Freivogel on Conflicts

THIS AND THAT

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Note:  we occasionally find interesting opinions that do not fit in one of the categories in the Table of Contents.  They will first be noted in the Miscellaneous section of the What's New page.  They will then be moved to this page.  These will include conflict of interest cases that do not fit in the Table of Contents categories.  Or, they may include other categories of interest to the audience of this site, such as Rule 4.2 or attorney-client privilege opinions.  As to what appears here there will be no attempt at comprehensiveness.  This page will merely be a convenient "holding area" for new and interesting developments on the legal ethics and liability front.

Another note:  the attorney-client privilege and the lawyer's duty of confidentiality are treated separately below.  The privilege relates to the ability of a litigant of compel testimony or production of documents from an opponent in an adversary proceeding.  The lawyer's duty of confidentiality derives from the ethics rules (typically Rule 1.6 in Model Rule states, and DR 4-101 in Model Code states; in California, § 6068(e) of the California Business & Professions Code).

Here is a breakdown of what appears on this page.  Click on the title that you are interested in.

Attorney-Client Privilege/Work Product

Confidentiality - Duty under Ethics Rules

Communicating with Represented Party - Rule 4.2

Conflicts - Uncategorized

Liability - not Conflicts-Related

Temporary Lawyers

UPL

Other


Attorney-Client Privilege/Work Product

Privilege in the law firm.  Recognizing privilege: Restatement, § 73, Comments c and i; United States v. Rowe, 96 F.3d 1294 (9th Cir. 1996); In re SonicBlue, Inc., 2008 Bankr. LEXIS 181 (N.D. Cal. Jan. 18, 2008) (no privilege if conflict; different result with outside counsel); Burns v. Hale and Dorr LLP, 242 F.R.D. 170 (D. Mass. 2007) (no privilege where conflict); Thelen Reid & Priest LLP v. Marland, 2007 U.S. Dist. LEXIS 17482 (N.D. Cal. Feb. 21, 2007) (firm does not have to produce certain internal documents even though relationship with client extant); Koen Book Distributors v. Powell, Trachtman, Carrle, Bowman & Lombardo, P.C., 212 F.R.D. 283 (E.D. Pa. 2002) (same holding as Bank Brussels, following).  As of December 17, 2002, the opinion was not available online.  Bank Brussels Lambert v. Rogers & Wells, 220 F. Supp. 2d 283 (S.D.N.Y. 2002) (no privilege for documents generated during representation); Nesse v. Shaw Pittman, 206 F.R.D. 325 (D.D.C. April 17, 2002; In re Sunrise Savings and Loan Litigation, 130 F.R.D. 560, 595 (E.D. Pa. 1989); Hertzog, Calamari & Gleason v. The Prudential Ins. Co. of America, 850 F. Supp. 255 (S.D.N.Y. 1994); Lama Holding Co. v. Shearman & Sterling, 1991 U.S. Dist. LEXIS 7987 (S.D.N.Y. 1991); Versuslaw, Inc. v. Stoel Rives, LLP, 111 P.3d 866 (Wash. App. 2005) (no privilege if during representation).  But, N.Y. Op. 789 (October 26, 2005) holds that these communications do not usually constitute a conflict of interest, thereby implying that the privilege should attach even though the representation in question is ongoing.

        Privilege and Work Product in Derivative Actions.  Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), is the leading case on the ability, in some cases, of plaintiffs in derivative actions to obtain the files of lawyers representing the entity relating to the conduct leading to the claim.  In In re International Systems & Controls Corporation Securities Litigation, 693 F.2d 1235 (5th Cir. 1982), the Fifth Circuit held that Garner applied to privilege but not to work product. In Sigma Delta, LLC v. George, 2007 U.S. Dist. LEXIS 94213 (E.D. La. Dec. 20, 2007), the court discussed both cases in context of attempt to discovery a lawyer's file, which was prepared during and for litigation.

ABA Op. 05-437 (10/05) (on inadvertently transmitted privileged documents) withdrew ABA Op. 92-368 (11/92); ABA Op. 06-440 (5/06) (on unauthorized transmission of privileged documents) withdrew ABA Op. 94-382 (7/94).

Exhaustive (90+ pages) study of privilege, co-client rule, common interest rule, corporate families, and related concepts.  In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007).

Federal Circuit in infringement case explains extent of waiver when opinion of counsel relied upon.  In re EchoStar Communications Corp., 448 F.3d 1294 (Fed. Cir. 2006).

Privilege not lost by use of E-mail.  City of Reno v. Reno Police Protective Ass’n., 59 P.3d 1212 (Nev. 2002), modified 2003 Nev. LEXIS 25 (Nev. May 14, 2003).

Court recognizes common interest doctrine in transactional context.  OXY Resources California LLC v. Superior Court, 115 Cal. App. 4th 874 (Cal. Ct. App. 2004).

One-off situation where party to an earlier common interest (possibly) decides to help other side.  Roush v. Seagate Technology, LLC, 150 Cal. App. 4th 210 (Cal. App. 2007). 

When does presence of insurance broker at lawyer-client conversation waive the privilege?  Sony Computer Entertainment Am., Inc. v. Great Am. Ins. Co., 229 F.R.D. 632 (N.D. Cal. 2005).  When they cannot show that he needed to be there to assist in the defense.

Privilege/work product.  Conflicts checking document within law firm neither privileged nor work product.  East Maine Baptist Church v. Regions Bank, 2007 U.S. Dist. LEXIS 34408 (E.D. Mo. May 10, 2006).

Earlier "joint prosecution" agreement almost causes disqualification.  Summers v. UAL Corp. ESOP Committee, 2004 U.S. Dist. LEXIS 22878 (N.D. Ill. Nov. 10, 2004). 

Privilege and technology: client gives her lawyer opponent’s privileged communications taken off opponent’s hard drive, but lawyer not disqualified.  MacDonald v. MacDonald, 2003 Cal. App. Unpub. LEXIS 7254 (Cal. App. July 29, 2003).

Lawyer may assert work product even though client waives.  Buck v. Aetna Life & Cas. Co., 1992 U.S. Dist. LEXIS 9061 (E.D. Pa. June 8, 1992).

Corporate employees, "public relations consultants," and "government affairs consultants."  Federal Trade Commission v. GlaxoSmithKline, 294 F.3d 141 (D.C. Cir. 2002).  To same effect, see In re Grand Jury Subpoena, 265 F. Supp. 2d 321 (S.D.N.Y. 2003), and In re Copper Market Antitrust Litigation, 200 F.R.D. 213 (S.D.N.Y. 2001).  Cases finding communications with public relations consultants are not privileged are Haugh v. Schroder Investment Management North America Inc., 2003 U.S. Dist LEXIS 14586 (S.D.N.Y. Aug. 25, 2003), and Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000).

Sharing internal investigation with "independent auditor" does not waive work product protection.  Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., 2004 U.S. Dist. LEXIS 21543 (S.D.N.Y. Oct. 26, 2004).

When do lawyers in corporate internal investigation represent interviewed employees?  In re Grand Jury Subpoena, 415 F.3d 333 (4th Cir. 2005).

Communications with testifying expert not protected by work product doctrine.  Regional Airport Auth. of Louisville and Jefferson County v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006) (discusses both lines of cases; says this is majority rule); Baum v. Village of Chittenango, 218 F.R.D. 36 (N.D.N.Y. 2003); Helton v. Kincaid, 2005 Ohio App. LEXIS 2621 (Ohio App. June 6, 2005).

. . . but, designating a person as a testifying expert does not finally waive the privilege until the person is actually produced to testify or the employing party produces communications.  Shooker v. Superior Court,  4 Cal. Rptr. 3d 334 (Cal. App. 2003).

Employees using company E-mail to communicate with their personal lawyers may have waived privilege.  In re Asia Global Crossing Ltd., 322 B.R. 247 (S.D.N.Y. 2005).

Privilege waived when tax accountant shares privileged memorandum to law firm defending accountant with law firm for their mutual client: finding of no "common interest" agreement.  Denny v. Jenkens & Gilchrist, S.D.N.Y., No. 03 Civ. 5460 (SAS), 11/23/04.

Voluntarily revealing several lawyer's opinions is waiver regarding another.  American Steamship Owners Mut. Protection and Indem. Assoc., Inc. v. Alcoa Steamship Co., Inc., 356 F. Supp. 2d 770 (S.D.N.Y. 2005).

Under California Evidence Code privilege does not survive client’s death.  HLC Properties, Ltd. v. Superior Court, 105 P.3d 560 (Cal. 2005). 

Internal investigation for corporate client may not be privileged.  Lewis v. United States, 2004 U.S. Dist. LEXIS 26680 (W.D. Tenn. Dec. 7, 2004).

Sharing E-mail to lawyer with adult daughter does not waive work product protection.  United States v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003).

Court holds ABA Op. 92-368 binding on ABA members.  [?]  Holland v. Gordy Co., 2003 Mich. App. LEXIS 1065 (Mich. App. April 29, 2003). 

More on independent contractors.  Depends on the nature and extent of relationship.  Court relied heavily on In re Bieter Co., 16 F.3d 929 (8th Cir. 1994).  Alliance Construction Solutions, Inc. v. Department of Corrections, 54 P.3d 861 (Col. 2002).

"Selective waiver" in the Second Circuit (not).  In re Initial Pub. Offering Securities Lit., 2008 U.S. Dist. LEXIS 11058 (S.D.N.Y. Feb. 14, 2008).

"Selective waiver."  Tenth Circuit adopts majority rule rejecting "selective waiver."  In re Qwest Communications Int’l. Inc., 450 F.3d 1179 (10th Cir. 2006).  Excellent discussion of history and authorities.

 "Selective waiver" successfully argued.  Producing documents to the SEC during an investigation, under a confidentiality agreement, does not waive the privilege.  Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 125 (Del. Ch. Oct. 25, 2002).   California privilege statute dictated different result in McKesson HBOC, Inc. v. Superior Court, 9 Cal. Rptr. 3d 812 (Cal. App. 2004).

Wells submission discoverable.  In re: Initial Public Offering Securities Litigation, 2003 U.S. Dist. LEXIS 23102 (S.D.N.Y. Dec. 24, 2003).

Lawyer receiving privileged communications from his own client disqualified.  Court approves ABA Op. 94-382 (1994).  Court relies, in part, on client's NDA with the employer/defendant.  Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001).  The court in Arnold v. Cargill, Inc., 2004 U.S. Dist. LEXIS 19381 (D. Minn. Sept. 24, 2004) relied heavily on Jain.  Lawyer obtained privileged documents from former employee of other side.

. . . also relying on Jain: involved lawyer's receipt of purloined privileged documents; lawyer disqualified.  Maldonado v. State of New Jersey, 225 F.R.D. 120 (D.N.J. 2004).

. . . but, federal prosecutors get more slack when search warrant nets privileged documents.  United States v. Kaufman, 2005 U.S. Dist. LEXIS 18207 (D. Kan. Aug. 25, 2005).

Lawyer receiving other side's privileged documents by mistake not disqualified because his client had been privy to the information already.  Applied Digital Solutions, Inc. v. Vasa, 941 So. 2d 404 (Fla. App. 2006).

Class members providing former employer’s privileged documents to class counsel results in disqualification of class counsel and severance of class members.   Hall v. County of Los Angeles, 2005 Cal. App. Unpub. LEXIS 1139 (Feb. 9, 2005).

Divorce action.  Wife steals husbands documents, some privileged, and gives them to her lawyer.  What is the lawyer to do? Fla. Op. 07-01 (June 2007).

NY City Op. 2003-04 is an excellent review of authorities that follow or deviate from ABA Op. 92-368.

Plaintiff and former general counsel of defendant does not conflict out his lawyer.  Levin v. Raynor, 2004 U.S. Dist. LEXIS 25525 (S.D.N.Y. Dec. 17, 2004).  

Whistle-blower cannot sustain claim if only evidence is employer's privileged documents.  Willy v. Coastal Corp., No. 98-060 (Dept. of Labor Admin. Rev. Bd. Feb. 27, 2004).

Client suing former employer cannot use privileged information to which he was privy.  Shaffer v. OhioHealth Corp., 2004 Ohio App. LEXIS 15 (Ohio App. Jan. 8, 2004).

Inadvertently- produced privileged and confidential documents; ABA Op. 92-368 "violated," but no disqualification.  Court says ABA opinion "binding" on ABA members.  Holland v. Gordy Co., 2003 Mich. App. LEXIS 1065 (Mich. App. April 29, 2003).

Inadvertent production and waiver.  N.Y. County Op.730 (2002) adopted the strict approach of ABA Op. 92-368 (1992), which favors notice and return of documents in almost all circumstances.  Elkton Care Center Associates LP v. Quality Care Management Inc., 805 A.2d 1177 (Md. App. 2002) adopted the traditional majority view that the court must analyze the degree of care exercised by the party or lawyer producing the documents.  

Inadvertent disclosure does not result in waiver of privilege: a high-tech variation.  United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003).

Inadvertent waiver; opinion adopts new Model Rule 4.4(b) approach.  Miss. Op. 253 (June 17, 2005).

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

Inadvertent receipt of other side's privileged document in California.  Rico v. Mitsubishi Motors Corp., 2007 Cal. LEXIS 13892 (Cal. Dec. 13, 2007).  Court said lawyer must call the other side.

Speaking loudly to lawyer in presence of others does not preserve the privilege.  People v. Urbano, 26 Cal. Rptr. 3d 871 (Cal. App. 2005).

Huge speakerphone pratfall causes loss of privilege of overheard conversation and results in crime-fraud finding as to other communications.  Jasmine Networks, Inc. v. Marvell Semiconductor, Inc., 117 Cal. App. 4th 794 (Cal. App. 2004).  In Howell v. Joffe, 483 F. Supp. 2d 659 (N.D. Ill. 2007) (same speakerphone screw-up), there evidently was no issue of crime-fraud, and the court upheld the privilege.

Accountant’s possession of privileged documents does not necessarily result in disqualification of the lawyer.  In re DiGiovanni, 2003 Cal. App. Unpub. LEXIS 9053 (Cal. App. Sept. 19, 2003).

When can seeing privileged documents get a lawyer disqualified?  Or, not? Whitener v. First Union Nat. Bank of Fla., 901 So. 2d 366 (Fla. App. 2005).

Work product: court applies "but for" test in case of document prepared for both litigation and non-litigation purposes.  Wells Dairy, Inc. v. American Industrial Refrigeration, Inc., 690 N.W.2d 38 (Iowa 2004). 

Work Product.  Trying to depose the other side's lawyer.  Must be showing of undue hardship to get non-core work product.  In re Baptist Hospitals of Southeast Texas, 172 S.W.3d 136 (Tex. App. 2005).

Attorney-client privilege involving joint defense agreement among corporation and officers.  If corporation waives, privilege as to individuals also waived, unless communications not related to corporate affairs.  In re Grand Jury Subpoena, 274 F.3d 563 (1st Cir. 2001).

Earlier joint prosecution agreement did not cause disqualification.  In re Polaroid ERISA Litigation, 354 F. Supp. 2d 494 (S.D.N.Y. 2005).

Massachusetts high court adopts common interest doctrine.  Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc., 870 N.E.2d 1105 (Mass. 2007).

The privilege in Illinois: district court resolves two issues: (1) inserting issue as waiver, and (2) member of "control group" and corporate privilege.  Dexia Credit Local v. Rogan, 2004 U.S. Dist. LEXIS 25635 (N.D. Ill. Dec. 20, 2004).   . . But, in Lama v. Preskill, 818 N.E.2d 443 (Ill. App. 2004), in a 2-1 decision the court held that a plaintiff relying on the “discovery rule” to defeat a statute of limitations claim waives her attorney-client privilege for communications with her lawyer.

Privilege – crime/fraud exception – breach of fiduciary duty by client.  Serious breach waives privilege; not-so-serious breach does not.  Niles v. Malardi, 2002 Fla. App. LEXIS 12793 (Fla. App. September 4, 2002).

Crime-fraud: extent of abrogation.  In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005).

Establishing crime/fraud.  Invesco Institutional (N.A.), Inc. v. Paas, 244 F.R.D. 374 (W.D. Ky. 2007). 

To rule on a request for a crime/fraud finding the court must hold an evidentiary hearing.  BNP Paribas v. Wynne, 2007 Fla. App. LEXIS 17752 (Fla. App. Nov. 7, 2007).

Privilege waived as to one set of lawyers by suing another set of lawyers.  Ward v. Graydon, Head & Ritchey, 770 N.E.2d 613 (Ohio App. 2001).

Premature release by court of defendant's sealed documents to plaintiff's lawyer gets plaintiff's lawyer disqualified.  Then, the Texas Supreme Court reverses, In re Nitla S.A. de C.V., 92 S.W.3d 419 (Tex. 2002).  The exact same thing happened in the following case, and the court followed Nitla, Coral Reef of Key Biscayne Developers, Inc. v. Lloyd’s Underwriters at London, 911 So. 2d 155 (Fla. App. 2005).

Healthcare audits and attorney-client privilege.  Schmidt, Long & Assoc., Inc. v. Aetna U.S. Healthcare, Inc., 2001 U.S. Dist. LEXIS 7145 (E.D. Pa. 2001).

Accountants' communications under Kovel, and the "common-interest" doctrine.  Cavallaro v. United States, 284 F.3d 236 (1st Cir. April 1, 2002).

Status of tax accrual work papers shared with outside auditor.  Privilege, no.  Work product, yes.  United States v. Textron Inc., 507 F. Supp. 2d 138 (D.R.I. 2007). 

Court cannot order limited exposure of privileged documents to the other side.  In re Dow Corning Corp., 261 F.3d 280 (2d Cir. 2001).

Trustee/Bank tried to conceal conflict; crime-fraud issues; bank subordinated trust's rights to its rights on loan made by the trustee's banking side.  First Union National Bank v. Turney, 824 So. 2d 172 (Fla. App. 2001).

Wide-ranging opinion on privilege by Wisconsin Supreme Court.  Lane v. Sharp Packaging Systems, Inc., 640 N.W.2d 788 (Wis. 2002).

Thorough (55 pages) review of work product doctrine.  In re Grand Jury Subpoena, 220 F.R.D. 130 (D. Mass. 2004). Here's another: Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264 (E.D. Va. 2004).

Construing Pennsylvania's privilege statute.  Not all communications from lawyer to client are privileged.  Coregis Ins. Co. v. Kafrissen, 186 F. Supp. 2d 567 (E.D. Pa. 2002).

Privilege and conversations with insurance broker employees.  SR International Business Ins. Co. v. World Trade Center Properties, LLC, 2002 U.S. Dist. LEXIS 10919 (S.D.N.Y. June 19, 2002).

Communications that are "extra-judicial" are limited.  XYZ Corp. v. United States, 348 F.3d 16 (1st Cir. 2003).

D.C. Bar adopts approach of ABA Op. 94-382 as to receipt of privileged documents from third parties.  D.C. Op. 318 (December 2002).

Relationship between lawyer for carrier under claim for uninsured motorist benefits with defendant.  Crawford v. Henderson, 589 S.E.2d 204 (S.C. App. 2003).

Former director granted access to corporation's privileged documents.  Inter-Fluve v. District Court, 112 P.3d 258 (Mont. 2005).

Privilege of outside directors' communications with their personal lawyers cannot be waived by bankruptcy trustee for company.  Ex parte Smith, 942 So. 2d 356 (Ala. 2006).

Law firm opposes production of documents, not on privilege grounds, but on "no jurisdiction" grounds.  Ratliff v. Davis Polk & Wardwell,  354 F.3d 165 (2d Cir. 2003).

Privilege survives death of "testator" where will never executed.  Gould, Larson, Bennet, Wells and McDonnell, P.C. v. Panico, 869 A.2d 653 (Conn. 2005).

Under Wisconsin statute privilege not waived by lawyer's voluntary handing over of privileged documents.  Harold Sampson Childrens Trust v. Linda Gale Sampson 1979 Trust, 679 N.W.2d 794 (Wis. 2004). 

Privilege: consent from surviving spouse will waive privilege.  State of Ohio v. Doe, 803 N.E.2d 777 (Ohio 2004).

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

Privileged documents erroneously reviewed but not taken with not grounds for disqualification.  In re Parnham, 2006 Tex. App. LEXIS 8252 (Tex. App. Sept. 21, 2006).

Privilege in fiduciary context.  Wachtel v. Health Net, Inc., 482 F.3d 225 (3d Cir. 2007) .  This opinion involves the attorney-client privilege in the context of representation of fiduciaries.  The ruling was narrow.  The court held that insurance companies that sell policies to ERISA plans are not subject to the “fiduciary exception” to the attorney-client privilege.

Establishing crime-fraud in the Ninth Circuit.  In re Napster, Inc. Copyright Lit., 479 F.3d 1078 (9th Cir. 2007).

Showing required for crime/fraud finding.  Catton v. Defense Technology Systems, Inc., 2007 U.S. Dist. LEXIS 84454 (S.D.N.Y. Nov. 15, 2007). 

Good discussion on the differences between the privilege and duty of confidentiality under ethics rules. Adams v. Franklin, 924 A.2d 993 (D.C. App. 2007) .

 Texas "snap-back" provision on inadvertent disclosures does not apply to inadvertent disclosures to testifying experts.  In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007) .

Alleged ethical violation by lawyer does not cause waiver of client's privilege.  Lyman v. St. Jude Medical S.C., Inc., 2007 U.S. Dist. LEXIS 44290 (E.D. Wis. June 18, 2007).

Breadth of privilege waiver where client sues law firm.  Creditanstalt Investment Bank AG v Chadbourne & Parke LLP, 831 N.Y.S.2d 705 (N.Y. App. 2007).  

Seventh Circuit addresses: (1) the common interest doctrine; (2) crime-fraud findings; and (3) exception to the tax practitioner privilege.   United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007).

Lawyer may maintain opinion work product protection where lawyer did not know of client's crime/fraud activities.  In re Green Grand Jury Proceedings, 492 F.3d 976 (8th Cir. 2007). 

Inadvertent facsimile (fax).  Carbis Walker, LLP v. Hill, Barth and King, LLC, 930 A.2d 573 (Pa. App. 2007).  Court adopted reasonableness test and found waiver in case of two-page fax to client.

Use of special counsel's investigation report waives privilege.   Gingrich v. Sandia Corp., 165 P.3d 1135 (N.M. App. 2007). 

Trial court should have taken evidence before ordering party to turn over entire litigation file.  Grace v. Mastruserio, 2007 Ohio App. LEXIS 3580 (Ohio App. Aug. 3, 2007).

Patent infringement.  Willfulness.  Some significant changes by the Federal Circuit.  In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007).

Insured's examination under oath to casualty insurer not discoverable.   Reynolds v. State, 963 So. 2d 908 (Fla. App. 2007). 

Status of SEC investigation documents.  Gavin v. United States, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007).

 No privilege if you use employer's facilities.  Scott v. Beth Israel Med. Ctr. Inc., 2007 N.Y. Misc. LEXIS 7114 (N.Y. Misc. Oct. 17, 2007).

Analysis of privilege in corporate context, where lawyers and non-lawyers share communications, are copied, etc.  In re Vioxx Prods. Liab. Litig., 501 F.Supp.2d 789 (E.D. La. 2007) (August 14, 2007).

Waived when special committee of board shares privileged communications with other board members. Ryan v. Gifford, 2007 Del. Ch. LEXIS 168 (Del. Ch. Nov. 30, 2007).

Asset Sale; What Happens to Privilege?  Postorivo v. AG Paintball Holdings, Inc., 2008 WL 343856 (Del. Ch. Feb. 7, 2008).

When can former executives get corporate communications?  People v. Greenburg, No. 401720/05 (N.Y. App. Feb. 19, 2008).

In bad faith action when can litigants get at the entire claims file?  State Farm Mut. Auto. Ins. Co. v. O’Hearn, 2008 Fla. App. LEXIS 3302 (Fla. App. March 7, 2008). 

Confidentiality - Duty under Ethics Rules 

Metadata.  Authorities are split on the propriety of digging for metadata in documents received from others.  Ethics opinions holding that doing so is unethical are: Ala. State Bar Office of Gen. Csl., Op. 2007-02 (March 14, 2007); Ariz. Op. 07-03 (November 2007); D.C. Op. 341 (Sept. 2007); Fla. Bar Prof’l Ethics Comm., Op. 06-02 (Sept. 15, 2006); and N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. No. 749 (Dec. 14, 2001) & 782 (2004).  Opinions that hold that such conduct is not unethical are: A.B.A. Op. 06-442 (Aug. 5, 2006); and Md. State Bar Ethics Comm., Op. 2007-09 (Oct. 16, 2006).  One opinion that says "it depends" is Pa. Op. 2007-500 (2008).  See Hricik, Mining for Embedded Data: Is it Ethical to Take Intentional Advantage of Other People’s Failures?, 8 N.C. J. L. & TECH. 231 (2007).

Rare case where court enforces self-defense exception to Rule 1.6, and rare case where client makes claim against his lawyer for disclosing information.  Hamilton v. Rubin, 2006 Mich. App. LEXIS 2059 (Mich. App. June 27, 2006).

Multiple representation.  D.C. Op. 327 (March 2005), is a sensitive treatment of this issue.  Lawyer is representing A and B in a matter.  A tells Lawyer something and asks the lawyer to keep it confidential.  Lawyer believes that B needs the information for purposes of the representation.  A will not allow Lawyer to tell B.  Lawyer must withdraw from both representations.  The opinion discusses ways lawyers can avoid this result.  For variations on this issue see A. v. B., 726 A.2d 924 (N.J. 1999); cmt. l to § 130 of the Restatement; N.Y. Op. 555 (1984); Fla. Op. 95-4 (1997); and Ga. Op. 03-2 (2003) (lawyer must not disclose and must withdraw).

Lisa H. Nicholson, A Hobson's Choice for Securities Lawyers in the Post-Enron Environment: Striking a Balance Between the Obligation of Client Loyalty and Market Gatekeeper, 16 Geo. J. Legal Ethics 91 (Fall 2002).  Article on the ethics rules and securities law liability of law firms.

California.  No right of self-defense disclosures of client information in action by third parties.   L.A. County Op. 519 (Feb. 26, 2007).

California lawyer permitted to disclose, and to testify about, former client's threats to kill people.  People v. Chanh Minh Dang, 113 Cal. Rptr. 2d 763 (Cal. App. 2001).

Lawyer discovers that court submission was false and must withdraw it.  N.Y. Op. 781 (Dec. 8, 2004).

Rare case on liability for misdirected facsimile.  Poway Land, Inc. v. Hillyer & Irwin, 2002 Cal. App. Unpub. LEXIS 10786 (Cal. App. Nov. 21, 2002).

Unencrypted E-mail OK.  Audrey Jordan, Note, Does Unencrypted E-mail Protect Client Confidentiality?, 27 Am. J. Trial Advoc. 623 (Spring 2004).

Liberal opinion on use of cell phones and Internet E-mail.  Del. Op. 2001-2 (2001).

Lawyer cannot reveal client's confidences even though client contractually obligated to reveal them to others.  Va. Op. 1811 (2005).

Outsourcing.  New York City Op. 2006-3 (Aug. 2006), Tex. Op. 572 (June 2006), and Fla. Op. 07-02 (Sept. 2007) tell you how to do it ethically.

In-house lawyers permitted to see competitors’ confidential documents under threat of severe sanctions.  United States v. Sungard Data Systems, Inc., 173 F. Supp. 2d 20 (D.D.C. 2001).

Lawyer disciplined for disclosing too much to opponent in motion to withdraw.  In re Gonzalez, 773 A.2d 1026 (D.C. App. 2001).

Confidentiality duties of former in-house lawyers in suing former employer.   Spratley v. State Farm Mut. Automobile Ins. Co., 78 P.3d 603 (Utah 2003).  The plaintiffs are former State Farm in-house lawyers.  The have sued State Farm for a number of torts relating to their alleged force resignations.  They took confidential documents with them when they left.  They attached some of these documents to their complaint.  The trial court ordered the plaintiffs to return all confidential documents and to refrain from disclosing any client confidences while prosecuting their claims.  The trial court also disqualified the plaintiffs’ law firm because it had been privy to the confidential information.  The Utah Supreme Court reversed.  It ruled that the self-defense exception to Rule 1.6 applied.  It ruled that the trial court could protect State Farm with procedures such as filing evidence under seal.  It ruled that while the plaintiffs had to return any original documents they had taken, they had a right to keep copies.  Lastly, the court reversed the order disqualifying plaintiffs’ law firm, saying that the practical effect of the trial court’s ruling was to deny the plaintiffs the ability to hire counsel.  A very similar case involving a former general counsel that relies heavily on Spratley is Alexander v. Tandem Staffing Solutions, Inc., 881 So. 2d 607 (Fla. App. 2004).


Defendant law firm can share plaintiff/former client's confidences with counsel for the defendant law firm.  Nesenoff v. Dinerstein & Lesser, P.C., 786 N.Y.S.2d 185 (N.Y. 2004).

 

Good discussion on the differences between the privilege and duty of confidentiality under ethics rules. Adams v. Franklin, 924 A.2d 993 (D.C. App. 2007).

California privilege law and insurance company internal communications.  Zurich Amer. Ins. Co. v. Superior Ct., 66 Cal. Rptr. 3d 833 (Cal. App. 2007).

Communicating with Represented Party - Rule 4.2

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

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

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

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

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

Improper to claim blanket representation of all an organization's constituents.  Ohio Op. 2005-3 (Feb. 4, 2005); and Utah Op. 04-06 (Dec. 2, 2004).  And, in Koo v. Rubio's Restaurants, Inc., 135 Cal. Rptr. 2d 415 (Cal. App. 2003), restaurant chain managers brought class action against employer relating to overtime.  When the plaintiffs' counsel tried to discover the identities of all the managers, the employer's law firm responded that it represented not only the employer, but also all the managers.  It almost backfired when the plaintiffs' counsel moved to disqualify employer's counsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Use of lying investigator with hidden recording device to interview adversary's employees causes violation of Rules 4.2 and 8.4(c) and exclusion of evidence.  Midwest Motor Sports d/b/a Elliott Power Sports, Inc. v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Canada.  Communicating with in-house lawyer on ownership of accident site gets lawyer disqualified.  Consky v. Famous Players Inc., 2008 CanLII 15768 (Ont. Super. Ct. April 7, 2008).

 Conflicts - Uncategorized

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sex with client as conflict.  Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261 (5th Cir. 2001); In re Moore, 2002 Ariz. LEXIS 36 (Ariz. March 5, 2002) (inappropriate sexual comments and advances grounds for censure); In re Walker, 24 P.3d 602 (Ariz. 2001); In re Pacior, 770 N.E.2d 273 (Ind. June 17, 2002); In re Tsoutsouris, 748 N.E.2d 856 (Ind. 2001); In re DeFrancesch, 877 So. 2d 71 (La. 2004); Attorney Grievance Commission of Maryland v. Culver, 849 A.2d 423 (Md. 2004) (comprehensive discussion); Akron Bar Ass’n. v. Williams, 819 N.E.2d 677 (Ohio 2004); Office of Disciplinary Counsel v. Moore, 804 N.E.2d 423 (Ohio 2004); Oklahoma Bar Ass’n. v. Downes, 121 P.3d 1058 (Okla. 2005); and Tanya E. Stern, Conflict of Interest?: The Absolute Ban on Lawyer-Client Sexual Relationships Is not Absolutely Necessary, 16 Geo. J. Legal Ethics 535 (2003) .

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

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

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

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

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

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

Conflicting affidavits in motion to disqualify requires hearing.  Plaza Resorts, Inc. v. Janus American Group, Inc., 811 So. 2d 850 (Fla. App. 2002); Quality Air Conditioning Co., Inc. v. Vrastil, 895 So. 2d 1236 (Fla. App. 2005); Akrey v. Kindred Nursing Centers East, L.L.C., So. 2d 1142 (Fla. App. 2003); Solomon v. Dickison, 916 So. 2d 943 (Fla. App. 2005); Cody v. Cody, 889 A.2d 733 (Vt. 2005).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Liability - not Conflicts-Related

Clear discussion of law firm liability in the face of client fraud.  Roger C. Cramton, Enron and the Corporate Lawyer: A Primer on Legal and Ethical Issues, 58 Bus. L. 143 (November 2002).

Lisa H. Nicholson, A Hobson's Choice for Securities Lawyers in the Post-Enron Environment: Striking a Balance Between the Obligation of Client Loyalty and Market Gatekeeper, 16 Geo. J. Legal Ethics 91 (Fall 2002).  Another good article on the ethics rules and securities law liability of law firms.

In re Enron Corp. Securities, Derivative, & ERISA Litigation, 235 F. Supp. 2d 549 (S.D. Tex. 2002).  Denial of V&E's motion to dismiss.

Third-party liability cases.  Thornwood v. Jenner & Block, 799 N.E.2d 756 (Ill. App. 2003) (aiding and abetting breach of fiduciary duty); Newburger, Loeb & Co. v. Gross, 563 F.2d 1057 (2d Cir. 1977) (conspired with partners to squeeze out others); AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 808 N.Y.S.2d 579 (N.Y. 2005) (no claims by third parties absent privity or showing of fraud-like conduct) ; Biddle v. Warren Gen. Hosp., 715 N.E.2d 518 (Ohio 1999) (lawyer induced hospital client to violate patient confidentiality); Granewich v. Harding, 985 P.2d 788 (Or. 1999) (lawyer for corporation assisted majority shareholder – not a client – in squeezing out minority shareholder); Reynolds v. Schrock, 142 P.3d 1062 (Ore. 2006) (court found no liability where the lawyer was assisting a client).

Liability to third parties in New York.  Eurycleia Partners, LP v. Seward & Kissel, LLP, 2007 N.Y. App. Div. LEXIS 12773 (N.Y. App. Dec. 20, 2007).

SEC sanctions.  Weiss v. SEC, 468 F.3d 849 (D.C. Cir. 2006).  This is a clear and well-organized discussion of how a securities lawyer (in this case a bond lawyer) can cross the line in doing a transaction where he did not have a reasonable basis for believing the factual bases for his opinions or the statements in the offering materials.  This is an excellent teaching tool for fledgling securities lawyers.

Aiding and abetting liability of lawyers in Illinois.  Hefferman v. Bass, 467 F.3d 596 (7th Cir. 2006).

Duty of lawyer to find insurance covering client.  Shaya B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 827 N.Y.S.2d 231 (N.Y. App. 2006) .

Rare case on liability for misdirected facsimile.  Poway Land, Inc. v. Hillyer & Irwin, 2002 Cal. App. Unpub. LEXIS 10786 (Cal. App. November 21, 2002).

No breach of fiduciary duty cause of action for revealing a former client's confidences.  Image Outdoor Advertising, Inc. v. CSX Transportation, Inc., 2003 Tenn. App. LEXIS 431 (Tenn. App. June 10, 2003). 

Liability to non-client for not recording mortgage.  Cheswell, Inc. v. Premier Homes and Land Corp., 319 F. Supp. 2d 144 (D. Mass. 2004).

Patent Malpractice.  Accuweb, Inc. v. Foley & Lardner, 728 N.W.2d 373 (Wis. App. 2007) .  This may be the first reported decision on a lawyer’s liability when maintenance fees aren‘t paid.  In this 2-1 decision the majority did not address fault, but rather held that the plaintiff could not prove damages.

Third-party negligent misrepresentation claim against lawyer.   Orshoski v. Krieger, 2001 Ohio App. LEXIS 5018 (Ohio App. November 9, 2001).  The court upheld a third-party claim for negligent misrepresentation against a lawyer.  The court relied heavily upon Section 552 of the Restatement of the Law of Torts and several out-of-state opinions, notably, McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999), and  Tajan v. Pavia & Harcourt, 693 N.Y.S.2d 544 (N.Y. App. 1999).

Guardian for Minor's Estate has standing to sue lawyer for predecessor guardian for allowing the predecessor guardian to deplete the estate.  In re Karan v. Topliff, 38 P.3d 396 (Wash. App. 2002).

Liability in California: successor fiduciary can sue lawyers retained by predecessor fiduciary.  Borissoff v. Taylor & Faust, 93 P.3d 337 (Cal. 2004).

No in personam jurisdiction even though number of contacts.  Richards & O’Neil, LLP v. Conk, 774 N.E.2d 540 (Ind. App. 2002).  For other recent cases on in personam jurisdiction against lawyers, go to http://www.ethicsandlawyering.com, and in the Archive click on June 2002.

In re Cybergenics Corp.,