A while back, we mentioned that Seyfarth found itself in a malpractice suit with a bankrupt restaurant over blown deadlines that the restaurant says prejudiced its position. Well, that case is still going and now Seyfarth is going to produce a 30(b)(6) witness to testify about its relationship with the now terminated partner, Ralph Berman, at the center of it all.
To recap, Blue Dog was a planned NY restaurant that entered bankruptcy and hired Seyfarth as its special litigation counsel in a suit against the landlord who allegedly frustrated efforts to open the restaurant and was looking to repossess the space. Then things got twisty. The deadline for expert reports got blown and Blue Dog ended up without expert testimony backing its claims. Seyfarth negotiated a settlement at mediation but that fell apart and Blue Dog sued for malpractice. Seyfarth countered, alleging that Blue Dog was taking bad advice from a lawyer disbarred as part of the Pennsylvania “kids for cash” scheme.
But now discovery seems to have turned up an email from within Seyfarth saying that Berman needed to be removed from his cases because he was doing harm to clients. This email is attached to a proposed amended complaint that looks to be under seal, but it’s discussed in a July hearing and… doesn’t sound good! Notably absent from any staffing shuffle that Berman’s supervisors were talking about was the Blue Dog file, which Blue Dog’s attorneys see as a red flag:
Instead, they kept this entirely secret from Blue Dog. Blue Dog had no idea that the supervising partner and that the group head for litigation in the New York office were having a discussion regarding this danger presented by the lawyer assigned as lead counsel to this case. And that’s information that a client is entitled to know. That’s information that any client would want to know and would expect to be told, and Seyfarth chose, knowingly, to withhold that information.
YES, THAT DOES SEEM LIKE A PROBLEM! Seyfarth’s attorneys from MoFo characterize this as an email sent out of frustration, which doesn’t really make it better. Coupled with testimony from Berman about having a history of deadline problems and admitting that it had come up with his partners, Blue Dog sought 30(b)(6) testimony from Seyfarth on exactly what the firm was thinking about Berman: the complaints or disciplinary actions taken against him and whether he was ever actually transitioned off of other matters.
Other potential topics are getting converted into interrogatories — like the question of whether Berman was let go as part of a layoff or specifically fired — or the subject of stipulations — such as the firm admitting that they had not committed any ethics oversight in the New York office at the time. But even though Blue Dog got pushback on a number of discovery fronts, this 30(b)(6) deposition feels like a doozy. A Biglaw firm is going to have to produce someone to testify about the firm’s handling of client and internal complaints against a former partner. Playing it out in my head, it’s unclear how this works out in Seyfarth’s favor either way. The firm either had amassed a number complaints against this partner and let him work the case anyway or they hadn’t formally compiled a record despite two senior partners casually characterizing him as a threat to clients. That doesn’t necessarily mean Seyfarth ends up on the hook for the massive malpractice case, but it doesn’t put them in a great position going forward.
It’s going to be an interesting few weeks in this matter, but regardless of what happens in this case specifically, now would be a good time for firms to consider what protocols they have in place for supervising their partners to avoid this kind of mess.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.