“9th Circuit Clears Firm in Arbitration Disclosure Lawsuit” —

• “Defendants’ counsel in a privately mediated child custody dispute had no duty to disclose to a plaintiff that they retained and appeared before the same mediator in other matters, the U.S. Court of Appeals for the Ninth Circuit held Monday.”
• “The unanimous three-judge panel concluded in an unpublished memorandum opinion ‘that there was no evidence of a conspiracy’ between attorneys at Moore, Schulman & Moore and JAMS mediator Jeannie Lowe solely because they had appeared before the former San Diego County Superior Court commissioner in eight other cases.”
• “Additionally, the court wrote, the Moore Schulman attorneys had no mandate under California law to refrain from hiring Lowe to mediate other matters or to tell the plaintiff, Nicholas Vena, that they had done so.”
• “‘Vena does not cite any relevant cases, rules, or statutes to support either duty,’ stated the opinion signed by Ninth Circuit Judges Jacqueline Nguyen and Daniel Bress as well as Fifth Circuit Judge Stephen Higginson, who sat on the case by designation.”
• “While affirming a district court’s grant of summary judgment for Moore Schulman and attorneys Julie Westerman and David Schulman, the panel criticized Lowe for not disclosing the eight matters the firm had before her.”
• “‘We agree with Vena that Canon 6D(5)(a) of the Code of Judicial Ethics demands more,’ the opinion stated.”
• “The cited canon requires arbitrators to disclose ‘information reasonably relevant to the question of disqualification,’”
• “In a concurrence, Bress wrote that the case highlighted ‘risk areas for retired judges engaging in ‘private judging,’ and the duties of law firms who retain these judges.’ Bress noted that Lowe ultimately recused herself from the case after Vena questioned her impartiality, although she denied having any bias.”
• “‘Although I do not ascribe any wrongful intent to Commissioner Lowe, the outcome here—an expensive, fifteen-day child-custody trial being vacated due to a judge not adhering to continuing disclosure obligations—is unfortunate for everyone involved and should have been avoided,’ Bress wrote.”
• “And while Moore Schulman had no disclosure duty in the Vena matter, ‘with the proliferation of litigants retaining retired judges to resolve their disputes, the subject of potential state-law duties on the part of lawyers is worthy of further consideration by state courts and governing bodies,’ the judge added.”
• “California, like other states, has tried in recent years to impose ethical standards on private judges, particularly in the area of ‘repeat player bias,’ where neutrals’ impartiality may be questioned when parties continue to bring them cases or firms solicit future business from existing clients.”
• “In 2024, California’s Legislature enacted a number of arbitration practice rules, including a prohibition on arbitration companies soliciting future business from a lawyer or litigant with a case pending before a firm neutral. Those changes were primarily aimed at consumer arbitration, however, and they did not take effect until after the Vena matter went to arbitration.”
• “As part of a disclosure package provided to the attorneys, Lowe announced she had an unspecified ‘significant professional relationship’ with Moore Schulman and that she was open to considering some types of work offers from the firms of attorneys in the case, ‘including offers to serve as a dispute resolution neutral in another case.’ The disclosure also stated she wouldn’t disclose to the parties in the Vena case if that happened while the matter was pending.”
• “Nicholas Vena acknowledged the mediator’s recitals and agreed to proceed.”
• “In July 2021, Lowe ordered child and spousal support terms for Christina Vena that Nicholas Vena thought were unfair. Two months later, his attorney sought additional disclosures from Lowe that showed Moore Schulman had eight previously undisclosed mediations with her.”
• “Nicholas Vena sought to disqualify Lowe, citing his inability to continue paying for her services and her undisclosed work with his wife’s firm. A San Diego judge voided Lowe’s orders.”
• “The custody dispute proceeded in San Diego County Superior Court, where, the Ninth Circuit opinion said, the outcome was ‘substantially the same or worse’ for Nicholas Vena. He sued Moore Schulman and the two attorneys representing his wife, alleging a violation of his due process rights.”
• “Caitlin McNair Jones, a Moore Schulman attorney who defended the firm against Nicholas Vena’s lawsuit, said the case represented a ‘bit of a bellwether’ in deciding whether attorneys have an implied duty to ‘police the bench’ in disclosures. Two courts have now decided ‘there isn’t one,’ she said.”

David Kluft asks: “Does my judicial clerkship create a personal interest conflict?”

• “A SD federal court appointed an attorney to represent an incarcerated plaintiff in a civil rights case. The plaintiff objected to the appointment of the attorney on the grounds that she had a conflict of interest, specifically, that she used to be a clerk for the same court about five years earlier.”
• “The Court rejected the notion that a former clerkship with a court was a ‘personal interest’ that created a significant risk that the representation would be limited or that otherwise triggered a conflict under Rule 1.7. Nor was there a rule that a judge cannot preside over a trial in which a former law clerk is counsel.”
• “The Court also devoted a paragraph of the opinion to explaining that the attorney had more experience in prisoner civil rights cases than most lawyers in the state in part because of her work as a clerk (translation: you are lucky to have her so zip it).”
• Decision: here.

“Samuel Alito Has Exposed Himself to Felony Bribery Charges Under New Jersey Law” —

• “In October 2026, the Supreme Court will hear a case called Suncor Energy v. County Commissioners of Boulder County, and Justice Samuel Alito is on track to vote in it. The lead petitioner is a company in which Paul Singer’s hedge fund holds a stake worth roughly 1.97 billion dollars. Singer is the same billionaire who flew Alito to Alaska on a private jet in 2008, in a gift Alito never reported, before Singer’s fund won a case in front of Alito that delivered it 2.4 billion dollars. The Court heard an earlier version of this same Suncor case in 2023, and Alito recused. The case has come back on the same question with the same parties, and this time he has not stepped aside.”
• “That recusal in 2023 and the refusal to recuse now turn on a rule most folks intuitively understand. Recusal is the rule that keeps a gift from becoming a bribe. A judge who takes something of value from a person and then rules on that person’s case has turned the gift into something that looks like payment for the ruling. Recusal is how a judge prevents that: they step aside and never vote, and the gift stays a gift.”
• “Samuel Alito has refused to step aside at least three times in cases tied to the people who gave him things of substantial value, or to the operative who arranged the giving.”
• “Here is the first, and it is the one that built the relationship. In July 2008, Alito flew to a fishing lodge in Alaska on Paul Singer’s private jet, a seat that would have cost more than 100,000 dollars to charter. Leonard Leo arranged the trip. Leo is the operative who ran the campaign to confirm Alito to the Court and who has spent his career connecting wealthy conservative donors to conservative judges. Alito did not report the trip on his 2008 financial disclosure form or on any form afterward, until ProPublica exposed it in 2023. Six years after the trip, Singer’s hedge fund had a case before the Court, Republic of Argentina v. NML Capital. Justice Sotomayor recused. Alito did not. He voted with the majority for Singer’s side, and within two years Singer’s fund collected approximately 2.4 billion dollars from Argentina.”
• “Here is the second. In 2023, Alito sat for two long private interviews with attorney David Rivkin inside his chambers at the Court. At the time, Rivkin was the lawyer of record for the petitioners in a case called Moore v. United States, which the Court agreed to hear in the weeks between the two interviews. Rivkin was also Leonard Leo’s personal lawyer, defending Leo against the Senate subpoenas that grew out of the Alaska trip investigation. Alito refused to step aside from Moore, calling Rivkin a journalist rather than a litigant during those chambers visits. The Court ruled for Rivkin’s clients in June 2024, with Alito in the majority.”
• “The third is Suncor, the vote that is still ahead. Alito owns shares in seven energy companies and a fund that holds ExxonMobil, which is one of the petitioners in the case. He recused from the identical case in 2023 and has not recused now, and Singer’s 1.97 billion dollar position in the lead petitioner ties this vote back to the man who paid for the 2008 trip. One episode looks like a lapse. Three, with the same operative and the same donor running through them, look like a practice.”
• “The thread connecting all three is Leonard Leo. He ran the confirmation, arranged the trip, served as the lawyer in the second episode, and built the donor relationships that reach the third. The case is not that one billionaire bought one vote in a back room. The case is that a single operative built a standing relationship between a justice and the donors whose interests keep arriving at the Court, and the justice continues to weigh in on cases where they should be recusing.”
• “The bar grievance is the solid one. New Jersey, where Alito is admitted to practice law, holds its lawyers to Rule 8.4(d), which forbids conduct that damages the administration of justice. The test the New Jersey courts apply asks whether a reasonable person, knowing the facts, would doubt the judge’s impartiality. A six-figure undisclosed gift followed by a vote worth billions to the giver creates that doubt, and it does so no matter who arranged the seat on the plane or what was said on it. The appearance is the violation. The grievance covers all three episodes.”
• “The criminal referral is the more difficult one, and I will not pretend otherwise. New Jersey’s bribery statute, 2C:27–2, makes it a felony for any person to accept a benefit as consideration for a vote in a judicial proceeding, and the New Jersey Supreme Court confirmed in 2023 that the statute reaches anyone who meets its elements, with no exemption for federal officers. Proving consideration is the demanding part, because it requires showing that Alito understood, when he accepted the benefit, that it was tied to his conduct on the bench. That is why the referral is built around Suncor and made conditional. If Alito steps aside before the vote, the referral falls away. If he sits and votes on a case where Singer holds a near two billion dollar stake, after taking Singer’s gift and ruling for Singer once before, while the conflict sits under public scrutiny, he cannot credibly claim ignorance, and the conduct becomes present and provable rather than a matter of reconstructing what he was thinking in 2008.”

“Law firm Fenwick agrees to pay $54 million in settlement over FTX work” —

• “Prominent U.S. law ‌firm Fenwick & West, which advised FTX before its 2022 blockbuster ‌collapse and bankruptcy, on Friday said it will pay $54 million to resolve claims from FTX ​customers who alleged the firm helped enable one of the largest financial frauds in U.S. history.”
• “A preliminary settlement was filed on Friday in the federal court in Miami, Florida, and will require approval by ‌a judge.”
• “Silicon Valley-founded ⁠Fenwick, known for its work for technology clients, was a lead outside law firm for FTX as the exchange ⁠rose to prominence as one of the largest crypto platforms in the world. Fenwick ‘helped to craft and implement strategies that facilitated FTX’s fraud,’ plaintiffs alleged.”
• “Fenwick in a statement on Friday said it ‘was not aware of the fraud at FTX, stands by the integrity of its legal work, and disputes wrongdoing of any kind, as we have consistently stated ‌throughout this matter.’ The firm, which employs ​more than 500 lawyers, said ‘we look forward to ​putting this matter behind ​us’ and focusing on its business.”