David Kluft, Assistant Bar Counsel at Massachusetts Office of Bar Counsel, notes another recent Ohio opinion:
- “If I appear before a Judge who my partner represents in an unrelated matter, does the judge have to recuse? The Ohio Bd. Of Prof. Conduct opined that a judge must recuse herself if her own lawyer appears before her. However, the opinion also states that the judge would not have to recuse herself if someone else from the same firm appeared before her.”
- “To my understanding, this NOT the rule in other states. If a judge is represented by a lawyer at a firm, she is represented by the firm and should recuse from cases involving that firm. The only citation in the opinion for the opposite proposition is a matter in which conflicts were not imputed among lawyers of the same Attorney General’s office. Perhaps the appearance of bias could be rebutted in the unique case of an AGO, which is massive and must necessarily represent judges in some cases, but how can anyone seriously justify applying it to say, a two-person law firm that represents a judge in a private matter?If I’m crazy, you tell me. Anyway, good luck to Ohio lawyers.”
- See the complete opinion.
“Revoking Security Clearances: How Bad Could It Get for Lawyers?” —
- “Washington lawyer Mark Zaid’s security clearance gives him access to information, like whether a client works for the Central Intelligence Agency and what happened to the US intelligence officers he represents who are suffering from ‘Havana Syndrome.’”
- “Zaid is one of a relatively small number of lawyers with ‘full’ security clearances, he says, listed in databases with mysterious titles such as the Director of National Intelligence’s ‘SCATTERED CASTLES’ and ‘DISS’ at the Defense Department. The status, which Zaid has had for 23 years, allows him to be quickly granted access to classified material impacting his clients.”
- “Now Zaid is part of another select group of lawyers: Those whose security clearances President Donald Trump wants to revoke. He believes he’s being retaliated against for representing a whistleblower whose claims led to Trump’s first impeachment.”
- “‘That is not how this system ever has worked,’ Zaid said in an interview. ‘It is unprofessional, un-American, unethical, and just in total poor taste.’”
- “The president also is pulling clearances for lawyers at two major firms, Perkins Coie and Covington & Burling. The moves sent shock waves through the legal industry, but it’s unclear how much impact they will have on the firms’ bottom lines.”
- “‘For a lawyer that practices in the security or intelligence arena, the fact that your clearance has been revoked could have a substantial impact on their business,’ said Greg Rinckey, a former Army Judge Advocate General who represents clients in security clearance matters. ‘That’s because they aren’t able to review classified documents anymore or have access to specific buildings.’”
- “It’s unknown how many attorneys at Perkins Coie and Covington have been granted clearances. Lawyers do not typically advertise their security clearance status.”
- “Critics slammed the orders as attempts to chill lawyers from representing parties adverse to the president and his administration. Perkins Coie intends to challenge the order against the firm, which it called ‘patently unlawful.’”
- “Many lawyers receive clearances on a case-by-case basis, national security experts said. A federal agency will sponsor the lawyer’s request for a clearance, allowing the attorney to review classified evidence in a specific case. The clearances can grant lawyers access to certain federal buildings or to secure rooms where the evidence is kept, known as SCIFs.”
- “That became an issue in the criminal case against Trump over his possession of classified documents at Mar-a-Lago. Trump’s lawyers objected to the government’s request that they only access the classified material in a SCIF. They applied for security clearances to see the documents themselves.”
- “Big Law firms like Perkins and Covington could be more significantly impacted if they are handling major litigation or transactional matters for defense contractors interacting with the federal government. Those companies’ lawyers often require security clearances, experts said.”
- “Perkins Coie’s clients include massive contractors like Boeing, Microsoft, Noble Supply, and Northrop Grumman, according to its website. Covington’s government contracts practice represents ‘large aerospace and defense contractors,’ according to its website.”
- “Zaid read about his security clearance being potentially revoked in a February New York Post report. He’s heard nothing since, and said he still maintains his clearance. Losing it would not significantly impact him from a financial standpoint, Zaid said, because much of his work requiring a clearance is done on a pro bono basis.”
- “The real victims of the moves will be clients who need lawyers with security clearances, he said. That includes Trump administration officials.”
- “‘I’ve helped a number of people already who are senior in the administration to ensure that they have security clearances,’ Zaid said. ‘I am not political, regardless of what they want to make me out to be.’”
“Judge Won’t Disqualify Firm In Solar Co. Fraud Fight” —
- “A federal judge denied Michigan residents’ attempt to disqualify attorneys representing a bankrupt solar company’s former founding CEO in their fraud case, holding that the law firm’s allegedly obstructionist discovery tactics don’t amount to an actual conflict of interest.”
- “Plaintiffs claiming deceptive sales tactics left them stuck with overpriced solar systems that don’t work or deliver promised energy savings argued that DarrowEverett LLP’s stonewalling is driven by various conflicts, including in-house counsel work for Power Home Solar, which is now operating as Pink Energy, and its representation of former CEO William ‘Jayson’ Waller in nearly two dozen similar lawsuits.”
- “‘It seems that fundamentally, plaintiffs’ issue is with [DarrowEverett] and Waller’s discovery practices,’ the judge said in an opinion issued on Wednesday. ‘Alleged bad behavior in discovery is not a conflict of interest, nor does it appear that the alleged bad behavior here resulted from actual, unwaived conflicts of interest.’”
- “At a hearing in January, the Michigan residents charged that Waller’s counsel have purposefully stymied discovery based on multiple conflicts of interest, and that the delays have destroyed their case schedule.”
- “According to the judge, however, Waller and a number of nonparties that the residents have subpoenaed have all consented to DarrowEverett representing them, something the firm provided signed conflict waivers to prove.”
- “‘Under the applicable rules of professional conduct, such a waiver ends this inquiry,’ the judge said in the decision.”
- “The judge also rejected assertions that the New York-based firm is limited in its ability to represent Waller based on its own self-interests under the Model Rules of Professional Conduct, since some of its lawyers, including Zachary Darrow, are likely to be witnesses in the litigation.”
- “While the law firm acknowledged that Darrow may be a witness if the suit proceeds to trial, the judge said, it also rightly argued that such a situation does not warrant a disqualification as things stand now.”
- “‘[DarrowEverett] argues that neither rule 1.7 nor 1.9 are at issue because any conflict has been waived and moreover, any such disqualification is premature until the time of trial,’ the judge said. ‘[DarrowEverett’s] analysis of this issue is correct and disqualification of Mr. Darrow is not warranted at this time.’”
