Class Action (posted February 2, 2023) Hall v. Adelphia Three Corp., 2023 WL 869232 (D.N.J. Jan. 27, 2023). Class action by "tipped employees" against a restaurant company. In this opinion the court granted a motion to certify the class. Defendant had objected to certification on adequacy grounds. Evidently, class counsel was representing a class representative in an individual action against the same defendants. But, that action has terminated. In any event, the court found that the separate action, without more, would not be grounds for denial of class certification.

Former Client; Playbook; Insurance Defense (posted February 2, 2023) Reid v. Samsung SDI Co., Ltd., 2023 WL 1096333 (Ga. App. Jan. 30, 2023). A Samsung SDI lithium-ion 18650 battery exploded in Plaintiff's pocket. Plaintiff, represented by Lawyer, is suing Samsung SDI for Plaintiff's injuries. Samsung moved to disqualify Lawyer because Lawyer had for a number of years worked in-house for the insurance company ("Insco") that insured Samsung SDI for product liability. (The name Samsung appears in Insco's name, but  the court does not explain that coincidence.) In Lawyer's Insco role Lawyer supervised, or otherwise handled, many cases against Samsung SDI, including cases involving the 18650 battery. The very fact-specific opinion contains way more information about how Lawyer interacted with Samsung SDI lawyers. We will leave it at that. In this opinion the appellate court affirmed the trial court's order disqualifying Lawyer. The opinion does three things. First, the court found that Lawyer's role at Insco was tantamount to representation of Samsung, thus triggering Rule 1.9. Second, the court found that the earlier work at Insco was substantially related to this case. Last, while not mentioning it by name, the court seemed to be applying the "playbook doctrine," emphasizing Lawyer's familiarity with 18650 battery litigation and with Samsung SDI's personnel and procedures.

Joint Representation (posted January 30, 2023) Veloz v. Jiddou, 2023 NY Slip Op 00292 (N.Y. App. Div. 1st Dept. Jan. 24, 2023). Plaintiff was driving an auto, and her young daughter was a passenger. They were allegedly rear-ended, and both, represented by Lawyer, sued the driver of the other vehicle. The defendant counterclaimed that the accident was the fault of the plaintiff/driver. The trial court disqualified Lawyer from representing both plaintiffs. In this opinion the appellate court noted that the plaintiffs did not appeal the disqualification and said "plaintiffs have been advised to retain new and separate counsel."

Former Client; Accommodation Client? (posted January 26, 2023) D Stadtler 2015 Trust v. Gorrie, 2023 WL 355887 (D. Ariz. Jan. 23, 2023). The plaintiffs moved to disqualify Lawyer for the defendants. In this opinion the court denied the motion. The analysis is fact-intensive and, quite frankly, legally questionable. This case arises out of an earlier transaction. In the transaction Lawyer represented the plaintiffs and at least one of the defendants. Lawyer is representing the defendants in this case. The basis of the motion to disqualify is that Lawyer is being adverse to his former clients, the plaintiffs in this case. The court assumed arguendo that Lawyer actually represented the plaintiffs in the earlier transaction. The court said that under Arkansas law the parties were deemed to know everything during the transaction and, thus, the duty of confidentiality to former clients was off the table. So, what's the harm in Lawyer's opposing them? The court then embarked upon a discussion of the accommodation client doctrine as set forth in Allegaert v. Perot, 565 F.2d 246 (2d Cir. 1977). That case and those following it (some don't) recognize a distinction between a primary client and a secondary client ("accommodation client"). This opinion seems to assume the plaintiffs were "accommodation clients" during the earlier transaction without saying what made them so.

Former Client (posted January 26, 2023) Dr. Gilbert AKL Inc. (& Ackel) v. Shapiro, 2023 QCCS 78 (CanLII) (Quebec Super. Ct. Jan. 17, 2023). Shapiro agreed to sell his dental practice to Ackel. Shapiro recommended that they be jointly represented by Lawyer to save on fees. In this case Ackel is suing Shapiro to cancel the sale. Lawyer appeared for Shapiro. Ackel moved to disqualify Lawyer. In this opinion the court granted to motion and disqualified Lawyer’s firm, as well. Very fact-specific analysis. It appears doubtful that Lawyer learned any confidences from Ackel during the transaction. Nevertheless, the Lawyer’s duty of loyalty to Ackel was determinative.

Joint Representation (posted January 26, 2023) Jason M. Hatfield, P.A. v. Ornelas, 2023 WL 361558 (W.D. Ark. Jan. 23, 2023). The opinion does not say what this case is about. Here is what we know. One of the defendants is a lawyer ("Lawyer"). In addition to representing himself, Lawyer represents a co-defendant ("Client"). Plaintiff moved to disqualify Lawyer from representing Client in this case. In this opinion the court denied the motion "without prejudice." The court considered all the ways this representation could be a problem, but on balance found Lawyer's and Client's interests aligned, at least for now. The court cautioned Lawyer that Lawyer "appears to be on shaky ethical ground" and encouraged Lawyer to seek Client's "informed consent to continued representation as detailed" in Arkansas Rule 1.7(b).

Conflict Uncategorized (posted January 24, 2023) Interstate Indem. Co. v. East 77 Owners Co., LLC, No. 650794/2022 (N.Y. Sup. Ct. Jan. 6, 2023). Interstate insured Owner for property damage. As the result of a loss, Interstate, as Owner's subrogee, sued others alleged to be responsible for the loss ("the underlying case"). The underlying case was settled. A dispute arose between Interstate and Owner as to who gets what share of the settlement proceeds. In this case Interstate is suing Owner for what Interstate believes Owner owes Interstate. Owner moved, in this case, to disqualify Law Firm from representing Interstate because, in the underlying case, Law Firm represented Interstate as Owner's subrogee. In denying the motion to disqualify the court held that a lawyer's representing the subrogee does not make that lawyer a lawyer for the subrogor.  

Partnership; 4.2 (posted January 24, 2023) Pettis v. Simrall, 2023 WL 311342 (Miss. Jan. 19, 2023). The facts and relationships are complex and not necessary to getting the gist of this holding. Plus, a lot of the analysis relies heavily on Mississippi partnership law. We will leave it to our Mississippi friends to read and understand those aspects. Lawyer was involved in a matter adverse to a general partnership. Lawyer met with one of the partners without notifying the lawyer for the partnership. The partnership moved to disqualify Lawyer for violating Rule 4.2. The trial judge granted the motion. In this opinion the Mississippi Supreme Court reversed the trial judge. The partner involved swore that she did not retain the lawyer for the partnership to represent her individually. In brief, the court found that a lawyer for a general partnership does not, without more, represent the individual partners. Thus, Lawyer, in meeting with the partner, was not meeting with a represented person, and thus not violating Rule 4.2.

[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.This and Th

4.2

(posted January 24, 2023) Pettis v. Simrall, 2023 WL 311342 (Miss. Jan. 19, 2023). To read about the case, go to "Partnership," below.

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

(posted January 24, 2023) Interstate Indem. Co. v. East 77 Owners Co., LLC, No. 650794/2022 (N.Y. Sup. Ct. Jan. 6, 2023). Interstate insured Owner for property damage. As the result of a loss, Interstate, as Owner's subrogee, sued others alleged to be responsible for the loss ("the underlying case"). The underlying case was settled. A dispute arose between Interstate and Owner as to who gets what share of the settlement proceeds. In this case Interstate is suing Owner for what Interstate believes Owner owes Interstate. Owner moved, in this case, to disqualify Law Firm from representing Interstate because, in the underlying case, Law Firm represented Interstate as Owner's subrogee. In denying the motion to disqualify the court held that a lawyer's representing the subrogee does not make that lawyer a lawyer for the subrogor.

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.)

(posted January 4, 2023) In re CPESAZ Liquidating, Inc., 2022 WL 18067792 (9th Cir. Bankr. App. Panel Dec. 29, 2022). Law Firm was debtors' counsel for the Chapter 11 debtors. The bankruptcy court approved Law Firm's fee and costs request of some $2 million. ESOP Participants objected to the fees, in part because Law Firm had a conflict, and moved to disqualify Law Firm. The ESOP had needed a new trustee. Law Firm had recommended Mr. Paredes, and the debtors accepted the recommendation. The problem was that Law Firm had represented Paredes in other cases but did not disclose those representations in Law Firm's Rule 2014 filings in this case. For this violation the bankruptcy judge reduced Law Firm's fees by $120,000. There were other issues with the billings, and the court made further adjustments downward. The bankruptcy judge also denied the motion to disqualify Law Firm. In this opinion the Bankruptcy Appellate Panel affirmed as to the fee approval and denial of disqualification, holding that the bankruptcy judge had not abused her discretion.

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

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

(posted January 9, 2023) Cole-Palmer Instrument Co. v. Prof'l Labs., Inc., No. 0:21-cv-61756-GOODMAN[CONSENT] (S.D. Fla. Jan. 6, 2023). Florida Rule 1.10(c)((1)&(2) appears to be identical to Model Rule 1.10(b)(1)&(2). This is a rare reported decision applying that rule. Lawyer was at Firm 1 for about one year. Firm 1 represents Plaintiff. Defendant is claiming that Lawyer briefly represented Defendant on a matter related to this case and moved to disqualify Firm 1. In this opinion the magistrate judge denied the motion. The analysis is so fact-dependent, we will spare readers with a recitation of those facts. First, the judge held that Lawyer and Firm 1 never represented Defendant. Last, the judge held that, in any event, the matters were not substantially related and that any information received by Lawyer and Firm 1 from, or about, Defendant was now public.

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

(posted February 2, 2023) Hall v. Adelphia Three Corp., 2023 WL 869232 (D.N.J. Jan. 27, 2023). Class action by "tipped employees" against a restaurant company. In this opinion the court granted a motion to certify the class. Defendant had objected to certification on adequacy grounds. Evidently, class counsel was representing a class representative in an individual action against the same defendants. But, that action has terminated. In any event, the court found that the separate action, without more, would not be grounds for denial of class certification.

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.)

Nothing current.

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

Nothing current.

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

Nothing current.

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 January 18, 2023) Beaumont v. Beaumont, No. 1 CA-CV 21-0426 (Ariz. App. Unpub. Jan. 12, 2023). In this marital dispute the parties contested the value of the marital home. W's lawyer called her husband as an expert on valuation. The trial court ruled for W on the valuation issue. In this unpublished opinion the appellate court affirmed the trial court. The appellate court said that the relationship between W's lawyer and W's expert was a credibility issue, and the trial court did not err by considering W's expert's testimony.

(posted January 17, 2023) DiCristoforos v. Fertility Solutions, P.C., 2023 WL 157642 (D.R.I. Jan. 11, 2023). Plaintiffs are a husband and wife suing Clinic and two doctors ("Doc1" and "Doc2") for an allegedly negligent diagnosis resulting in the wife's losing a baby and becoming infertile. Clinic and Doc1 (but, not Doc2) retained an obstetric radiologist for an analysis and opinion. That expert's husband was also an obstetric radiologist. We shall call them Expert W and Expert H. Experts W and H worked at the "same place" and co-authored many learned articles and books. After receiving Expert W's opinion, the lawyer for Clinic and Doc1 decided not to proceed further with Expert W. About a year later the lawyer for Doc2 contacted Expert H about helping in this case. Expert H said he could not proceed because of his wife's earlier work for Doc1. About a year after that, the lawyer for the plaintiffs contacted Expert H about helping the plaintiffs in this case. The lawyer did not tell Expert H who the parties were. Based upon a "'blind' review of the ultrasound images" Expert H opined that Doc1 and others were negligent. When "Defendants" learned that the plaintiffs were using Expert H as an expert, "Defendants" moved to disqualify Expert H. In this opinion the court denied the motion. First, Expert H reached his opinion(s) without knowing who the parties were. Second, based upon the brief communications between Expert H and the lawyer for Doc2, there could not have been an expectation of confidentiality by that lawyer. Third, Expert H had not received information about Defendants that was not already revealed in filings. [Our note: Something is missing, and we cannot put our finger on it. Early on, Expert W did substantial work for the lawyer for Doc 1 and Clinic and rendered an opinion. Although the lawyer for Doc 1 and Clinic decided not to proceed with Expert W, what was to keep Expert H from learning Doc1's weaknesses from his wife, Expert W? If they had been law partners, that information might have been deemed imputed and caused disqualification.]

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

(posted February 2, 2023) Reid v. Samsung SDI Co., Ltd., 2023 WL 1096333 (Ga. App. Jan. 30, 2023). A Samsung SDI lithium-ion 18650 battery exploded in Plaintiff's pocket. Plaintiff, represented by Lawyer, is suing Samsung SDI for Plaintiff's injuries. Samsung moved to disqualify Lawyer because Lawyer had for a number of years worked in-house for the insurance company ("Insco") that insured Samsung SDI for product liability. (The name Samsung appears in Insco's name, but  the court does not explain that coincidence.) In Lawyer's Insco role Lawyer supervised, or otherwise handled, many cases against Samsung SDI, including cases involving the 18650 battery. The very fact-specific opinion contains way more information about how Lawyer interacted with Samsung SDI lawyers. We will leave it at that. In this opinion the appellate court affirmed the trial court's order disqualifying Lawyer. The opinion does three things. First, the court found that Lawyer's role at Insco was tantamount to representation of Samsung, thus triggering Rule 1.9. Second, the court found that the earlier work at Insco was substantially related to this case. Last, while not mentioning it by name, the court seemed to be applying the "playbook doctrine," emphasizing Lawyer's familiarity with 18650 battery litigation and with Samsung SDI's personnel and procedures.

Accommodation Client?

(posted January 26, 2023) D Stadtler 2015 Trust v. Gorrie, 2023 WL 355887 (D. Ariz. Jan. 23, 2023). The plaintiffs moved to disqualify Lawyer for the defendants. In this opinion the court denied the motion. The analysis is fact-intensive and, quite frankly, legally questionable. This case arises out of an earlier transaction. In the transaction Lawyer represented the plaintiffs and at least one of the defendants. Lawyer is representing the defendants in this case. The basis of the motion to disqualify is that Lawyer is being adverse to his former clients, the plaintiffs in this case. The court assumed arguendo that Lawyer actually represented the plaintiffs in the earlier transaction. The court said that under Arkansas law the parties were deemed to know everything during the transaction and, thus, the duty of confidentiality to former clients was off the table. So, what's the harm in Lawyer's opposing them? The court then embarked upon a discussion of the accommodation client doctrine as set forth in Allegaert v. Perot, 565 F.2d 246 (2d Cir. 1977). That case and those following it (some don't) recognize a distinction between a primary client and a secondary client ("accommodation client"). This opinion seems to assume the plaintiffs were "accommodation clients" during the earlier transaction without saying what made them so.

(posted January 26, 2023) Dr. Gilbert AKL Inc. (& Ackel) v. Shapiro, 2023 QCCS 78 (CanLII) (Quebec Super. Ct. Jan. 17, 2023). Shapiro agreed to sell his dental practice to Ackel. Shapiro recommended that they be jointly represented by Lawyer to save on fees. In this case Ackel is suing Shapiro to cancel the sale. Lawyer appeared for Shapiro. Ackel moved to disqualify Lawyer. In this opinion the court granted to motion and disqualified Lawyer’s firm, as well. Very fact-specific analysis. It appears doubtful that Lawyer learned any confidences from Ackel during the transaction. Nevertheless, the Lawyer’s duty of loyalty to Ackel was determinative.

(posted January 16, 2023) Woroch v. Northfield Trim & Door Inc., 2023 ONSC 218 (CanLII) (Super. Ct. Ont. Jan. 9, 2023). Company is owned by Family Members. In 2012 Family Members entered into a shareholders' agreement prepared by Lawyer while representing Company. The agreement included an employment agreement for Plaintiff (also a Family Member) to be President. The shareholders' agreement also contained a buy/sell provision. In 2021 a transaction occurred under the buy/sell provision. A dispute arose between Plaintiff and Company and other Family members as to the meaning and enforcement of the shareholders' agreement. Lawyer withdrew as counsel to Company and immediately took Plaintiff's side in the dispute. The dispute ripened into this proceeding, in which Lawyer is adverse to Company and Family Members. Defendants moved to disqualify Lawyer. In this opinion the court granted the motion. The court held that Lawyer's earlier representation of Company, including preparation of the shareholders' agreement, was sufficiently related to this case, which is about the interpretation and enforcement of the agreement. Moreover, there was no showing that Lawyer had not learned relevant Company confidences while representing Company. The court seemed influenced by the rather shady (not dishonest) way Lawyer went about the business of firing Company with no advance notice and commencing to do battle for Plaintiff. Among other things, the case has a strong whiff of hot potato (see "Hot Potato" at this site).

(posted January 4, 2023) Flexible Fundamentals, Inc. v. McGrath, 2022 WL 17971738 (Mass. App. Unpub. Dec. 28, 2022). Lawyer represented Flexible in preparing noncompete agreements with Flexible employees. Subsequently, Flexible filed this case against former employees for violating those agreements. Lawyer appeared for the former employees. Flexible moved to disqualify Lawyer. The trial court granted the motion. In this unpublished opinion the appellate court affirmed. "Here, the overlap between former and current representations is patent." The court also found this appeal was "frivolous" and awarded lawyer fees and "double costs."

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

Nothing current.

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

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

Nothing current.

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

(posted January 30, 2023) Veloz v. Jiddou, 2023 NY Slip Op 00292 (N.Y. App. Div. 1st Dept. Jan. 24, 2023). Plaintiff was driving an auto, and her young daughter was a passenger. They were allegedly rear-ended, and both, represented by Lawyer, sued the driver of the other vehicle. The defendant counterclaimed that the accident was the fault of the plaintiff/driver. The trial court disqualified Lawyer from representing both plaintiffs. In this opinion the appellate court noted that the plaintiffs did not appeal the disqualification and said "plaintiffs have been advised to retain new and separate counsel."

(posted January 26, 2023) Jason M. Hatfield, P.A. v. Ornelas, 2023 WL 361558 (W.D. Ark. Jan. 23, 2023). The opinion does not say what this case is about. Here is what we know. One of the defendants is a lawyer ("Lawyer"). In addition to representing himself, Lawyer represents a co-defendant ("Client"). Plaintiff moved to disqualify Lawyer from representing Client in this case. In this opinion the court denied the motion "without prejudice." The court considered all the ways this representation could be a problem, but on balance found Lawyer's and Client's interests aligned, at least for now. The court cautioned Lawyer that Lawyer "appears to be on shaky ethical ground" and encouraged Lawyer to seek Client's "informed consent to continued representation as detailed" in Arkansas Rule 1.7(b).

(posted January 16, 2023) N.Y. Op. 1249 (Jan. 5, 2023). Lawyer currently represents H and W simultaneously in estate planning. It is always a good idea to provide in an engagement document that Lawyer will keep no secrets of one joint client from the other. Authorities (including the Committee's opinion) suggest that even absent a written provision, there is normally an expectation that Lawyer will share the information. Suppose, however, Lawyer learned something from, or about, H during an earlier single representation of H. This opinion says that the usual duty to reveal does not apply in the current joint representation.

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.

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.