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FREIVOGEL ON CONFLICTS WHAT'S NEW Home/Table of Contents Items posted here during the past thirty days will also appear on this What's New page. Items posted within the past ten days will appear In Ten Day Bulletin immediately below. Items older than ten days but less than 30 days will be posted in the Thirty-Day Holding Area, which follows. Ten Day Bulletin Waiver; Passage of Time; Standing (posted June 19, 2017) Tibbott v. Northern Cambria Sch. Dist., 2017 WL 2570904 (W.D. Pa. June 13, 2017). The facts are unremarkable. Defendant moved to disqualify Plaintiff’s lawyer. In this opinion the court denied the motion, primarily because Defendant waited 16 months to file the motion. The opinion also contains a thorough discussion of standing in the Third Circuit as well as in other jurisdictions. The court expressed doubts whether Defendant had adequate standing but assumed “arguendo” that it did. The court also noted that motions under Rule 3.7 (lawyer/witness) can be brought at almost any time before trial. However, the court ruled that a ruling at this point would be inappropriate because it was unclear whether the lawyer’s testimony at trial would be necessary. Malpractice (posted June 14, 2017) Eagle Mountain City v. Parsons Kinghorn & Harris, P.C., 2017 WL 2483017 (Utah June 7, 2017). The principal holding of this opinion is that an assignment of a legal malpractice claim does not violate public policy and, ordinarily, will be enforced. The court noted that when the subject of such an assignment “rears its head in settlement talks,” some lawyers may be compelled to send their client(s) to separate counsel for “independent advice.” The court added that such “is a necessary cost of litigating a dispute.” Current Client (posted June 10, 2017) York Region Condo. Corp. v. Hendler, 2017 ONSC 3420 (CanLII) (Super. Ct. Ont. June 1, 2017). Law Firm commenced an assessment proceeding to collect fees from Client. Client brought this case against Law Firm alleging negligence. Law Firm is defending itself in this case. Client moved to disqualify Law Firm. The court characterized this case as an attempt to set off the fees claimed by Law Firm. The court also noted that law firms represent themselves in assessment proceedings all the time. Accordingly, the court denied the motion. Thirty Day Holding Area Confidentiality (posted May 22, 2017) Wis. Op. EF-17-02 (April 4,
2017). This opinion holds that client identity is confidential and
subject to Rule 1.6. Liability not Conflicts Related (posted May 22, 2017) Broadway Victoria, LLC v. Normington, Wiita & Foster, No. B266060 (Cal. App. 2d Dist. April 19, 2017). In this opinion the court held that a legal malpractice plaintiff cannot maintain claims for negligence and breach of fiduciary duty if both claims are based upon the same facts. Evidently, this was the first California appellate court to so hold.
Issue Preclusion (posted May 24, 2017) Villas at Highland Park Homeowners Ass’n, Inc. v. Villas at Highland Park, LLC,
2017 WL 2224369 (Col. May 22, 2017). This is a construction-defect case
brought by Homeowners Association (“HA”) against Developer and other
defendants (“This Case”). Lawyer represents HA in This Case. In the past
Lawyer has represented Developer. For that reason Developer moved to
disqualify Lawyer in This Case. The trial court denied the motion.
Rather than analyze the motion under Rule 1.9(a), the trial court found
that the denial of a similar motion in yet another case (“Sawgrass
Case”) basically decided the motion under the “issue preclusion”
doctrine. The Sawgrass Case was also a construction-defect case brought
by a different homeowners association against Developer, in which Lawyer
represented the homeowners association. Developer moved to disqualify
Lawyer in the Sawgrass Case and the court there denied the motion, thus
“precluding” a different result for the trial court in This Case. In
this opinion a majority of the Colorado Supreme Court made absolute a
rule to show cause and remanded This Case to the trial court to do an
independent analysis under Rule 1.9. Three judges dissented. [Our
note: This is our first “issue preclusion” conflicts case in the 17
years of this site. We are not sure of its precedential value given the
dissent, and all. Thus, if you see something of interest in this
summary, you might dip your toe in the full opinion, including the
dissent.]
(posted June 7, 2017) In re Grimmett, 2017 WL 2437231 (D. Idaho June 5, 2017). Chapter 7, filed by Lawyer for Debtor. Because of Lawyer’s clumsy threats to strong-arm Debtor into paying Lawyer’s fee, the bankruptcy judge ruled that Lawyer had a conflict of interest. The court was also critical of the retainer agreement. The court ordered the retainer agreement void, excused Debtor from paying any more fees, and ordered Lawyer to disgorge fees already paid.
(posted May 22, 2017) Nat’l Grange v. California Guild, 2017 WL 2021762 (E.D. Cal. May 12, 2017). Firm 1 represents Plaintiff in this case. Firm 2 represents Defendant. Lawyer, while at Firm 1, represented Plaintiff on a matter related to this case. Lawyer moved to Firm 2. Plaintiff moved to disqualify Firm 2 in this case. In this opinion the court denied the motion because Firm 2 had screened Lawyer from this case. The opinion reviewed the history of screening in California, up to, and including, Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th 776 (Cal. App. 2010). Absent contrary authority, the court followed Kirk. An identical opinion appears at 2017 WL 2021731. We have no idea why. (posted May 22, 2017) New Horizon Kids Quest III, Inc. v. Eighth Jud. Dist. Ct., No. 69920 (Nev. April 6, 2017). Lawyer worked at Firm 1 for a time, including when Firm 1 represented New Horizon. Lawyer moved to Firm 2, which is adverse to New Horizon in this case. Lawyer was put to work on this case. New Horizon moved to disqualify Firm 2. The trial court denied the motion. In this opinion the supreme court affirmed (denied mandamus). The submissions established that Lawyer did nothing for New Horizon at Firm 1 and learned nothing about New Horizon while at Firm 1.
Nothing current.
Nothing current. (posted May 22, 2017) R.I. Op. 2017-02 (March 31, 2017). This opinion
holds that the same law firm may not represent the buyer and seller in
the sale of a business. A screen between the lawyers for each will not
work. Nor will consent. Nothing current. (posted June 10, 2017) York Region Condo. Corp. v. Hendler, 2017 ONSC 3420 (CanLII) (Super. Ct. Ont. June 1, 2017). Law Firm commenced an assessment proceeding to collect fees from Client. Client brought this case against Law Firm alleging negligence. Law Firm is defending itself in this case. Client moved to disqualify Law Firm. The court characterized this case as an attempt to set off the fees claimed by Law Firm. The court also noted that law firms represent themselves in assessment proceedings all the time. Accordingly, the court denied the motion. DERIVATIVE ACTIONS (To read full article, click here.) Nothing current.
Nothing current.
Nothing current.
Nothing current. ISSUE OR POSITIONAL CONFLICTS (To read full article, click here.) Nothing current.
MALPRACTICE LIABILITY/FEE FORFEITURES (To read full article, click here.) (posted June 14, 2017) Eagle Mountain City v. Parsons Kinghorn & Harris, P.C., 2017 WL 2483017 (Utah June 7, 2017). The principal holding of this opinion is that an assignment of a legal malpractice claim does not violate public policy and, ordinarily, will be enforced. The court noted that when the subject of such an assignment “rears its head in settlement talks,” some lawyers may be compelled to send their client(s) to separate counsel for “independent advice.” The court added that such “is a necessary cost of litigating a dispute.”
STANDING (To read full article, click here.) (posted June 19, 2017) Tibbott v. Northern Cambria Sch. Dist.,
2017 WL 2570904 (W.D. Pa. June 13, 2017). The opinion contains a thorough discussion of
standing in the Third Circuit as well as in other jurisdictions. The
court expressed doubts whether Defendant had adequate standing but
assumed “arguendo” that it did.
(posted June 19, 2017) Tibbott v. Northern Cambria Sch. Dist., 2017 WL 2570904 (W.D. Pa. June 13, 2017). Sixteen months, too long. WITNESS - ADVERSE - CURRENT/FORMER CLIENT (To read full article, click here.) Nothing current. |