CALDERWOOD & HARKNESS LLP 450 Park Avenue, 30th Floor New York, New York 10022
INTERNAL MEMORANDUM
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE / ATTORNEY WORK PRODUCT
TO: Conrad Ashby, Partner, White Collar & Investigations Practice Group
FROM: Lisa Morrow, Associate, Banking & Finance Practice Group
DATE: December 4, 2022
RE: New Matter Conflicts Check — Representation of Jonathan R. Caldwell, Grand Jury Subpoena Response
MATTER NO.: 1034-00001
1. Purpose
This memorandum documents the results of a conflicts-of-interest search conducted in connection with the proposed engagement of Jonathan R. Caldwell ("Mr. Caldwell" or the "Proposed Client") by Calderwood & Harkness LLP (the "Firm"). The proposed engagement concerns Mr. Caldwell's response to a federal grand jury subpoena (Grand Jury No. 22-GJ-4481, U.S. District Court for the Southern District of New York) issued by the U.S. Attorney's Office for the Southern District of New York on November 18, 2022, and served on Mr. Caldwell on November 21, 2022. The subpoena calls for the production of documents and testimony in connection with an ongoing federal investigation into the business activities of Mr. Caldwell's former business associate, Marcus W. Stavros, and the entity known as Aegean Realty Partners LLC, as described more fully in Section 2 below.
The conflicts search was conducted on December 4, 2022, in anticipation of the Firm's formal engagement of Mr. Caldwell, which is expected to be effective on or about December 5, 2022. This memorandum is intended to serve as the Firm's contemporaneous record of the search process, the parties and entities searched, the methodology employed, and the results obtained, so as to satisfy the Firm's internal new-matter clearance requirements.
The search was performed in accordance with Calderwood & Harkness LLP's Standard New-Matter Conflicts Clearance Procedures (revised January 2022) and the applicable provisions of the New York Rules of Professional Conduct, including but not limited to Rules 1.7 (Conflict of Interest: Current Clients), 1.8 (Current Clients: Specific Conflict of Interest Rules), 1.9 (Duties to Former Clients), 1.10 (Imputation of Conflicts of Interest), and 1.18 (Duties to Prospective Clients). This memorandum should be maintained as part of the permanent conflict-clearance file for Matter No. 1034-00001 and treated as attorney work product.
2. Proposed Client and Engagement Summary
Proposed Client. The proposed client is Jonathan R. Caldwell, an individual residing at 1140 Park Avenue, Apt. 14C, New York, New York 10128. Mr. Caldwell is a prominent real estate investor and fund manager operating in the greater New York metropolitan area.
Client-Affiliated Entities. Mr. Caldwell is the sole member and managing principal of Caldwell Capital Advisors LLC ("CCA"), a New York limited liability company (EIN: 83-2174056) with its principal offices at 590 Madison Avenue, 22nd Floor, New York, New York 10022. CCA is a registered investment advisory firm that manages approximately $340 million in real estate-focused investment assets across a portfolio of commercial and residential real estate holdings, fund interests, and related investments. Mr. Caldwell exercises sole managerial and investment authority over CCA.
Mr. Caldwell is also the sole owner of JRC Realty Holdings LLC ("JRC Realty"), a New York limited liability company (EIN: 81-4493217) registered at the same address as CCA. JRC Realty serves as Mr. Caldwell's personal holding company for his direct real estate portfolio, which consists of approximately 14 properties located throughout the New York tristate area with an aggregate assessed value of approximately $78 million. JRC Realty is not a client-facing entity and does not manage third-party capital.
Nature of Engagement. The Firm proposes to represent Mr. Caldwell individually in connection with his response to a federal grand jury subpoena for documents and testimony. The subpoena relates to a federal investigation into the business activities of Marcus W. Stavros ("Stavros") and Aegean Realty Partners LLC ("Aegean Realty"), with which Mr. Caldwell had a prior business relationship. It is understood, based on preliminary communications with the U.S. Attorney's Office and with Mr. Caldwell, that Mr. Caldwell is a witness — not a target or subject — in the government's investigation. The engagement will encompass advising Mr. Caldwell in connection with document collection, review, and production; preparation for grand jury testimony; and general guidance regarding Mr. Caldwell's rights and obligations as a witness in the federal investigation.
The Firm's representation is limited to Mr. Caldwell as an individual. The Firm does not propose to represent CCA, JRC Realty, or any other entity in connection with this matter at this time, although these entities have been included in the conflicts search given their close affiliation with the Proposed Client and the possibility that records of these entities may be responsive to the subpoena.
Engagement Origination. The engagement originates through Bernard Crawford, Responsible Partner in the Firm's Labor & Employment Practice Group, who has maintained an existing advisory relationship with Mr. Caldwell. Mr. Crawford has served as outside employment counsel to Caldwell Capital Advisors LLC on various employment-related matters. Given the nature of the proposed engagement, Mr. Crawford has referred the matter to the White Collar & Investigations Practice Group. Conrad Ashby, Partner in the White Collar & Investigations Practice Group, will serve as the billing partner and substantive lead on the engagement. Daniel Obi, Lead Associate, will serve as the primary associate responsible for day-to-day matter management. Lisa Morrow, Associate (Banking & Finance Practice Group), is assisting with the conflicts clearance process and may participate in the document review as needed, given her familiarity with commercial real estate finance transactions.
Client Status. As noted above, Mr. Caldwell is understood to be a witness, not a target or subject, in the government's investigation. This designation is based on information communicated by the U.S. Attorney's Office to Mr. Caldwell's prior commercial counsel, Whitmore & Kessler LLP, and subsequently relayed to Mr. Crawford. The engagement team will confirm Mr. Caldwell's status directly with the assigned Assistant United States Attorney, Miriam T. Goldfarb, promptly upon execution of the engagement letter.
3. Parties and Entities Searched
In connection with the conflicts clearance process, the following individuals and entities were searched against the Firm's electronic conflicts database. The search encompassed all active matters, all closed matters within the applicable lookback period (ten years for substantive client representations; five years for adverse parties), all prospective matters for which conflicts clearance requests have been submitted, and all lateral hire prior representation disclosures on file with the Firm's General Counsel's office.
3.1 Client and Client-Affiliated Entities
The following individuals and entities associated with the Proposed Client were searched:
1. Jonathan R. Caldwell — Individual; last four digits of Social Security Number: 7283; residential address: 1140 Park Avenue, Apt. 14C, New York, NY 10128.
2. Caldwell Capital Advisors LLC — New York limited liability company; EIN: 83-2174056; principal office: 590 Madison Avenue, 22nd Floor, New York, NY 10022.
3. JRC Realty Holdings LLC — New York limited liability company; EIN: 81-4493217; registered address: 590 Madison Avenue, 22nd Floor, New York, NY 10022.
3.2 Apparent Grand Jury Target and Affiliated Entities
The following individuals and entities believed to be the target or subject of the federal investigation were searched:
1. Marcus W. Stavros — Individual; residential address: 45 Saugatuck Lane, Westport, CT 06880. Mr. Stavros is believed to be the primary target of the grand jury investigation.
2. Aegean Realty Partners LLC — Connecticut limited liability company; principal office: 280 Atlantic Street, Suite 510, Stamford, CT 06901. This entity is Stavros's primary operating vehicle for real estate investment and fund management activities.
3. Aegean Realty Fund III LP — Delaware limited partnership. One of several fund vehicles managed by Aegean Realty Partners LLC.
4. Aegean Realty Fund IV LP — Delaware limited partnership. One of several fund vehicles managed by Aegean Realty Partners LLC; believed to be a primary vehicle through which the alleged fraudulent conduct occurred.
5. Aegean Realty Fund V LP — Delaware limited partnership. The most recently formed fund vehicle managed by Aegean Realty Partners LLC; also believed to be implicated in the government's investigation.
3.3 Joint Venture Entities (Caldwell-Stavros)
The following entities were joint ventures between Mr. Caldwell and Mr. Stavros and were searched given the potential relevance of records relating to these ventures to the government's investigation:
1. 710 Flatbush Holdings LLC — New York limited liability company; property located at 710 Flatbush Avenue, Brooklyn, NY 11225. This entity was a joint venture between Caldwell and Stavros for the acquisition and development of a mixed-use property in Brooklyn.
2. Stavros-Caldwell Industrial LLC — New Jersey limited liability company; property located at 1500 Commerce Boulevard, Newark, NJ 07114. This entity was a joint venture between Stavros and Caldwell for the acquisition of an industrial warehouse facility in Newark.
3.4 Financial Institutions (Lenders / Escrow Agents)
The following financial institutions were identified as relevant to the investigation and were included in the conflicts search:
1. Westlake Fidelity Bank, N.A. — Nationally chartered bank; principal office: 600 Summer Street, Stamford, CT 06901. Westlake Fidelity served as the primary lender to various Aegean Realty entities and is believed to be a primary victim of the alleged fraud scheme under investigation. According to publicly available information and information provided by Mr. Caldwell, Westlake Fidelity extended approximately $127 million in commercial real estate loans to Aegean Realty entities between 2016 and 2020. Westlake Fidelity is separately represented in this matter by Graystone & Falk LLP.
2. Harborview Trust Company — Connecticut state-chartered trust company; principal office: 88 Broad Street, Suite 200, Bridgeport, CT 06604. Harborview Trust served as escrow agent for investor deposits in Aegean Realty Fund IV LP and Aegean Realty Fund V LP and also extended a $14.5 million mezzanine loan to one Aegean Realty entity (the specific entity to be confirmed during the engagement). Harborview Trust's involvement in the investigation is not fully known at this time.
3.5 Appraisal Firm Under Government Scrutiny
1. Pinnacle Appraisal Group LLC — Real estate appraisal firm; principal office: 355 Lexington Avenue, 9th Floor, New York, NY 10017. Pinnacle Appraisal provided property appraisals for several Aegean Realty acquisitions that are the subject of the investigation. The government has raised questions regarding whether certain appraisals prepared by Pinnacle may have contained inflated valuations that were used to support fraudulent loan applications or investor solicitation materials. Pinnacle's status in the investigation (i.e., whether it is a target, subject, or witness) is not presently known.
3.6 Government Personnel
1. Miriam T. Goldfarb — Assistant United States Attorney, Complex Frauds & Cybercrime Unit, U.S. Attorney's Office for the Southern District of New York; office address: One St. Andrew's Plaza / 500 Pearl Street, New York, NY 10007. AUSA Goldfarb is the lead prosecutor assigned to the investigation.
2. Grand Jury No. 22-GJ-4481 — General reference to the empaneled grand jury before which Mr. Caldwell has been called to testify.
3.7 Opposing and Related Counsel
The following law firms and individual attorneys were identified as counsel for other parties in the investigation and were included in the conflicts search:
1. Reddick, Sorrento & Hale LLP — 1 Liberty Plaza, 37th Floor, New York, NY 10006. This firm serves as counsel for Marcus W. Stavros in connection with the federal investigation. The lead partner on the Stavros representation is Victor A. Reddick.
2. Graystone & Falk LLP — 100 Pearl Street, Suite 1600, Hartford, CT 06103. This firm serves as counsel for Westlake Fidelity Bank, N.A. in connection with the federal investigation and any related civil claims. The lead partner on the Westlake Fidelity representation is Catherine A. Falk.
3.8 Other Related Parties and Service Providers
The following additional parties and service providers were identified as having a connection to Mr. Caldwell or to the investigation and were included in the conflicts search:
1. Whitmore & Kessler LLP — 277 Park Avenue, 40th Floor, New York, NY 10172. Whitmore & Kessler is Mr. Caldwell's prior commercial counsel. The firm represented Mr. Caldwell in connection with, among other things, the 2019 separation agreement pursuant to which Mr. Caldwell and Mr. Stavros dissolved their joint venture relationship. The lead partner for Mr. Caldwell's matters at Whitmore & Kessler is Patricia Sheldon. Communications between Mr. Caldwell and Whitmore & Kessler may be subject to attorney-client privilege claims during the document review and production process.
2. Thornberg & Whitfield CPAs — 521 Fifth Avenue, 17th Floor, New York, NY 10175. Thornberg & Whitfield serves as the personal and business accounting firm for Mr. Caldwell and his affiliated entities. The senior partner responsible for the Caldwell engagement is Helen R. Thornberg. Tax and accounting records prepared by Thornberg & Whitfield may be responsive to the grand jury subpoena.
3. Meridian Forensic Advisors LLC — 230 Park Avenue, Suite 1540, New York, NY 10169. Meridian Forensic Advisors is a forensic accounting firm that has been retained by the U.S. Attorney's Office in connection with the investigation. The managing director overseeing the engagement is Nathan P. Solis. As a government-retained consultant, Meridian Forensic may have access to documents and financial records produced by witnesses and targets in the investigation.
4. Search Methodology
The conflicts search described in this memorandum was conducted using the Firm's electronic conflicts-checking system, the Calderwood & Harkness Conflicts Management System ("CMS"), which is the Firm's standard platform for new-matter conflicts clearance and ongoing conflicts monitoring. The CMS contains records of all client engagements, adverse parties, and related parties for all matters opened or maintained by the Firm, including matters that have been closed within the applicable lookback period.
Search terms were developed to ensure comprehensive coverage of all parties identified in Section 3 above. The following categories of search terms were employed for each individual and entity:
• Full legal names of all individuals and entities, including first name, middle name or initial (where known), and last name for individuals, and the complete legal name for all entities.
• Common variations, abbreviations, and alternative spellings of each name (e.g., "Jon Caldwell," "J. Caldwell," "J.R. Caldwell," "Caldwell Capital," "CCA," "JRC Realty," "Aegean Realty," "Pinnacle Appraisal," etc.).
• Employer Identification Numbers (EINs) for all entities where available.
• Known addresses for all individuals and entities, including residential, business, and registered agent addresses.
• Known aliases, "doing business as" names, or trade names associated with any of the listed parties.
• Names of key principals and officers associated with entity parties (e.g., Marcus W. Stavros in connection with Aegean Realty Partners LLC).
The scope of the search encompassed the following categories of records within the CMS:
• All active client matters, including the identity of the client, the nature of the engagement, all known adverse parties, and all related parties.
• All closed client matters within the Firm's standard lookback period of ten years for substantive client representations and five years for adverse-party records.
• All prospective matters for which a conflicts clearance request has been submitted but for which an engagement letter has not yet been executed.
• Lateral hire disclosure records, including prior client representations and adverse-party listings disclosed by lateral attorneys at the time of their hire by the Firm.
• Personal interest disclosures filed by Firm attorneys pursuant to the Firm's annual personal conflict and financial interest disclosure requirements.
In addition to the electronic search of the CMS, an informal inquiry was made to each member of the proposed engagement team — specifically, Conrad Ashby (Partner, White Collar & Investigations), Bernard Crawford (Responsible Partner, Labor & Employment), Daniel Obi (Lead Associate, White Collar & Investigations), and Lisa Morrow (Associate, Banking & Finance) — requesting that each team member confirm whether he or she has (a) any personal financial interest in any of the entities listed in Section 3 above, (b) any familial or personal relationship with any of the individuals listed in Section 3 above, or (c) any prior involvement with any of the parties listed in Section 3 above in a professional or personal capacity. The results of these inquiries are reported in Section 5.13 below.
5. Results of Conflicts Search
Set forth below are the results of the conflicts search for each individual, entity, and party searched, organized by category as set forth in Section 3 above.
5.1 Jonathan R. Caldwell / Caldwell Capital Advisors LLC / JRC Realty Holdings LLC
The search returned one existing client relationship involving the Proposed Client and his affiliated entities. Specifically, Bernard Crawford, Responsible Partner in the Firm's Labor & Employment Practice Group, maintains an active advisory engagement with Mr. Caldwell through Caldwell Capital Advisors LLC. This engagement (Matter No. 1034-00001) involves the provision of ongoing employment law advice to CCA, including with respect to employment agreements, employee handbook policies, and compliance with applicable federal and state employment laws. The CCA employment advisory matter was opened on or about March 15, 2020, and remains active.
This existing client relationship does not give rise to an adverse conflict of interest under the applicable rules. To the contrary, the proposed white collar representation is consistent with the Firm's existing relationship with Mr. Caldwell and his affiliated entities, as both engagements are undertaken on behalf of Caldwell-side interests. The proposed engagement does not involve any position or claim adverse to CCA or any other Caldwell-affiliated entity. Accordingly, no waiver or consent is required with respect to this existing relationship.
No other active or closed matters involving Jonathan R. Caldwell, Caldwell Capital Advisors LLC, or JRC Realty Holdings LLC were identified in the CMS. No matters in which any of these parties appeared as an adverse party or related party were identified.
5.2 Marcus W. Stavros / Aegean Realty Partners LLC / Aegean Realty Funds III, IV, V
No current or prior representation of Marcus W. Stavros by the Firm was identified in the CMS. No current or prior representation of Aegean Realty Partners LLC, Aegean Realty Fund III LP, Aegean Realty Fund IV LP, or Aegean Realty Fund V LP was identified. Additionally, no matter was identified in which Marcus W. Stavros or any Aegean Realty entity appeared as an adverse party, related party, or party of interest in any active or closed Firm matter.
Because the Firm has no current or former client relationship with Stavros or any Aegean entity, and because none of these parties appear as adverse parties in any Firm matter, no conflict of interest arises from the proposed representation with respect to these parties.
5.3 710 Flatbush Holdings LLC / Stavros-Caldwell Industrial LLC
No current or prior representation of 710 Flatbush Holdings LLC was identified in the CMS. No current or prior representation of Stavros-Caldwell Industrial LLC was identified. No matter was identified in which either entity appeared as an adverse party, related party, or party of interest in any active or closed Firm matter.
Accordingly, no conflict of interest arises from the proposed representation with respect to these joint venture entities.
5.4 Westlake Fidelity Bank, N.A.
No current or prior representation of Westlake Fidelity Bank, N.A. was identified in the CMS. No matter was identified in which Westlake Fidelity appeared as a client, adverse party, related party, or party of interest in any active or closed Firm matter.
It is noted for the record that Westlake Fidelity Bank, N.A. is believed to be a primary victim of the alleged fraud that is the subject of the grand jury investigation. Westlake Fidelity is separately represented in connection with this matter and related civil proceedings by Graystone & Falk LLP of Hartford, Connecticut. The proposed engagement of Mr. Caldwell does not involve any claims against Westlake Fidelity Bank, N.A. or any advocacy adverse to the bank's interests. Mr. Caldwell's role in the investigation is that of a witness, and based on the information presently available, the interests of Mr. Caldwell and Westlake Fidelity are not adverse. Should this assessment change as the investigation progresses — for example, if Westlake Fidelity were to assert civil claims against Mr. Caldwell or his affiliated entities — a supplemental conflicts analysis would be required.
No conflict of interest arises from the proposed representation with respect to Westlake Fidelity Bank, N.A.
5.5 Harborview Trust Company
No current or prior representation of Harborview Trust Company was identified in the CMS. No matter was identified in which Harborview Trust appeared as a client, adverse party, related party, or party of interest in any active or closed Firm matter.
No conflict of interest arises from the proposed representation with respect to Harborview Trust Company.
5.6 Pinnacle Appraisal Group LLC
No current or prior representation of Pinnacle Appraisal Group LLC was identified in the CMS. No prior engagement of Pinnacle Appraisal as an expert, consultant, or service provider by the Firm or on behalf of any Firm client was identified. No matter was identified in which Pinnacle Appraisal appeared as a client, adverse party, related party, or party of interest in any active or closed Firm matter.
No conflict of interest arises from the proposed representation with respect to Pinnacle Appraisal Group LLC.
5.7 AUSA Miriam T. Goldfarb / U.S. Attorney's Office, S.D.N.Y.
No personal conflicts were identified with respect to Assistant United States Attorney Miriam T. Goldfarb. None of the members of the engagement team has a personal, familial, or prior professional relationship with AUSA Goldfarb.
It is noted for the record that the Firm regularly has matters pending before the U.S. Attorney's Office for the Southern District of New York and the U.S. District Court for the Southern District of New York, including both civil and criminal matters in which the Firm represents clients whose interests may be adverse to the government. This is a routine feature of a large-firm litigation and white collar defense practice and does not give rise to a conflict of interest under the applicable rules. The existence of other pending matters before the same prosecutorial office does not create a conflict that would preclude the Firm from representing Mr. Caldwell in connection with his response to the grand jury subpoena.
No conflict of interest arises from the proposed representation with respect to AUSA Goldfarb or the U.S. Attorney's Office for the Southern District of New York.
5.8 Reddick, Sorrento & Hale LLP / Victor A. Reddick
No current or prior representation of Reddick, Sorrento & Hale LLP or any of its individual partners, including Victor A. Reddick, was identified in the CMS. No matter was identified in which Reddick, Sorrento & Hale LLP or Victor A. Reddick appeared as a client, adverse party, related party, co-counsel, or party of interest in any active or closed Firm matter.
No conflict of interest arises from the proposed representation with respect to Reddick, Sorrento & Hale LLP or Victor A. Reddick.
5.9 Graystone & Falk LLP / Catherine A. Falk
No current or prior representation of Graystone & Falk LLP or any of its individual partners, including Catherine A. Falk, was identified in the CMS. No matter was identified in which Graystone & Falk LLP or Catherine A. Falk appeared as a client, adverse party, related party, co-counsel, or party of interest in any active or closed Firm matter.
No conflict of interest arises from the proposed representation with respect to Graystone & Falk LLP or Catherine A. Falk.
5.10 Whitmore & Kessler LLP / Patricia Sheldon
No current or prior representation of Whitmore & Kessler LLP or any of its individual partners, including Patricia Sheldon, was identified in the CMS. No matter was identified in which Whitmore & Kessler LLP or Patricia Sheldon appeared as a client, adverse party, related party, co-counsel, or party of interest in any active or closed Firm matter.
It is noted for the record that Whitmore & Kessler LLP is Mr. Caldwell's prior commercial counsel and represented Mr. Caldwell in the negotiation and execution of the 2019 separation agreement pursuant to which Mr. Caldwell and Marcus W. Stavros dissolved their joint venture relationship. Communications between Mr. Caldwell and Whitmore & Kessler may be subject to attorney-client privilege claims during the document collection, review, and production process in connection with the grand jury subpoena response. The engagement team should coordinate with Mr. Caldwell and, as appropriate, with Whitmore & Kessler regarding the identification and protection of any privileged materials. No conflict of interest arises from the Firm's proposed representation with respect to this prior counsel relationship.
5.11 Thornberg & Whitfield CPAs / Helen R. Thornberg
No current or prior representation of Thornberg & Whitfield CPAs or Helen R. Thornberg was identified in the CMS. No prior engagement of Thornberg & Whitfield as an expert, consultant, or service provider by the Firm or on behalf of any Firm client was identified. No matter was identified in which Thornberg & Whitfield or Helen R. Thornberg appeared as a client, adverse party, related party, or party of interest in any active or closed Firm matter.
No conflict of interest arises from the proposed representation with respect to Thornberg & Whitfield CPAs or Helen R. Thornberg.
5.12 Meridian Forensic Advisors LLC / Nathan P. Solis
No current or prior engagement of Meridian Forensic Advisors LLC as an expert, consultant, or service provider by the Firm or on behalf of any Firm client was identified in the CMS. No matter was identified in which Meridian Forensic Advisors LLC or Nathan P. Solis appeared as a client, adverse party, related party, expert witness, or party of interest in any active or closed Firm matter.
No conflict of interest arises from the proposed representation with respect to Meridian Forensic Advisors LLC or Nathan P. Solis.
5.13 Engagement Team Personal Conflicts
Each member of the proposed engagement team was contacted on December 4, 2022, and asked to confirm the absence of any personal conflicts with respect to the proposed engagement. The results of those inquiries are as follows:
• Conrad Ashby, Partner, White Collar & Investigations Practice Group, confirmed that he has no personal financial interest in any of the entities listed in Section 3 above; no familial or personal relationship with any of the individuals listed in Section 3 above; and no prior involvement with any of the parties in a professional or personal capacity.
• Bernard Crawford, Responsible Partner, Labor & Employment Practice Group, confirmed that he has no personal financial interest in any of the entities listed in Section 3 above; no familial or personal relationship with any of the individuals listed in Section 3 above (other than his existing professional advisory relationship with Jonathan R. Caldwell, as described in Section 5.1 above); and no prior involvement with any of the parties in a professional or personal capacity other than the existing CCA employment advisory engagement noted herein.
• Daniel Obi, Lead Associate, White Collar & Investigations Practice Group, confirmed that he has no personal financial interest in any of the entities listed in Section 3 above; no familial or personal relationship with any of the individuals listed in Section 3 above; and no prior involvement with any of the parties in a professional or personal capacity.
• Lisa Morrow, Associate, Banking & Finance Practice Group, confirmed that she has no personal financial interest in any of the entities listed in Section 3 above; no familial or personal relationship with any of the individuals listed in Section 3 above; and no prior involvement with any of the parties in a professional or personal capacity.
No personal conflicts were identified with respect to any member of the engagement team.
6. Conclusion and Clearance Recommendation
Based on the results of the comprehensive conflicts search described in this memorandum and the informal inquiries made to each member of the proposed engagement team, no conflicts of interest have been identified that would preclude Calderwood & Harkness LLP from undertaking the representation of Jonathan R. Caldwell in connection with his response to the federal grand jury subpoena (Grand Jury No. 22-GJ-4481, U.S. District Court for the Southern District of New York).
The sole existing relationship identified in the conflicts search — Bernard Crawford's ongoing employment advisory engagement with Caldwell Capital Advisors LLC — is consistent with, and not adverse to, the proposed white collar representation. No current or former client relationship, adverse-party relationship, or personal conflict was identified with respect to any other party or entity searched.
Accordingly, it is recommended that the engagement be cleared for acceptance and that the engagement may proceed, subject to (a) the execution of an engagement letter by Mr. Caldwell on terms acceptable to the Firm, and (b) the receipt of the initial retainer deposit in the amount specified in the engagement letter.
It is further recommended that the engagement team remain attentive to the following considerations as the matter progresses:
1. Scope Expansion. If the scope of the government's investigation expands, or if additional parties are identified — including any indicted co-conspirators, additional witnesses, additional financial institutions, or other entities — a supplemental conflicts search should be conducted promptly and the results documented in a supplemental memorandum to be filed with this memorandum in the matter file.
2. Change in Client Status. If Mr. Caldwell's status in the investigation changes from witness to subject or target, the engagement team should promptly reassess the scope of the engagement, the applicable ethical obligations, and any potential conflicts that may arise from the change in status.
3. Adverse Developments. If any party identified in Section 3 above commences civil or administrative proceedings against Mr. Caldwell or his affiliated entities, or if Mr. Caldwell's interests become materially adverse to those of any current Firm client, a supplemental conflicts analysis should be conducted immediately.
4. Privilege Coordination. The engagement team should coordinate with Mr. Caldwell regarding the identification and protection of attorney-client privileged communications with Whitmore & Kessler LLP and any other prior counsel during the document review and production process.
It is requested that this memorandum be filed in the permanent matter file for Matter No. 1034-00001 and maintained in accordance with the Firm's document retention policies applicable to conflicts clearance records.
7. Prepared By
CALDERWOOD & HARKNESS LLP
By: ________
Lisa Morrow Associate, Banking & Finance Practice Group Calderwood & Harkness LLP 450 Park Avenue, 30th Floor New York, New York 10022 Telephone: (212) 555-4100
Email: lmorrow@calderwoodharkness.com
Date: December 4, 2022
cc: Bernard Crawford, Responsible Partner, Labor & Employment Practice Group
Daniel Obi, Lead Associate, White Collar & Investigations Practice Group
This memorandum is a privileged and confidential attorney work product prepared in connection with the Firm's internal conflicts clearance process. It is protected by the attorney-client privilege and the work product doctrine. Distribution of this memorandum outside of the engagement team and the Firm's General Counsel's office is prohibited without the prior written approval of the Responsible Partner or the Firm's General Counsel. This memorandum should not be disclosed to the client or to any third party.