David Kluft asks: “Can ‘per diem’ or ‘appearance’ attorneys be adverse to clients of their frequent lawyer customers?” —

• “The NY State Bar issued an opinion addressing conflict analyses for ‘per diem’ or ‘appearance’ attorneys, i.e., lawyers who other lawyers hire to make discrete one-time appearances to cover court conferences and the like.”
• “For the most part, the same conflict rules apply to them as everyone else. There was one question particular to appearance lawyers, which is whether an appearance lawyer can be adverse to a frequent customer, i.e., be adverse to a client represented by a lawyer who has or will hire them as appearance counsel in other matters.”
• “The bar opined that this could be a personal interest conflict for the appearance lawyer under Rule 1.7(a)(2) and, depending on how close the business relationship between appearance lawyer and lawyer customer is, the client’s informed consent may be required.”
• Opinion: here.

“Atty Seeks Docs To Back Ogletree DQ Bid In Bias Suit” —

• “A Georgia attorney on Monday asked a federal judge to allow discovery related to her bid to have Ogletree Deakins Nash Smoak & Stewart PC disqualified from defending ADT LLC against discrimination claims while concurrently defending Microsoft Corp. in the attorney’s own pregnancy bias suit.”
• “Amber Montgomery of ALM Legal LLC, who represents plaintiff Trinity Moore in the ADT discrimination suit, told the Georgia federal judge that in order to back claims that her attempt at disqualifying the firm is ‘speculation,’ Ogletree should be required to produce documents related to the potential conflict of interest incurred by working on both the ADT and Microsoft matters along with any communications between the attorneys working the two suits.”
• “In late April, Ogletree said on behalf of ADT and benefits administrator Matrix Absence Management that Montgomery’s motion to disqualify it should be tossed, arguing that the two matters are wholly separate and unrelated, so there’s no conflict. The firm said the legal theories, clients, factual bases and allegations in Moore’s case and Montgomery’s case are different.”
• “‘Defendants cannot have it both ways,’ Montgomery’s Monday motion said. ‘They cannot demand denial of the motion to disqualify on the asserted ground that plaintiff’s allegations are ‘speculation’ while opposing the very discovery that would convert speculation into either established fact or refuted theory. The choice before the court is not between plaintiff’s narrative and defendants’ narrative.’”
• “Montgomery is looking to have Ogletree produce information related to the timing and content of the firm’s conflict check procedures, a possible chain of communications between its Atlanta office and ADT during a late-January period in which Moore was terminated from her job at the company and the supervisory and reporting relationships between the attorneys who worked the two suits.”
• “‘It is between resolving the disqualification motion on a developed record — with conflict-check documents, the relevant communications, and limited testimony from the two attorneys at the center of the disputed events — or resolving it on defendants’ unsworn rhetorical characterizations of facts within their exclusive possession,’ Montgomery’s motion”
  said.”
• “Montgomery, a former Microsoft senior program manager, sued the software giant in 2025 for allegedly terminating her in 2024 after she announced she was pregnant and sought medical leave for pregnancy-related complications.”
• “Shortly after taking on the ADT suit in March, Montgomery argued that Moore may have faced negative repercussions from Ogletree’s involvement in both cases and that the day after Montgomery said she filed a response cooperating with Microsoft’s bid to transfer her case from Georgia federal court to Washington federal court, she said ADT terminated Moore in a phone call.”
• “‘Information about Ms. Montgomery’s litigation approach, case strategy, and professional vulnerabilities gained in the Microsoft case is institutionally available to Ogletree attorneys in this case,’ Montgomery’s motion said. ‘The termination of plaintiff one day after a strategic event in the Microsoft case, upon information and belief, is circumstantial evidence that this cross-contamination has already occurred.’”
  “Montgomery said that while the Southern District of Georgia, where the ADT suit is filed, doesn’t provide a special procedure for discovery related to disqualification motions, she cited the Middle District’s 1992 ruling in Cheeves v. Southern Clays Inc. , which says discovery is allowable in the case of a disqualification if it can be proven that the information would lead to admissible evidence and if the information isn’t obtainable from a more convenient source.”
• “‘Plaintiff plainly meets the Cheeves threshold,’ Montgomery’s motion said. ‘The threshold facts of concurrent representation are established on the public record. The discovery sought — conflict-check records, intake-system entries, internal Atlanta-Seattle communications, and limited testimony from the two Atlanta attorneys at the center of the disputed sequence — is reasonably calculated to lead to admissible evidence on the contested question of what Ogletree did once the cross-matter posture was (or should have been) recognized.’”