Mich. App. LEXIS 1730 (Mich. App. June 24, 2004).

Wife's lawyer in same firm as husband's sister-in-law; not enough to invalidate pre-nuptial agreement.  Friezo v. Friezo, 914 A.2d 533 (Conn. 2007) .

Lawyer for grantee of power of attorney not necessarily lawyer for grantor.  Cole v. Biddle (Estate of Keatinge), 316 F.3d 7 (1st Cir. 2002).

Lawyer for "partition referee" not necessarily lawyer for owners.  Sullivan v. Dorsa, 128 Cal. App. 4th 947 (Cal. App. 2005).

Rare case addressing who has authority to waive conflict for corporation.  Knudstrup v. Superior Court, 2004 Cal. App. Unpub. LEXIS 2522 (Cal. App. March 19, 2004).

Role of ethics violation in malpractice litigation.  Mainor v. Nault, 101 P.3d 308 (Nev. 2004).

Lawyer Serving as a Fiduciary for an Estate or Trust.  ABA Op. 02-426 (2002).

Transfer of files from disqualified lawyer to client's new lawyer: helpful article.  Elizabeth Cohen, Hand It Over, 90 A.B.A.J. 28 (February 2004).  Discusses In re George, 28 S.W.3d 511 (Tex. 2000).

Serious conflict of interest would justify granting relief from a judgment under FRCP 60(b)(6).  Ames v. Miller, 184 F. Supp. 2d 566 (N.D. Tex. 2002); Owens v. Mukendi, 858 N.E.2d 734 (Mass. 2006) (but court denied motion because affected party waited 3 1/2 years).  However, in Moskowitz v. Coscette, 2002 U.S. App. LEXIS 23797 (2d Cir. Nov. 15, 2002), the court held that to warrant relief the conflict must cause serious harm to the affected party – not so here.

Conflict Partial Basis for Vacating Default under Rule 60(b)(6).  Church & Dwight Co., Inc. v. Kaloti Enterprises of Mich., L.L.C., 2011 U.S. Dist. LEXIS 110955 (E.D.N.Y. Sept. 28, 2011).  This opinion is an order vacating a default judgment under Rule 60(b)(6) of the FRCP.  One of the factors that the court noted in supporting his decision was that the defaulted party's lawyer had a "blatant conflict of interest."

Travelers Cas. & Surety Co. of Am. v. J.O.A. Constr. Co., Inc., 2012 U.S. App. LEXIS 9126 (6th Cir. May 2, 2012).  Party sought post-judgment relief under FRCP 60(b)(3)&(6) on the basis that Party's lawyer had a conflict leading up to the judgment.  The alleged conflict was that the lawyer represented both Party and an interested insurance company.  The court found that Party's and insurance company's interests aligned during that representation and that the alleged conflict was not grounds for post-judgment relief.

Malpractice cause of action not assignable because of conflict of interest.  Kommavongsa v. Haskell, 67 P.3d 1068 (Wash. 2003).

Arbitration conflict - law firm, not the arbitrator, disqualified.  Shomron v. Fuks, 730 N.Y.S.2d 90 (N.Y. App. 2001).

“Partial” arbitrator may in later later litigation represent the party appointing him in the arbitration.  Feinberg v. Katz, 2003 U.S. Dist. LEXIS 1677 (Feb. 5, 2003).

Defense lawyer being prosecuted by same office; also good survey of conflicts in criminal matters.  Campbell v. Rice, 265 F.3d 878 (9th Cir. 2001).

Dismissal of claim not appropriate remedy for lawyer's conflict of interest.   Corbello v. Iowa Production Co., 787 So. 2d 596 (La. App. 2001).

Agent for service of process.  Serving as an agent for service of process could create conflicts problems.  Springtree Country Club Plaza, Ltd. v. Blaut, 642 So. 2d 27 (Fla. App. 1994).

Lawyer may ask client to indemnify lawyer for claims by third parties, Ore. Op. 2001-165 (June 2001).

Sex with client as conflict.  Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261 (5th Cir. 2001); In re Moore, 2002 Ariz. LEXIS 36 (Ariz. March 5, 2002) (inappropriate sexual comments and advances grounds for censure); In re Walker, 24 P.3d 602 (Ariz. 2001); In re Pacior, 770 N.E.2d 273 (Ind. June 17, 2002); In re Tsoutsouris, 748 N.E.2d 856 (Ind. 2001); Iowa Supreme Court v. Monroe, 2010 Iowa Sup. LEXIS 77 (Ia. July 16, 2010) (violation of Rule 1.8(j) not a per se violation of Rule 8.4(d)); In re DeFrancesch, 877 So. 2d 71 (La. 2004); Attorney Grievance Commission of Maryland v. Culver, 849 A.2d 423 (Md. 2004) (comprehensive discussion); Disciplinary Counsel v. Detweiler, 2010 Ohio LEXIS 2676 (Ohio Oct. 21, 2010); Akron Bar Ass’n. v. Williams, 819 N.E.2d 677 (Ohio 2004); Office of Disciplinary Counsel v. Moore, 804 N.E.2d 423 (Ohio 2004); Oklahoma Bar Ass’n. v. Downes, 121 P.3d 1058 (Okla. 2005); In re Mayer, 2012 S.C. LEXIS 32 (S.C. Feb. 15, 2012); Regular v. Law Soc. of Newf. and Lab., 2010 NLTD 90 (CanLII) (S. Ct. Newf. & Lab. May 13, 2010); and Tanya E. Stern, Conflict of Interest?: The Absolute Ban on Lawyer-Client Sexual Relationships Is not Absolutely Necessary, 16 Geo. J. Legal Ethics 535 (2003).

Sex with Client’s Wife not Breach of Fiduciary Duty.  Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 2010 Miss. LEXIS 291 (Miss. June 10, 2010).  No civil liability.

Sex with Client’s Wife Does Violate Rule 1.7(a)(2).  In re Anonymous, 2010 S.C. LEXIS 318 (S.C. Sept. 13, 2010).  Disciplinary case.  Lawyer admonished.

Marital relationship not basis for conflict.  Derivi Construction & Architecture, Inc. v. Wong, 14 Cal. Rptr. 3d 329 (Cal. App. 2004).

No need for written fee agreement to collect fees under the California Fair Employment and Housing Act.  Flannery v. Prentice, 28 P.3d 860 (Cal. 2001).  The court held that to collect statutory lawyers fees under the Act, the lawyer need not comply with the writing requirements of California Rule 3-300, California's version of Model Rule 1.8(a).

Law firm that drafted pre-nuptial agreement for wife cannot later attack it.  Price v. Price, 733 N.Y.S.2d 420 (N.Y. App. 2001).

Lawyer acting as mediator avoided liability with carefully drawn waiver letter.  Chang’s Imports, Inc. v. Strader,  216 F. Supp. 2d 325 (S.D.N.Y. 2002).

Not a conflict for governmental lawyer to join a union.  In re City of Newark, 788 A.2d 776 (N.J. App. 2002).

Lawyer/hearing examiner cannot dismiss cases against himself and members of his family, In re Sims, 861 A.2d 1 (D.C. App. 2004).

Fact dispute in motion to disqualify requires hearing.  The Event Firm, LLC v. Augustin, 2008 Fla. App. LEXIS 9903 (Fla. App. July 2, 2008); Minakan v. Husted, 2010 Fla. App. LEXIS 288 (Fla. App. Jan. 20, 2010) (both parties must be permitted to testify); Plaza Resorts, Inc. v. Janus American Group, Inc., 811 So. 2d 850 (Fla. App. 2002); Quality Air Conditioning Co., Inc. v. Vrastil, 895 So. 2d 1236 (Fla. App. 2005); Akrey v. Kindred Nursing Centers East, L.L.C., So. 2d 1142 (Fla. App. 2003); Solomon v. Dickison, 916 So. 2d 943 (Fla. App. 2005); Holden, P.C. v. Sezgin, No. 105047 (Okl. App. Jan. 22, 2009) (requires evidentiary hearing) Cody v. Cody, 889 A.2d 733 (Vt. 2005).

In side-switching case court should hold hearing on motion to disqualify.  Fletcher v. Greater Cleveland Reg. Transit Auth., 2007 Ohio App. LEXIS 4698 (Ohio App. Oct. 4, 2007).

Written disclosure and consent necessary to serve as executor.  In re Estate of Peterson, 565 S.E.2d 524 (Ga. App. 2002).

Parties in civil cases may not claim conflicts as ineffective assistance of counsel.   Harrington v. Iowa Valley Mut. Ins. Ass'n, 2002 Iowa App. LEXIS 659 (Ia. App. June 19, 2002).

Lawyer-defendant in malpractice case impleading former client's current lawyer.  Shealy v. Lunsford, 355 F. Supp. 2d 820 (M.D.N.C. 2005) (no; review of cases on all sides); Mirch v. Frank, 295 F. Supp. 2d 1180 (D. Nev. 2003) (no); Mazon v. Krafchick, 108 P.3d 139 (Wash. App. 2005) (no).

Former judicial clerk does not disqualify her law firm.  Comparato v. Schait, 848 A.2d 770 (N.J. 2004).

Conflict must cause "actual prejudice" to justify disqualification.  Smith v. Coleman, 2004 Mich. App. LEXIS 1730 (Mich. App. June 24, 2004).

Potential lawyer/witness for a party not a lawyer for that party for conflicts purposes.  Nassau County (N.Y.) Op. 2005-1 (April 6, 2005).

Court ruled on merits, then found the loser's motion to disqualify moot.  Rales v. Rales, 908 A.2d 64 (D.C. App. 2006).

Lawyer/executor cannot represent self in executor capacity.  In re Walsh, 840 N.Y.S.2d 906 (N.Y. Misc. 2007).  The court held that a lawyer who is an executor of a decedent’s estate cannot avoid the advocate-witness rule by representing himself in his capacity as fiduciary and ordered the lawyer disqualified.

Failed motion to disqualify brings sanctions under 28 U.S.C. § 1927.  Wild Game Ng, LLC v. Wong’s Int’l. (USA) Corp., 2007 U.S. Dist. LEXIS 61044 (D. Nev. Aug. 17, 2007).

California anti-SLAPP as defense to civil suit against lawyer with conflict of interest.  Not in this case.  Freeman v. Schack, 64 Cal. Rptr. 3d 867 (Cal. App. 2007).

Lawyer too zealous.  Iredale v. Stroll, 2007 QCCS 4252 (CanLII) (Quebec Super. Ct. Sept. 5, 2007).

ABA ethics committee blesses collaborative law process.  ABA Op. 07-447 (August 2007).

In copyright case where fees are recoverable the court held that the winning party can recover the fees incurred in defending a motion to disqualify its counsel.  Close-Up Int’l, Inc. v. Berov, 2007 U.S. Dist. LEXIS 83972 (E.D.N.Y. Nov. 13, 2007).

Lawyer for estate represents the personal representative, not the beneficiaries.  Bedree v. Lebamoff, 2007 U.S. Dist. LEXIS 84630 (N.D. Ind. Nov. 14, 2007).

Rule 1.11; former government lawyer in West Virginia.  State of W. Va. v. Wilkes, 2007 W. Va. LEXIS 106 (W. Va. Nov. 20, 2007).

Fee agreement invalid in part because it created a conflict with client.  Gray v. Dummitt, 2007 U.S. Dist. LEXIS 93993 (E.D.N.Y. Dec. 21, 2007).  Agreement provided that lawyer for plaintiff could unilaterally reject settlement offer if lawyer's fees inadequate.

Law firm as escrow agent.  Egnotovich v. Katten Muchin Zavis & Rosenman LLP, 2008 N.Y. Misc. LEXIS 196 (N.Y. Misc. Jan. 23, 2008).

"If you say I am screwing up, I can withdraw."  Davis & Co. v. Jiwan, 2007 BCSC 1775 (CanLII) (S. Ct. B.C. Dec. 7, 2007).

McDaniel v. Provident Life & Accid. Ins. Co., 2008 BCSC50 (CanLII) (S. Ct. B.C. Jan. 11, 2008).  McDaniel is suing Provident for health benefits.  He is also suing several individuals in another case for conspiring against his getting his health benefits.  Two of the individuals are lawyers, who are defending Provident in this case.  McClain moved to disqualify those two lawyers, and, in this opinion, the court denied the motion, finding no conflict whatsoever.

Rule 1.11 and "appearance of impropriety in New Jersey.  Brennan v. Elizabeth Bd. of Educ., 2008 U.S. Dist. LEXIS 21609 (D.N.J. March 19, 2008).

Where client sued law firm in another case, court said law firm should withdraw in this case.  CP Solutions PTE, Ltd. v. General Elec. Co., 2008 U.S. Dist. LEXIS 25914 (D. Conn. March 26, 2008).

Court denied late jury demand because complexity of conflict of interest allegations makes case more appropriate for bench trial.  Reis v. Barley, Snyder, Senft & Cohen LLC, 2008 U.S. Dist. LEXIS 26046 (E.D. Pa. March 27, 2008).

Persisting in conflict impaired lawyer's credibility in dismissal from want of prosecution appeal.  Schafer v. City of Defiance Police Dept., 2008 U.S. App. LEXIS 13457 (6th Cir. June 26, 2008).

Lobbying in D.C.  D.C. Op. 344 (July 2008).

Employment discrimination; when does violation of legal ethics rule (here, 1.7)) constitute violation of "a clear mandate of public policy." Tartaglia v. UBS Paine Webber, Inc., 2008 N.J. LEXIS 1797 (N.J. Dec. 16, 2008).

Counseling client to hire every lawyer in town could be a violation of Texas’ version of Model Rule 4.4.  Tex. Op. 585 (Sept. 2008).

Collateral estoppel.  Ross Marine, LLC v. Query, Sautter & Gliserman, 2009 S.C. LEXIS 3 (S.C. Jan. 12, 2009).  The court held that in a civil case against a law firm for a conflict of interest, collateral estoppel would apply if a motion to disqualify the firm in the underlying case had been denied.

Res judicata.  WeCare Holdings, LLC v. Gregory, 2010 U.S. Dist. LEXIS 11070 (W.D.N.Y. Feb. 9, 2010).  Earlier state court holding that firm did not have a conflict was res judicata in federal court.

Statute of Limitations.  Stalk v. Mushkin, 2009 Nev. LEXIS 5 (Nev. Jan. 29, 2009).  The court held that, in Nevada, a breach of fiduciary claim against a lawyer is subject to the same Statute of Limitations as a claim for legal malpractice.

Doctor who filed affidavit for medical malpractice plaintiff could not appear as counsel for the plaintiff in the same case.  Fuller v. Crabtree, 2009 Tenn. App. 137 (Tenn. App. April 16, 2009).

Class actions; monitoring agreements.  Rodriguez v. Fuji Sushi, Inc., 2009 U.S. Dist. LEXIS 43487 (M.D. Fla. May 22, 2009).

Conflict can be basis for bad faith finding.  Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 2009 U.S. App. LEXIS 13209 (11th Cir. June 16, 2009).

Where party’s law firm makes an offer to the judge’s clerk, the clerk is disqualified, not the judge, Bank of N.Y. Mellon Trust Co. v. Johnson, 2009 U.S. Dist. LEXIS 54799 (N.D. Fla. June 11, 2009).

Former clerk for judge could appear before judge seven years later.  Morgal v. Maricopa Bd. of Supervisors, 2009 U.S. Dist. LEXIS 57063 (D. Ariz. June 18, 2009).

Leading Treatise in UK: Conflicts of Interest, 3rd Ed., Wildy & Sons Ltd., Lincoln's Inn Archway Carey Street, London WC2A 2JD, UK, Tel.: 020 7242 5778, Fax: 020 7430 0897; info@wildy.com.

Court slashes attorney fee sanction where four partners billed time on disqualification motion.  Grain v. Trinity Health, 2009 U.S. Dist. LEXIS 92276 (E.D. Mich. Oct. 5, 2009).

Esquire Trade & Finance, Inc. v. CBQ, Inc., 2009 U.S. Dist. LEXIS 105417 (S.D.N.Y. Nov. 5, 2009).  This case involves the obligation of an escrow agent, a lawyer, to release certain property upon satisfaction of certain conditions precedent.  One of the conditions was receipt of an opinion letter.  The court held that the opinion letter condition was not satisfied, in part because the author of the opinion was in the same law firm as the escrow agent and, therefore, had a conflict of interest.

State of Arizona v. Yuen, 2009 Cal. App. LEXIS 1813 (Cal. App. Nov. 12, 2009).  This is a proceeding by the State of Arizona to collect a judgment in California against Yuen.  The trial court found that Yuen was denied due process in Arizona and that the lawyer who represented her in Arizona had a conflict of interest.  As a result the trial court refused to enforce the judgment.  In this opinion the appellate court affirmed.

Employer May Pay Employees’ Fees if . . . .  In re Grand Jury Investigation, 2009 N.J. LEXIS 1155 (N.J. Nov. 23, 2009).

Proper for City to Retain Law Firm on Contingent Fee Basis to Collect Hotel Taxes.  Priceline.com Inc. v. City of Anaheim, 2010 Cal. App. LEXIS 3 (Cal. App. Jan. 5, 2010).  Same for bringing public nuisance suit against lead paint manufacturers -- provided in-house lawyers retain control of key decisions, County of Santa Clara v. Superior Court, 2010 Cal. LEXIS 7241 (Cal. July 26, 2010).

Orange County Water Dist. v. Arnold Engineering Co., 2011 Cal. App. Unpub. LEXIS 3976 (Cal. App. May 24, 2011).  In this opinion the court held that a water district could hire a private firm to bring pollution actions on a contingency fee basis.

Echavez v. Abercrombie & Fitch Co. Inc., 2012 U.S. Dist. LEXIS 34381 (C.D. Cal. March 12, 2012).  Pursuant to the California Private Attorneys General Act, Law Firm filed this class action in conjunction with the California Labor and Workforce Development Agency.  Defendants moved to dismiss in part because Law Firm would have a conflict of interest in working for a contingent fee.  In this opinion the court denied that portion of the motion, finding that court supervision should be adequate to alleviate any conflicts problems.

Reed v. Astrue, 2011 U.S. LEXIS 56542 (D. Del. May 26, 2011).  This is a claim for social security benefits.  The claimant's lawyer ("Lawyer") previously had worked for the Social Security Administration and had participated in the denial of an earlier claim brought by this claimant.  The defendant moved to disqualify Lawyer.  In this opinion the court denied the motion.  The court conceded that the claims "overlapped;" however, the court felt that allowing Lawyer to continue in this case would not frustrate the policy behind Delaware's version of MR 1.11.

Contingent Fee Does not per se Involve a Conflict of Interest. Cotchett, Pitre & McCarthy v. Universal Paragon Corp., 2010 Cal. App. LEXIS 1520 (Cal. App. Aug. 31, 2010) and Adeshina v. Litwiniuk & Co., 2010 ABQB 80 (CanLII) (Ct. Q.B. Alb. Feb. 4, 2010).

Sanford v. Commonwealth of Va., 2010 U.S. Dist. LEXIS 15708 (E.D. Va. Feb. 23, 2010).  Although lawyers disqualified, they were not sanctioned under 28 U.S.C. § 1927 or the inherent power of the court.

Morin v. Maine Educ. Ass'n, 2010 Me. LEXIS 36 (Me. April 22, 2010).  Lawyer, retained by Association, conducted an "independent" investigation of Plaintiff's allegations of gender discrimination by Association.  This included an interview by Lawyer with Plaintiff.  Plaintiff brought this action, and Lawyer's law firm appeared through other lawyers.  Plaintiff moved to disqualify the law firm.  The trial court granted the motion.  In this opinion the supreme judicial court reversed.  The evidence before the trial court conflicted as to whether Lawyer misled Plaintiff on the extent to which their interview would be confidential.  Plaintiff did not allege that she believed Lawyer represented her at the interview.  One justice filed a concurring opinion but disagreed with the majority's analysis.  Another justice dissented.

HSBC Bank USA, NA, Inc. v. MacMillan, 2010 N.H. 54 (N.H. June 3, 2010).  This appeal involved a lower-court award of quiet title to real estate.  One of the grounds of the appeal was that the winning lawyer had violated New Hampshire's version of Model Rule 1.11(c) (possessing confidential government information -- nature of information not revealed in opinion).  The court rejected that ground because the losing parties could not show how the violation prejudiced them.

Doe v. Catholic Archdiocese of Chicago, 2010 U.S. Dist. LEXIS 56157 (N.D. Ill. June 8, 2010).  This is a suit by 73 plaintiffs against Church and Church officials.  Each of the plaintiffs had earlier sued Church and Church officials for sexual abuse.  Those suits were settled.  This suit claims that, because the plaintiffs are African-American or Hispanic, the earlier proceedings and settlements as to them were handled in a discriminatory way.  The lawyer for the plaintiffs in this case ("Lawyer") settled 47 of the prior cases.  The defendants in this case moved to disqualify Lawyer.  The primary basis for the motion was that when Lawyer settled six of those cases Lawyer agreed to indemnify Church and Church officials:      

. . . from payment and satisfaction of any and all liens, claims, or causes of action related to this Agreement or any tax related liabilities or Agreement.

The magistrate judge granted the motion based upon the material limitation provision of the Northern District's version of Model Rule 1.7(a)(2).  (That's right: the Northern District of Illinois has its own rules.)  The court said that Lawyer's potential exposure under the indemnification agreement was "out of alignment" with the interests of his clients in this case.  Lawyer submitted 32 written waivers of the conflict, including waivers from the six plaintiffs connected to the indemnification agreement; however, the court held that the conflict was non-waivable.

Florida Bar v. Scott, 2010 Fla. LEXIS 860 (Fla. June 10, 2010).  Discipline.  This case arose out of suit by the CFTC against an investment firm, and the ultimate failure of the firm.  Lawyer, at various times, represented investors in the firm, creditors of the firm, and co-owners of the firm.  At one point one of the purchasers of the firm had asked Lawyer about the other owner.  Lawyer called the other owner "honest," but did not tell the purchaser that the other owner was the subject of the CFTC litigation.  Based upon all of the foregoing the supreme court ruled that Lawyer should be suspended for three years.

Atlantic City Bd. of Educ., 2010 U.S. Dist. LEXIS 88790 (D.N.J. Aug. 26, 2010).  Plaintiff sued the city over employment-related issues.  The city moved to disqualify Plaintiff's law firm because a member of that law firm had previously represented the city.  In this opinion the court denied the motion.  The court held that the earlier representation was merely an "investigation."  The court noted, among other things, that the lawyer's report to the city contained no legal analysis.  Thus, for Rule 1.9 purposes, there had been no "attorney-client relationship."

In re Mabray, 2010 Tex. App. LEXIS 7351 (Tex. App. Aug. 31, 2010).  H and W signed a "cooperative law" agreement to resolve their marital difficulties.  Texas has a "collaborative law" statute, but not a "cooperative law" statute.  Following the failure of negotiations W moved to disqualify the lawyer for H from representing H in post-negotiation proceedings.  Disqualification is a feature of "collaborative law" arrangements, but not of "cooperative law" agreements.  Thus, in this 2-1 decision, the court affirmed the trial court's denial of W's motion.

In re Egelus, 2010 Mich. App. LEXIS 1799 (Mich. App. Sept. 23, 2010).  The parties entered into a settlement agreement (nature of dispute not apparent).  Later, the defendants in this case balked.  The plaintiffs brought an action to enforce the agreement.  The trial court ruled for the plaintiffs.  In this opinion the appellate court affirmed.  One of the claimed bases for undoing the settlement was that at the time of the settlement the plaintiffs' lawyer had a conflict of interest.  The court noted that the defendants were aware of the conflict when they agreed to the settlement.

N.Y. City Op. 2011-2 (undated).  This is thoughtful opinion on the ethics implications of litigation funding arrangements.  The opinion does not condemn the practice.  This appears to be a good research tool.

Former Mediator.  Hossaini v. Vaelizadeh, 2011 U.S. Dist. LEXIS 86436 (D. Neb. Aug. 4, 2011).  This action is essentially a suit for damages arising out of a failed courtship between Plaintiff and Defendant.  Lawyer represents Plaintiff.  An earlier proceeding between Plaintiff and Defendant involved custody of their child.  Lawyer acted as mediator in the earlier proceeding.  For that reason Defendant moved to disqualify Lawyer in this case.  In this opinion the magistrate judge denied the motion.  First, the judge found that the matters were not related.  Second, as to the claim that Defendant had given Lawyer confidential information during the mediation, the court held that Defendant had not shown what the information or how it would affect this case.

How an unsolicited E-mail from a non-client might cause an attorney-client relationship and duty of confidentiality and how to avoid that result.  Wis. Op. EF-11-03 (July 29, 2011).

Neutral under Rule 2.4?  In re Dhillon, 2011 Bankr. LEXIS 3166 (S.D. Ill. Aug. 18, 2011).  Chapter 7 bankruptcy proceeding.  In this opinion the court disqualified the lawyer ("Lawyer") for certain creditors ("Creditors"), both in this proceeding and in an adversary proceeding.  Lawyer had earlier introduced the debtors and Creditors and assisted them in preparing a restaurant lease.  The court held that whether Lawyer was a "neutral" under Illinois Rule 2.4 or whether they were all clients (thus having rights under Illinois Rule 1.9), the current representation of Creditors by Lawyer was not permissible.

Kennedy v. Eldridge, 2011 Cal. App. LEXIS 1561 (Cal. App. Dec. 13, 2011).  This is a dispute between H and W over the support and custody of their infant son.  H is being represented by his father ("Father").  W moved to disqualify Father.  The trial judge granted the motion.  In this opinion the appellate court affirmed.  First, the court noted numerous California decisions saying that in extraordinary circumstances a movant need not have been a former client of the lawyer in question (i.e. no standing needed).  Second, the court held that Father was too close to W's confidential information by virtue of his involvement in family affairs.  Third, the court held that the danger that Father would testify was great.  Last, the court was worried about the welfare of the infant in this kind of situation.

Lighthouse MGA, L.L.C. v. First Premium Ins. Group, Inc., 2011 U.S. App. LEXIS 22556 (5th Cir. Nov. 7, 2011).  This case involved a court's jurisdiction and enforcement of a forum selection clause in a contract between Parties A and B.  Party B claimed that the clause should not be enforced because the General Counsel of Party A ("GC") had drafted the clause.  In this opinion the Fifth Circuit held that Party B had made no showing that GC misrepresented his relationship to Party A and had not violated Rule 1.7.  The court also held that Party B had made no showing that GC violated Rules 4.3 or 8.4(c).

Rule 1.8(i).  Mishcon De Reya New York LLP v. Grail Semiconductor, Inc., 2011 U.S. Dist. LEXIS 150998 (S.D.N.Y. January 6, 2012).  Law Firm brought an arbitration to collect a $2 million fee from a former client.  In this action Law Firm seeks an attachment in aid of the arbitration of the patent that formed the substance of the Law Firm's work.  One of the former client's defenses was that Law Firm had unclean hands because it had earlier sought to negotiate for an interest in the patent as compensation for Law Firm's work, in violation of N.Y. Rule 1.8(i) (which is almost identical to MR 1.8(i)).  The court rejected the Rule 1.8(i) defense, first by noting that Law Firm never received the interest.  Second, the court held that acquiring the interest under these circumstances would not create the kind of conflict sought to be avoided by the rule.

Confidences of Non-clients.  In re Reynoso, 2012 Tex. App. LEXIS 302 (Tex. App. Jan. 12, 1012).  Lawyer represented A in suit against B.  Later, when A was out of the case, Lawyer showed up for C against B, in the same suit.  B moved to disqualify Lawyer, claiming he had given Lawyer confidences about C v. B.  The trial court granted the motion.  In this opinion the appellate court affirmed (denied mandamus).  The court noted that B was quite positive about disclosing confidences to Lawyer, and Lawyer did not remember much.  The court reviewed authorities about maintaining confidences of non-clients, mostly relating to joint defense agreements, which this, of course, was not.

In re Vinton, 2012 Colo. LEXIS 92 (Col. Feb. 13, 2012).  Suit involving administration of a trust.  Beneficiary sued Trustee for breach of fiduciary duty and fraud.  Lawyer appeared for Trustee.  Well into the case Beneficiary sought leave to amend the complaint by adding a claim against Lawyer for fraud.  The trial court granted leave, and Lawyer withdrew from representing Trustee.  In this opinion the supreme court reversed.  The court noted that ordinarily courts are "lenient" regarding requests to amend.  However, where the amendment creates a conflict of interest forcing a lawyer to withdraw, as in this case, the court must examine the amendment with greater scrutiny.  The court went on to hold that the fraud claim, as pleaded in the amendment, did not state a valid cause of action.

In re W.R., E.H. & V.R., Minors, 2012 Ill. App. LEXIS 166 (Ill. App. March 12, 2012).  In this neglect proceeding Father was represented by a lawyer who had, three years earlier, acted as a mediator for Father and Mother in a support and custody proceeding.  During the trial of this case the court learned of the mediation and ordered a new trial based on the mediator/lawyer's violation of Illinois Rule 1.12.  In this opinion the appellate court affirmed.  The main issue was the meaning of "matter" as used in the rule.  The court held that the term should be used broadly and that this neglect case was the same matter as the earlier custody case.

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