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Former Client (Not) (posted April 23, 2024) Gov't of Nunavut v. Stantec Architecture Ltd., 2024 NUCJ 9 (CanLII) (Nunavut Ct. J. April 19, 2024). Gov't is suing Stantec for its architectural work on a new arena. Earlier, Gov't claimed in arbitration that Contractor did defective construction work on the arena. Stantec cooperated with Gov't's law firm in the arbitration. In connection with that cooperation, the parties agreed that Stantec would not be a client of the lawyers on the case. The arbitration settled. Stantec moved to disqualify Gov't's law firm in this case. In this opinion the court denied the motion. Using a "near-client" analysis, the court noted that Stantec had to have anticipated that this case would probably follow and would govern itself accordingly during its arbitration work regarding its confidences.

Former Client (posted April 23, 2024) Dye & Durham Ltd. v. Ingarra, 2024 FCA 76 (CanLII) (Fed. Ct. App. April 18, 2024). Defendant, Dye & Durham, sells software for law firms. Plaintiffs brought this action under Section 45 of Canada's Competition Act. Defendant moved to disqualify Plaintiffs' law firm. The trial court denied the motion. In this opinion the appellate court affirmed. Given the dizzying array of companies involved and movements of lawyers, we cannot do the case justice in this format. The basics: (1) the appellate court held that representations under Sections 45 (criminal) and 79 (civil) of the Competition Act are "sufficiently related" for conflict purposes; and (2) disqualification was not appropriate here because there was no showing that one of the suspect lawyers had, in fact, conveyed Defendant's confidences to Plaintiffs' law firm.

[Note: Items that do not fit under the conflicts categories below, but which we believe will be of interest to this audience will appear here at This and That.

Nothing Current.

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

Judicial Clerk 

(posted April 2, 2024) United States v. Pennick, No. 17-CR-15-RJA (W.D.N.Y. March 21, 2024). Defendant is about to be sentenced and has moved to disqualify the judge. The judge's law clerk, when in the U.S. Attorney's office, had some involvement with Defendant's earlier criminal case. In this opinion the court denied the motion, stressing that the clerk has had no involvement in this matter. The court noted cases that held, in these situations, it is the clerk, not the judge who is disqualified.

APPEALABILITY (To read full article, click here.)

Nothing current.

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

Nothing current.

BANKRUPTCY (To read full article, click here.)

Nothing current.

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

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

(posted April 4, 2024) Stratemeyer v. Northstar Constr. Mgmt. Co., Inc., 2024 WL 1363393 (S.D. Fla. April 1, 2024). Plaintiff was injured in an auto accident in 2019 and brought this case against Defendants. Plaintiff had been injured in a different accident in 2015. Lawyer briefly represented Plaintiff after the earlier accident, but referred Plaintiff to another firm almost immediately. The problem is that Lawyer is now in the firm representing Defendants in this case. So, Plaintiff moved to disqualify Defendants' law firm. In this opinion the court denied the motion to disqualify. The court applied Florida Rule 4-1.10(b) and found that what Lawyer learned about Plaintiff in the brief 2015 representation was less than sketchy.

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

(posted April 4, 2024) Vilella v. Pup Culture LLC, 2024 WL 1407059 (S.D.N.Y. April 2, 2024). FLSA collective action filed by Law Firm. After filing, Law Firm negotiated an individual settlement for a class representative, but the settlement fell through. Claiming that the individual settlement attempt created a conflict for Law Firm, Defendants moved to disqualify Law Firm from representing the collective in this case. In this opinion the court denied the motion. Most of the analysis was under New York Rule 1.7. The court found no conflict.

(posted April 4, 2024) Corbett v. PharmaCare U.S., Inc., 2024 WL 1356220 (S.D. Cal. March 29, 2024). In this class action Plaintiffs are claiming that certain products sold by Defendant containing black elderberry extract were falsely represented by Defendant as having certain health benefits. In responding to Plaintiffs' motion for class certification, Defendants claimed that Plaintiffs' counsel were not adequate because they were handling another action relating to blackberry extract pursuing "an alternate theory of liability." In this opinion the court rejected that ground saying that "presenting alternative theories" in these cases does not constitute a conflict.

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

Nothing current.

COMMERCIAL NEGOTIATIONS (To read full article, click .)

Nothing current.

CORPORATIONS (To read full article, click here.)

(posted March 27, 2024) Gilbertie v. Gilbertie Props., LLC, 2024 WL 1270452 (Conn. Super. Stamford-Norwalk March 20, 2024). Decedent's Estate has sued LLC and LLC's sole surviving member to dissolve LLC and for damages against the surviving member, among other things. Estate moved to disqualify the lawyer for both defendants. Parsing the elements of Rules 1.7 and 1.13, in this brief and somewhat cryptic opinion, the court denied the motion to disqualify. The court noted that this is not a derivative action and that the member/defendant is not accused of "fraud or self-dealing."

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

Nothing current.

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

(posted April 2, 2024) Minor v. Greyhound Lines, Inc., No. 1:22-CV-00092-GNS-HBB (W.D. Ky. Bowling Green Div. March 28, 2024). A Greyhound bus was disabled. Bus passenger ("Minor") was behind the bus and was hit by a car driven by Estes. Minor hired Law Firm (Bowling Green office) to sue Greyhound. In this case, Law Firm sued Greyhound only, not bus driver ("Norman") or Estes. Norman has hired lawyers in Law Firm in its Birmingham office arising out of another accident while Norman was driving a Greyhound bus. Greyhound moved to disqualify Law Firm in this case. In this opinion the court denied the motion to disqualify. When learning of the conflict, Law Firm obtained waivers from both Minor and Norman. The court found that the conflict was consentable and that the waivers were adequate to avoid disqualification. The court held that Greyhound would not be prejudiced by Law Firm's conflict, including the fact that Greyhound had not shown that the two relevant parts of Law Firm had shared information about their respective cases.

(posted March 29, 2024) ESC-Toy Ltd. v. Sony Interactive Entm't LLC, 2024 WL 1335079 (N.D. Cal. March 27, 2024). (The date is Westlaw's; at the opinion's end appears Nov. 27, 2023.) Plaintiff is suing Defendant for breach of contract. Defendant moved to disqualify Plaintiff's law firm ("Law Firm"). In this opinion the court granted the motion to disqualify. The motion involves Lawyer, who initially was in-house with Defendant, doing both legal and non-legal work, including work arguably related to this case. After leaving Defendant, Lawyer, as an outside lawyer, began doing work for Plaintiff, including work arguably related to this case. Although Lawyer never became employed in Law Firm, her communications with Law Firm about this case was the basis for disqualification of Law Firm.

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

Nothing current.

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

Nothing current.

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

(posted April 9, 2024) Manna Amsterdam Ave. LLC v. West 73rd Tenants Corp., 2024 WL 1513925 (N.Y. App. Div. 1st Dept. April 9, 2024). Mortifoglio is Plaintiff's damages expert. Gottlieb is Defendant's expert. While this case was pending, Mortifoglio hired one of Gottlieb's employees. That employee had done extensive work on this case for Defendant. Defendant moved to disqualify Mortifoglio. The trial court granted the motion. In this opinion the appellate court affirmed. [Our note: Defendant clearly had an expectation of privacy with the employee. But, did the employee share any of Defendant's information with Mortifoglio or Plaintiff after going to work with Mortifoglio? The court did not say.]

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

(posted April 23, 2024) Gov't of Nunavut v. Stantec Architecture Ltd., 2024 NUCJ 9 (CanLII) (Nunavut Ct. J. April 19, 2024). Gov't is suing Stantec for its architectural work on a new arena. Earlier, Gov't claimed in arbitration that Contractor did defective construction work on the arena. Stantec cooperated with Gov't's law firm in the arbitration. In connection with that cooperation, the parties agreed that Stantec would not be a client of the lawyers on the case. The arbitration settled. Stantec moved to disqualify Gov't's law firm in this case. In this opinion the court denied the motion. Using a "near-client" analysis, the court noted that Stantec had to have anticipated that this case would probably follow and would govern itself accordingly during its arbitration work regarding its confidences.

(posted April 23, 2024) Dye & Durham Ltd. v. Ingarra, 2024 FCA 76 (CanLII) (Fed. Ct. App. April 18, 2024). Defendant, Dye & Durham, sells software for law firms. Plaintiffs brought this action under Section 45 of Canada's Competition Act. Defendant moved to disqualify Plaintiffs' law firm. The trial court denied the motion. In this opinion the appellate court affirmed. Given the dizzying array of companies involved and movements of lawyers, we cannot do the case justice in this format. The basics: (1) the appellate court held that representations under Sections 45 (criminal) and 79 (civil) of the Competition Act are "sufficiently related" for conflict purposes; and (2) disqualification was not appropriate here because there was no showing that one of the suspect lawyers had, in fact, conveyed Defendant's confidences to Plaintiffs' law firm.

(posted April 6, 2024) Lloyd v. Baltimore Police Dep't, 2024 WL 1465700 (D. Md. April 4, 2024). Law Firm represents Raymond Lloyd, formerly a sergeant in the Department, against the Department, for violation of the Family & Medical Leave Act ("F&MLA") in 2022. Law Firm formerly represented Jerome Forrest, a current lieutenant in the Department, for race discrimination in 2018-19. A problem is that Forrest was Lloyd's superior in 2022 and had some involvement in the Department's violation of F&MLA. Although, the Department's alleged violation occurred in the Department's "upper management." Because of these two different representations, the Department has moved to disqualify Law Firm in this case. In this fact-intensive opinion the magistrate judge denied the motion to disqualify. The court found the two matters involved "different claims and time periods, and [Forrest] and [Lloyd] [did] not play a significant role in each other's cases." The Court also found that this representation of Lloyd is not materially adverse to Forrest. Law Firm has never represented the Department, but the magistrate judge makes no mention of standing.

(posted April 2, 2024) Clear View West, LLC v. Steinberg, Hall & Assocs., Inc., No. 23-cv-04774-SI (N.D. Cal. March 29, 2024). Plaintiff ("CVW"), represented by Lawyer, is suing Defendant ("HIS") for trademark infringement and related remedies. In 2013 CVW and HIS were embroiled in disputes with a company ("Company") not involved in this case. CVW's case was in arbitration; HIS's in federal court in Florida. Because the matters were related, CVW and HIS retained Lawyer to handle both matters. As to conflicts, Lawyer signed an agreement with both saying what could go wrong, what was confidential, and so on. HIS moved to disqualify Lawyer from representing CVW in this case. In this opinion the court denied the motion. In a lengthy discussion of California's Rule 1.9, the court stressed the importance of confidentiality under Rule 1.9 and expressed doubt that Lawyer learned anything from HIS during the 2013 matters that would prejudice HIS in this case. Not helpful to HIS concerning this motion was that HIS's owner ("Steinberg") worked for CVW for a time after the 2014 settlement and is being accused of secret and nefarious marketing activities harmful to CVW.

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

Nothing current.

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

Nothing current.

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

(posted March 29, 2024) Travelers Indem. Co. v. AXIS Ins. Co., 2024 WL 1313890 (S.D.N.Y. March 27, 2024). Multiple insurance companies issued policies to several insureds with overlapping coverages. In an underlying case a construction worker is suing several of these insureds arising out of a fall at a construction site. In this case Travelers is seeking coverage from AXIS for compensation for an independent firm needed for one of the insureds because of what Travelers claims is a conflict for AXIS' retained law firm. In this opinion the court granted a Rule 12(b)(6) motion to dismiss. The relationship of the parties is way too complex for an adequate description here. New York insurance defense law firms should be aware of this case. It contains an exhaustive discussion of New York cases on when carriers must pay (or need not pay) for insureds' independent counsel.

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

Nothing current.

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

Nothing current.

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

Nothing current.

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

Nothing current.

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

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

Nothing current.

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

Nothing current.

STANDING (To read full article, click here.)

Nothing current.

Homeowners' Associations 

(posted March 27, 2024) Sherman v. Gursky Ragan, P.A., No. 3D22-2040 (Fla. App. 3d Dist. March 20, 2024). Several members of a homeowners' association on Fisher Island have sued the association's general counsel for assisting another member in expanding that member's exclusive use of certain common elements. The trial court dismissed the complaint. In this opinion the appellate court affirmed. The court said that the plaintiffs had no contractual relationship with the general counsel. Further, the court held that, absent special circumstances not pled here, the general counsel had no fiduciary duty, implied or otherwise, to the plaintiffs.

Nothing current.

WAIVERS/CONSENTS (To read full article, click here.)

Nothing current.

WITNESS - ADVERSE - CURRENT/FORMER CLIENT (To read full article, click here.)

Nothing current.

ZERO SUM GAMES (To read full article, click here.)

Nothing current.