Daily Dicta: Conflict What Conflict? Latham Gets Approval to Jointly Rep Lori Loughlin and Mossimo Giannulli in Admissions Scandal
The actress and her fashion designer husband said they understand joint representation—as opposed to having counsel represent them individually—entails 'significant risks.'
August 28, 2019 at 12:57 PM
5 minute read
My daughter took the SAT on Saturday, and it reminded me again of how mad I am at the college admissions scandal parents who tried to game the system.
When my daughter trudged off to the test center at 7:30 am, she was a nervous mess, irrationally terrified that her future will be ruined if she bombs it. But she prepped all summer, doing practice tests and trying to recall what she learned in algebra three years ago. Hopefully it'll pay off and if not (oh joy), she can take it again in October.
From where I sit, one of the best things about the "Varsity Blues" sting operation is that rich, amoral parents are now going to think twice about helping their kids cheat their way into college.
Which is also why I have zero sympathy for actress Lori Loughlin and her fashion designer husband Mossimo Giannulli, who were busted for allegedly paying William "Rick" Singer $500,000 to get their daughters Olivia Jade and Isabella Rose into USC as fake crew athletes.
That said, I think they have every right to choose their counsel, even if they have the perhaps questionable judgment to be represented by the same team from Latham & Watkins.
On Tuesday, a federal magistrate judge in Boston warned them that sharing the same lawyers—William "BJ" Trach, Sean Berkowitz and Perry Viscounty—constitutes a "potential" and "actual conflict of interest," according to WCBV in Boston.
U.S. Magistrate Judge Page Kelly also cautioned that the only way to know you're getting the best legal advice is if your attorneys have a duty of loyalty "to you and you alone."
But Loughlin and Giannulli were both adamant about keeping Latham, waiving their right to pick different counsel.
In a declaration filed earlier this summer, Loughlin explained why they turned to Latham as soon as the scandal broke. The firm has represented Giannulli and his various companies "for many years in numerous matters, and … he values the advice of his attorneys with Latham and trusts them," she wrote.
Loughlin said that Viscounty gave them a full run-down that "joint representation—as opposed to having counsel represent us individually—entailed significant risks. Viscounty explained that joint representation could result in divided, or at least shared, attorney-client loyalties, and that this could materially limit Latham's representation," she said.
But Loughlin didn't care. "Notwithstanding those risks, I still wanted—and continue to want—Latham to represent me and [Giannulli] jointly in this matter."
It's actually quite a compliment to the team, which through a firm spokeswoman declined comment. Trach, who is based in Boston and earned his law degree from Harvard in 2004, is a former federal prosecutor. He joined the firm as a partner in 2012 from Goodwin Procter and is currently a member of Latham's executive committee and global chair of the diversity leadership committee.
Berkowitz recently completed a five-year stint as the global chair of Latham's litigation department and remains co-chair of the complex commercial litigation practice. He's got some serious criminal law bona fides too—he was director of the special task force created to investigate the Enron corporate scandal, and lead prosecutor in the criminal case against Kenneth Lay and Jeffrey Skilling.
Viscounty, who is based in Orange County, California, is best known for IP and technology litigation (and presumably was the one who worked with Giannulli in connection with his fashion business).
Both Loughlin and Giannulli took Viscounty's advice at the initial meeting and hired individual counsel as well, with Loughlin tapping David C. Scheper of Scheper Kim & Harris.
Giannulli hired Boston-based Donnelly, Vonroy & Gelhaar—which caused another conflict problem. The firm represents another parent in the admissions scandal, Davina Isackson. She and her husband, California real estate developer Bruce Isackson, both pleaded guilty to one count of conspiracy to commit mail fraud and honest services mail fraud, allegedly paying $600,000 to get their kids into USC and UCLA.
Both are cooperating with prosecutors.
The judge at the hearing on Tuesday said she would decide later on this conflict, which she said is "typically considered to be the most serious."
Latham's representation had also been questioned by prosecutors because it counted USC as a client, representing the university in a real-estate matter involving the Los Angeles Memorial Coliseum Commission.
On August 9, Berkowitz informed the court that the matter was completed.
"In that representation, Latham fully carried out its assigned duties and fulfilled its responsibilities to USC," Berkowitz wrote. "In addition, Latham's work on the Memorial Coliseum matter was completely screened off from Latham's work on this matter, and it was not affected by Latham's representation of Giannulli and Loughlin in any way."
Also—duh—the matters are not substantially related, so it's not like Latham could misuse any confidential information about USC real estate interests to help Loughlin and Giannulli.
"Latham is was aware of and scrupulously adheres to its duty to protect the confidences of all of its current and former clients, and will do the same respecting USC," Berkowitz wrote."[T]here is no plausible argument that a conflict exists or is reasonably foreseeable."
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