David Kluft asks: “Do I have a duty to Google the opposing party?” —
- “A NJ/MI attorney admitted pro hac vice in E.D. PA brought a 1983 Civil Rights Action against Valley Forge Military Academy on behalf of a student who was expelled following an alleged sexual assault. The problem was that the defendant is obviously not a government actor, so a 1983 action was not appropriate.”
- “Even after the defendant informed him of this, he waited months before amending it into a Title IX claim, in the meantime forcing the defendant to file a motion to dismiss a claim everyone knew was frivolous.”
- “The attorney claimed that the error was not his fault but was the result of his staff checking the wrong box on the intake form. He relied entirely on the intake form rather than doing any research or apparently even meeting with his own client.”
- “The Court held that ‘basic due diligence’ requires at a minimum, ‘having direct contact with the client and conducting a simple Google search’ on the defendant.”
- “Unhappy that the lawyer ‘could not even be bothered to Google search the Defendant,’ the Court further explained how easy it would have been, noting that ‘upon launching Defendant’s website, it becomes immediately apparent that Defendant is a private institution. Indeed, one need not even open their website, as Google’s website preview says as much.’”
- “The Court sanctioned the lawyer over $5k in attorneys’ fees and ordered CLE classes for him and his staff (the sanction was for this misconduct as well as for not sufficiently anonymizing the sexual assault victim’s name). The Court honored his request to sanction him under its inherent authority and not Rule 11 because the lawyer did one thing right – he accepted all the blame and exonerated local counsel.”
- Order: here.
- “Kirkland & Ellis has parted ways with client Optimum Communications after the telecommunications company sued a group of major leveraged finance players for alleged antitrust violations. It’s at least the second time since 2020 that Kirkland has split with a client that was in a feud with the law firm’s larger, more profitable clients in private capital.”
- “The developments highlight the potential business conflicts that any firm can encounter between its company-side representation and private equity representation.”
- “But for Kirkland especially, the stakes are high, with its PE clients providing significant business for the firm and supporting the firm’s rapid growth in the past two decades, helping Kirkland become the largest firm in the world by revenue. At the same time, Kirkland has a large company-side representation practice in restructuring matters, and it’s one of the top firms in representing Chapter 11 debtors.”
- “Kirkland & Ellis didn’t represent Optimum in the antitrust litigation against the leverage finance clients—lawyers at Kellogg, Hansen, Todd, Figel & Frederick did. Kirkland represented Optimum in a transactional matter last year.”
- “However, some members of the creditor group had privately accused Kirkland of being involved in the antitrust lawsuit, according to media reports.”
- “One source familiar with the matter said that accusation may have stemmed from Kirkland debt finance partner David Nemecek’s comments at Bloomberg’s Global Credit Forum last year, where Nemecek raised antitrust concerns over credit market cooperation agreements. Nemecek didn’t immediately return a message seeking comment.”
- “The split with Optimum Communications was reported by the Wall Street Journal on Monday. Sources confirmed Kirkland was the party to initiate the split.”
- “In a statement to Law.com, Optimum said: ‘We do not expect this change to affect our ability to engage with our creditors. We remain focused on taking steps to ensure we have a capital structure that supports the long-term health of the business and intend to retain new legal counsel in the near-term.’”
- “While a Kirkland representative didn’t immediately reply to a message seeking comment, a firm representative told the Journal that the firm ‘does not sue clients and did not here’ and had no role in preparing the lawsuit, ‘which was underway before the firm started working for the company.”
- “Rather, the firm ‘did this to dissociate from the lawsuit.’ It also alluded to an increased emphasis on discipline in its liability management practice, which will continue ‘in ways consistent with market practices, in contrast to hyper-aggressive tactics.’”
For more, see: “Star Kirkland & Ellis partner’s future in doubt as firm sides with PE in legal tactics dispute.“
Stephan is the sports journalist for the Maple Grove Report.
