Miscellaneous; 4.2 (posted March 15, 2012) 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.

Class Action (posted March 15, 2012) In Re Yasmin and YAZ Drospirenone Litig., 2012 U.S. Dist. LEXIS 33183 (S.D. Ill. March 13, 2012).  The proposed class representative is a close friend of class counsel's wife, although not a relative or business associate.  Nevertheless, this relationship disqualified the class representative.  The court noted the danger that the class representative may be motivated by a desire to see class counsel's fees maximized to the detriment of class members.

Former Client (posted March 15, 2012) Grovick Prop., LLC v. 83-10 Astoria Blv'd LLC, 2012 N.Y. Misc. LEXIS 1105 (N.Y. Sup. Ct. March 7, 2012).  Lawyer filed this action on behalf of the buyer of gas station property.  Earlier, while at another law firm, Lawyer also represented the sellers.  Lawyer had obtained a conflicts waiver from the sellers.  Lawyer did not obtain a new waiver when he changed firms.  In this opinion the court granted the defendants' motion to disqualify Lawyer.

Conflicts Uncategorized; Gifts from Clients (posted May 12, 2012) 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.

Bankruptcy; Ghostwriting (posted May 10, 2012) In re W.A.R. LLP, 2012 Bankr. LEXIS 1989 (D.D.C. May 4, 2012).  At some risk of over-simplification, we will keep this one as brief as possible.  The debtor is an LLP with two partners, P1 and P2.  P1 and P2 are in litigation against each other.  In this opinion the bankruptcy judge imposed sanctions on P1 and his lawyer for maintaining groundless positions solely to frustrate P2.  P1 is also a lawyer.  One of the bases for the sanctions was that P1 ghostwrote pleadings for a creditor of the estate, which purported to be against P1.  This, according the court, was to further frustrate P2 and his claims against P1.  The court noted that ghostwriting is not per se improper, but doing so in this case violated "Rule 1.7" and misled the court.   

Changing Firms; Screening; Playbook (posted May 10, 2012) De La Cruz v. V.I. Water & Power Auth., 2012 U.S. Dist. LEXIS 64404 (D.V.I. May 8, 2012).  Plaintiff was injured when his paint roller came in contact with Defendant's power line.  Plaintiff, represented by Law Firm, sued Defendant for failing to protect the line, etc.  While this case was pending, Law Firm hired Lawyer.  Lawyer had worked on a different case for Defendant while at his previous firm, but that case did involve an injury from exposure to a power line.  Lawyer was not screened immediately when Law Firm hired him.  Defendant moved to disqualify Law Firm.  The magistrate judge granted the motion, and in this opinion the district judge affirmed.

Class Action (posted May 10, 2012) Professional Firefighters Ass'n of Omaha v. Zalewski, 2012 U.S. App. LEXIS 9226 (8th Cir. May 7, 2012).  Current and retired City employees sued City to enjoin enforcement of an ordinance altering their healthcare plans.  The parties agreed to a settlement changing the way the changes would operate.  A number of class members objected because the same law firm was representing both current and retired employees.  The district court approved the settlement, and the objectors appealed.  In this opinion the 8th Circuit affirmed.  The court noted that in prior opinions it had expressed concern about the potential for conflict involving active and retired employees, but the court did not see circumstances requiring separate counsel in this case.

Expert Witness (posted May 10, 2012) Life Tech. Corp. v. Biosearch Tech., Inc., 2012 U.S. Dist. LEXIS 63975 (N.D. Cal. May 7, 2012).  Defendant hired Expert in this patent infringement case involving the polymerase chain reaction ("PCR") and DNA.  Plaintiff had earlier retained Expert in another case involving PCR.  Plaintiff moved, in effect, to disqualify Expert.  In this opinion the magistrate judge denied the motion, holding that Plaintiff failed to make a showing how it would be prejudiced in this case by what Expert had learned in the earlier case.

MISCELLANEOUS ETHICS AND LIABILITY NEWS

[Note: Items that do not fit under the conflicts categories below, but which we believe will be of interest to this audience will appear here and on the This and That pages, which are noted on the Table of Contents.]

Confidentiality; Inadvertent Disclosure

(posted May 6, 2012) N.Y. City Op. 2012-1 (2012).  The opinion holds that when a lawyer receives a document, which is privileged, through inadvertence, the lawyer's duty, pursuant to N.Y. Rule 4.4(b), is to advise the other lawyer.  The opinion also says that the rule does not apply to documents intentionally sent by a third party.  The opinion goes on to say that because earlier N.Y. City Op. 2003-04 required more than merely advising the other side, the opinion was withdrawn.  Last the opinion advises that lawyers should be cautious in using  such documents because such might lead to adverse consequences such as disqualification.

CONFLICTS - UNCATEGORIZED

[Note: These, too, will appear at the This and That pages.]

Gifts from Clients

(posted May 12, 2012) 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.

(posted May 8, 2012) 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.

APPEALABILITY OF DISQUALIFICATION (To read full article, click here.)

Nothing current.

ARBITRATION OF MALPRACTICE CLAIMS (To read the full article, click here.)

Nothing current.

BANKRUPTCY (To read full article, click here.)

Ghostwriting

(posted May 10, 2012) In re W.A.R. LLP, 2012 Bankr. LEXIS 1989 (D.D.C. May 4, 2012).  At some risk of over-simplification, we will keep this one as brief as possible.  The debtor is an LLP with two partners, P1 and P2.  P1 and P2 are in litigation against each other.  In this opinion the bankruptcy judge imposed sanctions on P1 and his lawyer for maintaining groundless positions solely to frustrate P2.  P1 is also a lawyer.  One of the bases for the sanctions was that P1 ghostwrote pleadings for a creditor of the estate, which purported to be against P1.  This, according the court, was to further frustrate P2 and his claims against P1.  The court noted that ghostwriting is not per se improper, but doing so in this case violated "Rule 1.7" and misled the court.

(posted May 3, 2012) In re Walton, 2012 Bankr. LEXIS 1776 (M.D. Fla. April 20, 2012).  In this opinion the bankruptcy judge sorts through the ways debtor's counsel can be compensated in Chapters 7 and 13 proceedings.  Evidently the lawyer had, pre-petition, been getting back-dated checks for post-petition activities.  The court objected to that.  This opinion discusses a preferable new arrangement, not involving post-dated checks.

Special Counsel's Undisclosed Compensation from Creditor

(posted April 28, 2012) In re Moore, 2012 Bankr. LEXIS 1778 (N.D. Tex. April 23, 2012).  Adversary proceeding in Chapter 7 case brought by Creditor against an affiliate of Debtor.  Law Firm was hired as special counsel for the trustee.  Lawyer, at Law Firm was in charge of representing the trustee.  Law Firm had a long-standing relationship as counsel for Creditor. Creditor had agreed to pay Law Firm's fees in the adversary proceeding and did so for a period of time, some $92,000.  This arrangement and the payments were not disclosed to the court or the trustee.  It was also shown that Law Firm conveyed confidential trustee information to Creditor.  As a result of all this, the defendants in the adversary proceeding moved to dismiss the adversary proceeding in its entirety (the "death penalty").  In this opinion the bankruptcy judge granted the motion.  In sum, the court found that "the very temple of justice has been defiled."  [Note: we hasten admit that we do not follow the complexities of this case.  What shines through is that when counsel for the trustee is being compensated by a creditor, and the law firm involved is for a time on both sides of litigation in the bankruptcy, approval from the court -- if such approval is even possible (doubtful) -- must be sought at the very beginning of the proceedings.]

Special Counsel

(posted April 23, 2012) In re nCoat, Inc., 2012 Bankr. LEXIS 1698 (M.D.N.C. April 18, 2012).  Law Firm was hired as "special counsel" to handle Debtor's corporate and securities work.  When applying for compensation, it appeared that almost all the services were general bankruptcy activities and no corporate or securities work.  In addition when the bankruptcy was filed, Debtor owed Law Firm some $500,000 in pre-petition fees.  The court denied the compensation but gave Law Firm "one last chance" to show to the court specifically what corporate and securities work Law Firm performed post-petition.

BANKS/TRUST DEPARTMENTS (To read full article, click here.)

Nothing current.

BOARD POSITIONS (To read full article, click here.)

Nothing current.

CHANGING FIRMS - SCREENING (To read full article, click here.)

(posted May 10, 2012) De La Cruz v. V.I. Water & Power Auth., 2012 U.S. Dist. LEXIS 64404 (D.V.I. May 8, 2012).  Plaintiff was injured when his paint roller came in contact with Defendant's power line.  Plaintiff, represented by Law Firm, sued Defendant for failing to protect the line, etc.  While this case was pending, Law Firm hired Lawyer.  Lawyer had worked on a different case for Defendant while at his previous firm, but that case did involve an injury from exposure to a power line.  Lawyer was not screened immediately when Law Firm hired him.  Defendant moved to disqualify Law Firm.  The magistrate judge granted the motion, and in this opinion the district judge affirmed.

CLASS ACTIONS (To read full article, click here.)

(posted May 10, 2012) Professional Firefighters Ass'n of Omaha v. Zalewski, 2012 U.S. App. LEXIS 9226 (8th Cir. May 7, 2012).  Current and retired City employees sued City to enjoin enforcement of an ordinance altering their healthcare plans.  The parties agreed to a settlement changing the way the changes would operate.  A number of class members objected because the same law firm was representing both current and retired employees.  The district court approved the settlement, and the objectors appealed.  In this opinion the 8th Circuit affirmed.  The court noted that in prior opinions it had expressed concern about the potential for conflict involving active and retired employees, but the court did not see circumstances requiring separate counsel in this case.

(posted April 20, 2012) In re Oreck Corp. Halo Vacuum & Air Purifiers Mktg. & Sales Practices Litig., 2012 U.S. Dist. LEXIS 54600 (C.D. Cal. April 17, 2012).  Motion to consolidate related class actions.  In this opinion the court granted the motion.  One objection was that the proposed interim class counsel would have a conflict because the classes might be competing for limited funds.  The court rejected that objection saying that such conflicts could be resolved "at the remedy stage."

CLIENT MERGERS/ASSET SALES (To read full article, click here.)

Nothing current.

CO-COUNSEL/COMMON INTEREST (To read full article, click here.)

Nothing current.

COMMERCIAL NEGOTIATIONS (To read full article, click here.)

Nothing current.

CORPORATIONS (To read full article, click here.)

Nothing current.

CORPORATE FAMILIES (To read full article, click here.)

(posted May 8, 2012) Cascades Branding Innov., LLC v. Walgreen Co., 2012 U.S. Dist LEXIS 61750 (N.D. Ill. May 3, 2012).  Law Firm represented Co. No. 1, owned by Owner, in litigation.  Later Owner, after selling Co. 1, owned another company (Co. 2), which is the plaintiff in this suit.  Law Firm appeared as counsel for a defendant in this suit.  The plaintiff moved to disqualify Law Firm in this suit.  First, the court held that a lawyer can represent one company and then oppose another company where they were owned by the same owner but at different times.  But, the court granted disqualification on another ground, which was a Rule 1.18 matter.  A member of Co. 2's current corporate family had communications with Law Firm about a representation that related to this case, but was not precisely this case.  Law Firm did not take that case, but wound up representing a defendant in this case.  The court said that the relationship analysis for Rule 1.18 should be "viewed through the prism of Rule 1.9."  The analysis about what was disclosed to Law Firm in these communications was very fact-intensive.

CRIMINAL PRACTICE (To read full article, click here.)

Nothing current.

CURRENT CLIENT (To read full article, click here.)

(posted May 6, 2012) Hartford Life & Accident Ins. Co. v. King, 2012 U.S. Dist. LEXIS 60308 (W.D. Va. April 30, 2012).  H is a suspect in the death of W.  H is also executor of W's estate.  InsCo insured W's life.  InsCo filed this interpleader action against H and W's mother, the only other heir.  Lawyer appeared for H individually and as executor of the estate.  Among other findings, the court held that Lawyer had a conflict and could not appear for both, given the pending issue of whether H killed W.

(posted May 3, 2012) Raby v. Animal Welfare League, 2012 U.S. Dist. LEXIS 57023 (M.D. Fla. April 20, 2012).  In this opinion the magistrate judge recommended that the district judge approve the parties' settlement of a FLSA claim.  The court noted approvingly that the lawyer's fee was not negotiated until after the damages had been negotiated.

DERIVATIVE ACTIONS (To read full article, click here.)

Nothing current. 

ENJOINING CONFLICTS (AND OTHER NON-TRADITIONAL REMEDIES) (To read full article, click here.)

Nothing current.

EXPERT WITNESSES (To read full article, click here.)

(posted May 10, 2012) Life Tech. Corp. v. Biosearch Tech., Inc., 2012 U.S. Dist. LEXIS 63975 (N.D. Cal. May 7, 2012).  Defendant hired Expert in this patent infringement case involving the polymerase chain reaction ("PCR") and DNA.  Plaintiff had earlier retained Expert in another case involving PCR.  Plaintiff moved, in effect, to disqualify Expert.  In this opinion the magistrate judge denied the motion, holding that Plaintiff failed to make a showing how it would be prejudiced in this case by what Expert had learned in the earlier case.

(posted April 28, 2012) Arnold v. Wallace, 2012 Va. LEXIS 80 (Va. April 20, 2012).  In this personal injury case Plaintiff had initially retained Doctor A as an expert.  When Defendant listed Doctor A as his expert, Plaintiff moved to disqualify Doctor A.  That motion was granted.  Defendant then listed Doctor B as an expert.  Doctors A and B were in the same practice group.  Plaintiff moved to disqualify Doctor B.  The trial court denied that motion.  In this opinion the supreme court affirmed on the basis that there was no showing that Doctor A shared any confidential information about Plaintiff with Doctor B.

FORMER CLIENT (To read full article, click here.)

(posted May 6, 2012) Legacy Villas at La Quinta Homeowners Ass'n. v. Centex Homes, 2012 U.S. Dist. LEXIS 61062 (C.D. Cal. April 30, 2012).  This is a typical suit by a homeowners' association against the developer and affiliates for various shortcomings in the creation of the development and formation of the association.  Law Firm represented the association.  Defendants moved to disqualify Law Firm.  In this opinion the court granted the motion.  At the inception of the association the board consisted of defendants' employees.  They retained Law Firm to represent the association.  The court based the disqualification on the intimacy of the relationship between Law Firm and the employee members of the board.  The court was impressed that on one letter to a defendant-affiliate Law Firm appended the attorney-client privilege legend.  (Cute!)  The court also noted that Law Firm lawyers would be witnesses.  Lastly, the court found that Law Firm was violating the long-discredited appearance-of-impropriety provision of Canon 9 of the ABA Model Code of Professional Responsibility.

(posted May 6, 2012) Bedoya v. Aventura Limo. & Transp. Service, Inc., 2012 U.S. Dist. LEXIS 59862 (S.D. Fla. April 30, 2012).  Lawyer represents Defendants in this FLSA case.  Lawyer had previously represented other plaintiffs (not this plaintiff) in similar cases.  In this opinion the court granted the plaintiff's motion to disqualify Lawyer.  [Author's Note: the court does not make a convincing argument how this "side-switching" by Lawyer harms the plaintiff in this case, or otherwise satisfies the requirements of Rule 1.9.  Lawyer's earlier plaintiff/clients did express a sense of betrayal by Lawyer, and the court was clearly irked by the side-switching.]

(posted April 19, 2012) Jo Ann Howard & Associates, P.C. v. Cassity, 2012 U.S. Dist. LEXIS 52178 (E.D. Mo. April 13, 2012).  Plaintiff is the receiver of certain insurance entities ("IEs").  In this case Plaintiff is suing several defendants for fraud and related causes of action.  Lawyer appeared for several defendants.  Plaintiff moved to disqualify Lawyer because Lawyer had previously represented one or more IEs in litigation.  In this opinion the court granted the motion.  First, the court found that Plaintiff as receiver had standing to raise the conflict.  Last, the court, in a fact-specific (and questionable) analysis found that this case is substantially related to the earlier cases.

GOVERNMENT ENTITIES - SUING ONE PART/REPRESENTING ANOTHER PART (To read full article, click here.)

Nothing current.

HOT POTATO DOCTRINE (To read full article, click here.)

Nothing current.

INITIAL INTERVIEW - HEARING TOO MUCH (To read full article, click here.)

(posted May 8, 2012) Cascades Branding Innov., LLC v. Walgreen Co., 2012 U.S. Dist LEXIS 61750 (N.D. Ill. May 3, 2012).  Law Firm represented Co. No. 1, owned by Owner, in litigation.  Later Owner, after selling Co. 1, owned another company (Co. 2), which is the plaintiff in this suit.  Law Firm appeared as counsel for a defendant in this suit.  The plaintiff moved to disqualify Law Firm in this suit.  First, the court held that a lawyer can represent one company and then oppose another company where they were owned by the same owner but at different times.  But, the court granted disqualification on another ground, which was a Rule 1.18 matter.  A member of Co. 2's current corporate family had communications with Law Firm about a representation that related to this case, but was not precisely this case.  Law Firm did not take that case, but wound up representing a defendant in this case.  The court said that the relationship analysis for Rule 1.18 should be "viewed through the prism of Rule 1.9."  The analysis about what was disclosed to Law Firm in these communications was very fact-intensive.

(posted May 3, 2012) De David v. Alaron Trading Corp., 2012 U.S. Dist. 57554 (N.D. Ill. April 23, 2012).  Prior to this suit an agent of a defendant consulted with Lawyer about the defendant's potential liability in this matter.  Lawyer wound up representing plaintiffs.  The defendants moved to disqualify Lawyer.  In this opinion, applying Rule 1.18 according to its terms, the court granted the motion.

(posted April 20, 2012) Albert Jacobs, LLP v. Parker, 2012 N.Y. App. Div. LEXIS 2807 (N.Y. App. Div. April 17, 2012).  Plaintiff moved to disqualify the law firm for the defendants ("Law Firm").  The trial court granted the motion.  In this opinion the appellate court affirmed.  Plaintiff, evidently a law firm, had previously discussed merging with Law Firm.  The disqualification was based upon the fact that Plaintiff had discussed with Law Firm Plaintiff's earlier representation of one of the defendants in this case, now being represented by Law Firm.

INSURANCE DEFENSE (To read full article, click here.)

Two Clients

(posted May 6, 2012) Lee v. Medical Protective Co., 2012 U.S. Dist. LEXIS 59778 (E.D. Ky. April 30, 2012).  This opinion is largely about the privilege in an "advice-of-counsel" context.  The holding of relevance to this audience is that the lawyer retained by the insurance company to defend the insured represents both the insured and the insurance company.

INVESTING IN CLIENTS/STOCK FOR FEES (To read full article, click here.)

Nothing current.

ISSUE OR POSITIONAL CONFLICTS (To read full article, click here.)

Nothing current.

JOINT/MULTIPLE REPRESENTATION (To read full article, click here.)

Nothing current.

LAWYER AS EXPERT WITNESS OR CONSULTANT (To read full article, click here.)

Nothing current.

LAWYERS REPRESENTING LAWYERS (To read full article, click here.)

Nothing current.

MALPRACTICE LIABILITY/FEE FORFEITURES (To read full article, click here.)

Nothing current.

OF COUNSEL (To read full article, click here.)

Nothing current.

OPPOSING LAWYERS NEGOTIATING A LAW PRACTICE MERGER (To read full article, click here.)

Nothing current.

PARTNERSHIPS (INCLUDING LIMITED PARTNERSHIPS) (To read full article, click here.)

Nothing current.

SETTLEMENT AGREEMENTS (To read full article, click here.)

Nothing current.

STANDING (To read full article, click here.)

Nothing current.

TRADE (AND OTHER) ASSOCIATIONS (To read full article, click here.)