Lawyer in MasterCard Settlement Admits Relying on Improperly Disclosed Client Info in Counseling the Card Company on Settlement

According to a brief filed yesterday in the Eastern District of NY, Wilke Farre partner Keila Ravelo admits to using improper disclosures from opposing counsel in advising MasterCard about it’s $5.7 billion settlement in the decade long class action by a group of merchants.
See previous posts on this case here and here.

Federal Judge Rejects Class Action Settlement in Decade Old AmEx/Merchant Case Based on Lawyer Disclosure of Confidential Info

Returning to our One To Watch from last week:

Today U.S. District Judge Nicholas Garaufis rejected the proposed class-action settlement between AmEx and various merchants based on the discovery last week that a lawyer for some of the merchants shared confidential documents with a rival attorney (who was also a friend and former colleague) for MasterCard in a parallel case. While the Court also expressed concerns with the substantive fairness of the settlement, it found it unnecessary to reach a conclusion on the merits because of the lawyer’s to rule on such merits because of the lawyer’s “improper…conduct” that “fatally tainted the settlement process.”

Noting that the opposing lawyer were in “frequent, possibly constant contact” about the settlement, and citing the “procedural unfairness” and “failure of adequate representation,” Judge Garaufis removed the merchants’ lawyer from the case, unfortunate news for the decade-old case.

Will Lawyers Follow Doctors in Providing Legal Services through Skype?

The New York Times describes how the practice of providing of medical advice, including the prescription of medicine, through the internet is expanding, and at the same time meeting resistance from some doctors.  Although law firms already provide advice to businesses and wealthy individuals through video communication, could internet video calls become a common way for lawyers to meet, and provide services to, middle income clients and small businesses?  These developments raise issues relating to creation of the lawyer-client relationship, competence/malpractice, confidentiality, conflicts, and future directions for business and technology of legal practice.

People v Yadnez: To Which Conflicts Does Cuyler v. Sullivan Extend?

The Colorado Supreme Court recently granted cert in the case of Nathan Yadnez (2015 WL 929996), and the decision likely will provide additional guidance on how far the rule from Cuyler v. Sullivan, 446 U. S. 335 (1980), will extend to conflicts of interest beyond those rising from simultaneous representation of co-defendants or co-participants.

The relevant facts are straightforward.  Defendant Yadnez murdered his mother at the age of 16.  Yadnez’s father, also husband of Yadnez’s mother, hired and paid a lawyer to represent his son.  The father also was a witness for the prosecution.  There were allegations of child abuse that were neither investigated nor raised by the defense.  There was no conflicts waiver.

The question is whether Yadnez’s lawyer was operating under an actual conflict of interest that adversely affected the representation, constituting ineffective assistance of counsel. The Court of Appeals found that there was a conflict, but arising solely from the fact that the lawyer was being paid by father, not sufficient to meet the ineffective assistance of counsel standard.  Defendant Yadnez argues that under Sullivan, the conflict is not merely a Rule 1.8 conflict based on third party payment of fees.  Instead, it is a nonconsentable conflict under Rule 1.7, because the father was a victim of the crime and a necessary witness for the prosecution, creating a risk of a material limitation on the representation, not merely a conflict arising from the payment of legal fees by the father.

Investigation of Christie Administration Raises Ethics Issues

In class, I have previously asked whether Gibson, Dunn’s representation of the Governor’s office raised conflicts of interest (for contrasting perspectives see here and here) or waived confidentiality by issuing a public report based on evidence gathered during the representation.  The latter question may come up in court in the context of defendant Bridget Kelly’s subpoena of the Gibson, Dunn interviews and notes underlying the report. Given that the trial is currently scheduled for the fall, these facts can also be used for timely hypotheticals.

Conflicts and competence ripped from the headlines…

If you’re teaching conflicts or competence at the moment here are a couple of scenarios to explore, ripped from the headlines over the past week:

  • A recent NYT Deal Book column explores the complications and conflicts associated with a marriage between Mary Jo White as she leads the Securities Exchange Commission and her husband John White as he practices law at Cravath, Swaine and Moore. Apparently she’s had to recuse herself from at least 10 investigations involving Cravath representations in addition to cases involving her former firm Debevoise & Plimpton.