BC Waived Conflict re: Mark NJ repping TES- what does this mean?

[Chezhire]

BC doesn't work in a vacuum and neither does MN. I am sure MN obtained a waiver from the Anthonys when MN first agreed to represent TES several months ago. BC would have discussed this with his clients prior to showing up in court to let the judge know that his CLIENTS waive the conflict issue.

Salem

ITA with what Salem wrote above.

In regards to why/how Mark N choose to handle this "non-issue" being raised by JBaez today, I would have handled it a bit differently: I'd have waited to see if Judge Strickland, without any help from me, would have explained to JBaez that the issue of waiver vs. non-waiver of a conflict is NOT relevant to the case-in-chief against his client, Casey, and is something that is supposed to be handled by the FL bar association (See bunnyphoenix1's post #4 on this thread citing the FL bar association's rules, here: http://www.websleuths.com/forums/showthread.php?p=3238273#post3238273) and that if he wanted to pursue it, he should file a complaint like any other lawyer. (Yes, this is yet another issue that does not belong in the case-in-chief against Casey.) I would have had Brad C there if necessary, but I wouldn't have asked that he address the court unless the judge was inclined to hear about it over my objection that any such argument was irrelevant to the proceedings and something that should be brought to the bar - not the court.

M. Nejame sent someone out into the hall as soon as Baez began his objection to Nejame representing TES and suggesting it was a conflict of interest. Immediately thereafter, BC rolled into court. As soon as Baez was done, Nejame asked if BC could address the court with information directly relating to the objection Baez had just made. BC then rolled forward and stated that his clients knowingly waived conflict with Nejame representing TES. I think it was very smart of Nejame to anticipate the objection (and incredible that Baez thought ahead to object to it) and point goes to Nejame to have put an end to it right then and there. Baez has nowhere to go with it later on if he thinks ahead to perhaps needing an appeals basis.

I believe that, like most attorneys do before a hearing, they had all spoken prior to the hearing and that JBaez told Mark N and Brad C that he planned to air the subject to Judge Strickland.

 

[bunnyphoenix1]

I disagree. It's not confidenitality that is being waived. It's a possible conflict of interest claim. JB was not going to go anywhere with his complaint about possible conflict because such a claim likely would not get very far. MN is not w g with the prosecution, he's working with TES and MN never represented the defense. He represented the Anthonys, as private citizens, who are NOT parties to the case. I don't think it can be shown that TES are on opposite sides from the Anthonys in any case the Anthonys have. They don't have one.
Also, BC was saying that his clients waive conflict so that will not be an issue that holds up discovery, then further holding up the case, causing an innocent casey to be held in jail longer than she should. So, there is no real conflict, IMO and JB knows it and BC knows it and neither want to run with that theory, holding up trial unnecessarily.

That's why it's considered a conflict of interest....because MN is in
possession of confidential information by virtue of his representing the As.

If the As contest that they gave such a waiver, and the attorneys do not have it in writing, they may find themselves in some very hot water.

You don't have to show they are on opposite sides....I've cut and pasted the relevant bar rules below.

And how do you think this is holding up the trial? The SA already made it clear they don't know they'll be ready even late this year?

Where do you think MN got his info to question the sources of JB's funding in his motion if not from the information he became privy to during the course of representing the As? I doubt he drafted it based on rumour alone.

RULE 4-1.9 CONFLICT OF INTEREST; FORMER CLIENT

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or

(b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.

I also believe it must be "informed consent confirmed in writing".

 

[Chezhire]

I disagree. It's not confidenitality that is being waived. It's a possible conflict of interest claim. JB was not going to go anywhere with his complaint about possible conflict because such a claim likely would not get very far. MN is not working with the prosecution, he's working with TES and MN never represented the defense. He represented the Anthonys, as private citizens, who are NOT parties to the case. I don't think it can be shown that TES are on opposite sides from the Anthonys in any case the Anthonys have. They don't have one.
Also, BC was saying that his clients waive conflict so that will not be an issue that holds up discovery, then further holding up the case, causing an innocent casey to be held in jail longer than she should. So, there is no real conflict, IMO and JB knows it and BC knows it and neither want to run with that theory, holding up trial unnecessarily.

gitana1 - I agree with you. I was clearing up other procedural issues before addressing whether or not I think there is a conflict of interest that even had to be waived.

For the record, (1) neither George nor Cindy are defendants or persons-of-interest in the criminal proceedings, (2) just because George and Cindy didn't "like" Tim M and/or TES and/or were angry about the searches at the time they were ongoing doesn't mean there's a legal conflict or that their positions are materiallya dverse, (3) I don't see any materially adverse positions to cite to, and, therefore, I see no actual conflict of interest. IMHO, the FL bar association's rule 4-1.9, as quoted in post #3 by bunnyphoenix1, here: http://www.websleuths.com/forums/showthread.php?p=3238273#post3238273, regarding conflicts would not be applicable re: Mark N going on to represent TES following the conclusion of his representing George and Cindy.

I would feel differently if Mark N were trying to represent George & Cindy A AND TES during the searches that became so contentious - but they were over prior to Mark N accepting TES's representation.

 

[RR0004]

That's why it's considered a conflict of interest....because MN is in
possession of confidential information by virtue of his representing the As.

If the As contest that they gave such a waiver, and the attorneys do not have it in writing, they may find themselves in some very hot water.

You don't have to show they are on opposite sides....I've cut and pasted the relevant bar rules below.

And how do you think this is holding up the trial? The SA already made it clear they don't know they'll be ready even late this year?

Where do you think MN got his info to question the sources of JB's funding in his motion if not from the information he became privy to during the course of representing the As? I doubt he drafted it based on rumour alone.

RULE 4-1.9 CONFLICT OF INTEREST; FORMER CLIENT

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or

(b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.

I also believe it must be "informed consent confirmed in writing".

In regards to A...I don't see the adversity.
If I'm not mistaken he's till bound to hold As secrets.

There is no conflict IMO.

 

[bunnyphoenix1]

gitana1 - I agree with you. I was clearing up other procedural issues before addressing whether or not I think there is a conflict of interest that even had to be waived. For the record, neither George nor Cindy are defendants or persons-of-interest in the criminal proceedings and, therefore, there would be no conflict of interest. The FL bar association's rule 4-1.9, as quoted in post #3 by bunnyphoenix1, here: http://www.websleuths.com/forums/showthread.php?p=3238273#post3238273, regarding conflicts would not be applicable to persons who aren't parties to a suit.

I don't think the Bar Rules require G & C to be co-defendants or persons of interest...the test is whether "they represent another person in the same or a substantially related matter...", not whether they are or may be co-accused. I think this is the same matter, unless I see a retainer which states that he was to advise them in a different case.

I think the real issue is whether it could be demonstrated that "that person’s interests are materially adverse to the interests of the former client" or whether he has used information he received from the As, to their disadvantage.

And I think we would have to see the scope of MN's retainer with them to determine some of these issues, assuming they did not obtain informed consent, and perhaps they did.

RULE 4-1.9 CONFLICT OF INTEREST; FORMER CLIENT

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or

(b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.

 

[gitana1]

That's why it's considered a conflict of interest....because MN is in
possession of confidential information by virtue of his representing the As.

If the As contest that they gave such a waiver, and the attorneys do not have it in writing, they may find themselves in some very hot water.

You don't have to show they are on opposite sides....I've cut and pasted the relevant bar rules below.

And how do you think this is holding up the trial? The SA already made it clear they don't know they'll be ready even late this year?

Where do you think MN got his info to question the sources of JB's funding in his motion if not from the information he became privy to during the course of representing the As? I doubt he drafted it based on rumour alone.

RULE 4-1.9 CONFLICT OF INTEREST; FORMER CLIENT

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or

(b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.

I also believe it must be "informed consent confirmed in writing".

Opposite sides is a just a simple way of saying two parties having materially adverse interests in a substantially related matter. I don't think TES and the Anthonys have materially adverse interests. MN is representing TES in the motion brought by JB on behalf of casey. TES does not want to have to disclose thousands of people's names, etc. MN did NOT represent the Anthony's in a substantially related matter. Instead, he represented them in connection with keeping Caylee's case before the public and in massaging their own public image. These are very different matters.

I for one do not think that any of this is holding up the trial. I think that is what BC and JB may be thinking.

As to your last question, I did not hear MN questioning JB's funding, but assuming this is so, the Anthonys have already stated several times publicly that they have no clue how casey is paying the fees. I don't see any breach of confindentiality or conflict issue there.

 

[Chezhire]

SNIPPED: "That's why it's considered a conflict of interest....because MN is in
possession of confidential information by virtue of his representing the As...."

The only way that any confidential information Mark N possesses by virtue of his representing Cindy & George A would preclude his representing TES is if the confidential information is directly related to the matter that TES desires to retain him to handle.

Applying that to the present situation, Mark N has been retained by TES to represent its interests in protecting its searchers' privacy, etc., in regards to Casey A's defense team's requests for information about same. Therefore, the ONLY way there could be a conflict is if Mark N's former clients, Cindy and George A, related/discussed information with Mark N (thereby making it privileged and confidential) that bears upon this request that Mark N has been retained by TES to handle - and we all know that neither George nor Cindy A have had any such info.

The point is: just because a lawyer has previously represented folks who were on different sides of a fence does not mean he can't represent the other side later on. Attorneys do know how to keep their mouths zipped re: confidential information given to us by our clients and in this case, I can't imagine Mark N possessing anything by vitrue of his representing George and Cindy that would have anything to do with Casey's defense team's requests for information from TES.

 

[Chezhire]

I don't think the Bar Rules require G & C to be co-defendants or persons of interest...the test is whether "they represent another person in the same or a substantially related matter...", not whether they are or may be co-accused. I think this is the same matter, unless I see a retainer which states that he was to advise them in a different case.

I think the real issue is whether it could be demonstrated that "that person’s interests are materially adverse to the interests of the former client" or whether he has used information he received from the As, to their disadvantage.

And I think we would have to see the scope of MN's retainer with them to determine some of these issues, assuming they did not obtain informed consent, and perhaps they did.

RULE 4-1.9 CONFLICT OF INTEREST; FORMER CLIENT

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or

(b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.

See my above post.

There's no need to see anyone's retainer with Mark N - unless one believes that George or Cindy A possessed information that is responsive to Casey's defense team's requests for TES' records - which is what Mark N has been retained by TES to prevent being turned over.

 

[lawlady84]

From the Florida Bar Rules...

RULE 4-1.9 CONFLICT OF INTEREST; FORMER CLIENT

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or

(b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.

I only have the Model ABA Rules (should be identical to FL), but the 2nd part is that even if there is a potential conflict, if both parties consent, the conflict is waived:

Rule 1.7 Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.


I think BC/GA/CA were just giving their consent, in case any conflict ever arose - they basically insured that no one (cough JB cough) could in the future bring a complaint against MN. Probably not necessary IMO, but with the As, MN is probably relieved to not have to think about having ethics problems in the future

 

[angeleleven]

is it common for an attoryney to interject himself in every area of the case such as bc has done???? Seems like he is everywhere and anywhere.....tia

Yes, he's a little 'busy body'.

 

[lawlady84]

Ooops I cited "current client;" its materially the same for former client:

Rule 1.9 Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client,
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer has acquired information protected by Rule 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

 

[lawlady84]

Just saw this Rule...

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

 

[bunnyphoenix1]

The only way that any confidential information Mark N possesses by virtue of his representing Cindy & George A would preclude his representing TES is if the confidential information is directly related to the matter that TES desires to retain him to handle.

Applying that to the present situation, Mark N has been retained by TES to represent its interests in protecting its searchers' privacy, etc., in regards to Casey A's defense team's requests for information about same. Therefore, the ONLY way there could be a conflict is if Mark N's former clients, Cindy and George A, related/discussed information with Mark N that bears upon this request that Mark N has been retained by TES to handle - and we all know that neither George nor Cindy A have had any such info.

This is not occurring in a vaccum. Mark N was retained by TES to argue a subpoena matter in a case in which he has already represented an interested party, two in fact. And during the course of that representation, his client's would have no doubt provided him with information about their daughter's case, information that they should have been able to assume would stay confidential, and presumably it has been treated that way. If during the course of representing TES, he used the information he received from the As re how Baez was being paid, to assist him in his application to set aside the TES subpoena (the paragraph re the funding), then in my respectful opinion that would be a clear conflict of interest and he would require a waiver to use that info in that way.

The lawyers in this case appear to have thought it necessary to obtain the waiver, and I think it was prudent for them to do so.

 

[Chezhire]

I know! But it does appear there may be a rift b/w BC & JB and perhaps they didn't talk. If JB knew there was a proper waiver in place beforehand, presumably he would not have raised it.

Like I said earlier in this thread - substantively, it's a non-issue, and there was no need for any waiver. Even if there were a need for a waiver, I can just hear JBaez arguing something along the lines of "no, only my client can waive that, etc." Some attorneys just don't "get it" no matter how hard you try to help them, and they get theirs handed to them by the judge(s.)

 

[Chezhire]

This is not occurring in a vaccum. Mark N was retained by TES to argue a subpoena matter in a case in which he has already represented an interested party, two in fact. And during the course of that representation, his client's would have no doubt provided him with information about their daughter's case, information that they should have been able to assume would stay confidential, and presumably it has been treated that way. If during the course of representing TES, he used the information he received from the As re how Baez was being paid, to assist him in his application to set aside the TES subpoena (the paragraph re the funding), then in my respectful opinion that would be a clear conflict of interest and he would require a waiver to use that info in that way.

The lawyers in this case appear to have thought it necessary to obtain the waiver, and I think it was prudent for them to do so.

I think the lawyers in this case just took the quickest path out of JBaez' rambling, off-track detour with this nonsense motion he filed - have Brad C appear before Judge S to quickly do away with the non-issue. I'm a conservative lawyer and I'd have handled all of it differently, if there were an issue (all of my earlier posts address this as a "non-issue,") but we all have our own style.

 

[bunnyphoenix1]

Like I said earlier in this thread - substantively, it's a non-issue, and there was no need for any waiver. Even if there were a need for a waiver, I can just hear JBaez arguing something along the lines of "no, only my client can waive that, etc." Some attorneys just don't "get it" no matter how hard you try to help them, and they get theirs handed to them by the judge(s.)

We will have to agree to disagree on this.

I think it was prudent for them to obtain the waiver. Do you really think it was a waste of time on their parts? Why do you think they did it if it was a "non-issue" and why do you think BC felt it necessary to put it on the record that he had a waiver, instead of telling the Court he didn't need one?

 

[SoCalSleuth]

First, I don't see any conflict. MN was hired to aid the Anthonys in media appearances. The Anthony's are not parties to this case. TES hired MN to aid them in a subpoena as a third party to the case. It's mixing apples and oranges. Second, MN is too good of a lawyer to represent anyone if there is a conflict or if there is, without having that conflict waved beforehand. Second, BC's appearance was bizarre and definitely not actually related to telling the court the Anthony's waived any conflict--although that was the pretense. Again, the Anthony's are not parties to this case --they have no standing whatsoever to appear in this case themselves or via their attorney. Because they lack standing to appear the court has absolutely no jurisdiction over them or their former attorney or any purported conflict there may be. That's why he told Baez to file a complaint with the Bar if he had a problem with MN's representation.

 

[Chezhire]

We will have to agree to disagree on this.

I think it was prudent for them to obtain the waiver. Do you really think it was a waste of time on their parts? Why do you think they did it if it was a "non-issue" and why do you think BC felt it necessary to put it on the record that he had a waiver, instead of telling the Court he didn't need one?

:waitasec: We don't know whether or not any "waiver" was obtained prior to today. No, I don't think today's hearing was BC's or MN's waste of time - JBaez had filed yet another ridiculous motion and they had to appear and short-circuit it as fast as possible, which they did. ***Remember: JBaez was the one who raised this "conflict" non-issue - not Mark N or Brad C.

I'm not interested in arguing with you. I get enough of that with other attorneys on a daily basis. The beauty of WS is that we can agree to disagree.

 

[bunnyphoenix1]

I only have the Model ABA Rules (should be identical to FL), but the 2nd part is that even if there is a potential conflict, if both parties consent, the conflict is waived:

Rule 1.7 Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.


I think BC/GA/CA were just giving their consent, in case any conflict ever arose - they basically insured that no one (cough JB cough) could in the future bring a complaint against MN. Probably not necessary IMO, but with the As, MN is probably relieved to not have to think about having ethics problems in the future

ITA. It also means C & G can't complain about MN representing TES in the future. In my experience, clients often turn on their lawyers, and I think it was prudent for them to get it, assuming that's what they did.

 

[Chezhire]

First, I don't see any conflict. MN was hired to aid the Anthonys in media appearances. The Anthony's are not parties to this case. TES hired MN to aid them in a subpoena as a third party to the case. It's mixing apples and oranges. Second, MN is too good of a lawyer to represent anyone if there is a conflict or if there is, without having that conflict waved beforehand. Second, BC's appearance was bizarre and definitely not actually related to telling the court the Anthony's waived any conflict--although that was the pretense. Again, the Anthony's are not parties to this case --they have no standing whatsoever to appear in this case themselves or via their attorney. Because they lack standing to appear the court has absolutely no jurisdiction over them or their former attorney or any purported conflict there may be. That's why he told Baez to file a complaint with the Bar if he had a problem with MN's representation.

Yep. Exactly what I said earlier.