Magistrate Cole has written an opinion denying a motion to disqualify an attorney for a plaintiff class in a class action.
The plaintiffs are represented by Ari Karen. The defendant is the American National Bank. The Bank claimed that Karen formed an attorney-client relationship with the Bank by exchanging confidential information with one of the bank’s management consultants at a seminar. Magistrate Cole rejected the claim and concluded that the Bank’s consultant did not provide credible testimony.
The main issue – whether an attorney-client relationship can arise out of a conversation between the lawyer and the client – is often discussed. Professional responsibility worry-warts argue that a lawyer who answers a question at a party (or at a seminar) can be viewed as entering into an attorney-client relationship with the other party to the conversation. I disagree. I cannot recall a case where an attorney-client relationship was imputed based on a conversation at a party – with no invoice, no time charges, no retainer, no correspondence, and no emails to back it up. I do not know of any case in which the ARDC has prosecuted a lawyer based upon such an informal exchange.
Magistrate Cole has reached the same conclusion. He held that the lawyer’s testimony was more believable than that of the banker and he denied the motion to disqualify. The problem was that the contemporaneous documents, including emails, did not support the testimony of the banker. There was no contemporaneous writing showing any exchange of confidential information. For that reason, the motion to disqualify was denied.
Comment: The opinion is excellent. It thoroughly discusses the competing versions of events and explains exactly why it reached the result it did.
Edward X. Clinton, Jr.