In October of this year, I’ll have the honor of again getting to serve as a moderator for a panel discussion at Aon’s Law Firm Symposium. This year’s event will take place in D.C. The topic of the panel I get to be a part of will be something of a DQ motion boot camp. It is still months away, my guess is that we will be focusing on aspects of disqualification motion proceedings that will be harder to predict than the outcome of this case out of Mississippi should have been.
If you know a little something about conflicts, then you are probably have passing familiarity with all of the core concepts necessary to immediately predict the outcome of the scenario that was involved in McLain v. Allstate decided in the S.D. Miss. I’ll succinctly describe the scenario for you:
Lawyer has had a long term relationship with an insurance company client. That relationship is not as robust as it used to be as the lawyer is continuing to handle quite a few matters for them but has come to notice that no new matters have been coming from the company for quite a while. Lawyer is contacted by a potential client who has a matter that would be adverse to this insurance company client. Lawyer goes ahead and decides to take on the new representation but also terminate the ongoing representation of the insurance company client. Insurance company brings motion to disqualify, and lawyer argues that insurance company client should be treated as former client and disqualification should occur only if new matter is substantially related to prior matters.
How will lawyer fare?
I have no doubt you answered this correctly. Not well, the lawyer will not fare well. The lawyer will get disqualified. The court will explain that a lawyer cannot drop one client like a “hot potato” in order to transform them into a former client so that you can take on representation of a new client.
Thus, for you Dear Reader, almost all of the contents of the seven-page order disqualifying this lawyer will come as no surprise.
What might come as a surprise to you – it certainly surprised me — is that the federal judge who ordered disqualification actually included a sentence praising the lawyer involved for how he handled the situation. Specifically:
[Lawyer] undertook commendable efforts to insulate himself from a conflict of interest by declining to discuss or investigate McLain’s claims until after [Lawyer] promptly and formally terminated the firm’s relationship with Allstate.
I know people often accuse me of being stingy in terms of doling out praise, but that sentence just leaps off the page as trying too hard to find something nice to say. Commendable seems a stretch. Particularly so given that when you work your way back earlier in the opinion itself where it lays out the chronology of events, you will find that the lawyer in question had the new client sign a contract with his firm on October 11, 2016 and, then, on October 12, 2016 sent the letter that attempted to drop Allstate like a tuber of elevated-temperature.
If any aspect of the lawyer’s effort is commendable (and I’m still stretching the utility of the word itself), it would be the whole not-being-very-Machiavellian about it angle. A truly Machiavellian type would have done more to attempt to manipulate the timeline of events. Perhaps, having the new client execute an engagement letter, only after the lawyer had time to send the letter to terminate the current client relationship. I’m not sure that not doing that qualifies as “commendable” exactly. But it’s something. As long as it was very close in time, the potato would still be hot and the outcome unchanged, but … like I said it would be something.