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Insurance Defense

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        Whether one calls the representation "joint" or "multiple," when a lawyer or law firm represents more the one person or entity, a number of things can go wrong.  The cases and opinions can be broken down into litigation and non-litigation.  The litigation cases are discussed at Part C below.  Non-litigation matters can be further subdivided.  The simplest kind are matters in which the lawyer clearly knew that she was representing more than one person or entity.  These are discussed at Part A.  The other kind of non-litigation representation is where the lawyer unwittingly gets herself into the situation where someone claims that he was a client, and the lawyer did not think that was the case.  We call those "unintentional" joint/multiple representations.  These are the most dangerous of all.  To read about those cases and opinions, go to Part B below.

A.  Non-Litigation Matters – Intentional Joint Representation – Confidences

              Two persons come to a lawyer and ask her to represent them both in a business transaction. In most circumstances, the lawyer may legally and ethically do this. (For the more difficult situations - buyer vs. seller, e.g. - see the section entitled "Commercial Negotiations.")  Frequently, the lawyer will need to obtain consent under her state’s equivalent of Model Rule 1.7. The single most troublesome issue in these representations has to do with confidences. What is the lawyer to do when she learns something from one client that would be valuable information to the other? This is a serious problem when the first client does not want the other client to have the information. The lawyer is torn between her duty of confidentiality under Rule 1.6 and her duty to keep all her clients informed under Rule 1.4.

              Privilege versus confidentiality under ethics rules. Good lawyers frequently fail to make the distinction. An excellent, and all too rare, discussion of this distinction appears in Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979). The attorney-client privilege deals with when a client’s communication with a lawyer can be discovered in litigation or revealed at trial. Without a proceeding, the privilege plays no role. A lawyer’s duty of confidentiality under Model Rule 1.6, or her state’s equivalent, is always present. The privilege rules in joint representations have been fairly well understood. If litigation erupts between the joint clients, the privilege will not apply as to information shared between them and with their lawyer. The privilege will continue to protect that information as to the outside world. When you switch to the ethics rules on confidentiality in joint representations, it is our position that application of the rules is not clear at all. More about that in a moment.

              Comments [26]-[33] to Model Rule 1.7 deal with joint representation in non-litigation contexts, and several of them were changed or added by the ABA House of Delegates in February 2002.  Particularly noteworthy is new Comment (31], which, as to confidences, provides as follows:

As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.

              Restatement. The Restatement deals with joint representations in a non-litigation setting at § 130.  The black letter says that consent may allow a lawyer to continue on behalf of fewer than all the clients if a conflict develops. The black letter does not deal with confidentiality, but cmt. l to § 60 does. More specifically, see illus. 2 and 3 at cmt. l. Basically, the comment provides that if the lawyer believes that the client without the information needs to know it, the lawyer has discretion to reveal it.

              A case that discusses this issue in detail, including the Restatement’s position, is A. v. B., 726 A.2d 924 (N.J. 1999). In that case a law firm was representing a husband and wife in estate planning. The firm discovered that the husband was a defendant in a paternity suit and believed the wife did not know about the suit. The law firm wanted to tell the wife, but the husband would not allow it. Litigation ensued, and the New Jersey Supreme Court, in a comprehensive analysis, found that the firm had discretion to tell the wife. The court specifically adopted the analysis of Comment l to § 130 of the Restatement. (The court also relied, in part, upon New Jersey’s version of Model Rule 1.6, which is pro-disclosure in cases of potential client fraud.) The court noted that ethics committees in New York and Florida would have prohibited the disclosure. N.Y. State Bar Op. 555 (1984); Fla. Bar Op. 95-4 (1997).  D.C. Op. 327 (March 2005), deals with the issue of confidences in joint representation.  If one client reveals something to the lawyer in confidence, and the information would be important to the other client, the law must withdraw.  The opinion discusses ways to avoid this result.

        Other authorities dealing with confidences and joint representation are: In re H. Children, 608 N.Y.S.2d 784 (N.Y. Sup. Ct. 1994); A.B.A. Op. 08-450 (2008); N.Y. Op. 761 (2003); N.Y. City Op. 2005-05 (2005).

        Speaking of Fla. Op. 95-4 (1997).  Chase v. Bowen, 711 So. 2d 1181 (Fla. App. 2000).  Bowen did estate planning and other legal work at various times for Naomi Chase and her mother, Reah Chase.  At one point Reah's will and trust provided that Naomi would get income for her life.  Reah asked Bowen to change her will and trust to exclude Naomi in favor of Reah's business associates.  After Reah passed away, and Naomi discovered the change, Naomi sued Bowen.  The trial court granted Bowen summary judgment.  The appellate court affirmed, providing almost no analysis.  It said simply:

It is our view that a lawyer who prepares a will owes no duty to any previous beneficiary, even a beneficiary he may be representing in another matter, to oppose the testator or testatrix in changing his or will and, therefore, that assisting that change is not a conflict of interest.

        The dissenting judge would have remanded and given Naomi an opportunity to replead.  His opinion was much longer than the majority's and contained the analysis one would have expected from the majority.  For example, The Florida Bar in Op. 95-4(1997) addressed the classic mistress situation.  The opinion said that when the husband calls the lawyer (who is also doing the wife's estate plan) to prepare a codicil for his mistress, the lawyer's duty is not to tell the wife, but decline to proceed on behalf of either.  The dissenting judge said that Naomi might be able to plead breach of fiduciary duty in connection with Bowen's failure to disclose his conflict of interest.   He also said Naomi might also be able to plead intentional interference with inheritance.  About that, the majority said simply, not "under the facts of this case."  ABA Op. 05-434 (Dec. 8, 2004) deals with this precise issue and cites Chase.

        Leff v. Fulbright & Jaworski, L.L.P., 2010 N.Y. App. Div. LEXIS 8531 (N.Y. App. Div. Nov. 18, 2010).  Law Firm did estate planning for W and H, but evidently separately and at different times.  After H's demise, in this action, W sued Law Firm for malpractice relating to its handling of H's estate plan.  In this opinion the court affirmed the trial court's order dismissing the complaint.  First, the court held that W did not have a cause of action as a beneficiary.  Second, the court held that under the circumstances W was not "in privity" with Law Firm with respect to its planning H's estate.  Last, the court held that damages would be "grossly speculative."

        For a wrong-headed discussion of these issues, see An Unnamed Attorney v. Kentucky Bar Ass’n., 186 S.W.3d 741 (Ky. 2006).

        Star Centers, Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72 (Minn. May 16, 2002).  Faegre's Minneapolis office represented Star Centers in borrowing money from Consortium International.  Faegre had disclosed that it represented Consortium on several small unrelated matters, and obtained waivers from both parties to represent Star Centers in the loan transaction.  After several failed attempts to consummate the loan, and while the matter was pending, Faegre's Denver office began defending Consortium in litigation pending in Denver.  When Consortium announced that it was backing out of the loan, Star Centers asked Faegre to sue Consortium.  Faegre refused because of a conflict.  Eventually Star Centers sued Faegre for breach of fiduciary duty and malpractice.  It claimed that Faegre knew things about Consortium that it should have disclosed to Star Centers.  The trial court, the appellate court, and the Minnesota Supreme Court held that what Faegre knew about Consortium was not relevant to Star Centers and that failure to make disclosures to Star Centers caused it no damage.

        Liberty Mut. Fire Ins. Co. v. Mystic Transportation, Inc., 2004 U.S. Dist. LEXIS 18564 (S.D.N.Y. Sept. 16, 2004).  The defendants, represented by one law firm, entered into an insurance agreement with the plaintiff.  The plaintiff sued the defendants for the premium.  The defendants, represented by a new law firm in this case, alleged as one of their defenses that the agreement was not valid because their prior law firm had a conflict of interest in representing all the defendants.  The court held that they were sophisticated and had made no showing that there was a conflict.

        In Re Meucci, 2000 Ohio App. LEXIS 6094 (Ohio App. 2000).  Where all the parties to a guardianship proceeding stipulated that a person should have a guardian, it was not a conflict for the same lawyer to represent the person needing the guardian and the person bringing the proceeding.

        Vick v. Bailey, 777 So. 2d 1005 (Fla. App. 2000).  In a guardianship proceeding the court held that a lawyer could represent a friend of the ward and the ward in seeking to have the ward declared competent.

       More Cases on the Perils of Representing Multiple Family Members in Estate Planning, Estate Administration, Property Transfers, etc.  Meyers v. Sudfeld, 2007 U.S. Dist. LEXIS 7634 (E.D. Pa. Feb. 2, 2007); Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723 (Tex. App. 2007) (firm avoided $65.5 million verdict where it had represented various family members and a bank). 

        Abusive Tax Shelters.  We have collected cases involving tax opinions from law firms with conflicts of interest at the page entitled, “Investing . . . “

        Other Opinions. The following opinions are consistent with the approach taken by the Ethics 2000 Commission: Cal. Op. 2003-163 (undated); D.C. Bar Op. 296 (2/15/00); Assoc. of the Bar of the City of N.Y. Ops. 1999-07 & 1994-10; Fla. Bar Op. 95-4 (1997); and N.Y. State Bar Op. 555 (1984).

        Ga. Op. 03-2 (2003).  The opinion addresses a joint representation during which one client tells the lawyer something he wants held in confidence from the other client.  The opinion holds that if the information is of the sort that the lawyer should convey to the other client under Rule 1.4, the lawyer should not convey it and should withdraw.

        Mass. Op. 09-03 (2009).  Massachusetts has a different version of Rule 1.7 and a different Comment.  As a result, and because it involves joint representation in immigration matters this opinion has a different take from that of Ethics 2000.

        In-House Lawyer Employed by One Subsidiary May Perform Services for Another Subsidiary of the Same Parent.  Va. Op. 1838 (May 10, 2007).  The opinion holds that a patent lawyer employed in-house  by one wholly-owned subsidiary of a parent may perform legal services for another wholly-owned subsidiary of the same parent.  The opinion cautions that the lawyer must avoid conflicts of interest and follow other ethics rules, including the duty of confidentiality.

        Patent Infringement Case; Conflict Does not Trigger Equitable Estoppel Defense.  Vanguard Products Group v. Telefonix, Inc., 2009 U.S. Dist. LEXIS 7306 (D. Ore. Jan. 16, 2009).  This suit is in part for patent infringement.  One of the defenses was equitable estoppel.  This was based upon a conflict of Law Firm in a related case.  The plaintiffs (collectively, "Vanguard") and the defendant ("MTI"), the parties in this case, were sued in the related case.  Law Firm for a time represented Vanguard and MTI jointly in the related case.  Before, or during, that representation Vanguard filed a patent continuation application related to the patent in this case.  Law Firm did not tell MTI about that filing.  Nor, did Law Firm withdraw from the joint representation.  In dealing with equitable estoppel, in this opinion the court held that Law Firm's actions did not support that defense.  First, the court held that under Illinois (the state where Law Firm's conflict occurred) Rule 1.6 Law Firm had a duty to Vanguard not to disclose the filing to MTI.  The court noted that Law Firm should have withdrawn when it became aware of the conflict, but its failure to do so should not prejudice its client, Vanguard, as to the equitable estoppel defense.  [Note: this is an extensive discussion of the confidentiality duties of a lawyer with multiple clients.]

       Badly-Handled Corporate Investigation.  United States v. Nicholas, 2009 U.S. Dist. LEXIS 29810 (C.D. Cal. Apr. 1, 2009).  This is a criminal case arising out of alleged options back-dating at Broadcom.  One of the defendants is the former CFO of Broadcom, William Ruehle.  This opinion dealt with the admissibility of certain statements Ruehle had made to lawyers from Irell & Manella during an internal investigation of the back-dating issue.  Irell had earlier represented Broadcom and Ruehle in other securities matters.  When back-dating became an issue Irell, representing Broadcom, conducted an investigation and interviewed Ruehle.  According to the opinion Irell did not warn Ruehle that it did not represent him in the matter.  Irell reported the interview to Broadcom, and Broadcom instructed Irell to report it to the SEC and DOJ, which it did.  Because of Irell's conduct, the court ruled that the interview was not admissible in this criminal case.  The court also ordered the clerk of the court to report the matter to the California Bar disciplinary authorities.  [Note: the court was obviously miffed at Irell, and may have unintentionally "spun" the facts somewhat in the opinion.  However, the opinion is a wonderful teaching tool on how not to conduct an internal investigation.]

        In re Est. of Gory, 570 So. 2d 1381 (Fla. App. 1990).  In denying a motion to disqualify, the court held that while the lawyer for the estate has a fiduciary duty to the beneficiaries, she does not have a lawyer-client relationship with them.

        In re Botimer, 214 P.3d 133 (Wash. 2009).  Lawyer was suspended in part because he had represented various family members in their dealings with one another without obtaining a conflict waiver.
             
        Treatise.  Hazard, Hodes, & Jarvis §§ 11.11, 11.14 & 11.15.

        Law Review.  John R. Prince, In Honor of Professor John Gaubatz: The Fundamentals of Ethically Representing Multiple Clients in Estate Planning, 62 U. Miami L. Rev. 735 (2008).

        Thomas E. Spahn, Keeping Secrets or Telling Tales in Joint Representations: Part I, May 12, 2011 Current Report of the ABA/BNA Lawyers' Manual on Professional Conduct.  This is a terrific article on what to do when you learn something confidential from one joint client that you believe the other needs to know.  It explains the varied positions of the Model Rules, the Restatement, the ACTEC Commentaries, cases, and ethics opinions.

        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.

      B.  Non-Litigation Matters – "Unintentional" Joint/Multiple Representation

        This has become a very dangerous conflict-of-interest phenomenon confronting law firms. A perfect example is the Sverdlin case out of Texas. Before summarizing that case, it should be emphasized that law firms and their malpractice carriers are paying millions of dollars in settlements in situations just like that in Sverdlin. In all those cases, the law firm thought it was representing one or more finite clients, only to learn that others at the scene claimed that the law firm was also representing them.

        Automated Marine Propulsion Systems, Inc. v. Sverdlin, No. 97-02103, Harris County, Texas. The following description is taken from two articles in the Texas Lawyer, dated November 1, 1998, and January 31, 1999, respectively. Anatoly Sverdlin owned a marine repair and manufacturing company. He needed money to expand and brought in venture capitalists ("VCs"). The company hired a law firm to represent it in dealing with the VCs. The law firm wrote a letter to Sverdlin saying that it was representing the company. As a result of the restructuring and disputes among the parties, the VCs wound up in control of the company. Sverdlin sued everyone, including the law firm. He claimed the law firm represented him and caused him to lose his company. The law firm responded with the above letter. He denied seeing it. In October 1998, the jury returned a verdict against all defendants totalling in excess of $1 billion. The amount assessed against the law firm was approximately $50 million. That might have included significant overlapping amounts and duplication, but the law firm, according to the press, promptly settled its part of the case for $20 million.

        Restatement on "Client's" Expectation.  See the Reporter's Note to § 14 of the Restatement.  Cmt. b to § 14 provides in part:

A lawyer may be held to responsibility of representation when the client reasonably relies on the existence of the relationship . . .

See also cmt. f:

[A] lawyer's failure to clarify whom the lawyer represents in circumstances calling for such a result might lead a lawyer to have entered into client-lawyer representations not intended by the lawyer.

        Court Said Law Firm Should Have Said in Writing Who Was and Who Was not Client.  Artificial Nail Technologies, Inc. v. Flowering Scents, LLC, 2006 U.S. Dist. LEXIS 54735 (D. Utah Aug. 4, 2006).  In Speeney v. Rutgers, The State University, 2006 U.S. Dist. LEXIS 82101 (D.N.J. Nov. 6, 2006), the court found no lawyer-client relationship, but only after lengthy hearing.  A letter would have helped.

       Lawyer Avoided Liability Because She Gave "Non-Client" a Document that Said "Non-Client" Was not a Client.  Riftin v. Stark, 808 N.Y.S.2d 920 (N.Y. Misc. 2005).

        Repeatedly Reminding Party that He Is not a Client Helps.  State of West Virginia ex rel. Blackhawk Enterprises, Inc. v. Bloom, 633 S.E.2d 278 (W. Va. 2006).

      In Montgomery Academy v. Kohn, 50 F. Supp. 2d 344 (D.N.J. 1999), the lawyer for a private school led the director of the school into thinking he was representing her.  When the director and the school became adversaries, the lawyer attempted to represent the school but was disqualified.

        The law firm fared better in Strasbourger Person Tulcin Wolff Inc. v. Wiz Tech., Inc., 82 Cal. Rptr. 2d 326 (Cal. App. 1999).  The law firm in question represented the underwriter in a securities offering.  The offering materials said that the law firm represented the underwriter.  The materials also stated that another law firm represented the issuer.  The underwriting agreement provided that the issuer would pay the underwriter's attorneys fees.  The law firm in question later attempted to represent the underwriter in a matter against the issuer.  The trial judge disqualified the law firm.  In reviewing all the facts and procedures usually followed in offerings, the appellate court reversed, saying the law firm's status as counsel for the underwriter and not for the issuer was clear.  In Milner v. Anders, 2001 U.S. Dist. LEXIS 6227 (D. Del. 2001), the court ruled that the defendant lawyers had not represented the plaintiff noting that all the other participants testified that the lawyers orally told everyone in very clear terms who the lawyers did, and did not, represent.

         Seeley v. CCG Medical Management Group, 2002 Cal. App. Unpub. LEXIS 11397 (Cal. App. December 10, 2002).  A lawyer was representing one party to a negotiation.  He met both parties in a restaurant.  The other party did not bring a lawyer.  At one point, when the client was in the men's room, the lawyer had a one-on-one conversation with the other party.  When the client rejoined the session, the conversation was repeated.  The court held that was not enough to create a lawyer-client relationship with other party.

        ATT Systems Co. v. Tylman, 2004 U.S. Dist. LEXIS 17628 (N.D. Ill. Sept. 1, 2004).  A not-very-helpful opinion in which the court refused to disqualify the defendants' lawyer even though before the litigation the lawyer had attended a meeting with both defendants and plaintiffs and had allegedly given legal advice.

               Other cases.

        Blickenstaff v. Clegg, 97 P.3d 439 (Ida. 2004).  This is, in part, a suit against a lawyer who had handled a series of related transactions involving a number of parties.  The plaintiff is one of those parties.  The lawyer claimed he did not represent the plaintiff, and the trial court granted summary judgment to the lawyer.  The Idaho Supreme Court reversed, holding that there was a question of fact whether plaintiff’s belief that the lawyer represented him was reasonable.  Among other things, the plaintiff had asked the lawyer to prepare several of the deal documents, and the lawyer did not clearly document who was, and who was not, a client.

        MacFarlane v. Nelson, 2005 Tex. App. LEXIS 7681 (Tex. App. Sept. 15, 2005).  A plaintiff in this malpractice action claimed that a defendant lawyer represented the plaintiff in a business transaction and that the defendant had a conflict of interest.  The defendant claimed that he never represented the plaintiff.  The trial court granted summary judgment for the defendant lawyer.  In this opinion the appellate court affirmed, citing much evidence that the plaintiff could not reasonably have believed that the defendant had represented him in the transaction.  The court relied heavily upon Section 14 of the Restatement.

       Burnap v. Linnartz, 38 S.W.3d 612 (Tex. App. 2000).  The case involved a number of business partners, relatives, and related business entities, all represented by the same law firm.  One of the individuals wound up guaranteeing an obligation that he claims he did not fully understand or know about.  The law firm claims he was not a client.  There was no letter clarifying who was and who was not a client, or explaining potential conflicts of interest.  The appellate court reversed the trial court's grant of summary judgment for the lawyers, on all but one count.

        Nosnik v. Ginsburg and Brusilow, P.C., 2000 Tex. App. LEXIS 3730 (Tex. App., 5th Dist., June 7, 2000). Malpractice action against law firm that represented company and shareholders in transaction. The law firm had sent a letter to all clients at the beginning of the transaction pointing out the potential for a conflict. Later, when one of the clients sued the law firm for having a conflict, the law firm raised the Statute of Limitations. The client claimed the Statute was tolled by fraudulent concealment. The court held that the letter negated fraudulent concealment and upheld application of the Statute. Comment: This is a perfect illustration of the value of such letters.

       Premarital Agreements.  Bonds v. Bonds, 5 P.3d 815 (Cal. 2000). The California Supreme Court held that a party to a premarital agreement need not have independent counsel for the agreement to be enforceable.  The opinion collects cases from all over the country and also analyzes the Uniform Premarital Agreement Act, which was largely adopted by the California legislature.

        Marital Separation Agreements and Post-Nuptial Agreements.  In In re Egedi, 105 Cal. Rptr. 2d 518 (Cal. App. 2001), the court held that a marital support agreement drafted by one lawyer for both parties was enforceable.  The lawyer had obtained a written conflicts waiver and agreed to act only as a scrivener.  To a very similar effect involving a post-nuptial agreement, see Friedman v. Friedman, 122 Cal. Rptr. 2d 412 (Cal. App. July 15, 2002).

        Will Not Invalidated.  In re Estate of Maddox, 60 S.W.3d 84 (Tenn. App. 2001).  Court held that the fact that a lawyer preparing a will also represents one of the beneficiaries on other matters does not, standing alone, invalidate the will.

        Lawyer for Estate May Be Deemed Lawyer for Beneficiary.  Gagliardo v. Caffrey, 800 N.E.2d 489 (Ill. App. 2003).  The lawyer previously had represented a decedent's estate.  The sole beneficiary sued the executor.  When the same lawyer tried to represent the defendant/executor, the court ruled he should be disqualified.  The court held that in the "narrow circumstance" where the sole beneficiary, whose complaint was with the executor, not the estate, the lawyer would be treated as if he had represented the estate.

        Lawyer for Estate Deemed Lawyer for Executor Personally Because of Ambiguous Engagement Letter.  Est. of Albanese v. Lolio, 923 A.2d 325 (N.J. Super. 2007) .  Decedent left her estate to Sisters 1, 2, and 3, and named Sister 1 Executor.  Sister 1 hired Lawyer to help her with the estate.  Lawyer’s engagement letter was signed by Sister 1 as “[Sister 1] Individually and as Executrix of the Estate of [Decedent]."  While Lawyer had considerable contact with Sister1, he had no contact with Sisters 2 and 3.  Lawyer arguably made some tax planning mistakes that cost all three sisters considerable damage.  All three sued Lawyer.  The trial court granted Lawyer summary judgment, reasoning that Lawyer’s only duty was to the estate.  The appellate court, in this opinion, affirmed as to Sisters 2 and 3, but reversed as to Sister 1.  The court, in citing the above language and other language, in the engagement letter held that the ambiguity of the letter could enable Sister 1 to claim that she reasonably believed that Lawyer was also looking out for her personal interests.

        In re Est. of Gory, 570 So. 2d 1381 (Fla. App. 1990).  In denying a motion to disqualify, the court held that while the lawyer for the estate has a fiduciary duty to the beneficiaries, she does not have a lawyer-client relationship with them.   

       Bond Counsel.  The Bank of New York v. Sheff, CAL 02-21119 (Circuit Court for Prince George’s County, Maryland, Sept. 10, 2003).  Someone failed to file a UCC-1 in D.C. in connection with a conduit borrowing, in which the issuer was Prince George’s County, Maryland.  The investors sued the law firm that rendered the bond opinion.  In granting summary judgment for the law firm, the court first found that the law firm did not represent the investors.  It relied, in part, on the official statement, which said that the law firm “is bond counsel to Prince George’s County,” meaning, to the court evidently, that the county was the law firm’s client.  The court also relied, in substantial part, on documents that said the conduit borrower (as opposed to the county) was responsible for filing UCC-1s.  This opinion will not be published.  We have a summary of it in pdf format.  Anyone wishing a copy should write as follows:   [Author’s note: we do not like the phrase “bond counsel to the issuer.”  That phrase does not appear outside the tax-exempt tax area.  The law firm here was lucky that the court bought it.  A less ambiguous statement would be:

XYZ law firm will provide the opinion on the legality of the bonds and on their tax-exempt status.  XYZ’s client will be the issuer and no other party to this transaction.

       Patent Prosecution.  A lawyer representing an employer in prosecuting a patent must be conscious of her relationship with the employee/inventor.  An excellent discussion of this relationship – or lack thereof – is at David Hricik, Trouble Waiting to Happen: Malpractice and Ethical Issues in Patent Prosecution, 31 AIPLA Q. J. 385, 407-410 (Fall 2003).  He cites several cases dealing with patent prosecution and this issue.  In addition, he counsels patent prosecution lawyers of the wisdom of documenting up front who is, and who is not, a client.  Cases holding that the lawyer for the employer is not necessarily the lawyer for the employee/inventor: Univ. of W. Va. v. Vanvoorhies, 278 F.3d 1288, 1304 (Fed. Cir. 2002); Sun Studs, Inc. v. Applied Theory Assocs., Inc., 772 F.2d 1557, 1568 (Fed. Cir. 1985); and Emory Univ. v. Nova Biogenetics, Inc., 2006 U.S. Dist. LEXIS 67305 (N.D. Ga. Sept. 20, 2006).

      C.  Litigation - Joint/Multiple Representation

        In most respects the considerations in representing multiple parties in litigation are similar to those above. In litigation, the lawyer asked to represent more than one party must do an analysis to ensure that the joint parties’ interests are not adverse. That involves the usual analysis of the relevant state’s version of Model Rule 1.7 or Model Code DR 5-105. That should also include a written agreement or engagement letter stating what the lawyer’s obligations and rights are if a conflict arises midstream.

       In re Rite Aid Corp. Securities Litigation v. Grass, 139 F. Supp. 2d 649 (E.D. Pa. April 17, 2001).  This is a securities class action against Rite Aid and several of its executives.  Early in the case the General Counsel of Rite Aid retained Ballard Spahr to represent Rite Aid and one of the executives, Alex Grass.  Ballard Spahr sent Grass an engagement letter saying that if a conflict developed between the Rite Aid and Grass, Ballard Spahr would withdraw from representing Grass and would continue on behalf of Rite Aid.  A conflict did develop, Ballard Spahr dropped Grass, and it continued on behalf of Rite Aid.  Grass moved to disqualify Ballard Spahr, and the court, relying in part upon the engagement letter, denied the motion.

        Another case that shows the value of such an agreement is Zador Corp. v. Kwan, 37 Cal. Rptr. 2d 754 (Cal. App. 1995). There the law firm obtained from both parties an agreement that if a conflict developed, the law firm could continue on behalf of Zador Corp. A conflict did develop and the court held that the agreement was effective in allowing the law firm to continue on behalf of Zador Corp. The court cites, seemingly with approval, Cal. Op. 1989-115, which says that a law firm can enforce such an agreement even if it means using confidences from the former client against the former client.  Watch out, though.  ABA Informal Opinion 1441 (1979) rejected that approach in a similar situation.  In Rymal v. Baergen, 686 N.W.2d 241 (Mich. App. 2004), co-defendants signed an agreement similar to that in Zador.  The court allowed the law firm to drop one client and continue on behalf of the other.  However, the court noted that the law firm had not obtained confidences from the dropped client, implying that if it had, the court might have disqualified the firm. 

        While obtaining such an agreement may not be unethical, the court may not enforce it. The court may find that a non-waivable conflict had existed at the outset, or that one or more parties lacked the sophistication to understand the consequences of the agreement.

        ABCNY Op. 2004-02 (June 2004), mentions Rite Aid and Zador in its discussion of multiple representations in government investigations, counseling lawyers on dealing with waivers, confidences, and preserving the right to withdraw from one client and stay on behalf of another.

       Other State and Local Ethics Opinions.  L.A. Co. Op. 471 (1992); and Tex. Op. 487 (1992)

        Restatement. § 128, "Representing Parties With Conflicting Interests in Civil Litigation," provides as follows:

Unless all affected clients consent to the representation under the limitations and conditions provided in § 122, a lawyer in civil litigation may not:

(1) represent two or more clients in a matter if there is substantial risk that the lawyer's representation of one of the clients would be materially and adversely affected by the lawyer's duties to another client in the matter; or

(2) represent one client in asserting or defending a claim against another client currently represented by the lawyer, even if the matters are not related.?

        Model Rules.  Cmt. [23] to Model 1.7 specifically recognizes the acceptability of representing more than one party in civil litigation, if the appropriate conflicts analysis is done at the outset.
 

        Treatise.  Hazard, Hodes, & Jarvis § 11.12.

       Multiple Defendants with Conflicting Settlement Issues.  See Hayes v. Eagle-Pitcher Industries, 513 F.2d 892 (10th Cir. 1975); Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990); In re Lauderdale, 549 P.2d 42 (Wash. App. 1976; and Quintero v. Jim Walter Homes, Inc., 709 S.W.2d 225 (Tex. App. 1985).

        Article.  William E. Wright, Jr., Ethical Considerations in Representing Multiple Parties in Litigation, 79 Tulane L. Rev. 1523 (2005) .

        Insurance Defense.  (click here)

        Other Cases.

        "Potential Conflicts in California."  Glahn & Hirschfield v. Taylor, 2004 Cal. App. Unpub. LEXIS 3249 (Cal. App. April 7, 2004).  Suit to collect legal fees.  The former clients defended the case by alleging the law firm had a conflict of interest in the underlying matter and should forfeit its fees.  In the underlying matter the firm defended two individuals and their partnership in a foreclosure action.  The defendants alleged in this case that that representation was a “potential conflict” under California Rule 3-310, California’s unique version of Model Rule 1.7.  In the case of a “potential conflict” the lawyer must obtain informed written consent to proceed.  That did not happen here.  In this opinion the appellate court said that a “potential conflict,” would exist only if there was a “reasonable likelihood” that an “actual conflict” would arise.  The court went on to say that representing multiple defendants does not alone create a reasonable likelihood of an actual conflict and is, thus, not a “potential conflict.”  The court also noted that in the underlying foreclosure all three defendants had the same interest in slowing it down, something they hired the law firm to do.

        Law Firm Cannot Represent all Five Defendants in Medical Malpractice Case.  Reitzel v. Hale, 820 N.Y.S.2d 845 (N.Y. Misc. 2006).

       Flaherty v. Filardi, 2004 U.S. Dist. LEXIS 12300 (S.D.N.Y. July 1, 2004).  Marie Flaherty and Jason Filardi are playwrights.  Flaherty has sued Filardi and Walt Disney Company for copyright infringement.  Filardi and Disney have the same law firm.  Flaherty moved to disqualify their law firm claiming it had a conflict.  The court denied the motion, holding that as long as the defendants agree on strategy and theory, a united front was proper.  The court did not mention standing.  For similar holdings, also not mentioning standing, see Hollenbeck v. Boivert, 330 F. Supp. 2d 324 (S.D.N.Y. 2004); Bell v. Rochester Gas & Electric Corp., 2004 U.S. Dist. LEXIS 14343 (W.D.N.Y. July 21, 2004), and Jackson v. Adcock, 2004 U.S. Dist. LEXIS 14222 (E.D. La. July 21, 2004).

        City of Dallas v. Redbird Development Corp., 143 S.W.3d 375 (Tex. App. 2004).  Lawyer represented defendants A and B in a suit.  With the agreement of B, Lawyer withdrew from representing B and continued representing A.  B was then severed from the case.  The plaintiff moved to disqualify Lawyer.  The trial court denied the motion, and the appellate court affirmed, noting B’s waiver and noting that because B was no longer in the case, there was no conflict between A and B.  The court did not mention standing.

       Lawyer May Represent Trustee and Beneficiaries.  In re Allen, 2003 Tex. App. LEXIS 4830 (Tex. App. June 5, 2003).  One of the beneficiaries of a trust brought an action against the trustee for an accounting and an order removing the trustee.  The trustee and two other beneficiaries of the trust hired the same lawyer to oppose the suit.  The plaintiff moved to disqualify the defendants’ lawyer claiming it was a conflict for the lawyer to represent the trustee and beneficiaries.  The trial court granted the motion.  On mandamus, the appellate court reversed, saying it was not per se a conflict.  The onus was on the plaintiff to demonstrate that there was a conflict, and plaintiff had not done so.

        Law Firm May Represent Conservator and Grandchildren of Incompetent in Dispute with Daughter of Incompetent.  In re Anderson, 2006 Neb. App. LEXIS 20 (Neb. App. Feb. 14, 2006).

        In re Est. of Gory, 570 So. 2d 1381 (Fla. App. 1990).  In denying a motion to disqualify, the court held that while the lawyer for the estate has a fiduciary duty to the beneficiaries, she does not have a lawyer-client relationship with them.

        Drag Racing Technologies, Inc. v. Universal City Studios, Inc., 2003 U.S. Dist. LEXIS 6861 (S.D.N.Y. April 24, 2003).  Plaintiff moved to disqualify the law firm for defendants because the law firm was representing multiple defendants.  The court denied the motion noting that the defendants had consented to the representation, had agreed upon a “narrow” defense, and that the conflict was only “potential.”  The court rejected the defendants’ claim that the plaintiff did not have standing to bring the motion.  Another case where the court permitted a lawyer to represent both a corporate defendant and several of the corporations officer is Moses v. Sterling Commerce (America), Inc., 2005 U.S. App. LEXIS 19 (6th Cir. Jan. 3, 2005).

        Third-Party Action.  Bulkmatic Transportation Co. v. Pappas, 2001 U.S. Dist. LEXIS 6066 (S.D.N.Y. 2001).  Bulkmatic sued defendants for fraud, breach of fiduciary duty, and RICO violations.  The defendants filed a third-party action against certain Bulkmatic managers claiming they induced the complained-of conduct.  A law firm represented both the plaintiff and the managers.  The defendants moved to disqualify the law firm.  The law firm represented to the court that it conducted an investigation, found no conflict, and obtained a waiver from the managers.  The law firm also offered the managers an opportunity to hire their own lawyers, which they declined.  The court denied the motion.

        Third-Party Action.  Georgius v. Village of Morrisville, 2011 N.Y. App. Div. LEXIS 2696 (N.Y. App. Div. April 7, 2011).  In a two-page opinion granting a motion to disqualify, the court held, in effect, that the same lawyer could not represent both the plaintiff and third-party defendant a case.  The court in Kids In Sports, LLC v. Definitive Inc., 2012 N.Y. Misc. LEXIS 1210 (N.Y. App. Div. March 20, 2012), said that representing both is not per se impermissible.

        As in Third-Party Actions.  Big Brown LLC v. Devitt, 2011 N.Y. Misc. LEXIS 3979 (N.Y. Sup. Ct. Aug. 12, 2011).  This is a suit by eight plaintiffs against Defendants for breach of contract and other remedies arising out of the failed development of a "beauty bar" (combination beauty parlor and bar).  Defendants filed a counterclaim against two plaintiffs for contribution arising out of those plaintiffs' alleged complicity in Defendants' alleged misconduct.  Lawyer attempted to represent all the plaintiffs.  Defendants moved to disqualify Lawyer from representing the two plaintiffs subject to the counterclaim.  In this opinion the court not only granted the motion but ordered Lawyer out of the case completely.

        McDaniel v. Man Wai Lee, 2011N.J. Super. LEXIS 75 (N.J. App. Div. April 27, 2011).  The plaintiff in this injury case, while working, stopped his vehicle at an intersection.  A fellow employee pulled up behind the plaintiff in another vehicle.  The fellow employee was rear-ended by a third vehicle, driven by the defendant in this case.  The defendant filed a third-party action against the fellow employee.  In this opinion the court held that New Jersey's fellow-servant rule prevented the third-party action.  The court also held that because the third-party action was precluded, the plaintiff's and his fellow employee's interests were aligned, and the same lawyer could represent both.

        Breezevale Ltd. v. Dickinson, 759 A.2d 627 (D.C. App. 2000).  Gibson, Dunn & Crutcher ("GDC") represented Breezevale, a tire distributor, in a $20 million suit against Firestone.  The day before her deposition, a Breezevale employee disclosed to GDC that she forged some of the documents that GDC produced to Firestone.  The deposition proceeded, the alleged forgeries were disclosed, Firestone took a $3.5 million offer off the table, and the case settled with Firestone paying $100,000 to Breezevale.  Breezevale then sued GDC for malpractice and recovered a jury verdict of $3.4 million.  During the malpractice trial the plaintiff's expert witness testified that GDC had a conflict of interest in two respects.  First, when the employee disclosed the forgeries, that created a conflict between her and Breezevale.  GDC should not, then, have represented both in connection with the deposition.  Second, GDC had a conflict with Breezevale created by GDC's concern that it had produced forged documents during discovery, causing GDC to recommend the $100,000 settlement.  The trial judge granted GDC a judgment N.O.V.  The Court of Appeals said the judgment N.O.V. was not appropriate and sent the case back for the trial judge to rule on a motion for new trial.

        Lawyers Representing Selves and Clients in Same Litigation.  H&H Acquisition Corp. v. Financial Intranet Holdings, 2000 U.S. Dist. LEXIS 5463 (S.D.N.Y., April 27, 2000). A law firm and a partner in the law firm were sued along with a client in a securities fraud case. The law firm represented all defendants, including itself. The plaintiff moved to disqualify the law firm alleging the law firm had a conflict of interest. The court denied the motion. The court was influenced by the fact that the non-lawyer defendant had obtained the advice of separate counsel before specifically waiving the conflict. The court did not see a problem in that no real conflict had yet surfaced. As to the possibility that the law firm might be tempted to use its client’s confidences, the court noted that the law firm was going to be in the case as a defendant anyway, and would be watched very closely in this respect, in any event.  Similar result in Cooke v. AT&T Corp., 2006 U.S. Dist. LEXIS 32489 (S.D. Ohio May 23, 2006).  A husband and wife sued the telephone company for improper billing.  The husband was a lawyer and represented himself and his wife.  The telephone company, claiming the husband had a conflict, moved to disqualify him.  The court brushed aside all the telephone company’s arguments and denied the motion.  A similar statement is in Gabayzadeh v. Taylor, 2009 U.S. Dist. LEXIS 66944 (E.D.N.Y. Aug. 3, 2009).  Also J.R.S. Holdings, L.L.C. v. JES Properties, L.L.C., 2010 N.J. Super. Unpub. LEXIS 2012 (N.J. App. Div. Aug. 17, 2010).  However, in Jamieson v. Slater, 2006 U.S. Dist. LEXIS 86712 (D. Ariz. Nov. 27, 2006), the court felt the conflicts were just too great.

        McPhearson v. Michaels Co., 117 Cal. Rptr. 2d 489 (Cal. App. 2002).  Riestenberg represented Harris in a labor-related claim against Michaels Co., Harris’ employer.  Shortly before settling Harris’ claim, Riestenberg began representing McPhearson in a different labor-related claim against Michaels Co., also McPhearson’s employer.  Riestenberg then settled Harris’ claim.  Part of the settlement was Riestenberg’s agreement to keep the Harris settlement confidential.  Harris would be a witness in McPhearson’s case.  Michaels Co. moved to disqualify Riestenberg in the McPhearson case.  The trial court granted the motion, relying upon Gilbert v. National Corp. for Housing Partnerships, 71 Cal. App. 4th 1240 (1999), a similar case involving successive lawsuits on behalf of different employees against the same employer.  The Appellate Court in this case reversed the trial judge.  The court first said it felt the Gilbert court “exaggerated” the conflict.  The court then noted that both Harris and McPhearson filed declarations waiving any conflict, and that the Harris settlement would not be admissible in the McPhearson case, in any event.  Lastly, the court seemed to rely in part upon the fact that it was Michaels Co. that was making the motion, suggesting that Michaels Co. lacked standing.

        Yost v. V.K. Truck Lines, Inc., 2006 U.S. Dist. LEXIS 3286 (D. Kan. Jan. 27, 2006).  Personal injury action.  A semi-trailer truck rear-ended a pickup truck.  The driver of the pickup sued the owner of the semi and its driver.  The same lawyer appeared for both defendants.  The magistrate judge raised the possible conflict sua sponte.  First, the court noted that the defendants’ lawyer had made inconsistent statements as to whether the semi driver was an employee of the owner or an independent contractor.  The court also noted the disparate ways the plaintiff’s prayer for punitive damages might impact the defendants.  The court, applying Kansas Rule 1.7(b) (Model Rule 1.7(a)(2)), ruled that the defendants’ lawyer would have to drop one of the defendants, and warned the lawyer of Rule 1.9’s former-client requirements in continuing to represent the other defendant.

        Bi-State Dev. Agency v. Watson, 40 S.W.3d 403 (Mo. App. 2001).  A bus collided with an automobile.  The bus owner and the bus driver sued the driver of the automobile.  The bus owner's lawyer also represented the bus driver.  The bus driver had previously collected workmen's compensation from the bus owner.  When the bus owner attempted to realize on its workmen's compensation subrogation rights  from the bus driver, the trial judge denied it, saying the bus owner had forfeited it subrogation rights because of the conflict of interest of the bus owner's lawyer.  The appellate court reversed, saying the employer's subrogation rights were not abrogated by the conflict of interest.

        Robertson v. Wittenmyer, 736 N.E.2d 804 (Ind. App. 2000) Wittenmyer was driving, and Robertson was a passenger.  They rear-ended a truck, and a station wagon rear-ended them.  McGlone represented Wittenmyer and Robertson against the station wagon.  They settled.  Robertson's share was less than his medical bills.  McGlone then sued Wittenmyer on behalf of Robertson.  During all this time McGlone was representing Wittenmyer in a workmen's compensation matter.  The court held that McGlone should be disqualified and that the conflict was non-waivable.

        Boyd v. Trent, 731 N.Y.S.2d 209 (N.Y. App. 2001).  The father of infants owned an automobile in which they were injured.  New York law makes the owner of a vehicle vicariously liable in some situations.  The father filed suit against certain defendants in his individual capacity and in his capacity as guardian of the infants.  The court held he had a conflict and removed him as guardian.  The court also affirmed disqualification of the law firm that attempted to represent him in both capacities.  The court held the law firm could continue to represent the father in his individual capacity.

        Alcantara v. Mendez, 756 N.Y.S.2d 90 (N.Y. App. 2003).  Automobile accident.  A lawyer attempted to represent the driver and minor passengers of one of the cars in a suit against the driver of the other car.  The driver of the other car counterclaimed against the plaintiff/driver.  The court held that the lawyer should be disqualified because the interest of the plaintiff/driver differed from that of the passengers.

       Shaikh v. Waiters, 710 N.Y.S.2d 873 (S. Ct. 2000).  Automobile collision case.  A lawyer attempted to represent two plaintiffs, a driver of one of the cars and her infant daughter, who was a passenger.  The defendants, who were associated with the other car, moved to disqualify plaintiffs' counsel.  The judge granted the motion, citing DR 5-105 and EC 5-17 of the New York Code of Professional Responsibility and three cases with similar fact patterns, Pessoni v. Rabkin, 220 A.D.2d 732 (N.Y. App. 1995); Sidor v. Zuhoski, 261 A.D.2d 529 (N.Y. App. 1999); and Fugnitto v. Fugnitto, 113 Misc. 2d 666 (N.Y. App. 1982).  The judge ruled that the conflict was not consentable and that the disqualified lawyer had to withdraw from representing both plaintiffs for confidentiality reasons.  In In re Bruno, 327 B.R. 104 (E.D.N.Y. 2005), the court cited Shaikh and held that a lawyer who attempted to represent a driver and passengers had a conflict and should be denied fees.  Other cases disqualifying a lawyer for representing both the driver and a passenger, and citing Shaikh are Dorsainvil v. Parker, 829 N.Y.S.2d 851 (N.Y. Misc. 2006) ; Ferrara v. Jordache Enterprises Inc., 819 N.Y.S.2d 421 (N.Y. Misc. 2006); Taverez v. Hill, 2009 N.Y. Misc. LEXIS 7 (N.Y. Misc. Jan. 5, 2009) (court raised issue sua sponte).  Here is a case that distinguished Shaikh, Delorenz v. Moss, 2009 N.Y. Misc. LEXIS 1821 (N.Y. Misc. July 15, 2009)
       
        In In the Matter of Thornton, 421 A.2d 1 (D.C. App 1980), a lawyer was suspended for one year for representing the driver and passengers in a case against another driver.  In LaRusso v. Katz, 818 N.Y.S.2d 17 (N.Y. App. 2006), the lawyer representing both the driver and passenger was sued for malpractice.

        Representing Driver and Owner of Vehicle.  Graca v. Krasnik, 2008 N.Y. Misc. LEXIS 4535 (N.Y. Misc. July 28, 2008).  An automobile struck a pedestrian.  The pedestrian sued the driver and the owner of the automobile.  Lawyer appeared for both defendants.  Lawyer moved for an order dismissing the owner because the owner was a leasing company, and leasing companies are not, by statute, vicariously liable.  In this opinion the court denied the motion.  More importantly, the court, sua sponte, disqualified Lawyer from representing both defendants.  The court held that Lawyer had a non-waivable conflict because dismissal of the owner would leave the driver potentially liable for the entire liability, rather than sharing liability with the owner.

        Fasanella v. Boysen, 2011 U.S. Dist. LEXIS 85225 (D.N.J. Aug. 2, 2011).  Automobile collision case.  Husband was driving one car.  Wife was a passenger.  The other driver appeared to be at fault.  In this action Lawyer A is representing Husband and Wife.  Another lawyer ("Lawyer B") was representing Husband as counter-defendant on behalf of Husband's insurance carrier.  Lawyer B moved to disqualify Lawyer A, arguing that Husband and Wife had differing interests.  In this opinion the magistrate judge denied the motion, noting that Husband and Wife had waived any conflicts and had expressed no intention to make claims against each other.

        Cohen v. Strouch, 2011 U.S. Dist. LEXIS 30778 (S.D.N.Y. March 24, 2011).  Automobile accident case.  Car 1 collided with Car 2.  In this case, the driver of Car 1 sued the driver of Car 2.  A passenger in Car 1 ("Passenger") filed a separate action, in state court, against the driver of Car 1 and the driver of Car 2.  The problem was that the lawyer for Passenger in the state court action is of counsel to the firm representing the plaintiff (driver of Car 1) in this case.  As a result, the defendant in this case moved to disqualify the firm representing the driver of Car 1.  In this opinion the court granted the motion.  First, the court rejected a standing argument because of its "inherent power to preserve the integrity of the adversary process."  Second, the court held the conflict was non-waivable.

         Central Community Church of God v. Ent & Imler CPA Group, PC, 2004 U.S. Dist. LEXIS 24339 (S.D. Ind. Nov. 24, 2004).  This is a securities fraud case against an accounting firm, arising out of the sale of notes by the financial arm of a religious organization.  The court held that the same law firm could represent the receiver of the issuer as well as the note holders, both as plaintiffs.  The court noted that the law firm had a “hypothetical potential” for having a conflict of interest, but that, without more, would not disqualify the law firm.

        In Smith v. The City of New York, 611 F. Supp. 1080 (S.D.N.Y. 1985), an individual got into a scuffle with several police officers.  He sued them, and they counterclaimed.  The court said that a city attorney could represent all the officers in both the claim and the counterclaim.

        Coggins v. County of Nassau, 2009 U.S. Dist. LEXIS 1726 (E.D.N.Y. Jan. 5, 2009).  The plaintiff sued the county and two police officers for civil rights violations in connection with his arrest and (evidently unsuccessful) prosecution.  The County Attorney attempted to represent all three defendants.  One of the police officers moved to disqualify the County Attorney (that's right, his own lawyer).  One of the grounds was that the County Attorney would have a conflict of interest.  The court, in this opinion, denied the motion holding that under the facts of this case the County Attorney could represent all three defendants.

        Straubinger v. Schmitt, 792 A.2d 481 (N.J. App. 2002).  A lawyer represented both the driver and passenger of an automobile, who were injured in a collision with a drunk driver.  The drunk driver had a single limit liability policy of $300,000.  At a hearing on fees the court held that conflict between the driver and passenger was “inconsequential,” because everyone agreed that the drunk driver was 100% responsible for the accident.  However, because of the single limit policy, the court held the lawyer should have disclosed the conflict and gotten the clients’ knowing consent.  He had not done so, and the court reduced his fees accordingly.

        Ethics opinion on representing multiple occupants of automobile.  Fla. Op. 02-3 (2002); and N.Y. Op 778 (2004).

        In Abbott v. Kidder, Peabody & Co., Inc., 42 F. Supp. 2d 1046 (D. Colo. 1999), a lawyer attempted to represent more than 200 plaintiffs in a securities fraud case. Settlement would be controlled by a minority of the plaintiffs.  Everyone signed a representation agreement.  Nevertheless, the court disqualified the lawyer.

        Sears, Roebuck  & Co. v. Emerson Elec. Co., 2001 U.S. Dist. LEXIS 15737 (N.D. Ill. 2001).  Strict liability action arising out of an accident with a radial saw manufactured by Emerson and sold by Sears.  In 1968 Emerson had agreed in writing to defend (but not necessarily indemnify) Sears in such actions.  In this instance, Emerson provided the defense for itself and Sears at trial, and the jury found against both, awarding compensatory and punitive damages.  Sears then demanded that Emerson indemnify Sears.  Emerson refused.  Sears then hired separate counsel for an appeal of the verdict.  In this case Sears seeks to recover from Emerson the cost of hiring separate counsel for the appeal.  Sears takes the position that it had to hire separate counsel because Emerson’s counsel would have a conflict on appeal.  The district judge disagreed, holding the Emerson’s counsel would have no incentive to take positions on appeal that would be beneficial to Emerson but harmful to Sears.

       Representing Brokerage House and Broker/Employee.  Nassau County (N.Y.) Op. 01-5 (undated).  The issue was whether, in a securities arbitration proceeding, a lawyer could represent both the brokerage company and the individual broker/employee.  The company would agree to pay the lawyer's fees, and the broker/employee would agree to pay any settlement or award.  The opinion said that the lawyer could represent both after adequate disclosure of any potential conflicts.  The opinion noted that the lawyer could find himself in the situation where the employer would want an early settlement to reduce fees, whereas the employee might want to fight (and win) in order to avoid paying the settlement.  The opinion also said that the lawyer must withdraw from representing both if a conflict arises.

        Brewer v. Swan Magnetics, Incconsulting., 2004 Cal. App. Unpub. LEXIS 3179 (Cal. App. April 8, 2004).  Brewer sued Swan and Swan’s CEO for consulting fees.  Wilson Sonsini appeared for both defendants.  Brewer moved to disqualify Wilson Sonsini because the CEO had defrauded Swan, and they had a conflict of interest.  The appellate court affirmed the trial court’s denial of the motion.  The court held that while the CEO and Swan may have a conflict at some point, their interests in this case were the same in seeking to deny Brewer his consulting fees.  Wilson Sonsini was not representing the defendants in any matters relating to the potential conflict.  Moreover, Wilson Sonsini, as soon as it learned that Brewer was objecting to their joint representation, obtained written consents from both defendants.

         Cassidy v. Lourim, 2004 U.S. Dist. LEXIS 5634 (D. Md. March 19, 2004).  A lawyer represented Plaintiffs A, B, and C.  During settlement discussions A and B wanted one result, and C wanted another.  The lawyer dropped A and B and continued to represent C.  A and B moved to disqualify the lawyer, and the court, using a classic Rule 1.9/former client analysis, granted the motion.  This case was almost too routine to post, but it involved the heirs (A and B) of singer Eva Cassidy, who died in her thirties.  Posthumously, they were able to market several albums of her music, one of them selling more than a million copies.

        Patent Prosecution: Representing Competing Applicants.  Sentinel Products Corp. v. Platt, 64 U.S.P.Q.2d (BNA) 1536, 2002 U.S. Dist. LEXIS 13217 (D. Mass. July 22, 2002).  The court held that even though the same law firm was representing competing applicants, to sustain a cause of action the losing applicant must show the result would have been different if one of the applicants had a different law firm.

        Patent Infringement Case; Conflict Does not Trigger Equitable Estoppel Defense.  Vanguard Products Group v. Telefonix, Inc., 2009 U.S. Dist. LEXIS 7306 (D. Ore. Jan. 16, 2009).  To read more about the case, go to Part A of this page, above.

        Li v. Prediwave Corp., 2005 Cal. App. Unpub. LEXIS 8664 (Cal. App. Sept. 23, 2005).  Plaintiff (“Li”), director of Companies A and B, brought this action to examine corporate records of A and B.  Company C is a minority shareholder and customer of A and B and is a co-plaintiff with Li.  They share the same law firm (“Law Firm”) in this action.  C is suing A and B in other actions.  A and B moved to disqualify Law Firm in this action claiming that representing Li and C is a conflict of interest.  The trial court denied the motion, and on appeal, this court affirmed.  The appellate court held that representing Li and C was not a conflict.

         Plaintiff's Lawyer Representing In-house Lawyer for Defendant in Deposition.  Perin v. Spurney, 2005 Ohio App. LEXIS 6112 (Ohio App. Dec. 22, 2005).  Lawyers Dawson and Kelm represented Brooke Perin in this unlawful termination case against Honda and a number of its employees.  Perin had complained to higher-ups that Honda was illegally shipping hazardous materials.  Shortly thereafter she was fired.  Brooke’s husband, Doug Perin, was, at all times relevant to this case, in-house counsel at Honda.  He was also on the ethics committee at Honda, which had under consideration the hazardous materials issue.  Honda subpoenaed Doug for a deposition in this case.  At the deposition Brooke’s lawyer Kelm announced that he was representing Doug for purposes of the deposition, primarily to protect the spousal privilege.  Doug acknowledged that Kelm was representing him.  Subsequently, the defendants moved to disqualify Dawson and Kelm.  The trial court granted the motion, and the appellate court, in this opinion, affirmed.  The court relied primarily on the appearance of impropriety doctrine, although there was no showing that Doug Perin actually gave Honda confidences to Dawson or Kelm.  As to Honda’s standing to make the motion, the court said that the protection of Honda’s confidences under these unique circumstances gave Honda sufficient standing.

        Lawyers Attempting to Represent Four Applicants for the Same Position in Civil Rights Case Disqualified.  Murray v. Village of Hazel Crest, 2006 U.S. Dist. LEXIS 89388 (N.D. Ill. Dec. 7, 2006).

        Court Allowed Lawyer to Represent City and City Officials in Unlawful Termination Case.   Almonte v. City of Long Beach, 2007 U.S. Dist. LEXIS 21782 (E.D.N.Y. March 27, 2007).

        Cargill, Inc. v. Budine, 2007 U.S. Dist. LEXIS 48405 (E.D. Cal. June 22, 2007).   In this case Cargill is suing several former employees for stealing trade secrets and related remedies.  Cargill is a defendant in a class action in Louisiana.  Many of the facts relevant to the class action are arguably relevant to this case.  Three lawyers representing the plaintiffs in the class action are representing several defendants in this case.  Cargill moved to disqualify those lawyers in this case.  In this opinion the court granted the motion.  The court described these relationships as “unwieldy.”  A principal reason for the disqualification was that one of the former employees, while still with Cargill, was privy to confidential and privileged information gained during preparation of the defense of the Louisiana class action.  The court did not explain how that would not be a problem for any lawyer hired by that employee.  The court also commented on the fact that the disqualified lawyers had been privy to Cargill confidences in the Louisiana class action and were subject to confidentiality orders.

        M&T Mortgage Corp. v. White, 2007 U.S. Dist. LEXIS 71589 (E.D.N.Y. Sept. 26, 2007).  White, a defendant, filed a third-party action against A and B.  B was a former employee of A in connection with the claim against White.  A and B had the same lawyer (“Lawyer”) in this case.  White moved to disqualify Lawyer, claiming that representing both A and B was a conflict.  In this opinion the magistrate judge denied the motion.  The court held a hearing at which time A and B testified that they understood the conflict argument but stated they wished to have the same lawyer.  The court acknowledged that under some circumstances a former employee might want to assert a cross-claim against his former employer, and vice versa.  But, the court said that they were entitled to the same lawyer so long as they were unified in arguing that White’s claim completely lacked merit.

        Representing Employer and Pension Plan.  Edgin v. Cobb, 2008 U.S. Dist. LEXIS 55879 (E.D. Mich. July 23, 2008).  ERISA.  This is a suit by prisoners against their former employer (GM) and GM’s pension plan.  The defendants caused the prisoners’ pension checks to be sent to the prison, which resulted in the state’s confiscating 90% of each payment.  The plaintiffs moved to disqualify the law firm that was representing GM and the pension plan.  In this opinion the court denied the motion, holding that the law firm did not have a conflict of interest.

        Ariz. Op. 07-04 (Nov. 2007) states requirements for joint representation in litigation.

        Williams v. City of Rome, 2008 U.S. Dist. LEXIS 58667 (N.D.N.Y. July 22, 2008).  This is the second time in a month that the same magistrate judge has sua sponte addressed the issue of a lawyer representing a governmental body and individual defendants.  The earlier case is Gabriel v. County of Herkimer, 2008 U.S. Dist. LEXIS 51567 (N.D.N.Y. July 2, 2008).  The order entered and attachment appear to be nearly identical.

        Willis v. Carroll Twp., 2008 U.S. Dist. LEXIS 59457 (M.D. Pa. Aug. 5, 2008).  The court held that a lawyer could not represent a borough in one case, and in another case, represent a party adverse to a borough council member, citing Municipal Revenue Services, Inc. v. Xspand, Inc., 537 F. Supp. 2d 740 (M.D. Pa. 2008).  Both cases turned upon the unique nature of local governmental units in Pennsylvania.

        Berliner Corcoran & Rowe LLP v. Orian, 2008 U.S. Dist. LEXIS 50509 (D.D.C. July 2, 2008).  This is, in part, a suit for lawyers’ fees.  One of the former client’s defenses was that the law firm had a conflict of interest in representing an entity and its president.  The court, in this opinion, brushed that argument aside noting that D.C.’s version of Model Rule 1.13 specifically recognized such representations.

        Jackson v. Rohm & Haas Co., 2008 U.S. Dist. LEXIS 65632 (E.D. Pa. Aug. 26, 2008).  The plaintiff moved to disqualify Law Firm, which was representing a number of defendants, because various defendants had differing interests.  The magistrate judge did a factual analysis and, in this opinion, denied the motion.  The defendants had waived any conflicts.  The one interesting issue dealt with the authenticity of the interview notes of one of the defendants.  One group of defendants admitted the notes were authentic, while another group claimed not to know.  The court said the matter would have been different had the latter group denied that the notes were authentic.

        Green v. Affinity Financial Group Inc., 2008 CanLII 51936 (Ont. Sup. Ct. Sept. 25, 2008).  This is a suit for investment losses against several defendants.  One of the defendants is not represented.  The lawyer for one of the other defendants ("Lawyer") sought to assist the unrepresented defendant in complying with discovery.  The plaintiffs objected, claiming this would be a conflict of interest.  In this opinion the master ordered that Lawyer not assist the unrepresented defendant, because to do so would be a conflict.  The master also said that because the matter involves the "proper administration of justice," the plaintiffs had standing to make the objection.

        In re CellCyte Genetic Corp. Sec. Lit., 2008 U.S. Dist. LEXIS 94761 (W.D. Wash. Nov. 20, 2008).  In this securities fraud case one defendant moved to disqualify the law firm ("Law Firm") for another defendant.  The grounds were that Law Firm represented other parties related to this case.  In this opinion the court granted the motion.  As to standing the court found that it could rule on the merits of the motion to "protect the integrity of the process."  The court based disqualification in part upon the probability that Law Firm would have to cross examine its own clients.  The court rejected as impractical the suggestion that Law Firm could bring in special counsel to do the cross-examining.  The court also noted the strong possibility that Law Firm's strategies might be impacted by the possible differing interests of Law Firm's various clients.

        Hillis v. Heineman, 2009 U.S. Dist. LEXIS 29914 (D. Ariz. Mr. 25, 2009).  Plaintiff sued the defendants and their lawyer ("Lawyer") for fraud and related causes of action.  Lawyer appeared for all defendants, including himself.  Plaintiff moved to disqualify Lawyer because he should be a witness.  The court denied the motion without prejudice because it was not yet clear whether Lawyer should be a witness.  What the court did not mention, and what the parties apparently did not raise, was the propriety of Lawyer defending himself as well as the other defendants, especially in light of Lawyer's having earlier represented the company involved in the case.

        Lawyer Cannot Represent Both the Defendant and Worker’s Compensation Intervenor.  Hughes v. Pogo Producing Co., 2009 U.S. Dist. LEXIS 59454 (W.D. La. July 6, 2009).

        Nordwind v. Rowland, 2009 U.S. App. LEXIS 23544 (2d Cir. Oct. 16, 2009).  Lawyer represented multiple family members in seeking restitution from a German fund created to compensate German Jews who had their money and/or property confiscated by the Nazi government.  In this case several family members sued Lawyer because he had a conflict of interest.  In this opinion the court affirmed the district court, which found Lawyer free from liability.  At bottom were both courts' findings that the plaintiffs would have recovered the same amount from the fund regardless of Lawyer's conflict.  The court also noted New York law, which provided that claims from legal malpractice and breach of fiduciary duty are almost always duplicative.

        Sanford v. Commonwealth of Va., 2009 U.S. Dist. LEXIS 113279 (E.D. Va. Dec. 2, 2009).  This is essentially a wrongful death action arising out of the restraint of a mentally troubled surgery patient while in the hospital.  The patient died while being restrained.  The defendants included various security officers, doctors, and nurses.  One lawyer represented all the security officers, and another lawyer represented all the doctors and nurses.  The plaintiff moved to disqualify the defendants' lawyers.  In this opinion the court granted the motion.  The court noted that in discovery the various defendants were contradicting each other in significant ways.  The court felt it was appropriate for the plaintiff to make the motion because of the case's complexity and the plaintiff's desire to have a good record if the plaintiff wins the case at trial.  The court rejected the defendants' claims that they had validly waived the conflicts.   The court found that the defendants' lawyers could not reasonably believe that they could represent the various defendants competently.  However, in a subsequent ruling the court held that the disqualified lawyers were not subject to sanctions under 28 U.S.C. § 1927 or the court’s inherent power, Sanford v. Commonwealth of Va., 2010 U.S. Dist. LEXIS 15708 (E.D. Va. Feb. 23, 2010).

        Lieberman v. City of Rochester, 2010 U.S. Dist. LEXIS 9581 (W.D.N.Y. Feb. 4, 2010).  In this civil rights case several individuals sued City and several police officers ("Officers") arising out of an alleged "gay-bashing" incident.  The City Corporation Counsel is representing City and Officers.  Officers moved to disqualify the Corporation Counsel as their lawyer.  By law City has a duty to defend Officers at City expense and to indemnify Officers for any damage award, including punitive damages.  Two other proceedings arose from the incident: (1) disciplinary proceedings by City against Officers; and (2) a civil rights suit by Officers against City.  In (1) and (2) City is being represented by outside counsel, not Corporation Counsel.  In this opinion the magistrate judge denied the motion to disqualify.  Officers were unable to show that in this case Corporation Counsel was defending in a way to create a conflict between City and Officers.  However, realizing that this could change, the denial was without prejudice.

        Max-Planck-Gesellschaft Zur Foerderung Der Wissenschaften E.V. v. Wolf Greenfield & Sacks, PC, 2010 U.S. Dist. LEXIS 95676 (D. Mass. Sept. 14, 2010).  The plaintiff in this legal malpractice case was a co-assignee ("Owner A") of several patent applications.  The defendant law firm ("Law Firm") had been specifically retained by another co-assignee ("Owner B") to prosecute the patents.  (Under an agreement among the co-assignees Owner B was responsible for the prosecution.)  That included obtaining a power of attorney from Owner A and responding to Owner A's requests for information about the claims.  A major issue in this case was whether Law Firm "represented" Owner A, in addition to Owner B, and thus whether the Owner A had standing to sue Law Firm.  After a fact-intensive analysis of the Law Firm's conduct and its communications with Owner A, and construing Massachusetts conflicts law, the court concluded that Law Firm had represented Owner A.

        In re Packaged Ice Antitrust Lit., 2010 U.S. Dist. LEXIS 131423 (E.D. Mich. Dec. 13, 2010).  As a result of a Justice Department investigation, several individuals pled guilty to antitrust crimes.  Those individuals, along with a corporation, are defendants in these consolidated antitrust civil actions, allegedly arising out of the criminal conduct.  Two law firms represent the individuals and the corporation in these actions.  The plaintiffs' law firm wrote letters to the defendants' law firms saying that the plaintiffs were going to offer the individual defendants "immunity" from liability in exchange for their cooperation and testimony, and that, as a result, the law firms would have a conflict in representing them as well as the corporation.  In this opinion the magistrate judge denied a motion to disqualify the defendants' law firms.  The judge said that the plaintiffs could always compel the individuals' testimony and that these civil cases were different from criminal cases in which the government would offer immunity in exchange for the defendants' waiver of the Fifth Amendment right not to testify.  Because there is no Fifth Amendment right in these civil cases, the plaintiffs' offer of immunity does not create a conflict where the defendants' interests are otherwise aligned.

        Latham v. Matthews, 2011 U.S. Dist. LEXIS 1434 (D.S.C. Jan. 6, 2011).  This is a securities class action against Signalife, Inc. and a number of individuals associated with it.  Law Firm undertook to represent Signalife and the individual defendants.  At some point Signalife discharged Law Firm.  When Law Firm continued to represent some of the individual defendants, Signalife moved to disqualify Law Firm.  In this opinion the court denied the motion.  The court seemed to rely primarily on the initial engagement letter, which provided, in effect, that Law Firm would be sharing all the information in the case with all its clients.  Thus, disqualification could not be premised upon confidentiality notions.

        In re World Trade Center Disaster Site Lit., 2011 U.S. Dist. LEXIS 30109 (S.D.N.Y. March 11, 2011).  The case consolidates claims by 10,500 rescue and clean-up workers arising out the the destruction of the World Trade Center.  Law Firm represents those plaintiffs.  Law Firm also represents 59 plaintiffs who had earlier received payments and signed releases pursuant to the Victims Compensation Fund, which was established pursuant to special federal legislation.  They now claim that their injuries are more serious than they had realized.  The district judge appointed a special counsel to advise these 59 plaintiffs.  Law Firm moved to vacate that order.  In this opinion the district judge denied that motion, citing Rule 1.7(a) and holding that the 59 plaintiffs had legal positions different from the other plaintiffs and needed separate advice.

        Wells Fargo Bank, N.A. v. LaSalle Bank N.A., 2011 U.S. Dist. LEXIS 35343 (W.D. Okla. April 1, 2011).  In this suit Defendant solicited its employees to be represented by Defendant's counsel, which occurred.  In this opinion the court held that the solicitation and representation could be used by Plaintiff's counsel to impeach Defendant's employees who were to testify for Defendant.

        Hawley Ave. Assocs., LLC v. Russo, 2011 Conn. App. LEXIS 443 (Conn. App. Aug. 23 [official release], 2011).  Lessor sued Lessee for rent.  Lessee defended on the ground that there was no meeting of the minds as to important provisions in the lease.  The trial court found for Lessee.  In this opinion the appellate court affirmed.  One of Lessor's arguments was that because Lessor and Lessee had the same lawyer on the lease transaction, there had to be a meeting of the minds.  The appellate court noted that Lessor had no authority for that proposition.

        Granberry v. Byrne, 2011 U.S. Dist. LEXIS 118293 (E.D. Pa. Oct. 13, 2011).  In this unlawful arrest case one lawyer ("Lawyer") is representing both the city and the officer in question.  The officer signed a conflicts waiver.  Plaintiff moved to disqualify Lawyer.  In this opinion the court denied the motion, holding that representing both a municipality and an employee is not, without more, a disqualifying conflict.

        Gaspar v. Hicks, 2011 U.S. Dist. LEXIS 136562 (E.D. Mich. Nov. 29, 2011).  In this civil rights case against City and Policeman, Plaintiff moved to disqualify City's law department from representing both City and Policeman.   In this opinion the court denied the motion.  The court held that the fact that Policeman might be found to have qualified immunity in this matter, or the fact that punitive damages could be awarded against Policeman, did not create a conflict between City and Policemen.

         SEC v. Tang, 2011 U.S. Dist. LEXIS 136188 (N.D. Cal. Nov. 28, 2011).  This is a civil enforcement action brought by the SEC arising out of alleged insider trading.  Law Firm #1 started out representing defendants, Yu and Siu, pursuant to lengthy and thoughtful conflict and confidentiality waivers.  When criminal proceedings, arising out of the same conduct, erupted, Law Firm #1 withdrew from representing Yu in this case.  The SEC then moved to disqualify Law Firm #1 from representing Siu.  In this opinion the magistrate judge denied the motion on three independent grounds.  First, the court held that the SEC did not have standing, nor had the SEC shown the special circumstances cited by some courts that have allowed non-clients to make such a motion.  Second, the court held that the SEC waited too long to bring the motion (length of time not clear but appears to be the better part of a year).  Last, the court held that the written waivers were adequate.  The court put much weight on Zador v. Kwan, 37 Cal. Rptr. 2d 754 (Cal. App. 1985).

       ERISA (posted January 10, 2012) Cornelius v. Dykema Gossett PLLC Retirement Plan, 2012 U.S. Dist. LEXIS 1571 (E.D. Mich. Jan. 6, 2012).  In this opinion the court held that the same law firm could represent both the employer and the administrator of an ERISA retirement plan in a dispute with a retiree.

        Northern Va. Real Est., Inc. v. Martins, 2012 Va. LEXIS 11 (Va. Jan. 13, 2012).  This food fight arose out of a dispute involving a real estate listing.  In this opinion the court upheld sanctions jointly against both a party and the party's lawyer.  The court, in passing, cited cases holding that in such a situation the client and the lawyer should be separately represented.

        Dayton Bar Ass'n v. Parisi, 2012 Ohio LEXIS 658 (Ohio March 8, 2012).  In this opinion the court upheld discipline against Lawyer in part because Lawyer had represented both an elderly woman with dementia and the woman's niece who was petitioning for guardianship of the elderly woman.

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