BDO Seidman, LLP v. Morgan, Lewis & Bockius, LLP , 89 A.3d 492 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CV-1176
BDO SEIDMAN, LLP, APPELLANT,
v.
MORGAN, LEWIS & BOCKIUS LLP, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CA-9640-09)
(Hon. A. Franklin Burgess, Jr. and Hon. Brook Hedge, Motions Judges)
(Argued September 26, 2013 Decided April 24, 2014)
Benjamin S. Boyd, with whom Lucinda J. Bach, Charles B. Wayne, and
Michelle L. Schaefer were on the brief, for appellant.
James P. Fogelman, with whom Natalie O. Ludaway was on the brief, for
appellee.
Before FISHER and MCLEESE, Associate Judges, and PRYOR, Senior Judge.
MCLEESE, Associate Judge: Appellant BDO Seidman, LLP (“BDO”)
provides tax and financial advice. In 1999, BDO turned its Tax Solutions Group
(“TSG”), which promoted “tax products,” into a separate limited-liability
corporation. Three BDO partners who were also members of TSG retained
2
appellee Morgan, Lewis & Bockius LLP (“MLB”) to represent them personally in
negotiating compensation and indemnification agreements in connection with the
transaction. MLB also represented BDO on various matters, including matters
related to TSG products. The government subsequently concluded that some TSG
products were unlawful, and several BDO partners were convicted of crimes in
connection with TSG’s activities. BDO clients sued BDO in connection with TSG
products, and BDO settled that suit for over $21 million in 2005. In 2009, BDO
sued MLB, alleging legal malpractice, breach of fiduciary duty, and fraud. The
trial court granted summary judgment to MLB on the ground that BDO’s suit was
barred by the statute of limitations. BDO seeks review of that ruling. We affirm.
I.
The following facts are either alleged by BDO or not disputed by BDO. In
1999, BDO created a limited-liability corporation called TSG, owned by BDO but
exclusively managed by three BDO senior partners (collectively, the
“Individuals”). The Individuals repeatedly assured others at BDO that TSG’s
activities were “strictly legitimate” and would “more likely than not” be upheld if
challenged by the Internal Revenue Service.
3
The Individuals retained MLB to represent them personally in negotiating
with BDO the terms of their compensation and indemnification agreements in
connection with the creation of TSG. MLB was already representing BDO on a
matter, but BDO signed an agreement waiving any conflict of interest arising from
BDO’s representation of the Individuals.
Despite their assurances to others at BDO, the Individuals became concerned
about the risks of potential criminal and civil liability to themselves and BDO
arising from TSG’s activities. In February 2000, without informing others at BDO,
the Individuals hired MLB -- on behalf of BDO -- to analyze those potential risks.
MLB sent BDO an engagement letter in March 2000 that included a general
conflict waiver. The engagement letter did not refer to an analysis of the risks
posed by TSG’s activities. BDO signed the waiver.
While working on the risk-analysis project, MLB identified several risks
associated with TSG products, including investigation by the IRS, class-action
lawsuits by disappointed clients, personal civil and criminal liability for the
Individuals, and possible conflicts of interests between BDO and the Individuals.
MLB disclosed those risks only to the Individuals. The Individuals and MLB took
steps to prevent others at BDO from discovering the risks, including by arranging
4
that the bills associated with MLB’s risk assessment be paid without the usual
review and oversight by BDO’s legal department.
In June 2000, BDO approved compensation agreements for the Individuals,
which provided among other things that BDO would indemnify the Individuals for
all liabilities incurred on behalf of BDO for TSG activities. Soon thereafter, MLB
prepared a supplemental engagement letter indicating that BDO had engaged MLB
to prepare a written memorandum about whether TSG’s tax products would be
subject to criminal penalties. The parties dispute whether anyone at BDO other
than the Individuals saw that engagement letter. When two of the MLB attorneys
working on the risk analysis moved to the law firm of Hogan & Hartson, LLP, they
continued working on the memorandum. MLB also continued to work on the
matter.
In August 2000, the IRS issued a notice indicating that transactions arguably
similar to one marketed by TSG were subject to reporting requirements and that
persons marketing them might be subject to civil and criminal penalties. The
Individuals were concerned that the notice raised the possibility of criminal
liability. An MLB partner also had that concern. MLB did not express that
concern in the final version of the written memorandum, which was not seen by
5
anyone at BDO other than the Individuals until February 2002. The written
memorandum did not rule out the possibility of criminal prosecution but concluded
that any prosecution of BDO would be “insurmountably difficult” with “an
extremely low chance of success on the merits.” The written memorandum was
not delivered to BDO, but rather was kept at MLB’s offices. Drafts of the
memorandum were circulated to two people at BDO other than the Individuals.
In December 2000, the IRS sent BDO a letter stating that the IRS believed
that BDO had promoted abusive tax shelters and asking BDO to identify its clients.
The Individuals retained the law firm of White & Case to represent BDO in
connection with the response to the IRS letter. The general counsel of BDO did
not learn of the letter until months later. BDO responded to the IRS by indicating
that it did not believe that TSG’s activities were substantially similar to those
addressed in the IRS notice.
In the spring of 2002, the IRS served summonses on BDO, seeking
production of documents with respect to TSG’s activities. The law firms of White
& Case and Jenner & Block initially represented BDO in connection with the
summonses, but MLB began representing BDO on the matter in the fall of 2002.
MLB and the Individuals failed to disclose the written memorandum prepared by
6
attorneys from Hogan & Hartson and MLB, even though the written memorandum
was responsive to the summonses. The Individuals led other BDO partners to
believe that BDO was appropriately attempting to resist the summonses. Despite
being asked to brief the question whether the crime-fraud exception might vitiate
any privilege between BDO and its clients with respect to TSG’s activities, MLB
did not disclose to BDO either the written memorandum or the Individuals’ and
MLB’s concerns about potential criminal liability.
In July 2002, the American Association of Certified Public Accountants sent
BDO a letter suggesting that it might undertake an investigation into BDO’s
activities. In March 2003, BDO was the subject of a congressional investigation,
and MLB represented BDO on that matter.
In July 2003, former TSG clients filed a class-action suit against BDO and
other defendants relating to TSG’s activities. MLB did not represent BDO in the
class action.
In late 2003, MLB represented BDO in negotiating resignation agreements
with two of the Individuals and a continuing-employment agreement with the third
Individual. The Individuals retained the law firm of Holland & Knight to represent
7
them in connection with the 2003 agreements, which included broad
indemnification clauses and released the Individuals from all known and unknown
claims. MLB did not disclose to anyone at BDO other than the Individuals the
risks posed to BDO by TSG’s activities.
In 2004, BDO conducted an internal investigation of one of the Individuals,
during which BDO discovered that the IRS viewed BDO as “non-compliant.”
BDO decided to cooperate with the IRS and rescinded the 2003 Agreements.
In November 2005, BDO settled the class action brought by its former
clients relating to TSG’s activities for over $21 million.
In 2007, a partner at BDO contacted MLB about whether MLB could
represent that partner on a matter. After MLB declined because of a conflict of
interest with BDO, BDO requested MLB’s files on BDO matters. After reviewing
the files, BDO realized that MLB had provided advice to BDO about the risks of
civil and criminal liability associated with TSG’s activities.
On December 30, 2008, BDO and MLB executed an agreement tolling the
statute of limitations for one year. On December 30, 2009, BDO filed a complaint
8
against MLB, alleging, among other things, legal malpractice, breach of fiduciary
duty, fraud, and constructive fraud. Specifically, BDO alleged that MLB
committed malpractice by (1) representing BDO while in a conflict of interest
arising out of MLB’s simultaneous representation of the Individuals; (2) providing
negligent advice regarding potential risks associated with TSG’s activities; and (3)
failing to disclose those risks to BDO partners other than the Individuals.
MLB moved for summary judgment on statute-of-limitations grounds, and
the trial court granted that motion. The trial court first concluded that the
knowledge of BDO partners, including the Individuals, should be imputed to BDO.
The trial court further noted that, even if the Individuals’ knowledge could not be
imputed to BDO, the remaining partners’ knowledge could still be imputed. The
trial court finally concluded that BDO’s knowledge -- whether gained through the
Individuals or solely through the other partners -- was sufficient to put BDO on
inquiry notice of its causes of action well before December 30, 2005, and that
BDO was therefore barred by the three-year statute of limitations from raising its
claims.
9
II.
We review de novo orders granting summary judgment. Medhin v. Hailu,
26 A.3d 307, 310 (D.C. 2011). “[W]e independently analyze the record in the light
most favorable to the non-moving party, drawing all reasonable inferences from
the evidence in the non-moving party’s favor.” Id. We will uphold the grant of
summary judgment if the record shows that “there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Id. (internal quotation marks omitted).
BDO raises two principal challenges to the trial court’s summary-judgment
ruling. First, BDO contends that the trial court erred by imputing the knowledge of
BDO’s partners to BDO. Second, BDO contends that the trial court erred in
concluding as a matter of law that BDO was on inquiry notice of its causes of
action against MLB before December 30, 2005.1 We do not agree with BDO’s
contentions.
1
BDO argued in the trial court that the statute of limitations was tolled until
at least December 30, 2005, because MLB continued to represent BDO with
respect to the 2003 agreements through that date. See generally R.D.H. Commc’ns,
Ltd. v. Winston, 700 A.2d 766, 768 (D.C. 1997) (cause of action in legal
malpractice claims “does not accrue until the attorney’s representation concerning
the particular matter at issue is terminated”) (internal quotation marks omitted).
(continued…)
10
A.
We agree with the trial court that the knowledge of BDO partners other than
the Individuals is properly imputed to BDO.2 Under District of Columbia law,
imputation of knowledge with respect to partnerships is governed by D.C. Code
§ 29-601.03 (f) (2012 Repl.), which provides:
A partner’s knowledge, notice, or receipt of a notification
of a fact relating to the partnership shall be effective
immediately as knowledge by[,] notice to, or receipt of a
notification by, the partnership, except in the case of a
fraud on the partnership committed by or with the
consent of that partner.
Cf. also BCCI Holdings (Luxembourg), S.A. v. Clifford, 964 F. Supp. 468, 478
(…continued)
The trial court rejected that argument, concluding that MLB was not representing
BDO with respect to the matter at issue in this case beyond February 2002. BDO
does not brief this argument on appeal and we therefore do not address the
argument. See Rose v. United States, 629 A.2d 526, 535 (D.C. 1993) (“It is a basic
principle of appellate jurisprudence that points not urged on appeal are deemed to
be waived.”).
2
The trial court also imputed to BDO the knowledge of the Individuals, on
the theory that any fraud by the Individuals “was against the government and
TSG’s tax clients, not against BDO.” Because we uphold the trial court’s ruling
that BDO was on inquiry notice based solely on the knowledge of BDO partners
other than the Individuals, we do not address whether the trial court properly
imputed knowledge of the Individuals to BDO.
11
(D.D.C. 1997) (“As a general rule, knowledge acquired by a corporation’s officers
or agents is properly attributable to the corporation itself.”).3
Because BDO does not contend that any of BDO’s partners other than the
Individuals were involved in fraud on the partnership, § 29-601.03 (f) by its terms
seems to require imputation.4 BDO argues, however, that there is an implicit
“wrongdoer” exception to § 29-601.03 (f). We conclude that any such exception
would not extend to the circumstances of this case.
BDO argues that only an “innocent third party” can rely on the principle that
the knowledge of partners is ordinarily imputed to the partnership. We disagree.
Neither this court nor any other of which we are aware has adopted so sweeping a
rule. To the contrary, courts have upheld decisions imputing knowledge to
3
BDO asserts in a footnote that the trial court should have applied New
York partnership law rather than District of Columbia partnership law, because
BDO is a New York limited partnership. Because BDO presents no argument in
support of this assertion, the issue is not properly before this court. See Bardoff v.
United States, 628 A.2d 86, 90 n.8 (D.C. 1993) (issues raised in brief but not
supported by argument are considered abandoned).
4
BDO’s general counsel was not a partner, but the trial court attributed the
general counsel’s knowledge to BDO under common-law agency principles. See,
e.g., Capital View Realty Co. v. Meigs, 92 A.2d 765, 766 (D.C. 1952) (“A principal
is charged with the knowledge of the agent acquired by the agent in the course of
the principal’s business.”) (internal quotation marks omitted). BDO does not raise
a separate challenge to that ruling.
12
partnerships in connection with suits in which the partnership alleged wrongdoing
by the defendant. See, e.g., Rivanna Trawlers Unlimited v. Thompson Trawlers,
Inc., 650 F. Supp. 1378, 1386 (W.D. Va. 1986) (under Virginia law, knowledge of
two general partners was imputable to partnership in action brought by partnership
claiming that defendants had defrauded partnership), aff’d, 840 F.2d 236 (4th Cir.
1988); cf. McNeil Pac. Investors Fund 72, Ltd. v. Ernst & Young,
No. 05-94-01527-CV, 1995 WL 447557, at *8 (Tex. App. July 28, 1995) (in
concluding that partnerships’ fraud claims were barred by statute of limitations,
trial court imputed partner’s actual notice of fraud to partnerships); Bedolla v.
Logan & Frazer, 125 Cal. Rptr. 59, 64-67 (Ct. App. 1975) (in finding that limited
partnership’s fraud and professional-negligence claims were barred by statute of
limitations, trial court imputed knowledge of limited partner to limited
partnership).5
Moreover, the principle advocated by BDO would have remarkable
5
Bedolla rested in significant part on a statute very similar to D.C. Code
§ 29-601.03 (f). 125 Cal. Rptr. at 66 n.6. The California legislature subsequently
enacted a statute restricting imputation of knowledge in the context of a limited
partnership. See Cal. Corp. Code § 15901.03 (h) (2006). The D.C. Code contains
a similar provision. D.C. Code § 29-701.03 (h) (2012 Repl.). BDO is a limited
liability partnership, as opposed to a limited liability limited partnership. Compare
D.C. Code § 29-601.02 (7) (2012 Repl.), with D.C. Code § 29-701.02 (7) (2012
Repl.). The parties appear to agree that § 29-601.03 (f) applies to BDO.
13
consequences for the application of statutes of limitations to partnerships.
Partnerships are “non-corporeal entities.” Floyd v. Mayor & City Council, 946
A.2d 15, 49 (Md. Ct. Spec. App. 2008). Thus, for a partnership to obtain
knowledge, that knowledge must first be obtained by a partner or agent and then
imputed to the partnership. See Affiliated FM Ins. Co. v. Kushner Cos., 627 A.2d
710, 717 (N.J. Super. Ct. Law Div. 1993) (“The knowledge legally attributable to
the partnership is the collective knowledge of [its] partners, employees and
agents.”); cf., e.g., Shiddell v. Bar Plan Mut., 385 S.W.3d 478, 486 (Mo. Ct. App.
2012) (corporation can obtain knowledge only through its agents) (internal
quotation marks omitted). If the knowledge of partners and agents could not be
attributed to the partnership in cases brought by the partnership alleging
wrongdoing by a defendant, then the statute of limitations could never run in such
cases. Even if a wrongdoer confessed its wrongdoing to all of the partners, the
knowledge of the partners could not be imputed to the partnership, which
apparently would have to be treated as though it were ignorant of what all of its
partners actually knew.
Somewhat more narrowly, BDO contends that imputation is unwarranted
because MLB had a fiduciary obligation to disclose information to BDO but
nevertheless was actively trying to prevent BDO from learning about MLB’s
14
conflicts of interest as well as the risks associated with TSG’s activities. We are
not persuaded that MLB’s alleged efforts to hide information from BDO justify a
refusal to impute to BDO the information that -- despite those alleged efforts --
actually was obtained by BDO partners not involved in the alleged wrongdoing.
Even assuming that such a refusal of imputation could be squared with the
language of § 29-601.03 (f), we do not see why courts should refuse to impute to
the partnership information actually known by partners who were not involved in
any alleged wrongdoing, simply because the defendant had attempted to prevent
the partnership from learning that information. Once again, refusing to impute
knowledge to the partnership in such circumstances would have remarkable
consequences. Under that approach, if the defendant had attempted to keep a
partnership from learning information about the defendant’s wrongdoing, the
statute of limitations could never run, because imputation would be precluded even
if all of the partners nevertheless became fully aware of the wrongdoing.
BDO relies primarily on two cases to support its argument that MLB should
not be permitted to rely on imputation. See BCCI Holdings, 964 F. Supp. at
478-80; Official Comm. of Unsecured Creditors of Allegheny Health Educ. &
Research Found. v. PriceWaterhouseCoopers, LLP, 989 A.2d 313, 333-39 (Pa.
2010). Neither case involves a partnership or addresses the imputation principle
15
reflected in § 29-601.03 (f). BCCI, 964 F. Supp. at 478-80 (bank); Allegheny, 989
A.2d at 333-39 (corporation). Moreover, in each case the court refused to impute
to a collective entity knowledge held by individuals who were allegedly involved
in wrongdoing against the collective entity, whose interests were therefore adverse
to those of the collective entity, and who thus could not reasonably have been
expected to communicate their knowledge to others in the collective entity. BCCI,
964 F. Supp. at 478-80 (declining to impute to bank knowledge of officers who
allegedly colluded with other “corrupt” bank officers and operated complex
financial scheme leading to bank’s financial collapse); Allegheny, 989 A.2d at 338-
39 (refusing to impute to corporation knowledge of corporate officers involved in
fraudulent activity with outside auditor).
The other cases relied upon by BDO are similarly distinguishable. None
involves imputation of knowledge to partnerships for purposes of statutes of
limitations or addresses the imputation principle reflected in § 29-601.03 (f).
Several of the cases involve a refusal to impute knowledge held by individuals who
were alleged to have been involved in wrongdoing against the collective entity, and
thus could not reasonably have been expected to pass that knowledge along to the
collective entity. See, e.g., Mutual Life Ins. Co. of New York v. Hilton-Green, 241
U.S. 613, 622-23 (1916) (“[A]n innocent third party may properly presume . . . the
16
agent will perform his duty and report all facts which affect the principal’s interest.
But this general rule does not apply when the third party . . . is acquainted with
circumstances plainly indicating that the agent will not advise his principal.”).
Other cases relied upon by BDO involve imputation for purposes of imposing
liability on corporations, which raises significant additional complexities. See,
e.g., Allegheny, 989 A.2d at 338-39 (“the ordinary rationale supporting imputation
breaks down completely in scenarios involving secretive, collusive conduct
between corporate agents and third parties”).6
6
It is true, as BDO notes, that some cases contain broad language that read
in isolation might seem to suggest that “wrongdoers” can never rely on the
imputation doctrine. See, e.g., NCP Litig. Trust v. KPMG LLP, 901 A.2d 871, 882
(N.J. 2006) (“Allowing [defendant] to avoid liability for its allegedly negligent
conduct would not promote the purpose of the imputation doctrine - to protect the
innocent. . . . [O]ne who contributed to the misconduct cannot invoke
imputation.”). That broad language must be understood in context. See Cohens v.
Virginia, 19 U.S. (6 Wheat) 264, 399-400 (1821) (“It is a maxim not to be
disregarded, that general expressions, in every opinion, are to be taken in
connection with the case in which those expressions are used. If they go beyond
the case, they may be respected, but ought not to control the judgment in a
subsequent suit when the very point is presented for decision.”); Armour & Co. v.
Wantock, 323 U.S. 126, 132-33 (1944) (“It is timely again to remind counsel that
words of our opinions are to be read in the light of the facts of the case under
discussion. To keep opinions within reasonable bounds precludes writing into
them every limitation or variation which might be suggested by the circumstances
of cases not before the Court.”); Kraft v. Kraft, 155 A.2d 910, 913 (D.C. 1959) (“It
is well to remember that significance is given to broad and general statements of
law only by comparing the facts from which they arise with those facts to which
they supposedly apply.”). Read in light of these principles, the cases cited by BDO
do not substantially support the sweeping rule advocated by BDO in this case.
17
In sum, we conclude that, for purposes of determining whether an action
brought by a partnership is time-barred, information known to members of the
partnership who are not alleged to have been involved in the wrongdoing at issue
generally may be imputed to the partnership.
B.
BDO also challenges the trial court’s conclusion that, based on the
knowledge of its partners other than the Individuals, BDO was on inquiry notice of
its claims before December 30, 2005. First, BDO suggests that actual knowledge
rather than inquiry notice should be required, given MLB’s fiduciary obligations to
make full disclosure to BDO as its client and MLB’s affirmative efforts to prevent
BDO from discovering the basis for the claims. Second, BDO argues that it did
not have inquiry notice of MLB’s conflict of interest or other wrongdoing --
namely, that MLB provided negligent advice with respect to the risks associated
with TSG and failed to disclose those risks to BDO. We are not persuaded by
BDO’s contentions.
In legal-malpractice cases, a cause of action generally accrues for statute-of-
limitations purposes when the plaintiff knows or by the exercise of reasonable
18
diligence should know of its injury, the injury’s cause-in-fact, and some evidence
of wrongdoing. Ray v. Queen, 747 A.2d 1137, 1141 (D.C. 2000). The statute of
limitations requires only “that the plaintiff have inquiry notice of the existence of a
cause of action.” Id. Inquiry notice extends to “that [knowledge] which a plaintiff
would have possessed after due investigation.” Diamond v. Davis, 680 A.2d 364,
372 (D.C. 1996) (Ruiz, J., concurring in part and dissenting in part).7 “The critical
question in assessing the existence . . . of inquiry notice is whether the plaintiff
exercised reasonable diligence under the circumstances in acting or failing to act
on whatever information was available to him.” Ray, 747 A.2d at 1141-42. The
analysis is “highly fact-bound” and requires an evaluation of all of the
circumstances, including the conduct and misrepresentations of the defendant, the
reasonableness of plaintiff’s reliance on the defendant, and the existence of a
fiduciary relationship between the parties. Id. at 1142; Diamond, 680 A.2d at 372,
376. Moreover, “the focus . . . is on when the plaintiff gained the general
knowledge that [the defendant’s conduct] was wrongful, not on when [the plaintiff]
learned of the precise legal remedies for [that wrongful conduct].” Ray, 747 A.2d
at 1142 n.7 (internal quotation marks and brackets omitted).
7
Judge Kern joined Part II of Judge Ruiz’s opinion in Diamond. 680 A.2d
at 384. Except where otherwise noted, all subsequent citations to Diamond in this
opinion are to Part II of Judge Ruiz’s opinion.
19
BDO’s contention that actual rather than inquiry notice should have been
required is foreclosed by Diamond, 680 A.2d at 372-381. In Diamond, a client
sued the law firm that had represented him, alleging fraud and breach of fiduciary
and professional duties. The client argued that the law firm’s fraud and fraudulent
concealment of its wrongdoing delayed the accrual of his causes of action until he
had “something close to actual notice” of his causes of action. Id. at 371. This
court held, however, that the presence of fraud or fraudulent concealment on the
part of a defendant does not affect the level of knowledge required by a plaintiff
for a cause of action to accrue for purposes of the statute of limitations. Id. at 380-
81. The court noted that a plaintiff who negligently fails to earlier discover a cause
of action may not avoid the bar of the statute of limitations merely because
misconduct on the part of the defendant is involved. See id. at 375-76. The court
explained that “a focus on the plaintiff’s diligence [in discovering his cause of
action], rather than the defendant’s misconduct, is more appropriate given the
purpose of statutes of limitation to protect defendants from stale claims . . . .” Id.
at 378.
Finally, we affirm the trial court’s conclusion that, as a matter of law, BDO
20
was on inquiry notice of its claims.8 The undisputed facts establish that by 2005,
based on knowledge possessed by partners and agents other than the Individuals,
BDO knew or should have known that (1) MLB had provided BDO with advice
downplaying the risk of TSG’s activities; (2) during the same time period, MLB
had negotiated broad indemnification agreements for the Individuals, exposing
BDO to substantial liability relating to TSG’s activities; (3) when TSG’s activities
came under investigation, MLB defended those activities in litigation on behalf of
BDO, allegedly without advising BDO that TSG’s activities might well be
unlawful; (4) the IRS determined that TSG’s activities were unlawful; and (5)
when its clients sued BDO based on TSG’s activities, BDO settled that suit for
over $21 million. Moreover, as the trial court concluded, this information should
have led BDO to investigate further the representation it received from MLB.
Such an investigation would presumably have revealed all of the information BDO
now relies upon in raising its claim.
We see no basis to quarrel with the trial court’s decision that by 2005 BDO
knew or should have known information that as a matter of law was sufficient to
place BDO on inquiry notice of its claims. In other words, BDO by 2005 had, or
8
BDO contends that the trial court erred in finding that certain invoices
placed BDO on inquiry notice of MLB’s conflict of interest. We do not rely on
those invoices for purposes of the inquiry-notice analysis.
21
should have had, ample information to support its theories that (a) MLB
negligently represented BDO by failing to competently assess the risks associated
with TSG’s activities; and/or (b) MLB violated its fiduciary obligations to BDO,
because MLB appreciated those risks but improperly failed to disclose them to
BDO, choosing instead to advance the contrary interests of the Individuals. Cf.
generally Diamond, 680 A.2d at 384-89 (Ferren, J.) (concurring in pertinent part
and upholding grant of summary judgment on statute-of-limitations grounds,
because client was on inquiry notice of claims in legal-malpractice action against
former law firm); 384 (Kern, J.) (concurring in part to Judge Ferren’s opinion
upholding grant of summary judgment).
In support of the contrary conclusion, BDO points to numerous pieces of
information that it did not have and that it alleges MLB tried to hide. But the
question is not whether BDO knew everything about its potential claims. Rather,
the question is whether BDO had sufficient knowledge to place BDO on inquiry
notice of its claim. We answer that question in the affirmative.9
9
While this case was pending, BDO moved to disqualify the law firm of
Gibson, Dunn & Crutcher LLP from representing MLB, on the ground that Gibson
Dunn had previously represented BDO’s general counsel in connection with a
criminal investigation of TSG. The trial court denied the motion. We find no
abuse of discretion. See generally, e.g., Pietrangelo v. Wilmer Cutler Pickering
Hale & Dorr, LLP, 68 A.3d 697, 716 (D.C. 2013). BDO waived any conflicts of
(continued…)
22
The judgment of the Superior Court is therefore
Affirmed.
(…continued)
interests that could arise from Gibson Dunn’s representation of MLB. Although
the waiver did not specifically mention Gibson Dunn’s previous representation of
BDO’s general counsel, BDO does not claim on appeal that it was unaware of that
representation at the time it signed the waiver. Moreover, Gibson Dunn submitted
an affidavit indicating that it had erected an ethical screen to ensure that any
confidential information would be properly protected. Finally, BDO does not
identify any concrete respect in which it was injured by Gibson Dunn’s
representation of MLB in this matter. Taken together, these circumstances
adequately support the trial court’s denial of the motion to disqualify Gibson Dunn.