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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-5162" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2020/07/Disqualification2-300x139.jpg" alt="" width="300" height="139">A New York district court judge last month <a href="https://filehost.thompsonhine.com/uploads/1-18-cv-08913_Opinion_7caf.pdf">disqualified a firm</a> representing hundreds of 401(k) plan participants based on a conflict of interest.&nbsp; The judge called the risks posed &ldquo;endless,&rdquo; and requested additional briefing on whether the firm would be allowed to remain as counsel in related arbitration proceedings in Missouri.&nbsp; The ruling spotlights the sometimes-thorny conflict issues that can arise in ERISA litigation.
Litigation in the Empire State; arbitration in the Show-Me State
Several related actions are pending in the Southern District of New York centering on the plan and its administration.&nbsp;&nbsp;In two of the actions, The Klamann Law Firm represented profit-sharing plan participants who alleged ERISA violations based on several breaches of fiduciary duty against the participants&rsquo; employer, the trust investment manager and the plan advisory committee along with the advisory committee&rsquo;s&nbsp;individual members.
At the same time, in Missouri, The Klamann Law Firm was representing a number of claimants, including three individual former members of the plan advisory committee, in arbitration proceedings against the employer and the trust investment manager.&nbsp; Claimants&rsquo; claims in the arbitration were nearly identical to the litigation claims asserted in the two New York district court cases.
The defendants in the district court cases moved to disqualify The Klamann Law Firm, asserting that in suing the plan advisory committee and its individual members, the firm was essentially suing its own clients, raising a disqualifying current-client conflict of interest.
The district court agreed.
&ldquo;Broad discretion&rdquo;
Citing its broad discretion to invoke the &ldquo;drastic remedy&rdquo; of disqualification whenever a lawyer&rsquo;s conduct &ldquo;tends to taint the underlying trial,&rdquo; the district court noted that the Second Circuit considers adverse representation of current clients improper per se.&nbsp; The burden is on the lawyer to show that there will be no actual or apparent conflict in loyalty or &ldquo;diminution in the vigor of [the lawyer&rsquo;s] representation.&rdquo;
The court noted that claims in the New York District court complaints made it &ldquo;evident&rdquo; that plaintiffs intended to sue both the employer and the plan advisory committee for fiduciary breaches committed while two and possibly all three of the individual members were on the committee &mdash; the same members The Klamann Firm was representing as claimants in the Missouri arbitration.
&ldquo;The risks posed by this scenario are endless,&rdquo; the court wrote, brushing away plaintiffs&rsquo; arguments.&nbsp; The court rejected contentions that the DQ motion was merely a &ldquo;strategic tool,&rdquo; and that the law firm&rsquo;s clients would suffer undue prejudice from its disqualification.
The court was harsh in discussing the contention that the district court complaints should be read to allege claims only for conduct after the three advisory committee members had left the committee.&nbsp;&nbsp;To the court, that raised the possibility that the firm was &ldquo;improperly&rdquo; seeking to &ldquo;limit the scope&rdquo; of the assertions in the district court complaints &ldquo;simply to preclude liability against [the] arbitration clients.&rdquo;&nbsp; &nbsp;It is not possible, the court wrote, to &ldquo;amend[] a complaint to erase the appearance of concurrent representation.&rdquo;
Take-aways
Some key take-aways from this disqualification opinion:
<ul>
<li>Like many federal courts ruling on disqualification motions, the court here said it would look to state disciplinary rules, but that they &ldquo;merely provide general guidance,&rdquo; and that a violation of a lawyer conduct rule will not necessarily spell disqualification.</li>
<li>Although the court did not cite it, the relevant rule here is <a href="https://nysba.org/app/uploads/2020/02/NEW-YORK-RULES-OF-PROFESSIONAL-CONDUCT.pdf">New York&rsquo;s version</a> of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/">Model Rule 1.7</a>, which provides that a conflict of interest exists when a lawyer concurrently represents clients with &ldquo;differing interests,&rdquo; even when the matters are unrelated.</li>
<li>Under many circumstances, a current-client conflict is waivable if each client gives informed consent.&nbsp; Timing is everything, however.&nbsp; Here, the firm said it had obtained consent of its clients &mdash; but only too late, wrote the court.&nbsp; Consent &ldquo;needed to be obtained prior to ... undertaking representation of adverse interests, not in response to a motion to disqualify.&rdquo;</li>
</ul>
The National Association of Plan Administrators has <a href="https://www.napa-net.org/news-info/daily-news/5-things-your-plan-committee-members-need-know">commented on a &ldquo;spate&rdquo; of ERISA litigation</a> that includes claims against plan advisory committees and their members, and has called for better member education about the risks, including potential personal liability.&nbsp;&nbsp;The conflict issues that arise for lawyers demand equal attention and caution.
*This post originally appeared in <a href="https://www.erisalitigation.com/">ERISA Litigation</a>.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Citing “endless risk,” district court DQ’s firm from 401(k) case