One day after advertising giant Ackerman McQueen asked a Dallas judge Wednesday to disqualify Bill Brewer from representing the National Rifle Association in litigation between the two parties for ethics reasons, the NRA shot back with allegations of its own against the lawyers for AMc.
On Thursday, Brewer firm partner Michael Collins filed a 30-page motion in the U.S. District Court for the Northern District of Texas seeking to have Ackerman McQueen’s lawyers at Dorsey & Whitney in Dallas removed from the case because they improperly obtained attorney-client information that gives Dorsey an unfair advantage in the litigation.
Brewer lawyers claim that Ackerman McQueen, which served as the NRA’s advertising and PR agency for more than 30 years, provided their lawyers at Dorsey with a PowerPoint that included “obviously privileged” attorney-client information that Brewer, as the NRA’s lead outside counsel, had delivered to the NRA’s board of directors last year.
“Instead of alerting the NRA that this obviously privileged document was in the possession of AMc, Dorsey secretly retained and used the document in an effort to gain an advantage in this litigation,” Collins wrote in the motion. “As the court knows, attorneys who are exposed to an adversary’s privileged information – even unwittingly – should be disqualified if their exposure confers an unfair advantage.”
“Dorsey’s exposure to this privileged material was not unwitting or innocent, because Dorsey knew that the document was privileged and improperly obtained,” the Brewer brief states.
The NRA sued Ackerman McQueen in August claiming that the ad agency wrongfully continued to promote its connection to the gun group though the relationship had terminated months earlier.
In October, the NRA filed an amended complaint stating that Ackerman McQueen breached its fiduciary duties, engaged in fraudulent billing and failed to maintain proper accounting documents.
In November, Ackerman McQueen countersued, claiming that Brewer and NRA leader Wayne LaPierre are attempting to “destroy AMc’s business in a desperate attempt to deflect attention from the NRA’s gross financial mismanagement.”
Dorsey partner Michael Gruber, who represents Ackerman McQueen, described Brewer in court documents filed Wednesday as a “tortfeasor engaging in wrongful conduct as a primary actor in the underlying dispute, including spearheading the termination of the services agreement between the parties.”
“In addition to leaking confidential information and defaming AMc, Brewer has engaged in his same media strategy, including leaking court filings before opposing counsel is even aware of them,” the Ackerman McQueen motion states.
“Brewer was not responding to negative publicity – he created it, knowing it would materially prejudice this case,” Gruber wrote. “This dispute was not even in the public sphere until he put it there. Brewer himself admits that he uses trial publicity to create a climate that produces a favorable outcome for the NRA without setting foot in a courtroom, without presenting a shred of evidence.”
Lawyers for Ackerman McQueen argued that the Brewer documents are not confidential and are not covered by the attorney-client privilege.
In its motion filed Thursday, the Brewer firm points to a Jan. 5, 2019, NRA board meeting at the Hyatt Regency Hotel in Tysons Corner, Virginia.
Brewer was making a presentation to the NRA leaders about pending legal matters. The court document states that a Brewer employee provided an Ackerman McQueen employee operating the audiovisual equipment in the ballroom with the instructions “to insert it in the appropriate digital port.”
“Handing the drive to the technician did not invite the technician to view its contents,” the Brewer brief states. “Rather, it is akin to handing over a sealed envelope of documents and asking that they be couriered to a privileged recipient.”
The PowerPoint included “detailed legal advice and strategy regarding pending and anticipated litigation,” the NRA motion states. “Apparently, covertly, an audiovisual technician copied and retained the privileged presentation.”
Brewer claims that the Dorsey firm filed the privileged document into the current litigation marked as “Confidential Exhibit B-9.
The Brewer firm, according to the motion, “alerted Dorsey to its misuse of privileged material. [Dorsey] rebuffed the NRA’s protests with dismissive, facially false statements about the document’s contents.”
“After prolonged letter correspondence debunked Dorsey’s falsehoods, Dorsey relented and reportedly destroyed the document. Dorsey’s late acquiescence to its ethical obligations do not obviate the consequences of its actions,” the Brewer motion states. “The only appropriate remedy is disqualification.”
Brewer also asked U.S. District Judge Joe Fish to sanction the Dorsey firm and award monetary damages.