Former Client - Part II
"Other Cases"
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Good discussion of differences between Rules 1.9 and 1.11 and their applicability to former government lawyers. Babineaux v. Foster, 2005 U.S. Dist. LEXIS 4844 (E.D. La. March 21, 2005).
Different Offices Successively Handling Related Matters Do not Save Law Firm. Senior Living Properties LLC Trust v. Clair Odell Ins. Agency LLC, 2005 U.S. Dist. LEXIS 8993 (N.D. Tex. May 13, 2005); and In re ESM Government Securities, Inc., 66 B.R. 82 (S.D. Fla. 1986).
Mid-States Building Services, Inc, vs. Richfield Senior Housing, Inc., 2002 Minn. App. LEXIS 1066 (Minn. App. September 17, 2002). A lawyer had represented a contractor in sixteen different pieces of litigation against subcontractors. A year and a half after ceasing to represent the contractor, the lawyer showed up representing a subcontractor against his former client, the contractor. The contractor moved to disqualify the lawyer, and the appellate court affirmed the trial court’s order of disqualification.
University of West Virginia v. VanVoorhies, 278 F.3d 1288 (Fed. Cir. 2002). A law firm represented a university in applying for a patent in the name of a professor. A dispute later arose between the university and the professor over ownership of the patent. The law firm appeared on behalf of the university. The professor moved to disqualify the law firm. The court held that the nature of the earlier “representation” was not such to prevent the law firm from being adverse to the professor. Same result with clear engagement letter,
Synergy Tech & Design Inc. v. Terry, 2007 U.S. Dist. LEXIS 34463 (N.D. Cal. May 2, 2007).
Exterior Systems, Inc. v. Noble Composites, Inc., 175 F. Supp. 2d 1112 (N.D. Ind. 2001). (This discussion also appears at the page entitled "Client Mergers/Asset Sales.") Gillard and her law firm represented Fabwel, Inc. and its founder, Edward Welter, on many matters over several years. Among other things, Gillard drafted the non-competition agreement signed by one of Fabwel’s executives, Larry Farver. Fabwel was sold to, and merged into, Exterior Systems, Inc. Farver and Welter later set up another business, which Exterior claims, among other things, violates Farver’s non-competition agreement. Exterior sued the new company, Welter, and two Farvers, including Larry Farver. Gillard and her firm appeared on behalf of Welter. Exterior moved to disqualify Gillard and her firm. The court granted the motion holding that the law firm was being adverse to a former client (Fabwel, now a division of Exterior) on matters substantially related to its former representation. The court was mostly influenced by the fact that the law firm had drafted the non-competition agreement that was a subject of the lawsuit.
Williams v. Bell, 793 So. 2d 609 (Miss. 2001). Plaintiff sued Defendants in a tort case. The Langston firm, represented the plaintiff. Defendants went to the Boackle firm for help because their liability insurance might not be adequate to cover Plaintiff’s damages. Allred worked at the Boackle firm for several months. Allred was assigned the task of forming a corporation for the Defendants and conveying Defendants’ personal assets to the corporation. Allred then left the Boackle firm and joined the Langston firm. Six months after Allred joined the Langston firm, the Defendants moved to disqualify the Langston firm. Allred denied having any confidential information about the lawsuit. The trial court disqualified the Langston firm. In a 4-3 split, the supreme court reversed, on two grounds. First, the court held that Allred’s work in transferring the Defendants’ assets was not substantially related to defending the lawsuit. Second, the court held that by waiting six months to make the motion, the Plaintiff waived the right to bring the motion. The three dissenting justices challenged both findings.
In re Roseland Oil & Gas, Inc., 68 S.W.3d 784 (Tex. App. 2001). Suit concerning an oil and gas lease. A lawyer started out representing all six defendants. After one of the defendants gave a deposition, the lawyer decided he had to drop the deponent and the deponent’s wife as clients. He attempted to remain in the case for the other defendants. The plaintiffs then moved to disqualify the lawyer. The court overruled the trial judge and said the lawyer must be disqualified. The court held that the lawyer may have obtained negative information from and about his “former clients” and be forced to choose between maintaining his duty of confidentiality of the dropped clients and his duty to do the best possible job for his remaining clients.
Discipline. Florida Bar v. Dunagan, 731 So. 2d 1237 (Fla. 1999). A lawyer was suspended for 90 days for representing a husband in a divorce matter against the wife. The lawyer had previously represented both the husband and the wife. In
In re Capper, 757 N.E.2d 138 (Ind. 2001), an associate of Respondent had represented the wife in a dissolution proceeding. Several months after the dissolution, Respondent attempted to represent the former husband in getting the dissolution decree changed. When challenged by the former wife’s new lawyer, Respondent withdrew from representing the former husband. The court admonished and reprimanded Respondent for that conflict (and for two unrelated Rule 4.2 violations). In
Schwartz v. Kujawa (In re Kujawa), 270 F.3d 578 (8th Cir. 2001), Schwartz represented Kujawa on several matters. After they were concluded, Schwartz showed up as counsel for a creditor in Kujawa’s bankruptcy proceeding. The Missouri Supreme Court disciplined Schwartz for this. In this case the Eighth Circuit upheld a $66,000 fee award in favor of Kujawa and against Schwartz.
Russell v. DiSalvo, N.Y.S. Ct., QDS: 82456925. This case is reported in the January 12, 2001, online edition of the New York Law Journal. Neither the opinion nor the article discloses the exact date of the opinion. A lawyer filed a slip and fall case on behalf of the plaintiff. The defendant (owner of the premises) had been married to the lawyer, but the marriage ended some ten years ago. The defendant moved to disqualify the plaintiff's lawyer. The court granted the motion saying that the lawyer could use confidences of his former wife, and saying that the representation gave the appearance of impropriety.
Estate planning. In Leber Associates, LLC v. The Entertainment Group Fund, Inc., 2001 U.S. Dist. LEXIS 20352 (S.D.N.Y. 2001), Herrick, Feinstein had done estate planning for the Lebers. The firm later sought to represent the defendant in a suit brought by a corporation owned by the Lebers. The Lebers moved to disqualify Herrick, Feinstein. The court denied the motion. Its principal holding was that the estate planning was not substantially related to the litigation. To the same effect, see Friedman v. Kalail, 2002 Ohio App. LEXIS 1509 (Ohio App. 2002) and Benson v. McNutt, 2008 Ga. App. LEXIS 153 (Ga. App. Feb. 11, 2008). For a different result, see Kim v. Superior Court, 2010 Cal. App. Unpub. LEXIS 152 (Cal. App. Jan. 11, 2010).
Former Matter Bankruptcy. In re Balocca, 151 P.3d 154 (Ore. 2007) . Lawyer discipline case. Lawyer represented A in a bankruptcy matter. Later Lawyer represented B in a paternity action adverse to A. The court held that the information Lawyer would have obtained from A in that representation would disqualify Lawyer from representing B in the paternity action.
Lewis-Calabrette v. Calabrette, 35 Pa. D. & C.4th 417 (Bucks County, Common Pleas 1996). Wife was suing husband for divorce. The husband's lawyer had previously represented the wife on a variety of business and personal matters, including a prior divorce, estate planning, and preparation of an ante-nuptial agreement. The court granted the wife's motion to disqualify, saying:
For the plaintiff to be forced to accept Mr. Litzenberger as counsel for defendant is to force her to fear that some confidence revealed to her former attorney may, in ways yet unknown, be used improperly against her. This she should not have to fear.
Fallacaro v. Fallacaro, 1999 Conn. Super. LEXIS 947 (Conn. Super. 1999). Husband sued wife for divorce. The husband moved to disqualify the wife's lawyer because he had represented the husband eleven years prior in a child support matter. The court granted the motion because the matters were "substantially related."
In re Gadbois, 786 A.2d 393 (Vt. 2001). Lawyer represented husband in first divorce, then opposed husband thirteen years later in second divorce. Court held the second representation violated Rule 1.9(a).
Bunkers v. Bunkers, 2005 Ohio App. LEXIS 1206 (Ohio App. March 18, 2005. This is a divorce proceeding. H moved to disqualify W’s lawyer because that lawyer had represented H in an earlier divorce proceeding. Many of the assets involved in the earlier case are involved in this case. For that reason the appellate court affirmed the trial court’s order disqualifying W’s lawyer.
Earlier Divorce Case Substantially Related Because of Relevance of Assets. Trustees for Flint Plumbing and Pipefitting Ind. Health Care Fund v. Premier Plumbing & Heating, Inc., 2008 U.S. Dist. LEXIS 55867 (E.D. Mich. July 23, 2008).
In re Hines, 825 N.E.2d 763 (Ill. App. 2005). This is a “postdissolution-of-marriage proceeding.” W moved to disqualify H’s lawyer, because he had represented her ten years prior on matters involving W’s and H’s divorce. The trial court granted the motion, but the appellate court reversed. The earlier representation involved marital assets, which were distributed shortly after that representation. Thus, the appellate court ruled that the current representation was not substantially related to the earlier one.
More Cases Involving Former Divorce. Duvall v. Bledsoe, 617 S.E.2d 601 (Ga. App. 2005). The court said not substantially related. Besides the lawyer won't tell because of Model Rule 1.9(c)(1). This the same court that said there were few cases on substantial relationship. A New York case going the other way is
Galanos v. Galanos, 797 N.Y.S.2d 774 (N.Y. App. 2005).
Mo. Informal Op. 2004-0049 (undated). Lawyer represented H in a divorce action. Children were mentioned but custody was not awarded in the divorce action. H currently has custody. A third party now wants to hire Lawyer to help obtain visitation rights of the children. The Missouri Bar Ethics Counsel opined that the matters are substantially related and that Lawyer would have a conflict.
Gray v. Gray, 2002 Tenn. App. LEXIS 675 (Tenn. App. September 19, 2002). A lawyer drafted wills for H and W ten years ago. Now the lawyer is attempting to represent W in a divorce proceeding against H. H moved to disqualify the lawyer. The court made two very interesting rulings. First, the court held that the fact that the lawyer did not write a termination letter after the wills were executed did not mean that the lawyer-client relationship did not terminate. In that connection, the court was influenced by the fact that the lawyer did nothing for H for the next ten years. Thus, H was not a current client of the lawyer. The court then moved to the substantial relationship test applied in former client cases. H claims that because the estate planning ten years prior would have involved the lawyer knowing about H’s property, it would be substantially related to the property division issues in this divorce case. The court disagreed. First, the court said the property issues would have changed significantly during the ten years since the wills were done. Second, the court was influenced by the fact that H and W met with the lawyer together, and everything H told the lawyer was told in W’s presence.
Ethics opinion. Kan. Op. 02-05 (2002) (Committee said lawyer could not represent woman seeking estate proceeds where lawyer's partner had counseled the decedent.)
Canada v. Hernandez, 193 F. Supp. 2d 409 (D.P.R. March 21, 2002). Plaintiffs are former employees of the Puerto Rican Department of Education, one of the defendants. Their law firm represented the Department under a prior administration, and continued on pending cases several months into the current administration. The defendants moved to disqualify the plaintiffs' law firm. The court denied the motion, because the defendants did not make a showing as to what information the law firm might have gotten during is earlier representation of the Department.
Md. Op. 2-10 (December 4, 2001). Committee opines that law firm that represented husband and wife in recent bankruptcy filing could not represent the husband in a divorce proceeding against the wife.
Crawford v. Antonacci, 746 N.Y.S.2d 94 (N.Y. App. 2002). Personal injury action. The accident in this case occurred in 2000. The plaintiff moved to disqualify the defendant’s law firm, because it had represented him in a workmen’s compensation matter arising out of a 1987 accident. In a 2-1 decision the court denied the motion. The majority noted that the injuries were different and remote in time. It also noted that all the medical information about the plaintiff would surface anyway. The dissent said the fact that both matters involved physical injuries:
implicates potential confidences, such as whether plaintiff presents his injuries sincerely or appears as a malingerer, whether he is cooperative in his treatment and with his counsel, and whether he is able to clearly communicate the effect of injuries upon his life.
Continental Resources, Inc. v. Schmalenberger, 656 N.W.2d 730 (N.D. 2003). The plaintiffs’ law firm had previously done title and mineral acquisition work for defendant. Thus, the defendant moved to disqualify the plaintiffs’ law firm. The trial court denied the motion, and the North Dakota Supreme Court reversed. The court noted that this case, brought to enforce mineral rights of the plaintiffs, involved several of the same parcels in which their law firm had assisted the defendant. Although conceding that the North Dakota rules no longer recognize the “appearance-of-impropriety” test, the court declared that the test had not been abandoned “in spirit,” and relied on the appearance of “side-switching” as part of its ruling.
Richard B. v. State, 71 P.3d 811 (Alas. 2003). Proceeding to terminate parental rights. The lawyer for the mother, Henderson, is the partner of the lawyer, Kay, who once had represented the father in a criminal matter. The conviction in the criminal matter is one of the bases for terminating his parental rights. The court found the matters substantially related.
Only in Texas. Woolley v. Sweeney, 2003 U.S. Dist. LEXIS 8110 (N.D. Tex. May 13, 2003). Breach of contract case. Plaintiff and defendant had been business partners. Now, they are fighting. Defendant’s law firm has three lawyers who used to be with the law firm that represented plaintiff and defendant when they were partners (and not fighting). The magistrate in this case has granted plaintiff’s motion to disqualify defendant’s law firm. The opinion is something of an over-long mishmash. The facts are not clear. Defendant’s counsel, while purporting to disclose the possible conflict, arguably did not disclose enough. Thus, the magistrate held that the waivers plaintiff arguably gave were not knowing. Among other things, the magistrate relies in part on the “appearance-of-impropriety” test under old ABA Canon 9. Another factor making the opinion of questionable use – outside Texas, at least – is Texas’ odd version of ABA Model Rule 1.9. It provides in a former-client situation a lawyer may not be adverse to a former client in a matter:
in which such other person [the current client] questions the validity of the lawyer’s services or work product for the former client; or . . .
Blue Planet Software, Inc. v. Games International, LLC, 331 F. Supp. 2d 273 (S.D.N.Y. 2004). John Kirby filed this action on behalf of plaintiffs, Blue Planet, et al. against the defendants over the ownership rights to the game, Tetris. Earlier, Kirby had represented Nintendo in a suit against Tengen, Inc. over ownership of Tetris. Nintendo had licensed rights to Tetris from “Soviet Elorg.” In connection with that license Soviet Elorg had agreed to assist Nintendo in any disputes with third parties over the ownership of Tetris. The Nintendo/Tengen litigation was just such a dispute. Thus, Soviet Elorg opened up its files and records to Kirby. In this case defendant Elorg USA claims to be a successor in interest to Soviet Elorg and moved to disqualify Kirby and his law firm Latham & Watkins. The court granted the motion. First, the court held that Kirby had a duty of confidentiality to Elorg USA even though he had never had a lawyer-client relationship with Soviet Elorg or Elorg USA. Second, the court held that although the issues in the two cases were not identical, it would still be necessary to trace carefully the ownership of Tetris in either case. Thus, Kirby’s access to Soviet Elorg’s information would give him an undue advantage over Soviet Elorg’s “alleged” successor, Elorg USA. Third, while the relationship between Soviet Elorg and Elorg USA was “not 100 percent clear,” the court felt Elorg USA had better facts than Kirby did, and the court found that Elorg USA was a successor in interest to Soviet Elorg. Last, the court held that Latham, too, must be disqualified. The court noted that the Second Circuit was skeptical of screens and found them wanting if “subject to doubt.” The court held here that a screen would be “bootless” (unavailing) because Kirby himself was substantially involved in the case.
Chapter 11 court disqualifies lawyer in different proceeding before different judge. In re Adelphia Communications Corp., 2005 U.S. Dist. LEXIS 2722 (S.D.N.Y. Feb. 16, 2005). This is a Chapter 11 proceeding. Carla Horn had been “staff counsel” at Adelphia in Pennsylvania. She was a member of the Pennsylvania Bar but not of the New York Bar. The Rigas family controlled Adelphia. After disclosure of improprieties, various members of the Rigas family resigned as officers in the spring of 2002. Horn stayed on until relieved in July 2002. After the Rigases resignations but while still at Adelphia, Horn sent an inventory of Adelphia property she had prepared to Timothy Rigas, one of the departed officers. She also forwarded a confidential E-mail, which she had received from Adelphia’s new counsel, to a lawyer representing the Rigases. After leaving Adelphia, Horn was retained to assist in the defense of the Rigases’ criminal matters in the Southern District of New York. She did not appear of record in those proceedings. Nevertheless, Adelphia moved in this Chapter 11 proceeding to disqualify Horn from working on the criminal matters. The Bankruptcy judge granted the motion, and in this opinion, the district judge affirmed. The court held that because the money funding the criminal defense was, in actuality, Adelphia’s money, and because the Bankruptcy Court had jurisdiction over all of Adelphia’s finances, the court had sufficient jurisdiction over Horn to disqualify her in the separate criminal matters. The court went on to hold that Horn was in violation of Pennsylvania’s version of Model Rule 1.9(c) (the use of confidences subsection), relying on the disclosures to Timothy Rigas and the Rigases’ counsel.
Not much educational value, but very funny. Rosenthal v. Gordon, 800 N.Y.S.2d 355 (N.Y. Sup. 2005). This is a real estate dispute. The plaintiff’s law firm formerly represented the defendant, Gordon, in an unrelated eviction proceeding, in which Gordon was the plaintiff. In this case one of the plaintiffs lawyers in a declaration, regarding his former client, stated the following:
. . . . Gordon is . . . notorious for having no scruples and . . . he will take whatever action is necessary, whether legal or not.
. . . . I have personally come across Mr. Gordon and his nefarious ways more than once.
As I am familiar with some of Mr. Gordon's escapades, I can only presume that the threats and illegal acts detailed in the annexed affidavit of Scott Rosenthal are very true.
Gordon moved to disqualify the plaintiff’s law firm. The court responded as follows:
Attacks on a party's credibility have particular weight when supported by a law firm which includes a lawyer who previously represented defendant. In light of the fact that the credibility of the parties is at issue in this case, the Court finds that the decision by [plaintiff’s law firm] to vouch for defendant Nicholas Gordon's lack of credibility is sufficient to merit disqualification.
Odd California Case. Cal West Nurseries, Inc. v. Superior Court, 29 Cal. Rptr. 3d 170 (Cal. App. 2005).
Lawyer Who Drafted Organizational Documents for Homeowners' Association Cannot Later Oppose Association where Documents Are Involved. Estright v. Bay Point Improvement Ass’n., Inc., 921 So. 2d 810 (Fla. App. 2006).
"Freedom from Apprehension." Columbus Construction Co., Inc. v. Petrillo Builders Supply Corp., 799 N.Y.S.2d 97 (N.Y. App. 2005). This is a routine former client/substantial relationship case. The court found an unremarkable substantial relationship. The court said the former client did not need to show actual use or sharing of information from the former representation because the former client was “entitled to freedom from apprehension and to certainty that [its] interests will not be prejudiced.”
Bangkok Crafts Corp. v. Capitolo Di San Pietro in Vaticano, 376 F. Supp. 2d 426 (S.D.N.Y. 2005). The opinion is a bit cryptic as to who is doing what to whom, but here is our understanding of the relationships. Plaintiff sued A, B, C, and D. A, B, and C filed a third-party action against E. D counterclaimed against Plaintiff and F (who evidently was not a plaintiff). Initially Lawyer represented A, B, & C. Lawyer then withdrew and later appeared on behalf of F (the non-plaintiff/counterclaim defendant). A, B, and C (former clients of Lawyer in this case) moved to disqualify Lawyer in his role as lawyer for F. Because A, B, and C could not show how F’s interests in the litigation were adverse to them, the court denied the motion.
Questionable Application of Irrebuttable Presumption of Information-Sharing. In re Gayken, 2005 Tex. App. LEXIS 4688 (Tex. App. June 16, 2005).
City of Stockton v. Land Utilization Alliance, 2005 Cal. App. Unpub. LEXIS 6686 (Cal. App. July 29, 2005). The city sued two not-for-profit entities, X and Y. Law Firm initially represented both defendants. X and Y began viewing the case differently. Therefore, X discharged Law Firm. Having discharged Law Firm, X moved to have Law Firm disqualified from representing Y, claiming Law Firm had X’s confidential information. The trial court granted the motion. In this opinion the appellate court reversed. The court based its ruling upon the fact that an organizer and officer of Y had previously served on the board of X and would have been privy to all the information X is claiming to be confidential. Thus, the court said, it would do no good to disqualify Law Firm because Y would just hire another law firm and disclose the information to the new firm.
Firm Cannot Represent both Plaintiffs against Corporation if One Plaintiff had Earlier Represented the Corporation. Mancheski v. Gabelli Group Capital Partners, Inc., 802 N.Y.S.2d 473 (N.Y. App. 2005).
To Avoid Disqualification Because of Departed Lawyer, under Rule 1.9(a) or Rule 1.10(b), Law Firm Must Show that the Departed Lawyer Did not Share Information with Lawyers that Remained. Other Issues as Well. Ferguson v. DDP Pharmacy, Inc., 621 S.E.2d 323 (N.C. App. 2005). Employees of DDP Pharmacy reported to police that Susan Ferguson had attempted to purchase Oxycontin with a forged prescription. When she was charged with the crime, she consulted with Lawyer C at Firm ABC. Lawyer C told her not to talk with the police. He also told her that he would contact the police and attempt to have the charge dismissed. Later when Ferguson met with C, C informed her that the firm had a conflict and that he could not represent Ferguson. Ferguson was tried and acquitted of the charge. She then sued DDP and several of its employees for malicious prosecution, among other things. By this time Lawyer C had left Firm ABC. DDP appeared in the civil case represented by Lawyer A of Firm ABC. Ferguson moved to disqualify Firm ABC, and the trial court granted the motion. The appellate court, in this case, affirmed. First, the court held that the disqualification was appealable, pursuant to the North Carolina Supreme Court’s ruling in Goldston v. American Motors Corp., 392 S.E.2d 735 (N.C. 1990). Next, the court ruled that the trial court did not abuse its discretion in ruling that Ferguson has established a lawyer-client relationship with Lawyer C and Firm ABC, even though they had not charged her a fee. Next, the court held that the civil case was substantially related to the criminal case, in which Ferguson had consulted with Lawyer C. Last the court ruled that Firm ABC should be disqualified pursuant to N.C. Rules 1.9(a) and 1.10(b), because Firm ABC failed to produce any evidence that Lawyer C had not shared Ferguson’s confidences with lawyers still at Firm ABC.
Lawyer/Plaintiff Causes Law Firm to Be Disqualified in Suit against Lawyer/Plaintiff's Former Client. Pallon v. Roggio, 2006 U.S. Dist. LEXIS 59881 (D.N.J. Aug. 23, 2006).
Having Attended Practice Group Meetings at his Former Firm Gets Lawyer Disqualified. Herrmann v. Gutterguard, Inc., 2006 U.S. App. LEXIS 23361 (11th Cir. Sept. 11, 2006).
City of Waukegan v. Martinovich, 2005 U.S. Dist. LEXIS 34528 (N.D. Ill. Dec. 16, 2005). This is an environmental suit by the city against a landowner. The city moved to disqualify one of the defendant’s lawyers. She had earlier done legal work for the city in connection with the redevelopment of the city’s waterfront. In doing that work she had communications with the defendant in this case because his land, which is the subject of this suit, was within redevelopment area. The court granted the motion, finding that the matters were substantially related.
Irrebuttable Presumption. DeFazio v. Wallis, 459 F. Supp. 2d 159 (E.D.N.Y. 2006) . The defendant claims that the plaintiff’s lawyer used to represent the defendant on matters related to this one. The defendant moved to disqualify the plaintiff’s lawyer. A magistrate judge denied the motion because the defendant had not shown that the lawyer learned any confidential and material information from the defendant during the earlier representation. In this opinion the district judge reversed, holding that where the lawyer’s role in the earlier representation was more than peripheral, there was an “irrebuttable presumption” that the lawyer learned confidences from his earlier client, the defendant.
Presence of Current Client at All Meetings with Former Client During Earlier Representation Does not Prevent Disqualification. Knight v. Ferguson, 57 Cal. Rptr. 3d 823 (Cal. App. 2007) . Lawyer briefly represented Plaintiff before this case was filed. After the case was filed, Lawyer began representing the defendants. The plaintiff moved to disqualify Lawyer. The trial court granted the motion, and, in this opinion, the appellate court affirmed. The substantial-relationship analysis was very fact-intensive, and no purpose would be served by discussing it further. The one interesting tidbit relates to the fact that during Plaintiff’s meetings with Lawyer while Lawyer was representing her, the defendants were present. Thus, the confidentiality concerns regarding the substantial-relationship test would not be present. The court disagreed, making vague references to a lawyer’s “loyalty” to former clients.
Rare Case Involving Trademark Work. Lappert’s Ice Cream, Inc. v. Lappert’s, Inc., 2007 U.S. Dist. LEXIS 21349 (N.D. Cal. March 6, 2007). This is a routine former-client/substantial-relationship analysis and very fact-specific. What is unique is that it involves trademark work.
Server Architecture and the Substantial Relationship Test. Biax Corp. v. Fujitsu Computer Systems Corp., 2007 U.S. Dist. LEXIS 35770 (E.D. Tex. May 16, 2007).
Eight Years Later and Still Substantially Related. Forbes v. NAMS Int’l., Inc., 2007 U.S. Dist. LEXIS 45161 (N.D.N.Y. June 21, 2007) (magistrate judge). The district judge later affirmed the magistrate judge, and even later, the district judge denied the plaintiff's motion for rehearing at Forbes v. NAMS Int'l, Inc., 2007 U.S. Dist. LEXIS 69743 (N.D.N.Y. Sept. 20, 2007).
Client in Name only not a Client. Moorman v. Heyen, 2007 Wash. App. LEXIS 2019 (Wash. App. July 17, 2007).
Working Closely with, and Sharing Information with, Non-client Can Be "Equivalent to a Solicitor/Client Relationship." Stanley v. Advertising Directory Solutions Inc., 2007 BCSC 1125 (CanLII) (S. Ct. of Brit. Col. July 26, 2007).
Lawyer Disqualified Even though Patent Assigned. Robbins & Myers Canada Ltd v. Torque Control Systems Ltd, 2007 FC 957 (CanLII) (Fed. Ct. of Can. Sept. 24, 2007). Lawyer prosecuted Patent for Co. A. Co. A assigned Patent to Co. B. In this case Co. B sued Co. C for infringement of Patent. Lawyer appeared for Co. C. Co. B moved to disqualify Lawyer in this case, and, in this opinion, a prothonotary granted the motion. The court inferred that one of the individual inventors must have conveyed confidential information to Lawyer during the prosecution. The court also noted that Co. A had an interest in having the validity of Patent upheld. Thus, the court reasoned, Lawyer’s appearance in this case caused a serious appearance of impropriety and justified Lawyer’s disqualification. In
Robbins & Myers Canada, Ltd. v. Torque Control Systems Ltd., 2008 FC 332 (CanLII) (Fed. Ct. Canada March 12, 2008), the judge affirmed the prothonotary.
Suit for Trespass and Quiet Title not Substantially Related to Earlier Suit to Establish Ownership of the Same Property. Adams Creek Associates v. Davis, 2007 N.C. App. LEXIS 2302 (N.C. App. Nov. 6, 2007). To a similar effect, and, again, referring to the same piece of property,
Quicken Loans v. Jolly, 2008 U.S. Dist. LEXIS 48266 (E.D. Mich. June 24, 2008, and
Belous v. Bartlett, 2008 Wash. App. LEXIS 2447(Wash. App. Oct. 14, 2008).
Canada. Richmond Taxi Co. Holdings Ltd. v. Robbins, 2007 BCSC 1680 (CanLII) (B.C. S. Ct. Nov. 20, 2007). Lawyer represented a taxicab company (“Taxi Co. 1“) in applying for licenses in 2005 (“Proceeding 1“). Later, Lawyer represented another taxicab company (“Taxi Co. 2”) in applying for licenses for operations in the geographical area in which Taxi Co. 1 operated (“Proceeding 2“). This latter application, if granted, would result in more competition for Taxi Co. 1. During the pendency of Proceeding 2, Taxi Co. 1 filed this action to have Lawyer enjoined from representing Taxi Co. 2 in that Proceeding 2. In Proceeding 1, Lawyer had submitted confidential information regarding Taxi Co. 1’s finances and operations, some of which the regulators arguably would keep confidential. Moreover, it appeared that in Proceeding 2 Lawyer would have to cross-examine Taxi Co. 1’s employees, because Taxi Co. 1 was actively opposing Taxi Co. 2’s application. In this opinion the court granted an interim injunction enjoining Lawyer from doing so. The court first determined that Taxi Co. 1 was not a current client of Lawyer. The court then ruled that under Canada’s former client rules (1) the information gathered by Lawyer from Taxi Co. 1 in Proceeding 1 was “relevant” to Proceeding 2, and (2) the evidence did not show that “a reasonably informed member of the public would be satisfied that no use of confidential information would occur.” While much of the analysis dealt with the potential misuse of Taxi Co. 1’s confidences, there was also a bit of “playbook” analysis, as well.
Dropping Defenses Removes Substantial Relationship. UMG Recordings, Inc. v. MySpace, Inc., 2007 U.S. Dist. LEXIS 91179 (C.D. Cal. Dec. 10, 2007). [Warning: the following is overly simplified; it is intended to flag the issues raised and no more.] UMG moved to disqualify the law firm for MySpace (“Law Firm“), based upon Law Firm’s earlier representation of UMG (“Earlier Matter“). Law Firm, through a series of communications with UMG during the Earlier Matter obtained UMG’s advance waiver, provided the new matters were not related to the Earlier Matter. Law Firm also agree to set up screens as appropriate. UMG’s motion to disqualify in this case arose out of Law Firm’s assertion in this case of certain defenses that related to the Earlier Matter. When UMG asserted the conflict, Law Firm withdrew the offending defenses. In this opinion the court denied the motion to disqualify. The main reasons were the withdrawal of the offending defenses and the failure of UMG to establish that the screens Law Firm set up were not breached. The court was critical of Law Firm’s handling of the alleged conflict and ordered MySpace to pay UMG’s fees for litigating the motion.
In re Estate of Wright, 2007 Ill. App. LEXIS 1311 (Ill. App. Dec. 3, 2007). Law Firm represented Mother in transferring $1.8 million from Mother’s trust to Son. Mother executed an amendment to the trust stating that the transfer was a loan. No note was ever signed. After Mother’s death litigation ensued over the validity of the trust amendment and over whether the transfer was a gift or a loan. Law Firm attempted to represent Son in the litigation, but in this opinion, the appellate court affirmed the trial court’s disqualification of Law Firm. The opinion is a conventional substantial-relationship-test analysis.
Deals with Lawyer-Plaintiff Suing Former Client Using Same Firm as other Plaintiffs. Murphy v. Simmons, 2008 U.S. Dist. LEXIS 594 (D.N.J. Jan. 3, 2008). This fact-intensive opinion is largely devoted to the substantial relationship test, which we will not discuss here. There are two aspects worth spending a little time on. First, the court discussed application of the playbook analysis in some detail and applied it in this case. The second aspect needs some explanation. One of the plaintiffs (“Lawyer”) is a lawyer who formerly did much environmental work for the defendants. Two of the plaintiffs are non-lawyer consultants who worked with Lawyer on some, but not all, of the defendants‘ matters. All the plaintiffs filed this action using the same law firm (“Law Firm”). The court concluded that because Lawyer had much confidential information from his prior representation of the defendants - that the other plaintiffs did not have - Lawyer should have counsel separate from the other plaintiffs. However, because of the joint representation that had already occurred in this case, and the possibility that Lawyer could have shared some of his confidential information about the defendants with Law Firm, the court, in this opinion, disqualified Law Firm.
Crowe v. Kearin, 2008 U.S. Dist. LEXIS 16829 (N.D. Ill. March 4, 2008). Plaintiff sued City over City’s having “booted” Plaintiff’s car. City moved to disqualify Plaintiff’s lawyer, because the lawyer had previously represented the City in parking matters. In a routine substantial relationship analysis in this opinion the court granted the motion.
Where Relationship Exists, Confidentiality not Important. Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 (CanLII) (Nova Scotia Ct. App. March 19, 2008). This opinion is a good discussion of the former client rule in Canada. The relationship analysis was routine, but the court confirmed that where the matters are related, confidential information need not be implicated for the lawyer to be disqualified. The court affirmed the lower court’s order disqualifying the law firm because both in the prior matter and in this matter the former clients’ honesty was in issue.
Good Review of Texas and Interplay of Model Rules 1.6 and 1.9. In re Hoar Construction, L.L.C., 2008 Tex. App. LEXIS 4075 (Tex. App. May 29, 2008). As is true of many former-client cases, this one has no precedential value, and we will not explore the facts here. The opinion is, however, a lengthy and careful analysis of the interplay between Texas’ versions of Model Rules 1.6 and 1.9, particularly the “use-of-information” provisions of Rule 1.9. The opinion also contains a lengthy analysis of waiver with the passage of time.
Extent to which an Individual Acting in his "Official Capacity" Can Be the Subject of a Former Client Analysis. Falk v. Chittenden, 2008 N.Y. LEXIS 1822 (N.Y. June 26, 2008).
No Substantial Relationship, but Court Orders Screen. Liko AB v. Rise Lifts, Inc., 2008 U.S. Dist. LEXIS 58033 (E.D. Pa. July 31, 2008). This opinion contains an unremarkable substantial relationship anlysis. One interesting tidbit is that in denying a motion to disqualify the court ordered the law firm in question to screen from “this litigation” lawyers who had previously done work for the former client.
Odd Florida Decision. Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 2008 U.S. Dist. LEXIS 60689 (S.D. Fla. July 28, 2008). The court denied a motion to disqualify by a former client. Citing two Eleventh Circuit opinions, which pre-dated the adoption by Florida of the ABA Model Rules, the court ruled that because there was “no specifically identifiable evidence of wrongdoing” by the lawyer, disqualification was inappropriate. The moving party had made a vigorous “playbook” argument, but the court ignored it and mentioned nothing of Florida’s version of Model Rule 1.9(a) or the substantial relationship test.
Representing Executor. In re Harris, 2008 N.Y. Misc. LEXIS 4797 (N.Y. S. Ct. Aug. 19, 2008). Lawyer represented the executor of the Harris estate. The executor discharged Lawyer. In this proceeding Lawyer represented an heir in a petition to remove the executor. The executor moved to disqualify Lawyer. In this opinion the court granted the motion. The opinion contains a discussion of who the client is in estate representation.
In re Estate of Markheim, 2008 Me. LEXIS 136 (Me. Sept. 4, 2008). Court held that a special administrator’s suit is not a suit to collect a fee, which is an exception to Maine’s former client rule.
Hill v. Hunt, 2008 U.S. Dist. LEXIS 68925 (N.D. Tex. Sept. 4, 2008). In this opinion the court granted a motion to disqualify the plaintiff’s law firm, Bickel & Brewer (“B&B”). This suit involves allegations of mismanagement of two Hunt family trusts. Two issues were whether B&B currently represented one of the defendants or whether B&B had formerly represented that defendant. This decision is very fact intensive and, as far as we can tell, has no precedential value. But, it is interesting. Some of the factors discussed include who paid what fees, what bills were sent to whom, the significance of E-mails, the significance of who appeared at what meetings and what was discussed at the meetings, who sought legal advice, who directed the activities of B&B, and so forth. The court frequently used the term “appearance of impropriety,” even though both the ABA Model Rules and the Texas rules dropped that expression when they were adopted. The court did not discuss the fact that Texas is the only state whose version of Model Rule 1.7 allows a lawyer to represent a client on one matter and be adverse to that client on an unrelated matter, but the court did acknowledge that the Fifth Circuit in both American Airlines and Dresser Industries held that the ABA rules, and not the Texas rules, would apply in this context in the Fifth Circuit. That distinction would not have changed the result in this case because the court held that the matters in question were related.
Ritchie v. Gano, 2008 U.S. Dist. LEXIS 67770 (S.D.N.Y. Sept. 8, 2008). This is a suit by one principal member of the band, Violent Femmes, against another for breach of contract, etc. In this very fact-intensive opinion a magistrate judge denied the plaintiff’s motion to disqualify the defendant’s lawyer. The issue was whether the lawyer had ever represented the plaintiff or the plaintiff’s erstwhile partnership, whether there ever had been a partnership, and so forth.
OneBeacon America Ins. Co. v. Safeco Ins. Co., 2008 WL 4059836 (S.D. Ohio Aug. 25, 2008). In this case Lawyer and Law Firm are adverse to InsCo on a coverage issue. Law and Law Firm had previously represented InsCo on coverage issues. Both this case and many of the prior cases involved whether a series of events were one "occurrence" or more than one occurrence. At one point in this case Lawyer wrote to InsCo and said that its coverage position was inconsistent with positions it had taken when he was representing it. InsCo moved to disqualify Lawyer and Law Firm in this case. Based upon the foregoing, particularly the letter, the court in this opinion granted the motion to disqualify Lawyer. The court did not disqualify Law Firm, saying that others in the firm could handle this case. A related case is
R.E. Kramig Co., Inc. v. Resolute Mgm't, Inc., 2009 U.S. Dist. LEXIS 48838 (May 18, 2009).
Goodman v. Goodman, 2008 Mo. App. LEXIS 1375 (Mo. App. Oct. 7, 2008). Husband and Wife met with Lawyer to discuss a divorce. Lawyer was married to Husband's mother. As a result of the meeting Lawyer prepared a petition for dissolution, in which Wife was petitioner and Lawyer was Wife's lawyer. Wife never signed the petition, and it was never filed. Husband then hired another lawyer who filed a petition for Husband (this case). Before trial of this case Lawyer appeared for Husband. Wife moved to disqualify Lawyer, which the trial court denied. In this opinion the appellate court affirmed. The court said that the result would be the same whether Rule 1.7 or Rule 1.9 applied because, in either case, Wife was not able to show that the conflict did "clearly call in question the fair or efficient administration of justice." Among other things the court noted that Wife never met separately with Lawyer, except for a phone call to schedule a meeting during which she indicated she might go see another lawyer.
Styles v. Mumbert, 79 Cal. Rptr. 3d 880 (Cal. App. 2008). Creditor sued Debtor. Lawyer represented Debtor. After default judgment, and during pendency of an appeal of the default, Debtor sued Lawyer for malpractice, and Lawyer counterclaimed for fees. Lawyer then purchased Creditor's judgment (judgment assigned) and sought leave to substitute for Creditor in the appeal of the default. In this opinion the appellate court held that Lawyer had a serious conflict and should not be allowed to substitute. The court stressed Lawyer's duty of confidentiality to Debtor.
In re Bacot, 2008 N.Y. Misc. LEXIS 6390 (N.Y. Misc. Oct. 29, 2008). Bacot, represented by Law Firm, brings this action to appoint a guardian for the estate of Winston, an incompetent. Wiggins opposes this action and moves for disqualification of Law Firm. Law Firm had earlier brought an action on behalf of Winston to recover money from Wiggins. Wiggins had sold some of Winston's property and kept the proceeds for himself. In this opinion the court denied the motion to disqualify. First, the court held that Law Firm had never represented Wiggins, so Wiggins did not have standing. But, the court went on to rule on the merits of the motion. First the court held that Law Firm had never really represented Winston, because it brought the earlier action at the request of one of Winston's relatives. Law Firm had never communicated with Winston. Lastly, the court held that the earlier suit for damages was not substantially related to this proceeding for appointment of a guardian.
Pilgrim v. Pilgrim, 2008 NLTD 162 (CanLII) (S. Ct. Newfoundland & Labrador Oct. 21, 2008). Domestic dispute. The law firm for the wife ("Law Firm") had previously represented two corporations, in which the husband has a minority interest. The husband moved to disqualify Law Firm, and in this opinion the court granted the motion. The basis for the disqualification was that Law Firm, in the earlier representation of the corporations, might have learned information that could be helpful to the wife in this litigation.
No Formal Attorney-Client Relationship Formed, Still . . . . Lexjac, LLC v. Beckerman, 2008 U.S. Dist. LEXIS 93133 (E.D.N.Y. Nov. 14, 2008). Defendant approached Lawyer for legal advice about the property, which is the subject of this case. They had several conversations, but no formal attorney-client relationship was ever formed. Lawyer's partners showed up in this case as counsel of record for Plaintiff. In this very fact-intensive opinion the court granted Defendant's motion to disqualify Plaintiff's counsel.
MKD Security Awareness & Training Inc. v. Summerville, 2008 CanLII 67903 (Ont. Sup. Ct. Dec. 12, 2008). Routine substantial relationship analysis. Until shortly before this case, a lawyer for plaintiff in this case ("Lawyer") had represented one of the defendants in a contract dispute with a banquet hall over the defendant's daughter's wedding. The defendant moved to disqualify Lawyer claiming that Lawyer learned about the defendant's financial resources in the banquet hall case. In denying the motion, in this opinion, the court held that was not a "clear and cogent" showing that Lawyer learned anything relevant to this case.
“Near Client. Canadian Union of Public Employees, Local 569 v. Human Rights Comm'n, 2009 NLTD 1 (CanLII) (S. Ct. Newf. and Lab. Jan. 7, 2009). Employee worked for City. City terminated Employee. Union, of which Employee was a member, hired Lawyer to seek Employee's reinstatement in arbitration. In the course of that representation Lawyer met privately with Employee, at which time Lawyer obtained much information from Employee. Later, Employee sued City and Union (this case). Union retained Lawyer to defend this case. Employee moved to disqualify Lawyer. In this opinion the court granted the motion. The court acknowledged that in the earlier arbitration Lawyer's client was Union, not Employee. However, using terms such as "near client," the court held that because Employee reposed confidences in Lawyer, Employee was in that class of non-clients who should be protected.
CLS Catering Services Ltd. v. Mahil, 2011 BCCA 321 (Ct. App. B.C. July 14, 2011). In this action Plaintiff sued Defendant for defrauding Plaintiff while Defendant was controller of Plaintiff. Law Firm represents Plaintiff. Earlier Law Firm had represented an unrelated company ("UC"), of which Defendant was a director, in the purchase of a franchise. For that reason Defendant moved to disqualify Law Firm in this case. The trial court denied the motion. In this opinion the appellate court affirmed. Defendant claimed that he gave confidential information to Law Firm in connection with the franchise matter. A member of Law Firm denied that. The trial court sided with the Law Firm because there would not have been a reason for Defendant giving personal information in the franchise matter. The appellate court agreed. [Note: the court did not deal with whether Defendant was ever a client of Law Firm. It appears that Canadian courts will protect confidences of persons in the position of Defendant. We believe some Canadian courts would use the term "near client" for such a person. Such was the case in the Canadian Union case just above.]
Rohm & Haas Co. v. Dow Chem. Co., 4309-CC, (Del. Ch. Feb. 12, 2009). Wachtell represented Dow in 2007 and 2008 in an employment matter. It now represents Rohm & Haas in this case against Dow. Dow moved to disqualify Wachtell, on both current client and former client principles, and in this brief letter opinion the chancellor denied the motion. In our view, the only point of interest to this audience is how the court determined that Dow was not a current client of Wachtell. In mid-2008 Wachtell, without objection from Dow, wound up across the table from Dow, representing Rohm & Haas in merger negotiations with Dow. That, the court said, should have been notice to Dow that Wachtell was no longer its law firm, thus dispensing with Dow's current client argument. The former client argument was resolved with a traditional, and unremarkable, substantial relationship analysis.
Anti-SLAPP Motion Denied. United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton, 2009 Cal. App. LEXIS 333 (Cal. App. Mr. 12, 2009). Law Firm represented Ins. Co. in Action No. 1. After Ins. Co. became a former client of Law Firm, Law Firm appeared opposite Ins. Co. in Action No. 2. Ins. Co. filed this action ("Action No. 3") to enjoin Law Firm from opposing Ins. Co. in Action No. 2. Law Firm filed an anti-SLAPP motion in this action to dismiss this action. (If you do not know what an anti-SLAPP motion is, don't worry about it. You don't need to know. Only in California . . . .) The trial court denied the motion because Ins. Co. showed a "probability of success on the merits." The appellate court affirmed on other grounds, holding that Law Firm's conduct in Action No. 2 was not "protected activity" with the meaning of California's anti-SLAPP law. For those practicing in California, this opinion appears to be a good discussion of what is "protected activity" under the anti-SLAPP law. Similar result in
PrediWave Corp. v. Simpson Thacher & Bartlett LLP, 2009 Cal. App. LEXIS 1925 (Cal. App. Dec. 2, 2009).
Not “Sufficiently Related.” Walsh v. TRA Co. Ltd., 2009 NLTD 9 (CanLII) (S. Ct. of Newf. & Lab. Jan. 26, 2009). Lawyer did some work for the defendant in this case, but not on this case. Lawyer then went to another firm, where he began working on this case for the plaintiff in this case. The defendant moved to disqualify Lawyer and his law firm, and in this opinion the court denied the motion. This was a fact-intensive analysis, in which the court had to decide whether the work Lawyer did for the defendant at his former firm was sufficiently related to this case to warrant Lawyer's disqualification. The court found that it was not. The opinion contains a thorough analysis of Canadian Supreme Court decisions as well as recent lower court decisions from around Canada dealing with former client conflicts.
Doucet v. Cousineau, 2009 CanLII 1801 (Ont. Super. Ct. Jan. 22, 2009). The plaintiff is a lawyer suing over expenses relating to a building. The law firm representing the defendant has a partner, Ms. Barazzutti, who formerly worked for the plaintiff. The plaintiff moved to disqualify the defendant's law firm. In this opinion the court denied the motion. The court noted that Ms. Barazzutti never had a lawyer-client relationship with the plaintiff. The court also noted that the plaintiff made little or no showing that Ms. Barazzutti had obtained confidential information relating to this action while she was employed by the plaintiff. [Note: the court included a discussion of the Neil case and the concept of loyalty to current clients. To us, this seemed unnecessary and confusing. After all, this case involved a former non-client.]
Dixon v. Chevron U.S.A., Inc., 2009 Cal. App. Unpub. LEXIS 1374 (Cal. App. Feb. 20, 2009). While Dixon was doing real estate consulting for Chevron, he was deposed in another case (not this case) as Chevron's "person most knowledgeable" ("PMK") (evidently the equivalent to persons designated under FRCP 30(b)(6)). During part of this deposition Lawyer appeared with Dixon. After Dixon and Chevron had a falling-out, Chevron, represented by Lawyer, brought this action against Dixon. Because of Lawyer's activities in the earlier PMK deposition, Dixon moved to disqualify Lawyer in this case. The trial court denied the motion. In this fact-intensive opinion the appellate court affirmed. The court looked at many factors, including the fact that Dixon had his own lawyer at the PMK deposition, and concluded that Lawyer never had a lawyer-client relationship with Dixon. The court also included that Lawyer had never obtained any confidential information with Dixon in connection with the PMK deposition.
PIKA Int'l, Inc. v. American Pulverizer, Inc., 2009 U.S. Dist. LEXIS 40443 (E.D. Mo. May 13, 2009). Plaintiff is suing Defendant over a machine that Plaintiff purchased from Defendant. Some months prior to the filing of this suit the law firm that is representing the Plaintiff in this suit represented a bank in seeking to terminate a trust of which the bank was trustee. The sole trust assets were shares of stock of Defendant. The partner doing the work for the bank is not involved in bringing this case. Defendant moved to disqualify Plaintiff's law firm in this case because of that earlier work for the bank/trustee. In this opinion the court denied the motion, primarily because there was no showing that Plaintiff's law firm received any information about Defendant in representing the bank that would be useful to Plaintiff in this case.
Cole v. Salt Creek, Inc., 2009 U.S. Dist. LEXIS 41792 (D. Utah May 15, 2009). David Cole ("Cole") was an officer and major shareholder of Salt Creek. In 2002 all the outstanding stock of Salt Creek was sold to Inve Asia, at which time Cole entered into an employment agreement with Inve. Inve terminated Cole in 2008. In this suit Cole, represented by Robert Mansfield, is suing Salt Creek and Inve over the employment agreement. Mansfield had been at the Van Cott firm and had represented Salt Creek from 1992 until 2008, when he left Van Cott and joined the Snell firm. In 2002 when Cole sold his stock to Inve, Mansfield represented Cole in negotiating Cole's employment agreement. Mansfield billed that time to Salt Creek. In this opinion a magistrate judge denied the defendants' motion to disqualify Mansfield. First, the court held that Mansfield's work for Salt Creek was not substantially related to this case. As to Mansfield's work on the employment agreement, the court said that everything Mansfield learned about the matter he learned from Cole.
R&D Muller, Ltd. v. Fontaine's Auction Gallery, LLC, 2009 Mass App. LEXIS 653 (Mass. App. May 18, 2009). This is an action by plaintiff against John and Dina Fontaine and their companies for mishandling the plaintiff's solid gold Mickey Mouse at an auction in 2003. Law Firm, which represents the plaintiff in this case, had represented the Fontaines between 1980 and 1990, giving corporate advice, among other things. This included the formalities attending the setting up and maintaining of corporate entities. One of the issues in this case is whether the plaintiff can pierce the "corporate veil" to get to the Fontaines personally. One of the allegations is that the Fontaines did not comply with the corporate formalities in maintaing the defendant corporations. The defendants moved to disqualify Law Firm, the trial court granted the motion, and, in this opinion, the appellate court affirmed. The court found that the overlap of the representations was clear, even given the lapse of time between them.
Koch Industries, Inc. v. Hoechst AG, 2009 U.S. Dist. LEXIS 52418 (S.D.N.Y. June 4, 2009). Law Firm did an antitrust audit for the plaintiff in 2000. In 2003 the plaintiff brought this fraud suit against defendant arising out of the plaintiff's purchase of a business from the defendant. The defendant's alleged fraud was in failing to disclose that it was violating antitrust laws. In 2008 Law Firm appeared in this case for the defendant. The plaintiff moved to disqualify Law Firm, and in this opinion the court denied the motion. This was a very fact-intensive application of the substantial relationship test, the court finding none.
Hybrid Kinetic Automotive Holdings, Inc. v. Yeung, 2009 U.S. Dist. LEXIS 52322 (N.D. Miss. June 18, 2009). Law Firm had represented the defendants in negotiating contracts with European vendors. Shortly after that work ceased, Law Firm appeared for the plaintiffs in this case, which dealt with the ownership and control of certain defendants. In this opinion the magistrate judge granted the defendants' motion to disqualify Law Firm. The analysis was unremarkable and fact-intensive. [Note: unfortunately, the magistrate judge just had to refer to the wrong-headed notion that the duty of loyalty is a factor in applying Model Rule 1.9. Is it in the water down there, or what?]
Eighteen Years Later. Lamanna v. Lamanna, 2009 CanLII 33046 (Ont. Super. Ct. June 29, 2009). This action involves, among other things, the right to certain real estate. Each side moved to disqualify the other's lawyer. One lawyer was disqualified because he would be a witness. The other was disqualified because he had formerly represented the opposing party. He did not recall the earlier representation, which had occurred 18 years ago. Nevertheless, the court disqualified the lawyer because the earlier matter was clearly related to this matter.
Derrett v. BW Imaging Incinfluenced., 2009 MBQB 174 (CanLII) (Q.B. Manitoba June 24, 2009). This is an unlawful employment discharge case. The defendant moved to disqualify the law firm for the plaintiff ("Law Firm") because 6 years prior Law Firm had represented the president of the defendant in a domestic dispute. The president is a witness in this case. In this opinion the court denied the motion, finding no sufficient relationship between the domestic dispute and this employment dispute. The court also seemed influenced by the fact that the earlier matter was some 6-8 years prior.
Trade Dress vs. Patent Prosecution. Innovation Ventures, Inc. v. N2G Distributing, Inc., 2009 U.S. Dist. LEXIS 66295 (E.D. Mich. July 31, 2009). Evidently, this is a trade dress case. This opinion involves a motion to disqualify the defendant's law firm ("Law Firm"). Law Firm had earlier represented the plaintiff in prosecuting at least one patent for the product that is the subject of this case. The court held that the two matters were substantially related and granted the motion to disqualify.
Greenwood Land Co. v. Omnicare, Inc., 2009 U.S. Dist. LEXIS 74374 (W.D. Pa. Aug. 20, 2009). This was a fact-intensive substantial relationship analysis. At the end of the day, the magistrate judge, in granting a disqualification motion, seemed to rely primarily on the fact that the two matters in question involved the same lease, the same issues under the lease, and the same parties.
Commonwealth Title Ins. Co. v. St. Johns Bank & Trust Co., 2009 U.S. Dist. LEXIS 87151 (E.D. Mo. Sept. 22, 2009). The facts are complex, so we will try to simplify things. This suit was filed by the plaintiff ("InsCo") in late 2008. Law Firm A appeared for the defendant ("Bank"). In early 2009 Law Firm A merged with Law Firm B, resulting in Law Firm AB. Firm B was not in this case. However, Firm B was representing InsCo in at least one other matter at the time of the AB merger. Moreover, Firm B had represented InsCo, and InsCo's corporate affiliates in a number of former matters. InsCo moved to disqualify AB in this case, and, in this opinion, the court granted the motion. The judge could not bring himself to forgive the current client conflict. That wasn't all. The judge felt the situation was aggravated by the former representations, which involved litigation not dissimilar to this case. First, the court seemed to embrace the playbook approach to the substantial relationship test. Second, the corporate affiliates were related as "brother-sister" rather than "parent-subsidiary." The court was particularly impressed with the extent to which InsCo's corporate parent had coordinated and unified the corporate family members' approach to litigation, including personnel, procedures and settlement strategy.
Apeldyn Corp. v. Samsung Electronics Co., LTD, 2009 U.S. Dist. LEXIS 93396 (D. Del. Sept. 30, 2009). Lawyer had done substantial work for Defendant in an earlier case involving DRAM technology. He then changed firms. His new firm is representing Plaintiff in this case, which involves liquid crystal technology. Lawyer was assigned to work on this case. Defendant moved to disqualify Lawyer and his current firm, and, in an earlier opinion, the court granted the motion, Apeldyn Corp. v. Samsung Electronics Co., LTD, 660 F. Supp. 2d 557 (D. Del. 2009). The plaintiff moved for rehearing, and in this opinion the court denied the motion. In the earlier opinion the court embraced somewhat the long-discredited appearance-of-impropriety test. In this opinion the court, while not rejecting that test outright, emphasized in some detail the substantial relationship of DRAM and liquid crystal technologies. The Federal Circuit affirmed at
In re Apeldyn Corp., 2010 U.S. App. LEXIS 15954 (Fed. Cir. Aug. 2, 2010).
Kaplan v. Divosta Homes, L.P., 2009 Fla. App. LEXIS 16358 (Fla. App. Nov. 4, 2009). In this personal injury action the plaintiffs moved to disqualify the defendant's law firm ("Law Firm"). In this opinion the appellate court affirmed the trial court's denial of the motion. One ground of the motion was that a lawyer in Law Firm ("Lawyer") represents the personal representative of an estate in which a plaintiff is a beneficiary. The court rejected that ground because the plaintiff was never a client of Law Firm or Lawyer. Another ground is that the plaintiffs revealed information about this case to relatives of a lawyer whose firm represents another party in the aforesaid estate proceeding. The court rejected that ground in part because the plaintiffs could not have reasonably expected the information to remain private.
JDI Holdings, LLC v. Jet Mg'mt, Inc., 2009 U.S. Dist. LEXIS 105277 (N.D. Fla. Oct. 26, 2009). Prosaic substantial relationship analysis. There had been a former representation, and both the former represenation and this representation involved airplane transactions. However, in denying a motion to disqualify, the court said:
The prior representation did not involve the same parties or aircraft as the current litigation nor did the prior legal dispute involve allegations of fraud or an alleged secret finder's fee arrangement as in this case. No attorney work from the prior representation is at issue here. Additionally, there is no evidence that any confidences of Mr. Kerr were used to his disadvantage in this case.
Thorner v. Sony Computer Entertainment Amer., Inc., 2009 U.S. Dist. LEXIS 108422 (D.N.J. Nov. 20, 2009). Impossible to separate earlier work on Sony PlayStation controllers from the work in this case.
Fabric Selection, Inc. v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 111329 (C.D. Cal. Nov. 17, 2009). In this action Plaintiff claims that the design of fabric sold by Wal-Mart infringed Plaintiff's copyrights. Several years prior, Plaintiff's law firm ("Law Firm") had represented Wal-Mart in defending a fabric design copyright infringement case. Thus, Wal-Mart moved to disqualify Law Firm in this case. In this opinion the court denied the motion. First, Wal-Mart could not point to any confidences in the earlier case that were material to this case. Second, because this case involved different parties, different fabric, and different designs, this case was not substantially related to the earlier one. Last, the court noted that in the earlier case Wal-Mart was successful in tendering the defense to its suppliers and, thus, was not in control of the defense of that case.
Revise Clothing, Inc. v. Joe's Jeans, Inc., 2010 U.S. Dist. LEXIS 12766 (S.D.N.Y. Feb. 1, 2010). Trademark infringement case. Defendant's law firm ("Law Firm") had previously done trademeark work for Plaintiff. Thus, Plaintiff moved to disqualify Law Firm in this case. In this fact-intensive opinion the magistrate judge denied the motion. The court refused to find that Plaintiff was a "current" client of Law Firm, noting: (1) the earlier retainer was narrow, and the matter had terminated; (2) the fact that the settlement agreement of the earlier matter designated Law Firm to receive notice for Plaintiff was not determinative; and (3) the fact that Law Firm continued to send promotional E-mail bulletins ("blasts") to Plaintiff was also not determinative. That left the court with a former client/substantial relationship analysis. First, the court was negative on Plaintiff's playbook assertions. Second, the court emphasized that one of the representations involved stitching designs on jeans, while the other involved use of words.
Wade v. City of Chicago, 2010 U.S. Dist. LEXIS 11844 (N.D. Ill. Feb. 11, 2010). This is a civil rights suit by Plaintiff regarding her arrest by two police officers. Two lawyers, A and B, seek to appear for Plaintiff. Lawyer A was previously employed by the city to defend such cases. In fact, while employed by the city, Lawyer A defended the same two police officers in a very similar case. The similar case involved an arrest just a few blocks from the arrest in this case, and the arrests were just a few weeks apart. Declaring the two incidents "too close for comfort," the court found the matters substantially related and denied the admission of Lawyer A.
Oasis West Realty, LLC v. Goldman, 2010 Cal. App. LEXIS 287 (Cal. App. March 3, 2010). For about a year Law Firm and Partner in Law Firm did work for a real estate developer ("Developer"), involving a hotel and condo development. Two years after Developer and Law Firm parted company, Partner did two things: (1) at a public meeting Partner took a position adverse to Developer on how a local referendum should be held; and (2) Partner and his wife did some work on getting voter support for the referendum, which required that the project be approved by voters. Developer then filed this action alleging various breaches of duty including conflict of interest and breach of confidentiality. Law Firm and Partner immediately moved to strike the complaint under California's anti-SLAPP statute. The trial court denied the motion, but, in this opinion, the appellate court reversed. The court held that Partner's actions supporting the referendum were in his citizen capacity, not in connection with representing a client. The court further held that Partner had not disclosed any of Developer's confidences during the referendum-related activities.
Alpha Capital Mgmt., Inc. v. Rentenbach, 2010 Mich. App. LEXIS 446 (Mich. App. March 9, 2010). Another annoying use of the term, “loyalty” in a former client context.
Jacob North Printing Co., Inc. v. Mosley, 2010 Neb. LEXIS 36 (Neb. March 19, 2010). Mosley worked for Company No. 1. Mosley then left Company No. 1 and went to work for Company No. 2 (the plaintiff in this case). Company No. 1 sued Mosley for violating a covenant not to compete (not this case). Company No. 2 hired its long-time law firm ("Law Firm") to represent Mosley, which it did. Several years later Mosley left Company No. 2 and went to work for Company No. 3. Company No. 2, represented by Law Firm, then filed this action against Mosley alleging a breach of loyalty, misappropriation of trade secrets, conversion and a violation of Nebraska's Consumer Protection Act. Mosely moved to disqualify Law Firm in this action. The trial court granted the motion. In this opinion the Nebraska Supreme Court reversed the trial court, holding that the two matters were not substantially related. That is because the earlier case involved a breach of a covenant not to compete while this action involves the conversion of Company No. 2's customer list. The court was also influenced by the fact that the earlier matter preceded this matter by three years.
Cardinal Robotics, Inc. v. Moody, 2010 Ga. LEXIS 265 (Ga. March 22, 2010). This is a partition action. Law Firm is representing the plaintiff, the executor of the estate of Decedent. Cardinal Robotics, Inc. ("Cardinal") is the defendant. Earlier Law Firm had represented Cardinal in a quiet title action involving the same property. However, that representation lasted only three days and was orchestrated, and paid for, by Decedent, a major investor in Cardinal. Cardinal moved to disqualify Law Firm in this case. In this opinion the court affirmed the trial court's order denying the motion. The court held that the two matters were not substantially related.
In re David Cutler Indus., Ltd., 2010 Bankr. LEXIS 1019 (E.D. Pa. April 20, 2010). Although this case involves a Chapter 11 proceeding, the issues really are former client ones. The analysis is very fact specific. The issue is whether Lawyer could represent defendants in four adversary proceedings brought by the debtor. The bankruptcy judge first found that Lawyer had represented the debtor, but that the representation was limited in scope and duration and had ended. The court then found that this "limited" representation was not substantially related to the adversary claims in question.
Openwave Systems, Inc. v. 724 Solutions (US) Inc., No. C09-3511 RS (N.D. Cal. April 22, 2010). This a very straight forward, but very fact-intensive application of the substantial relationship test to successive patent representations. It involved patents dealing with internet access over cell phones, "voicemail agents," and "PIM sync." The court disqualified the law firm in question. One interesting feature is the court's rejection of the subject law firm's screen between the sets of lawyers on each representation. The court mentioned
Kirk v. The First American Title Ins. Co., 2010 Cal. App. LEXIS 478 (Cal. App. April 7, 2010) (recognizing screens in some situations), but said that the screen did not work in this case.
Welch LLP v. Optical Vision of Canada Ltd., 2010 ONSC 2865 (CanLII) (Super. Ct. Ont. May 27, 2010). Tax preparation and franchise dispute are “sufficiently related,” where overlapping business information is involved.
Miller v. Yukondetail, 2010 YKSC 22 (CanLII) (S. Ct. Yukon May 26, 2010). This case is way too fact-specific to detail here. It involves a lawyer's representation of a native nation in this case adverse to another native nation that the lawyer had represented on other "sufficiently related" matters. The opinion is a good recitation of the factors Canadian courts consider when deciding whether a former-client relationship should cause disqualification.
E.A.G. v. D.L.G., 2010 YKSC 24 (CanLII) (Yukon S. Ct. June 4, 2010). In this custody case H has moved to disqualify W's lawyer because that lawyer had, ten-years prior, represented H in H's first divorce. In this opinion the court denied the motion. First, the court found there was an insufficient showing that the matters were "sufficiently related." Second, the court found that a delay of six months in bringing the motion was an additional basis for denying the motion.
Bluestone Coal Corp. v. Superior Court, 2010 W. Va. LEXIS 85 (W. Va. S. Ct. App. June 23, 2010). The plaintiff is a purchaser of coal under a coal supply agreement. The defendant signed the agreement to supply the coal. This is suit is for breach of the agreement. The defendant moved to disqualify the plaintiff's law firm ("Law Firm") because Law Firm had previously represented defendant in defending a nearly identical case involving another purchaser. The trial court denied the motion. In this opinion the West Virginia high court reversed (granted writ of prohibition). First, the court held that a writ of prohibition is appropriate where lower court erroneously failed to disqualify counsel. Second, the court held that successive cases involving breach of a coal supply contract were substantially related.
Hartford Cas. Ins. Co. v. American Dairy & Food Consulting Labs., IncIn., 2010 U.S. Dist. LEXIS 70238 (E.D. Cal. June 17, 2010). Lawyer did insurance coverage work for Ins. Co. from 1985 until 1992. In this case Lawyer is adverse to Ins. Co. on insurance coverage matters. Several of the the earlier cases involved property theft and vandalism, as did this case. Ins. Co. moved to disqualify Lawyer, and in this opinion the magistrate judge denied the motion, finding no substantial relationship. Among other things, the court noted that Ins. Co.'s claims manual was adopted after Lawyer had stopped representing Ins. Co. The court also said it could not avoid factoring in the passage of time since Lawyer represented Ins. Co.
In re Estate of Power, 2010 N.Y. Misc. LEXIS 3103 (N.Y. Sup. Ct. July 14, 2010). Lawyer sought to represent the decedent's former girlfriend in opposing a petition by the special administrator of the estate regarding funds held by a bank. Lawyer had earlier represented the decedent regarding decedent's receipt of those funds from decedent's estranged wife. Because the estate was the "legal embodiment" of the decedent, the court ruled that Lawyer was in violation of N.Y. Rule 1.9(a) (former client).
Sunbeam Products, Inc. v. Hamilton Beach Brands, Inc., 2010 U.S. Dist. LEXIS 74001 (E.D. Va. July 22, 2010). Patent infringement case. The plaintiff's law firm ("Firm P") now employs a lawyer ("Lawyer") who formerly worked at the defendant's law firm ("Firm D"). While at Firm D Lawyer worked on patents involved in this case. The defendant moved to disqualify Firm P, and in this opinion the court granted the motion. In a fact-intensive analysis, the court found the matters substantially related. The court noted the variation around the country in approaches to applying the substantial relationship test to successive patent matters, but that the Fourth Circuit's preferred to avoid "hair-splitting" and resolve any doubts in favor of disqualification, citing
United States v. Clarkson, 567 F.2d 270, 273 (4th Cir. 1977).
Decedent’s Estate. In re Hostetter, 2010 Ore. LEXIS 558 (Ore. July 29, 2010). Disciplinary case. Lawyer represented Borrower in several loan transactions. After Borrower passed away, Lawyer represented Lender in attempting to collect the loans from the estate. In this opinion the court concluded that Lawyer violated the former client rule.
Balancing Test. In re DataTreasury Corp., No. 2010-M928 (Fed. Cir. Aug. 5, 2010. At one time Lawyer briefly represented Plaintiff regarding the licensing of a patent. The representation was so brief, Lawyer did not bill time to it. Lawyer then joined Law Firm. Law Firm is representing Defendant in this patent infringement action. The subject patent is the patent involved in Lawyer's earlier work for Plaintiff. Lawyer left Law Firm. Plaintiff moved to disqualify Law Firm. The trial court denied the motion. In this opinion the Federal Circuit denied mandamus. Both courts held that Law Firm's substantial work on this case outweighed any possible harm from the conflict.
Cone Financial Group, Inc. v. Employers Ins. Co. of Wausau, 2010 U.S. Dist. LEXIS 81326 (M.D. Ga. Aug. 11, 2010). The plaintiff in this case had, in an earlier worker's compensation case, sought, and received, the carrier's consent to hire its own lawyer ("Lawyer"). During that case Lawyer had much contact with the carrier's personnel. When the case was settled, the lawyer signed the settlement agreement, "Attorney for Employer/Insurer." In this case the plaintiff, represented by Lawyer, is suing the carrier for mishandling cases brought by the plaintiff's employees. The carrier moved to disqualify Lawyer. In this unremarkable opinion the court granted the motion.
North Carolina State Bar v. Sossomon, 2010 N.C. App. LEXIS 1768 (N.C. App. Sept. 7, 2010). Discipline. Fact-specific. Complex. Lawyer was suspended for one year for being insensitive to conflict and confidentiality rules. If you want to know how not to handle the sale and resale of undeveloped real estate, read the opinion.
Bak v. Home Video Franchising Corp., 2010 U.S. Dist. LEXIS 82005 (S.D. Ind. Aug. 12, 2010). In this case Plaintiff sued the defendants over issues raised by a video store franchise agreement. Certain members of Plaintiff's law firm ("Law Firm") while with a predecessor firm had, four years prior to this action, advised several of the defendants on corporate matters such as non-disclosure agreements, vendor agreements, non-competition agreements, and trademark issues. None of these lawyers advised the defendants on franchise issues. Plaintiff moved to disqualify Law Firm, and in this opinion the court denied the motion. In addition to the above, the court noted that Plaintiff could not specify any confidential information Law Firm learned from the earlier representation that was relevant to this action. Very fact-specific and of little precedential value.
Edelstein v. Optimus Corp., 2010 U.S. Dist. LEXIS 108351 (D. Neb. Sept. 24, 2010). Defendant moved to disqualify the law firm ("Law Firm") for the plaintiffs. Law Firm had represented Defendant on several isolated matters some years prior. There were two issues. The second issue was whether the current representation, involving construction of an ERISA plan, was substantially related to the earlier representation, which involved a corporate acquisition. The court held it was not.
Rescigno v. Vesali, 2010 Ga. App. LEXIS 1006 (Ga. App. Oct. 27, 2010). This is an appeal in a wrongful eviction case. Plaintiff had moved below to disqualify Defendant's law firm, because that firm had previously represented Plaintiff in a paternity/custody matter. In this opinion the court affirmed the lower court's denial of the motion. The court held that the paternity/custody matter was not substantially related to this eviction matter.
Capital Machine Co., Inc. v. Miller Veneers, Inc., 2010 U.S. Dist. LEXIS 11438 (S.D. Ind. Oct. 22, 2010). Patent infringement case. Defendant's law firm ("Law Firm") previously represented Plaintiff. Plaintiff moved to disqualify Law Firm. The court granted the motion in September 2010. In this opinion the court denied Defendant's motion for reconsideration. The opinion contains a fact-intensive substantial relationship analysis. A couple of things stand out. First, while working for Plaintiff, Law Firm worked on a patent that was cited as prior art in the application for the patent in this case. Second, Law Firm had done tax work for Plaintiff and claimed that the tax work had nothing to do with this infringement case. However, the court noted that Defendant had sought tax records in discovery requests in this case, thus admitting, in effect, that the earlier tax work was related to this case.
H2O Plus, LLC v. Arch Personal Care Prods., L.P., 2011 U.S. Dist. LEXIS 28657 (D.N.J. March 21, 2011). Plaintiff, H2O, makes skin-care products, and defendant, Arch, manufactures chemicals used in skin-care products. In this action H2O is claiming breach of contract by Arch, among other things. The law firm representing the defendants in this action ("Law Firm") in 2008 represented H2O in the sale of its business. H2O moved to disqualify Law Firm, and a magistrate judge granted the motion, finding that the 2008 matter was substantially related to this case. In this opinion the district court affirmed the magistrate judge. A couple of facts are interesting. First, prior to the commencement of this action Arch, through Law Firm, sent H2O a letter responding to a demand letter from H2O. Law Firm's response letter made reference to H2O's involvement with the FDA, which involvement Law Firm might well have learned of in its earlier representation of H2O. Second, during the sale of H2O in 2008, H2O created on online "data room" for prospective purchasers, containing thousands of documents, many of them confidential. As H2O's counsel, Law Firm accessed the "data room" to review documents in connection with the sale.
Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2010 ONCA 788 (CanLII) (Ct. App. Ont. Nov. 22, 2010). Appellee moved to disqualify the lawyer for the appellant ("Lawyer"). In this opinion the court granted the motion. This appeal involves a certain mall. In 1999 Lawyer had briefly represented Appellee in connection with the development of the same mall. Among other things, the court rejected the notion that Lawyer could not remember the earlier representation by noting that memories "come and go." The court also talked about the public's confidence in the process and emphasized that a lawyer's duty to a former client goes beyond the duty of confidentiality.
Discovery Request in this Case Regarding “Other” Case Does not Establish Substantial Relationship. Bank of America, N.A. v. Klein, 2011 U.S. Dist. LEXIS 164 (D. Conn. Jan. 3, 2011). Defendant, Samuel Klein, moved to disqualify Law Firm from representing Plaintiff, Bank. About two years prior to filing this action Law Firm had represented Klein in two Delaware cases. Klein moved to disqualify Law Firm in this case. In this opinion, in a fact-intensive substantial-relationship analysis, the court denied the motion. One point perhaps makes the opinion worth discussing. In this case Law Firm had filed a request for admissions on Klein, which sought admissions concerning the earlier Delaware cases. Thus, argued Klein, the request provided the nexus between those cases and this case. The court rejected the argument. First, the court said that it did not see the point of Law Firm's request for admissions regarding the Delaware cases. Second, the court noted Klein's failure to cite any case in which an "improper request for an admission" could create a substantial relationship and, thus, grounds for disqualification.
Possible Research Tool on Loyalty. Lariviere, Grubman & Payne, LLP v. Phillips, 2011 U.S. Dist. LEXIS 13584 (D. Col. Feb. 11, 2011). This case does not involve a conflict of interest as such. But, the opinion contains a very brief discussion of whether a lawyer's fiduciary duty to a client continues after the representation ends, not yet decided in Colorado. The court said that Colorado courts would hold that a "limited duty of loyalty" survives the end of a representation. This would clearly include confidentiality, but the court was unclear as to what other sort of duty remained. The opinion cites a number of cases from other jurisdictions, so it may be a useful research tool on loyalty to former clients.
American Civil Liberties Union of Minn. v. Tarek ibn Ziyad Acad., 2011 U.S. Dist. LEXIS 16164 (D. Minn. Feb. 17, 2011). No substantial relationship. This suit was brought under the Establishment Clause and related provisions, while the earlier contacts related to creation of a "power buying" organization. While the court characterized Defendants' position as "weak," the court declined to impose sanctions against them.
Continental Cas. Co. v. Przewoznik, 2011 Fla. App. LEXIS 2645 (Fla. App. March 2, 2011). In this case InsCo, represented by Law Firm, sued owners of a sunken boat. In an earlier case Law Firm had represented another insurance company adverse to the same boat owners in a case arising out of the same sunken boat. The boat owners moved to disqualify Law Firm. The trial court granted the motion. In this opinion the appellate court reversed, finding no conflict.
United States v. Precision Impact Recovery, LLC, 2011 U.S. Dist. LEXIS 15517 (N.D. Tex. Feb. 14, 2011). This is a construction dispute involving a performance bond, among other things. Law Firm started out representing one of the contractors ("Contractor") and InsCo. At some point InsCo unsuccessfully attempted to assert claims against Contractor. Law Firm continued to represent InsCo. Contractor moved to disqualify Law Firm. In this opinion the court granted the motion. The court held that Law firm was in violation of both the Texas version of Rule 1.9, as well as the Model Rule version.
Square, Inc. v. REM Holdings 3, LLC, 2011 U.S. Dist. LEXIS 26792 (E.D. Mo. March 16, 2011). This is a proceeding to "correct inventorship" of a patent. Inventor No. 1 is one of the plaintiffs. Inventor No. 1 moved to disqualify the lawyer for the defendant ("Lawyer") because earlier Lawyer had represented Inventor No. 1 in obtaining the patent involved in this case. The only issue was whether Inventor No. 1 had been a client of Lawyer. Leading up to the patent application Inventor No. 1 contacted Inventor No. 2. Inventor No. 2 hired Lawyer. Lawyer obtained the patent. Inventor No. 2 was shown as the only inventor. During the prosecution Lawyer communicated with Inventor No. 1 and submitted drafts of the application to Inventor No. 1. After Lawyer obtained the patent, Lawyer sent Inventor No. 1 the bill for the patent work, and Inventor No. 1 paid it. In this opinion the court granted the motion. In addition to the above facts the court noted that there was no written record indicating that Inventor No. 1 was not a client.
In Layne Christensen Co. v. Purolite Co., 2011 U.S. Dist. LEXIS 30471 (D. Kan. March 24, 2011), the court held that the fact that a patent licensee has to make a foreign filing in the name of the inventor does make the inventor a client.
Kingdom Ins. Grp., LLC v. Cutler & Associates, Inc., 2011 U.S. Dist. LEXIS 36351 (M.D. Ga. April 4, 2011). The defendant moved to disqualify the plaintiff's law firm ("Law Firm"), because Law Firm had represented both the defendant and the plaintiff in a North Carolina case, arguably related to this case. In this opinion the court granted the motion. Taking the holdings out of order, the court held that the cases were substantially related. The court seemed to rely somewhat on a playbook analysis. The court also relied, in part, on an appearance of impropriety, even though that doctrine has been discredited. The more important holding is that the fact Law Firm represented both parties in North Carolina, in a related matter, did not save Law Firm in this case. The court based this holding on the difference between the attorney-client privilege and the ethical duty of confidentiality, relying upon a similar analysis in
Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979).
United States v. Quest Diagnostics Inc., 2011 U.S. Dist. LEXIS 37014 (S.D.N.Y. April 5, 2011). This is a qui tam action brought under the federal False Claims Act, and state equivalents, against several healthcare providers. The relators were A, B, and C. C had been general counsel for one of the defendants during certain periods of the alleged misconduct. For this reason the defendants moved to dismiss the complaint. In this opinion the court dismissed A, B, and C from the case, but said the United States, the real party in interest, could continue the action. The court said C was disqualified under both the former client rule (N.Y. DR 5-108) and the confidentiality rule (N.Y. DR 4-101). The court rejected the argument that C was not "representing" a client in this case. The court said C was, in effect, representing the United States. The court also dismissed A and B, saying they should not profit from C's unethical conduct or take advantage of C's confidentiality violations.
Dalton v. Painters Dist. Council No. 2, 2011 U.S. Dist. LEXIS 38403 (E.D. Mo. April 8, 2011). Plaintiff is a painter and belonged to the defendant union. In this case she has sued a supervisor for sexual harassment and the union for retaliating against her, among other things. Law Firm appeared for the defendants. Plaintiff moved to disqualify Law Firm because she initially consulted with one or more members of Law Firm about her rights. In this opinion the court, calling the question "close," granted the motion because doubts in such cases should be resolved in favor of disqualification. The opinion also contains a nice recitation of how a would-be client's mental state should be analyzed when determining whether her belief that she was a client was reasonable. In
Dalton v. Painters Dist. Council No. 2, 2012 U.S. Dist. LEXIS 8535 (E.D. Mo. Jan. 25, 2012), the court denied what, in effect, was a motion for rehearing. This opinion discussed the interplay of Rules 1.9 and 1.18.
Oasis West Realty, LLC v. Goldman, 2011 Cal. LEXIS 4370 (Cal. May 16, 2011). This case is somewhat controversial. For that reason, and because it involves the intricacies of the California SLAPP statute, we will describe the outcome in the briefest and most general way. Lawyer represented Developer on a major project for two years. Two years after the representation ended, Lawyer showed up working against the development as a citizen, not representing a client. Despite this opposition Developer prevailed in getting the project approved. Developer then sued Lawyer and his law firm, essentially for breach of fiduciary duty. The trial court denied a motion to dismiss, the appellate court reversed, and, in this opinion, the supreme court reversed the appellate court. There is a link to the opinion at the May 16 Legal Ethics Forum.
Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Perlberg, 2011 U.S. Dist. LEXIS 54763 (D. Md. May 20, 2011). The court held that defending lead paint cases is not substantially related to a lead paint coverage case.
Foley-Ciccantelli v. Bishop's Grove Condo. Ass'n, 2011 Wisc. LEXIS 326 (Wis. May 24, 2011). The majority held that the trial court was wrong to apply an "appearance-of-impropriety" test. The court laid out a "substantial-relationship" analysis -- rambling and confusing. The court remanded the case to the trial court to apply the proper standard.
Kenneally v. Clark, 2011 U.S. Dist. LEXIS 58715 (D. Mont. June 1, 2011). A lawyer for the plaintiffs had previously represented several defendants. The defendants moved to disqualify that lawyer. In this opinion the magistrate judge denied the motion. Both this case and the previous case involved disputes over easements to property. However, the cases involved different property, and the legal issues -- and underlying documents -- for each case were different.
Bell v. Lackawanna County, 2011 U.S. Dist. LEXIS 61006 (M.D. Pa. June 7, 2011). Lawyer represents Defendant in this case. In an earlier case, Lawyer also represented Defendant. In the earlier case the plaintiff in this case was an employee of Defendant and a witness, but not a party. Lawyer prepared the plaintiff for his deposition in the earlier case. In this opinion the court denied the plaintiff's motion to disqualify Lawyer because Lawyer had not represented the plaintiff in the earlier case.
AgSaver LLC v. FMC Corp., 2011 U.S. Dist. LEXIS 61668 (E.D. Pa. June 9, 2011). This is our first pesticide/substantial-relationship case. In this opinion the court held that advising the former client on pesticide regulatory and labeling matters was not substantially related to this case, which deals with whether certain pesticide patents were expired and whether the former client knew they were expired.
Green v. City of New York, 2011 U.S. Dist. LEXIS 62089 (S.D.N.Y. June 7, 2011). Lawyers represent the plaintiff against the city, arising from an alleged strip-search of the plaintiff. Previously Lawyers had worked for the city defending strip-search cases. The city moved to disqualify Lawyers, and in this opinion the court granted the motion.
Bortnak v. Bortnak, 2011 SKQB 226 (CanLII) (Q.B. Sask. June 9, 2011). This is a custody dispute between H and W. W is represented by Lawyer. Previously, Lawyer had represented H involving a custody dispute with a different woman and involving children from that relationship. H moved to disqualify Lawyer in this case. In this opinion the court granted the motion.
Magin v. Solitude Homeowner's Inc., 2011 Wyo. LEXIS 103 (Wyo. June 30, 2011). In this opinion the court held that because the earlier matter and this matter involved the interpretation of the same subdivision covenants, the matters were substantially related. However, the court found that because the movant waited a year to move to disqualify, after substantial work had been done on the case, the motion to disqualify should have been denied.
Luellen v. Gulick, 2011 U.S. Dist. LEXIS 68752 (N.D. W. Va. June 28, 2011). There are two separate law firms named "Steptoe & Johnson," one in D.C., the other in W. Va. They were one firm until 1980. The W. Va. firm represents the defendants in this case. Because the plaintiff had consulted with one of the D.C. firm's lawyers in about 2005, he moved to disqualify the W. Va. firm in this case. The magistrate judge in this opinion had little difficulty denying the motion.
Lander v. McDonald, 2011 MBQB 107 (Manitoba QB May 12, 2011). In a fairly routine former-client analysis the court, denying a motion to disqualify, held that an earlier representation regarding a power of attorney was not "sufficiently related" to this action, which seeks specific performance of a contract.
AgSaver LLC v. FMC Corp., 2011 U.S. Dist. LEXIS 61668 (E.D. Pa. June 9, 2011). This is our first pesticide/substantial-relationship case. In this opinion the court held that advising the former client on pesticide regulatory and labeling matters was not substantially related to this case, which deals with whether certain pesticide patents were expired and whether the former client knew they were expired.
Sharbono v. Universal Underwriters Ins. Co., 2011 Wash. App. LEXIS 1631 (Wash. App. July 19, 2011). Family A sued Family B for wrongful death in an auto accident case (not this case). That case settled with Family B agreeing to sue InsCo and giving certain proceeds, if successful, to Family A (this case). Family intervened in this case to protect its interests. Lawyer represents Family B in this case and represented Family B in the aforesaid settlement. Family moved to disqualify Lawyer in this case. The trial court denied the motion. In this opinion the appellate court affirmed. The appellate court made three findings. First, Lawyer was never Family A's lawyer. Second, Family A could not succeed on a third-party beneficiary theory. Last, Family A could not succeed under a common interest theory. The analysis was very fact-specific, so if you have one of those issues, you may want to read it.
Thoma-Lovell v. Lovell, 2011 ONCJ 384 (CanLII) (Ont. Ct. J. June 28, 2011). Child support. Law Firm represents W. Law Firm also has represented companies owned by H in real estate and collection matters. H moved to disqualify Law Firm. In this opinion the court denied the motion, finding that Law Firm did not acquire confidential information about H that would be relevant to this case.
Boone v. Corestaff Support Services, Inc., 2011 U.S. Dist. LEXIS 85454 (N.D. Ga. Aug. 3, 2011). This is a suit for declaratory judgment regarding the validity of certain restrictive covenants and non-compete provisions in an employment agreement. Law Firm represents the plaintiffs. Law Firm had previously represented a defendant in matters relating to restrictive covenants and non-compete provisions in employment agreements. In this opinion the court granted a motion to disqualify Law Firm, finding a substantial relationship between the earlier representation and this case.
Cablevision Lightpath, Inc. v. Verizon Inc., 2011 U.S. Dist. LEXIS 96872 (E.D.N.Y. Aug. 30, 2011). Law Firm was MCI's principal outside law firm for forty years until 2006. In the several years prior to 2006 Law Firm, on several occasions, advised MCI on charges for interchanging VoIP services with other carriers. In 2006 MCI merged with Verizon. In 2011 Law Firm filed this action for carriers against Verizon to recover VoIP charges. Verizon moved to disqualify Law Firm. In this opinion a magistrate judge granted the motion. In a fact-intensive analysis the judge held the matters substantially related and that the sharing of privileged information was "likely."
Baltimore Co. v. Barnhart,
2011 Md. App. LEXIS 146 (Md. App. Oct. 27, 2011). Lawyer was County
Attorney until 2001. About seven years later she began representing a
county employee regarding his retirement benefits. Two years after that
the county sued Lawyer for a declaratory judgment that she should not
represent the employee because of a conflict of interest. The trial
court found against the county. In this opinion the Court of Special
Appeals (Maryland's intermediate appellate court) affirmed. The
analysis was very fact intensive. The court found that Lawyer had
violated neither Maryland Rule 1.9 nor 1.11. Next the court found that
the county had waited too long to file the action. Finally, the court
held that only the Maryland Court of Appeals (the state's highest court)
had the jurisdiction to rule on Lawyer's alleged conflict. Former Government Lawyer. United States v. Villaspring Health Care Center, Inc.,
2011 U.S. Dist. LEXIS 129933 (E.D. Ky. Nov. 7, 2011). A state
assistant AG ("Lawyer") was involved in the investigation of Health Co.
After assembling the information, Lawyer met with the U.S. Attorney's
office to enable that office to seek civil damages. Lawyer left the
state and joined Law Firm. In this case Lawyer is opposing the U.S. on
behalf of Health Co. The U.S. moved to disqualify Lawyer, Law Firm, and
Lawyer's co-counsel from another firm. In this opinion, applying
Kentucky's version of MR 1.11, the court granted the motion as to Lawyer
and Law Firm. The court denied the motion regarding co-counsel,
applying the majority rule that the movant must show that co-counsel
received confidential information from the disqualified lawyer. In a
side-show Lawyer defended the motion, in part, by having obtained an
opinion from the local bar ethics "hotline." The court rejected the
opinion because Lawyer had not been completely forthcoming with the Bar
when seeking the opinion. Kane Properties, L.L.C. v. City of Hoboken, 2011 N.J. Super.
LEXIS 204 (N.J. App. Div. Nov. 16, 2011). A land owner ("Owner")
obtained zoning variances from a board of adjustment. An objector
("Objector") appealed to the city council. When the matter reached the
city council, the lawyer for Objector ("Lawyer") had become a part-time
lawyer for the council. Lawyer recused himself from the council's
deliberation but attended meetings where the matter was discussed,
allowed one of his memoranda to be used by substitute counsel, and gave
procedural advice on the matter to the council. The council reversed
the board of adjustment. Based upon Lawyer's "limited" involvement in
the council's deliberations, the appellate court, in this opinion,
reversed and remanded so that the council could consider the record
without Lawyer.
Former Government Lawyer. United States v. Villaspring Health Care Center, Inc., 2011 U.S. Dist. LEXIS 129933 (E.D. Ky. Nov. 7, 2011). A state assistant AG ("Lawyer") was involved in the investigation of Health Co. After assembling the information, Lawyer met with the U.S. Attorney's office to enable that office to seek civil damages. Lawyer left the state and joined Law Firm. In this case Lawyer is opposing the U.S. on behalf of Health Co. The U.S. moved to disqualify Lawyer, Law Firm, and Lawyer's co-counsel from another firm. In this opinion, applying Kentucky's version of MR 1.11, the court granted the motion as to Lawyer and Law Firm. The court denied the motion regarding co-counsel, applying the majority rule that the movant must show that co-counsel received confidential information from the disqualified lawyer. In a side-show Lawyer defended the motion, in part, by having obtained an opinion from the local bar ethics "hotline." The court rejected the opinion because Lawyer had not been completely forthcoming with the Bar when seeking the opinion.
Love v. Fairfield Inn & Suites by Marriott,
2011 U.S. Dist. LEXIS 138791 (S.D. Miss. Dec. 1, 2011). In this pro
se action the plaintiff sued Hotel because her property was stolen from
a room at Hotel. The plaintiff moved to disqualify the law firm for
Hotel because she formerly worked at the law firm. In this opinion the
court denied the motion, essentially holding that being a former
employee of a law firm is not the same for conflicts purposes as being a
former client.
Lasavage v. Smith, 2011 WL 28536997 (Pa. Com. Pl. June 16, 2011). Court said that helping set up a medical practice not substantially related to a later malpractice case against the practice.
Eaton v. Meathe, 2011 U.S. Dist. LEXIS
135838 (W.D. Mich. Nov. 27, 2011). This is a suit by one 50% owner of
an LLC (Eaton) against the other 50% owner (Meathe). Lawyer represents
Eaton. In another case Lawyer represented another party in obtaining a
judgment against Meathe. In that proceeding Lawyer conducted a
judgment-creditor interrogation of Meathe in the presence of Meathe's
lawyer. Based upon that interrogation Meathe moved to disqualify Lawyer
in this case. In this opinion the court denied the motion. Confusing
the situation, Meathe claimed that he discussed retaining Lawyer for
this matter at that interrogation. The court acknowledged that the
affidavits conflicted on this point, but the court said, based upon the
circumstances of the interrogation, it could not conclude that Meathe
retained Lawyer or disclosed confidences about this matter.
Teufel v. Stepke, 2012 U.S. Dist. LEXIS 1429 (N.D. Ill. Jan. 4,
2012). Company had two 50% owners, the plaintiff and the defendant in
this case. Law Firm represents the plaintiff. The defendant moved to
disqualify Law Firm because Law Firm had represented Company on various
matters and had represented the defendant's wife in a partnership
dispute. In this opinion the court denied the motion. The principal
basis for the denial was that Law Firm had never represented the
defendant personally. The court also noted that the defendant was
relying upon Rule 1.9(c) and that Subsection (c) does not, like (a) and
(b), provide for disqualification. Subsection (c) merely requires the
lawyer not to use confidential information. [
Note: to our knowledge
the Northern District of Illinois was the only district in the U.S. to
adopt its own ethics rules. (They were abandoned in June 2011.) We have
not tried to compare the Northern District's version of Rule 1.9 with
the Model Rule version. Model Rule 1.9 also makes the distinction noted
by the court here; however, we are not aware of a prior holding that
Rule 1.9(c) does not provide for disqualification.]
Black Rush Mining, LLC v. Black Panther Mining,
2012 U.S. Dist. LEXIS 3692 (N.D. Ill. Jan. 11, 2012). Plaintiffs and
Defendants were in the coal mining business together. This suit is over
disagreements about that operation. Plaintiffs moved to disqualify one
of Defendants' lawyers ("Lawyer"), claiming Lawyer had represented
Plaintiffs in connection with that business. In a highly fact-intensive
analysis the court denied the motion, holding that Plaintiffs' belief
that Lawyer represented them was not reasonable. Among other things,
the court noted that whenever Lawyer appeared at meetings with
Plaintiffs, Defendants were always present. Thus, Plaintiffs could not
have expected that information given Lawyer would be confidential.
Shaw v. Broad and Cassel, 2012 U.S. Dist. LEXIS 12054 (S.D. Fla.
Feb. 1, 2012). This is a legal malpractice case. The defendant law
firm ("B and C") had represented the plaintiff ("Shaw") in an earlier
patent infringement case ("Underlying Case;" not this case). The law
firm representing Shaw in this case ("Firm FG") represented the parties
against Shaw in the Underlying Case. B and C moved to disqualify FG.
In this opinion the court denied the motion. First, the court said that
there was enough of an "appearance of impropriety" on FG's part that B
and C had standing to make the motion. Second, several weeks after the
motion was made, FG obtained written conflict waivers from Shaw and his
former opponents (FG's former clients), and B and C did not raise any
specific objections concerning the waivers. B and C's primary argument
for disqualification was that FG, to prove the "case within the case" in
this case, would have to attack the strength of its former clients'
arguments, including their credibility, in the Underlying Case. Thus,
the need for the written waivers.
Former Client (posted February 27, 2012)
Kennedy v. Phillips,
2012 U.S. Dist. LEXIS 15834 (W.D. Wash. Feb. 7, 2012). Routine
substantial-relationship analysis. In this case the plaintiffs claim
the defendants diverted funds from a business that operated vessel A.
Some years ago the plaintiffs' lawyer represented at least one of the
current defendants regarding the right to receive contractual payments
relating to the sinking of Vessel B. In denying a motion to disqualify
the plaintiffs' lawyer the court in this opinion said the matters were
not substantially related.
Former Client (posted February 27, 2012)
Talon Research, LLC v. Toshiba Am. Elec. Components, Inc.,
2012 U.S. Dist. LEXIS 23109 (N.D. Cal. Feb. 23, 2012). Patent
infringement suit by Talon against Toshiba. Law Firm represents Talon.
Several of Law Firm's lawyers, who have appeared for Talon in this
case, previously did work for Toshiba at another law firm. Their work
totaled several thousand hours. Both representations involved "NAND
flash" technology. The parties disagree whether the technologies were
similar enough to be "substantially similar." In this fact-intensive
analysis, the court found them similar enough and disqualified Law
Firm. The court also relied, to a degree, on the "playbook" doctrine,
noting that some of Toshiba's witnesses would be the same, and noting
that this case involves, in part, Toshiba's organization and approach to
litigation.
In re Derzon, 2012 Wisc. App. LEXIS 185 (Wis. App. March 6,
2012). Law Firm prepared Decedent's estate plan. After Decedent's
death, Law Firm represented the estate, but actively assisted the
personal representative ("PR") in resisting attempts by family members
to get files of the PR, including non-compliance with court orders. The
trial judge disqualified Law Firm from representing the personal
representative and subsequently from representing the estate. In this
opinion the appellate court affirmed. The court found that the estate
representation was substantially related to Law Firm's work with the PR.
Dr. N. Vankoughnett Dental Prof. Corp. v. Miller Thomson LLP,
2012 SKQB 84 (CanLII) (Q.B. Sask. March 4, 2012). This is a suit for
oppression brought by a minority owner against majority owners. The
misconduct alleged occurred after creation of the entity. Law Firm
represents the majority owners in this case. Law Firm had represented
all parties in the restructuring of the business and creation of the
entity. In this opinion the court denied a motion to disqualify Law
Firm. Under a standard former client analysis the found that this
action is not "sufficiently related" to the work Law Firm had done on
the creation of the entity. In analyzing the limited duty of loyalty
lawyers have to former clients, "absent confidential information being
at risk," the court said the focus should be on whether the lawyer is
attacking the lawyer's work done previously. Such was not the case
here.
Grovick Prop., LLC v. 83-10 Astoria Blv'd LLC,
2012 N.Y. Misc. LEXIS 1105 (N.Y. Sup. Ct. March 7, 2012). Lawyer filed
this action on behalf of the buyer of gas station property. Earlier,
while at another law firm, Lawyer also represented the sellers. Lawyer
had obtained a conflicts waiver from the sellers. Lawyer did not obtain
a new waiver when he changed firms. In this opinion the court granted
the defendants' motion to disqualify Lawyer.
Federal-Mogul World Wide, Inc. v. Mahle GMBH,
2012 U.S. Dist. LEXIS 33648 (E.D. Mich. March 13, 2012). Patent
infringement case. Plaintiffs moved to disqualify Defendants' law firm
("Law Firm"). Between 1998 and 2004 several Law Firm lawyers did
minimal work for Plaintiffs on the patents at issue in this case. By
2004 those lawyers had left Law Firm. Relying in part on Michigan's
version of MR 1.10(b) (the departed-lawyers provision) the court denied
the motion. In a fact-intensive analysis the court noted that the
actual patents were applied for by Plaintiffs' "patent counsel"
(presumably in-house). The court also noted that any information
gathered by Law Firm prior to 2004 was now public. Moreover, current
members of Law Firm deny having any confidential information.
Utah Op. 12-01 (January 10, 2012). This
opinion discusses the extent to which a lawyer can ethically represent
the husband in divorce appeal. No surprises, except the committee
muddles the distinction between confidentiality and loyalty in the
context of Rule 1.9. Starkes v. Flechner,
2012 U.S. Dist. LEXIS 48757 (S.D. Fla. April 6, 2012). Lawyers
represented LLCs in making an asset sale. This suit by Plaintiff is
against business colleagues for defrauding Plaintiff. Defendants are
represented by Lawyers. Plaintiff moved to disqualify Lawyers. In this
opinion the court denied the motion because this suit is about the
disposition of the asset sale proceeds rather than about the mechanics
of the sale. As an independent basis for denial the court held that
Plaintiff's waiting four months to make the motion was a waiver of the
conflict.
Jo Ann Howard & Associates, P.C. v. Cassity,
2012 U.S. Dist. LEXIS 52178 (E.D. Mo. April 13, 2012). Plaintiff is
the receiver of certain insurance entities ("IEs"). In this case
Plaintiff is suing several defendants for fraud and related causes of
action. Lawyer appeared for several defendants. Plaintiff moved to
disqualify Lawyer because Lawyer had previously represented one or more
IEs in litigation. In this opinion the court granted the motion.
First, the court found that Plaintiff as receiver had standing to raise
the conflict. Last, the court, in a fact-specific (and questionable)
analysis found that this case is substantially related to the earlier
cases. Legacy Villas at La Quinta Homeowners Ass'n. v. Centex Homes,
2012 U.S. Dist. LEXIS 61062 (C.D. Cal. April 30, 2012). This is a
typical suit by a homeowners' association against the developer and
affiliates for various shortcomings in the creation of the development
and formation of the association. Law Firm represented the
association. Defendants moved to disqualify Law Firm. In this opinion
the court granted the motion. At the inception of the association the
board consisted of defendants' employees. They retained Law Firm to
represent the association. The court based the disqualification on the
intimacy of the relationship between Law Firm and the employee members
of the board. The court was impressed that on one letter to a
defendant-affiliate Law Firm appended the attorney-client privilege
legend. (Cute!) The court also noted that Law Firm lawyers would be
witnesses. Lastly, the court found that Law Firm was violating the
long-discredited appearance-of-impropriety provision of Canon 9 of the
ABA Model Code of Professional Responsibility.
Bedoya v. Aventura Limo. & Transp. Service, Inc.,
2012 U.S. Dist. LEXIS 59862 (S.D. Fla. April 30, 2012). Lawyer
represents Defendants in this FLSA case. Lawyer had previously
represented other plaintiffs (not this plaintiff) in similar cases. In
this opinion the court granted the plaintiff's motion to disqualify
Lawyer. [Author's Note: the court does not make a convincing
argument how this "side-switching" by Lawyer harms the plaintiff in this
case, or otherwise satisfies the requirements of Rule 1.9. Lawyer's
earlier plaintiff/clients did express a sense of betrayal by Lawyer, and
the court was clearly irked by the side-switching.] Twenty-First Century Rail Corp. v. New Jersey Transit Corp.,
2012 N.J. LEXIS 513 (N.J. May 7, 2012). Law Firm represented
Contractor in formulating a written agreement with other parties to a
construction project. Part of the agreement dealt with delays. This
suit involves delays in the project, and Law Firm appeared for another
party adverse to Contractor. Contractor moved to disqualify Law Firm.
The trial court denied the motion, and the appellate court affirmed. In
this opinion the supreme court reversed, holding that the earlier
matter and this case were the "same" within the meaning of Rule 1.9(a).
Bell v. Cumberland County,
2012 U.S. Dist. LEXIS 72458 (D.N.J. May 26, 2012). The is a suit
alleging that county employees abused Decedent while in their custody,
causing his death. The plaintiff is Decedent's wife. Several years
prior Lawyer, whose law firm is representing the county, had represented
the plaintiff in a worker's compensation matter and in a traffic
citation case. The plaintiff moved to disqualify the law firm. In this
opinion the magistrate judge denied the motion, principally because the
worker's compensation case and traffic case were not substantially
related to Decedent's death. The court ordered the law firm to screen
Lawyer from this case. This case does have an interesting
current-client twist. The worker's compensation settlement provided
that the case could be re-opened if the plaintiff's condition worsened.
The court said that even though the plaintiff might reasonably have
believed that she remained a current client, that belief would no longer
be reasonable once Lawyer's law firm showed up on the other side of
this case.
McGriff v. Christie,
2012 U.S. App. LEXIS 10830 (11th Cir. May 30, 2012). Doctor operated
on Patient. Based upon his alleged neglect in this and other cases,
Hospital suspended Doctor. Doctor hired Lawyer to bring this race
discrimination case. Because Patient might also have a race
discrimination claim against Hospital, Lawyer wound up representing
Patient, as well. The defendants in this case moved to disqualify
Lawyer. The trial court granted the motion. In this opinion the
appellate court affirmed. Among other things, the court agreed with the
trial court that bringing in substitute counsel to cross-examine
Patient in this case was not "practical." Boston Sci. Corp. v. Mirowski Family Ventures, LLC,
2012 U.S. Dist. LEXIS 76307 (S.D. Ind. June 1, 2012). In this opinion
the court denied a motion to disqualify the plaintiffs' law firm. It is
very fact-intensive and complex. It involved a former-client situation
and turned on whether the law firm ever had an attorney-client
relationship with the defendants. The court held it did not. The law
firm did hold itself out as lawyer for the defendants during a
reexamination proceeding before the USPTO, and it did act, in part,
under powers of attorney granted it by the defendants' lawyer. The
court said that, at least in a patent context, these factors are not
necessarily determinative of the issue of representation. MCW Construction Ltd. v. Trudel Estate,
2012 ABQB 346 (CanLII) (Ct. Q.B. Alb. May 24, 2012). In this
former-client situation the court denied a motion to disqualify holding
that there had not been an attorney-client relationship with the moving
party and that party had not given any confidences to the subject law
firm. It was too fact-specific to justify reciting the facts here. It
is a good discussion of how courts analyze former-client situations.
Mountain View Credit Union Ltd. v. Cowboy Trail Realty Ltd.,
2012 ABQB 351 (CanLII) (Ct. Q.B. Alb. May 25, 2012). Lawyer filed two
related foreclosure actions in 2009. Up until 2005 Lawyer had
represented the defendants in a variety of matters. While not related to
these foreclosures, the earlier matters did involve much information about the defendants'
financial condition. The defendants moved to disqualify Lawyer in this
case. In this opinion the master made several findings. First, the
master held that the financial information relevant to the earlier
representations made those matters sufficiently related to these
foreclosures because Lawyer would be seeking monetary relief from the
defendants. Second, the defendants waited too long to bring the
motion. Thus, the master determined that Lawyer could finish the
current phase of the foreclosure but would then be removed from the
case. There was evidence that Lawyer slapped a female defendant during
one of the earlier matters, which Lawyer did not deny. For that reason
the master ordered Lawyer not to act against that defendant. In re Wonderland Enchanted Bakery at the Grove, Inc.,
2012 U.S. Dist. LEXIS 80640 (C.D. Cal. June 11, 2012). Law Firm was
retained by several related entities. The engagement agreement provided
that Law Firm would not represent any individual owners of those
entities. This case is a dispute among various of the individual
owners. The defendants moved to disqualify the lawyer for the
plaintiffs in this case ("Lawyer") because Lawyer had, as of counsel,
worked on several matters for Law Firm. In this opinion the court
denied the motion. The court noted that any information that Law Firm
had from the individual defendants would not have been confidential to
the individual plaintiffs, because Law Firm did not represent the
individuals.
Bortnak v. Bortnak,
2011 SKQB 226 (CanLII) (Q.B. Sask. June 6, 2012). Law Firm represented
H in disputes relating to his first wife and their children. Now H is
in a dispute with his second wife, but Law Firm is appearing for her.
Both matters involved H's conduct and fitness to have custody. In this
opinion the court granted a motion to disqualify Law Firm, holding that
the matters were sufficiently related. In re Jackson,
2012 Tex. App. LEXIS 5386 (Tex. App. July 9, 2012). Divorce case. W
moved to disqualify H's law firm because a member of that firm had
earlier represented W in matters where the partner would have learned
much about W's financial situation. The trial court granted the
motion. In this opinion the appellate court affirmed (denied mandamus),
noting that the court in this case will have to order the "fair and
equitable" distribution of H's and W's community estate.
Children & Family Services of Western Manitoba v. M.S. and L.S.,
2012 MBQB 192 (CanLII) (Ct. Q.B. Manitoba June 28, 2012). In this
custody proceeding Mother moved to disqualify the agency's lawyer
because that lawyer's partner earlier represented Mother in the early
stages of a paternity and support proceeding. In this opinion the court
denied the motion because it was unlikely that the agency's law firm
would have learned anything in the former proceeding that would be
relevant in this proceeding. Trivedi v. Slawecki,
2012 U.S. Dist. LEXIS 101890 (M.D. Pa. July 23, 2012). This is a suit
filed in 2011 for defamation and tortious interference with a business
relationship. Lawyer represents the defendant. For four months in 2009
Lawyer served on the board of the plaintiff and did various odd jobs of
a legal nature for the plaintiff. The plaintiff moved to disqualify
Lawyer. In this opinion the court denied the motion. The court listed
the elements of both causes of action and after comparing them with
Lawyer's activities while on the board, the court found that the
representations were not substantially related. Fematt v. Finnigan,
2012 U.S. Dist. LEXIS 113596 (N.D. Ill. Aug. 13, 2012). On behalf of
the plaintiff, Lawyer filed this action against the City of Chicago and
seven police officers. Previously, Lawyer had worked for the city.
Several of the defendant/officers moved to disqualify Lawyer, claiming
they were former clients of Lawyer in an earlier case. The magistrate
judge denied the motion, finding they were never clients of Lawyer. In
this opinion the district judge affirmed. Lawyer had never appeared in
the earlier case. The only contact Lawyer had in the earlier case was a
five-minute conversation with one of the officers in a doorway, the
substance of which no one could recall. The opinion contains a
reasonably good summary of Seventh Circuit holdings on former-client
conflicts.
John Crane Prod. Sol., Inc. v. R2R and D, LLC,
2012 U.S. Dist. LEXIS 114293 (N.D. Tex. Aug.14, 2012). Law Firm
prosecuted the trademark FINALROD. The plaintiff in this case is
claiming that the defendant's mark FIBEROD infringes FINALROD. Law Firm
appeared for the defendant. The plaintiff moved to disqualify Law
Firm. In this opinion the court granted the motion, finding, in part,
that the prosecution of the FINALROD trademark was substantially related
to this action. Another issue was whether Law Firm ever represented
the plaintiff. The plaintiff acquired the FINALROD mark pursuant to an
asset purchase agreement. Considering Weintraub and other
authorities, the court concluded that the seller's privilege (and, thus,
the right to bring this motion) passed to the plaintiff. Square, Inc. v. REM Holdings 3, LLC,
2012 U.S. App. LEXIS 17257 (Fed. Cir. Aug. 14, 2012). Lawyer
prosecuted Patent for Plaintiff. Plaintiff brought this action seeking a
correction of inventorship of Patent. Lawyer appeared in this case for
Defendant. Plaintiff moved to disqualify Lawyer. The trial court
granted the motion. Because Lawyer's defense of the motion was in "bad
faith" the court, under its inherent authority, awarded Plaintiff
$15,000, the amount spent by Plaintiff bringing the motion. This
opinion dealt with the appealability of the trial court's order. Centennial Tire Ltd v. Anderson,
2012 SKPC 130 (CanLII) (Prov. Ct. Sask. Aug. 10, 2012). Lawyer planned
to represent both Seller and Buyer of real estate. The deal collapsed
early and before Lawyer had obtained a formal retainer agreement from
the parties. Seller, represented by Lawyer, brought this action for the
deposit posted by Buyer. Buyer moved to disqualify Lawyer. In this
opinion the court granted the motion. First, in a fact-intensive
analysis, the court concluded that Buyer had become Lawyer's client even
absent the formal retainer agreement. Noting that this case is
"sufficiently related" to the real estate transaction, the court had to
determine whether Buyer had disclosed confidential information to
Lawyer. Noting the several communications between Buyer and Lawyer, the
court felt compelled to infer there were such disclosures, making
disqualification mandatory. The court, in an aside, noted the American
rule that provides where matters are "substantially related,"
disqualification is automatic regardless of whether the parties can show
actual disclosure of confidential information. "Too rigid," said the
court. Fish v. Hennessy,
2012 U.S. Dist. LEXIS 119571 (N.D. Ill. Aug. 22, 2012). This is a suit
in which Fish is attempting to enforce a guarantee signed by Hennessy.
Law Firm began representing Fish in March 2012. Law Firm had been
representing Hennessy in an SEC investigation; that ceased in February
2012. The only lawyer working on the SEC matter left Law Firm in
January 2012. Hennessy moved to disqualify Law Firm in this case.
Applying Illinois' version of MR 1.10(b) according to its terms, the
magistrate judge denied the motion. In this opinion the district judge
affirmed. Big Idea Co. v. Parent Care Resource, LLC,
2012 U.S. Dist. LEXIS 131239 (S.D. Ohio Sept. 14, 2012). This case
involves a lawyer who had left his law firm. The question is whether
the law firm is still subject to disqualification. ABA Model Rule
1.10(b) would seem to provide relief from disqualification to the law
firm if no lawyer remaining has information about the matter in
question. In this opinion the magistrate judge applied Ohio's version
of Rule 1.10(b), which provides no such relief. EON Corp. IP Holdings LLC v. Flo TV Inc.,
2012 U.S. Dist. LEXIS 136388 (D. Del. Sept. 24, 2012). Patent
infringement case. Law Firm represents one of the defendants. From
1998 to 1995 Law Firm did a lot of work for a company that became the
plaintiff in this case. The patent that is the subject of this case did
not issue until two years after Law Firm ceased work for the
plaintiff's predecessor. The Law Firm lawyers working on this case were
not with Law Firm during the 1998-1995 period. The earlier work was
done out of Law Firm's D.C. office. The lawyers working on this case
are based in Los Angeles. Law Firm erected a screen between the lawyers
working on this case and the lawyers that worked for the plaintiff's
predecessor. The plaintiff moved to disqualify Law Firm. In this
opinion the court granted the motion.
Brown v. Florida Dept. of Highway Safety & Motor Vehic.,
2012 U.S. Dist. LEXIS 145159 (N.D. Fla. Oct. 5, 2012). While working
for the defendant Lawyer worked on this case. Lawyer left the defendant
and began working from home on certain matters referred to her by the
plaintiff's lawyer, but not matters related to this case. In this
opinion the court denied a motion to disqualify the plaintiff's lawyer.
The court held that Lawyer had not become "associated" with the
plaintiff's lawyer within the meaning of Florida's version of Model
Rules 1.10 and 1.11. In re Est. of McCauley,
2012 Ohio App. LEXIS 4128 (Ohio App. Oct. 9, 2012). Client had been an
executor of an estate and trustee of a related trust. After her
removal from those positions, issues arose about whether certain joint
bank accounts should have been assets of the estate. That was the
subject of this opinion. Client's lawyer in this case ("Lawyer") had
served as Client's lawyer in a mediation while Client was executor, but
had never served in the administration of the estate. The trial court
denied a motion to disqualify Lawyer in this case. In this opinion the
appellate court affirmed.
Cafaro v. HMC Int'l, LLC,
2012 U.S. Dist. LEXIS 146697 (D.N.J. Oct. 11, 2012). This is one of
two securities fraud cases ("This Case" and "The Other Case") both
arising out of the same alleged Ponzi scheme. Two brothers were
allegedly involved with the scheme ("Brother 1" and "Brother 2").
Brother 1 is a defendant in This Case and The Other Case. Brother 2 was
a defendant in the Other Case, but not This Case. Brother 2 hired Law
Firm as local counsel to defend him in The Other Case. Law Firm
represents the plaintiffs in This Case. Brother 1 moved to disqualify
Law Firm in This Case. In this opinion the magistrate judge denied the
motion. While the reasoning was not always clear, basically it boiled
down to the fact that Law Firm had never represented Brother 1 in either
case and had not learned anything relevant to This Case in defending
Brother 2 in The Other Case. Moreover, the court held that Law Firm's
contentions in This Case are not necessarily conflicting with its
position in The Other Case. In The Other Case Brother 2 was not accused
of running the scheme, but rather receiving proceeds from the scheme,
and Law Firm did not deny in The Other Case the existence of the scheme. Yhan v. Hovensa, L.L.C.,
2012 U.S. Dist. LEXIS 161593 (D.V.I. Nov. 12, 2012). Employment
discrimination case. A lawyer in the plaintiffs' law firm ("Lawyer")
worked at the defendant's law firm for three years until November 2011.
While at the defendant's firm Lawyer worked on employment related cases
for the defendant, but not this case. The defendant moved to
disqualify the plaintiffs' law firm. The magistrate judge granted the
motion, implicitly adopting the playbook approach to the substantial
relationship test. The magistrate judge also rejected the plaintiffs'
claim that Lawyer had been screened at her new firm, because the firm
had not complied with the notice provision of MR 1.10 (territorial
courts and the federal District of Virgin Islands have adopted the ABA
Model Rules). In this opinion the district judge vacated the magistrate
judge's order and remanded the case to the magistrate judge to develop
more fully the evidentiary basis for the magistrate judge's finding of
substantial relationship. The district judge did not address the
screening issue. Walker Digital, LLC v. Axis Commc'n AB,
2012 U.S. Dist. LEXIS 166280 (D. Del. Nov. 21, 2012). Patent
infringement case. Lawyer worked at Law Firm A from 1995 to 1999, when
he joined Law Firm B. Law Firm B represents a defendant in this case.
Lawyer appeared for that defendant. While at Law Firm A Lawyer worked
on patent matters for the plaintiff in this case. He did not work on
matters related to the patents in this case. The plaintiff moved to
disqualify Lawyer and Law Firm B. In this opinion the court denied the
motion. In addition to working on patents unrelated to the patents in
this case, Lawyer's work for the plaintiff Firm A was fairly low level,
which did not bring Lawyer into contact with key personnel of the
plaintiff.
Genova v. Kellogg,
2012 U.S. Dist. LEXIS 166203 (N.D. Ill. Nov. 21, 2012). The plaintiff
in this case is suing City, City's mayor ("Mayor"), and others for
unlawful discharge. The plaintiff had worked against Mayor's
re-election campaign and claims that is why he was terminated. Lawyer
filed this action for the plaintiff. In recent history, Lawyer, while
with a law firm, represented City in unlawful discharge cases. The
defendants moved to disqualify Lawyer in this case. In this opinion the
court granted the motion. The court felt that Lawyer would have been
in a position to learn confidences about how City defended discharge
cases and how Mayor used his political power in similar situations.
Gabel v. Gabel,
2012 N.Y. App. Div. LEXIS 8215 (N.Y. App. Div. Dec. 5, 2012). H sued W
for divorce and related relief. W moved to disqualify H's lawyer
("Lawyer") because Lawyer had earlier represented W in the formation of a
corporation. The trial court granted the motion. In this short
opinion the Appellate Division reversed. In resisting discovery about
the corporation, W claimed that the corporation was "closed."
Texas Serenity Acad., Inc. v. Glaze,
2012 U.S. Dist. LEXIS 172347 (S.D. Tex. Dec. 5, 2012). Suit over
control of School. A defendant moved to disqualify the plaintiffs'
lawyer because that lawyer had previously represented the defendant. In
this opinion the court denied the motion. The court noted that the
only prior matter relating to School was a construction dispute, which
had nothing to do with the issues in this case. Hudak v. U.S. Int. Rev. Serv.,
2012 U.S. Dist. LEXIS 181709 (D. Md. Dec. 26, 2012). Hudak owned
several Hudak Companies. Mules was CFO of one or more of the Hudak
Companies. The IRS pursued the Hudak Companies for federal payroll and
withholding underpayments. Mules and Hudak, along with Lawyer met with
the IRS. Lawyer warned Mules and Hudak that he could not get involved
with a contest between Mules and Hudak regarding their relative personal
liability under IRC Sec. 6672. Hudak personally paid some of the taxes
and, represented by Lawyer, brought this action for a refund of those
payments. The IRS brought a third-party action against Mules to ensure
that at least one of them would be personally liable. When all the
pleading smoke cleared, there existed the possibility that Mules and
Hudak would be pointing the finger at each other. Mule moved to
disqualify Lawyer. In this opinion the court granted the motion,
disqualifying Lawyer completely, but left open the door for Hudak to
obtain a modification if Hudak could demonstrate a way Lawyer could
participate in some manner.
Davis v. EMI Grp. Ltd.,
2013 U.S. Dist. LEXIS 1642 (N.D. Cal. Jan. 4, 2013). In this case
Musicians sued Record Co. to enforce certain royalty provisions in
contracts between them. Law Firm represents Record Co. Previously, for
many years, Law Firm represented one of the Musicians, including
drafting the contracts involved in this case and making demands upon
Record Co. in connection with the contracts. Musicians moved to
disqualify Law Firm. In this opinion the court granted the motion. The
court noted that while many of the lawyers that had worked for the
Musician had left Law Firm, several remained. Moreover, Law Firm still
had, in storage, boxes of documents relating to the earlier
representations. Fairly routine, fact-intensive, application of the
substantial relationship test. Best v. Mobile Streams, Inc.,
2013 U.S. Dist. LEXIS 3313 (S.D. Ohio Jan. 9, 2013). This is a copyright dispute in which Law Firm represents two defendants. More than fifteen years ago Law Firm represented the plaintiff in a patent dispute. The plaintiff moved to disqualify Law Firm in this case. In this opinion, applying Ohio Rule 1.9(a), the magistrate judge denied the motion, holding that the earlier patent matter was not substantially related to this copyright case.
SHFL Entm't, Inc. v. Digideal Corp.,
2013 U.S. Dist. LEXIS 6635 (D. Nev. Jan. 16, 2013). Plaintiff is suing
Defendant for infringing Plaintiff's patent on a playing-card shuffling
machine. Lawyer worked in-house at Plaintiff for two years, leaving in
2007. Lawyer is now counsel of record for Defendant. Plaintiff moved
to disqualify Lawyer and his firm. In this opinion the magistrate judge
granted the motion. The opinion is very fact-specific on the
substantial relationship test. While with Plaintiff, Lawyer performed a
variety of tasks relating to card shuffling machines, including patent
and copyright work. He even did some work relating to a patent in this
case. The court also gave substantial weight to the playbook nature of
what Lawyer learned while at Plaintiff. Helmer v. Goodyear Tire & Rubber Co.,
2013 U.S. Dist. LEXIS 11779 (D. Col. Jan. 29, 2013). This is at bottom
a straightforward "substantial relationship test" case. It involved
the manufacture of rubber hose at different times. The materials had
changed as had the method of manufacture. But, the use remained the
same. Thus, the court found substantial relationship. The opinion
contains an interesting discussion of which ethics rules applied,
suggesting that federal common law would apply. Nevertheless, the
opinion discusses the ABA Model Rules as well as the Colorado rules. Pixler v. Huff,
2013 U.S. Dist. LEXIS 13485 (W.D. Ken. Feb. 1, 2013). Suit for fraud
arising out of the operation and sale of multiple related businesses. A
cross-claimant ("Danny") moved to disqualify the lawyer ("Lawyer") for
the cross-defendant because Lawyer had represented several of the
businesses with which Danny was associated. In this opinion the court
denied the motion because Danny had not shown that Lawyer had ever
represented Danny and had not shown that Danny had given Lawyer any
specific information relating to this action. Bernhoft Law Firm, S.C. v. Pollock,
2013 U.S. Dist. LEXIS 18988 (S.D. Cal. Feb. 12, 2013). Lawyer, while
at Law Firm, was lead counsel for Taxpayer in an IRS proceeding. Lawyer
left Law Firm and took Taxpayer with him -- leaving behind a $138,000
arrearage in fees. In this case Law Firm sued Taxpayer for the unpaid
fees. Lawyer appeared for Taxpayer. Law Firm moved to disqualify
Lawyer. In this opinion the court granted the motion. The court's
primary rationale was that Lawyer would have to attack his own work to
defend the case.
Peter Kiewit Sons, Inc. v. Wall St. Equity Grp., Inc.,
2013 U.S. Dist. LEXIS 19367 (D. Neb. Feb. 13, 2013). Lawyer
represented multiple defendants in this trademark infringement case.
One defendant ("West") fired Lawyer. The plaintiff moved to disqualify
Lawyer as to the other defendants. In this opinion the court granted
the motion. The court discussed the ways the defendants might to
adverse to one another. One particularly troublesome aspect was that
the plaintiff was attempting to show that several of the defendants were
sham entities and attempting to pierce the corporate veil protecting
West. Snow, Christensen & Martineau v. Lindberg,
2013 Utah LEXIS 15 (Utah March 12, 2013). Original Trust was created
primarily to further a religion and to assist members of the religion.
In 2005 the court ordered the trust reformed under the cy pres
doctrine. The new trust ("New Trust") was stripped of its religious
purposes for reasons relating to legality (polygamy, etc.) and the First
Amendment's Establishment Clause. For a time, prior to 2005, Law Firm
represented Original Trust. In this proceeding, arguably substantially
related to Law Firm's earlier work, Law Firm appeared adverse to New
Trust. Parties moved to disqualify Law Firm. The trial court granted
the motion. In this opinion the supreme court reversed, holding that
the reformed trust (New Trust) was not the same party as Original Trust,
for conflict-of-interest purposes. Kaleta v. Clausi,
2013 U.S. Dist. LEXIS 60879 (M.D. Pa. April 29, 2013). Two lawyers
("Lawyers") represent the plaintiff against two county commissioners and
the county in a dispute over development of some 6,000 acres of county
land as a park. Lawyers previously worked for the county. The
defendants moved to disqualify Lawyers. In this opinion the magistrate
judge denied the motion. The opinion is highly fact-specific. While
the court noted that Lawyers had touched the development in various
minor ways involving the county's "budding plans" for the property, the
court found that involvement "temporally and topically remote" from the
issues in this case. Cino v. Creighton,
2013 N.Y. Misc. LEXIS 1893 (N.Y. Sup. Ct. May 6, 2013). In this
opinion the court held that a "purported fraudulent transfer of
property" was not substantially related to the "operation of [a] gas
station proceeding," and denied a motion to disqualify. [An
impertinent note: the court was able to base her analysis on New York's
superseded Code of Professional Responsibility while completely ignoring
New York's Rules of Professional Conduct (eff. April 1, 2009). She
also re-introduces the discredited notion that former client conflicts
are based upon both the duty of confidentiality and the duty of loyalty.]
Medgyesy v. Medgyesy,
2013 U.S. Dist. LEXIS 66794 (N.D. Ill. May 10, 2013). This opinion
involves a motion to disqualify the plaintiff's lawyer because he had
previously represented the defendant. The lawyer claimed that he was
not acting as a lawyer in the earlier matter, but all his E-mails in the
earlier matter bore the legend, "Attorney work product" and contained
the lawyer's law office address. That seemed to be enough for the
magistrate judge to grant the motion.
Ogden v. Trufolo,
2013 N.J. Super. Unpub. LEXIS 1109 (N.J. App. Div. May 9, 2013).
Plaintiff sued Defendant for defective work in building a playroom in
Plaintiff's basement. Defendant moved to disqualify Plaintiff's lawyer
("Lawyer"), because Lawyer had done Defendant's parents' estate plans in
1993. In this opinion the court said no substantial relationship.
Tufamerica, Inc. v. Codigo Music LLC,
2013 U.S. Dist. LEXIS 65777 (S.D.N.Y. May 7, 2013). This is a
copyright dispute. A ninety-one year old non-party witness ("Witness")
was deposed. At the deposition he was represented by Plaintiff's lawyer
("Lawyer"). As a result of the deposition Witness was added as a
defendant. Witness moved to disqualify Lawyer. In this opinion the
court granted the motion. On the substantial-relationship point, the
court noted that the fact that Defendants thought his testimony was
necessary was persuasive.
Lema v. NY-1095 Ave. of the Ams., LLC, 2013 N.Y. Misc. LEXIS 2298 (N.Y. Sup. Ct. May 29, 2013). Employee,
while working on a scaffold at Building, was injured by a falling
concrete block. Employee sued Building. Building filed a third-party
action against Employer. Law Firm appeared for Building. Earlier in
this case Law Firm had represented Employer. In this opinion the court
noted, sua sponte, this apparent conflict and the absence of a
written waiver from Employer. The court ordered Law Firm to file papers
addressing the conflict or, in the alternative, be disqualified from
representing Building. State of Minnesota v. 3M Co., 2014 Minn. LEXIS 202 (Minn. April 30, 2014). For many years,
and until about ten years ago, Covington represented 3M on matters
dealing with perfluorochemicals ("PFCs"). In this case, which also
deals with PFCs, Covington appeared for State against 3M. 3M moved to
disqualify Covington. The trial court granted the motion. The appellate
court affirmed, holding that the matters were substantially related
because they all dealt with PFCs. In this opinion the Minnesota Supreme
Court remanded the case to the trial court to consider several points.
First, the court should consider whether the information sought to be
protected had become generally known. Second, the court should consider
whether 3M waived the attorney-client privilege by suing Covington in a
separate, but related, action. Third, the court should consider whether
3M waived the conflict by waiting too long to bring the motion. Upon remand the trial court denied disqualification because Minnesota waited 16 months before moving to disqualify, State of Minnesota v. 3M Co., No. 27-CV-10-28862 (Minn. Dist. Ct. Feb. 5, 2016).
Berlinger v. Wells Fargo, N.A.,
2013 U.S. Dist. LEXIS 98292 (M.D. Fla. July 15, 2013). This Case is a
suit by Beneficiaries against TrustCo, trustee of their trust ("The
Trust"). Divorce Case preceded This Case. In Divorce Case W sued H and
TrustCo as trustee of The Trust. Lawyer represented TrustCo in Divorce
Case, and Lawyer represents TrustCo in This Case. Beneficiaries moved
to disqualify Lawyer in This Case. They claim that Lawyer was really
Beneficiaries' lawyer in Divorce Case. The magistrate judge denied the
motion. In this opinion the district judge affirmed. Beneficiaries
tried to rely on Jacob v. Barton, 877 So. 2d 935 (Fla. App. 2004), and Riggs Nat'l Bank of Washington D.C. v. Zimmer,
355 A.2d 709 (Del. Ch. 1976), both of which stand for the proposition
that beneficiaries may, in some circumstances, discover communications
between the fiduciary and fiduciary's lawyer. The district judge
refused to extend those holdings to a finding that Lawyer "benefitted or
represented" Beneficiaries in Divorce Case. Nextdoor.com, Inc. v. Rajabhyanker,
2013 U.S. Dist. LEXIS 101440 (N.D. Cal. July 19, 2013). Law Firm,
representing Plaintiff, filed this IP case against Defendant. Defendant
moved to disqualify Law Firm because Law Firm had earlier represented
Defendant in the formation of Defendant's business. In this opinion the
court denied the motion. The court held that the formation of the
business was not substantially related to the IP claims in this case.
To the extent that Defendant tried to show that Law Firm actually did
related IP work for Defendant, the court held that Plaintiff's evidence
in this regard overwhelmed Defendant's evidence. The court also noted
with approval that Law Firm had erected a screen between the personnel
in the earlier representation and the personnel in this case. Fiduciary Trust Int'l of Cal. v. Superior Court,
2013 Cal. App. LEXIS 606 (Cal. App. July 31, 2013). H had an estate of
some $200 million. Lawyer prepared H's estate plan. At the same time
Lawyer prepared W's estate plan. H had three children from a prior
marriage and one child with W. Lawyer created several trusts to provide
for W and all four children. H died in 1993. After H's death W
changed her estate plan, in part to prefer her child. W died in 2011.
TrustCo is the executor of W's estate. TrustCo filed this action
against the trustees of the children's trust to resolve a disagreement
over whether W's estate or the children's trust is liable for some $27
million in estate taxes. (The total tax bite was $100 million.) Lawyer
had also died. Lawyer's law firm ("Law Firm") appeared for the
trustees. TrustCo moved to disqualify Law Firm because of its earlier
representation of W (preparing her estate plan). The trial court denied
the motion. In this opinion the appellate court reversed (granted
mandamus). The court held that Lawyer's work for W was substantially
related to this case. The court did not seem convinced that W's
confidences were particularly relevant or at risk. Rather, the court
seemed to bottom its decision on the fact that Law Firm, in this case,
would be taking positions over substantial tax allocations resulting
from documents Law Firm had prepared. LaBuick v. Sykes,
2013 SKPC 126 (Sask. Prov. Ct. July 24, 2013). Plaintiff is suing
Defendants over debris coming from Defendants' property onto Plaintiff's
property. Plaintiff consulted with Lawyer about the debris problem
back in 1999 and paid Lawyer's bill for that consultation. Lawyer
appeared for Defendants in this case. Plaintiff moved to disqualify
Lawyer. Lawyer claimed he did not recall the "details" of the prior
consultation. Nevertheless, the court in this opinion granted the
motion to disqualify. FlatWorld Interactives LLC v. Apple Inc.,
2013 U.S. Dist. LEXIS 111496 (N.D. Cal. Aug. 7, 2013). Law Firm A
represents Apple on a variety of matters. Lawyer was a partner doing
environmental work at Law Firm A until May 2013. Lawyer's wife is a
founder and owner of the plaintiff in this case. While at Law Firm,
Lawyer assisted his wife in various activities adverse to Apple. This
included communicating with the plaintiff's law firm ("Law Firm B") in
this case. Because of Lawyer's conflict, Apple moved to disqualify Law
Firm B. In this opinion the court denied the motion, because the
evidence was that Lawyer was never privy to Apple's information while at
Law Firm A and, thus, could not have communicated such information to
Law Firm B. Bhandal v. Kalsa Diwan Soc'y of B.C.,
2013 BCSC 1425 (CanLII) (Sup. Ct. B.C. Aug. 8, 2013). Various factions
of a Sikh religious society have argued, and litigated, almost every
year about the manner of electing officers. In this case Law Firm is
representing one of these factions against the society. Law Firm has
been involved in previous disagreements over elections for a number of
years, in some cases representing the society. The society moved to
disqualify Law Firm in this case. In this opinion the court denied the
motion. The court found, basically, that Law Firm had no confidential
information relating to this case and was not attacking its earlier
work. [Note: the opinion discusses the former client rule in some
detail. It, like other Canadian courts, uses the term "loyalty" (as
opposed to confidentiality) somewhat more freely than we find
comfortable. But, it appears that Canada is gravitating to a rule
somewhat similar to that in the U.S. That is, for the former
client/sufficiently-related rule to be triggered, the former client's
confidences must be at risk, or the law firm is being called-upon to
attack its former work.] Love v. Permanente Med. Grp.,
2013 U.S. Dist. LEXIS 133686 (N.D. Cal. Sept. 18, 2013). Wrongful
termination case. Law Firm represents Plaintiff. Plaintiff sued
several defendants but did not sue Shigematsu, an employee of
defendants, who evidently was principally responsible for Plaintiff's
termination. Much of plaintiff's complaint deals with Shigematsu's
conduct. Law Firm rents space from Lawyer. Although Lawyer is not a
member of Law Firm, Lawyer and Law Firm have worked together on cases
including this case. Lawyer has represented Shigematsu in the past on
matters dealing with Shigematsu's employment at the defendants. Because
of these relationships, the defendants, and non-party, Shigematsue,
moved to disqualify Lawyer and Law Firm. In this opinion the court
disqualified Lawyer, but not Law Firm. As to Lawyer, in a
fact-intensive analysis, the court found that Lawyer's work for
Shigematsu was substantially related to this case. Because the
defendants made no showing that Lawyer shared any of his knowledge about
Shigematsu with Law Firm, the court declined to disqualify Law Firm.
The court applied the rule that disqualification of one lawyer does not,
ipso facto, result in the disqualification of co-counsel. Hulzebos v. City of Sioux Falls,
2013 U.S. Dist. LEXIS 134085 (D.S.D. Sept. 19, 2013). This is a suit
by a former city employee against the city for back pay and increased
pension benefits. Lawyer represents the plaintiff. Lawyer worked as a
city employee/lawyer from 1995 to 2010. During that period he was
frequently consulted on employment matters, but not relating to the
plaintiff. For that reason the city moved to disqualify Lawyer. In
this opinion the court granted the motion, finding that Lawyer violated
Rules 1.11 and 1.9(c). In so ruling, the court adopted the playbook
analysis. In addition, the court said that Lawyer did not show
sufficiently that Lawyer was not privy to matters related to the
plaintiff while working for the city. McDonald v. McDonald Est.,
2013 BCSC 1732 (CanLII) (Sup. Ct. B.C. Sept. 9, 2013). Plaintiffs
moved to disqualify Defendants' Lawyer ("Lawyer"). In this opinion the
court denied the motion. The analysis was fact intensive. Several
things emerged. First the court held that where a lawyer represents a
corporation, he is not thereby representing an officer or owner.
Second, the court reiterated the principle that although a lawyer did
not have relevant confidential information from an earlier
representation, the lawyer still may not be adverse to the former client
if it meant attacking what the lawyer had done for the former client.
Last, the court found that the four year delay in bringing the motion
was reason alone to deny it.
Bank of N.Y. v. Aponte,
2013 Ohio App. LEXIS 4592 (Ohio App. Sept. 24, 2013). In this
foreclosure proceeding Lawyer was requested by another law firm to
appear for Bank at a default hearing. Lawyer did so and billed the
other law firm. Later Lawyer appeared for the defendant to seek relief
from the judgement and a stay of execution. Bank moved to disqualify
Lawyer. The trial court granted the motion. In this opinion the
appellate court affirmed. Lawyer argued that the appearance at the
default hearing was so inconsequential as to not be a representation.
Nothing doing, said the appellate court.
United States v. Fair Lab. Practices Assocs. v. Quest Diagnostics Inc., 2013 U.S. App. LEXIS 21709 (2d Cir. Oct. 25, 2013). General Partnership (“GP”) was formed to bring this qui tam
action. One of the general partners of GP had been the general counsel
(“GC”) of a company acquired by the defendant during times relevant to
this action. Finding that GC was violating New York’s version of MR
1.9(c), the trial court dismissed the action and disqualified GP and the
lawyers representing GP. In this opinion the appellate court
affirmed. First, the court held that the federal False Claims Act does
not preempt enforcement of state ethics rules. Second, the court held
that GC’s actions went too far in disclosing the defendant’s wrongdoing
(the 1.6 part of the 1.9(c) analysis). Third, the court held that,
although GC was never employed by the defendant, he was employed by the
acquired company, which meant that his duties of confidentiality passed
to the defendant. Last, the appellate court agreed with the trial court
that QC’s violation tainted the other partners of GP as well as GP’s
outside law firms.
Bowers v. Ophthalmology Grp.,
2013 U.S. App. LEXIS 21702 (6th Cir. Oct. 25, 2013). Plaintiff was a
partner in a medical partnership. After tendering her resignation, to
be effective in one year, the partnership voted to terminate her
immediately. Plaintiff filed this action against the partnership
alleging discrimination and retaliation. Law Firm represents the
partnership. A year or so before this suit Plaintiff had retained a
partner in Law Firm to handle setting up a separate, part-time, practice
for her. Plaintiff moved to disqualify Law Firm in this case. The
trial court granted defendant summary judgment on the merits, then
denied the motion to disqualify as moot. The appellate court held that
the trial court should have ruled on the motion to disqualify before
ruling on the merits. The appellate court held as a matter of law that
Law Firm’s earlier work for Plaintiff was substantially related to this
case. The court disqualified law firm, vacated the summary judgment,
and remanded the case to the trial court.
Re Tex. Windstorm Ins. Ass’n,
2013 Tex. App. LEXIS 13735 (Tex. App. Nov. 7, 2013). This opinion
involves two pieces of litigation, both arising out of Hurricane Ike.
This case is a putative class action brought against InsCo on behalf of a
class of municipalities. The earlier case was brought by County
against InsCo. In the earlier case County’s lawyer (“Lawyer 1”)
retained Lawyer 2, a specialist in insurance law, to opine on County’s
right to overhead and profit (“O&P”) recoveries. In this case, the
class of municipalities seek to recover based upon InsCo claims handling
procedures. Lawyer 2 appeared for InsCo in this case. Based upon
Lawyer 2’s work for Lawyer 1 in the earlier case, the plaintiff(s) in
this case moved to disqualify Lawyer 2. The trial court granted the
motion. In this opinion a 2-1 majority reversed (granted mandamus).
First, the majority held that Lawyer 2 is not adverse to a former client
in this case. (Lawyer 2 is not adverse to Lawyer 1 in this case, just
Lawyer 1’s clients.) Notwithstanding that finding, the court addressed
the substantial relationship test, as well. The court held that
although both cases involved the same hurricane, the issues involved
were not substantially related. The opinion was highly fact-specific.
It also focussed on Texas’ unique version of MR 1.9, citing primarily
Texas cases. Texas lawyers should read the opinion.
Board of McCaren Park Mews Condo. v. McCaren Park Mews LLC,
2013 N.Y. Misc. LEXIS 5161 (N.Y. Sup. Ct. Nov. 7, 2013). In this case
Condominium Bd., represented by Lawyer, sued Developer for defective
construction. Lawyer had assisted in the defense of Developer in two
prior suits by condominium boards for defective construction, involving
different projects. In granting Developer’s motion to disqualify Lawyer
in this case, the court, in this opinion, held that the matters were
substantially related. Board of McCaren Park Mews Condo. v. McCaren Park Mews LLC,
2013 N.Y. Misc. LEXIS 5161 (N.Y. Sup. Ct. Nov. 7, 2013). In this case
Condominium Bd., represented by Lawyer, sued Developer for defective
construction. Lawyer had assisted in the defense of Developer in two
prior suits by condominium boards for defective construction, involving
different projects. In granting Developer’s motion to disqualify Lawyer
in this case, the court, in this opinion, held that the matters were
substantially related. Pearce-Ell v. Holgate,
2013 SKQB 434 (CanLII) (Ct. Q.B. for Sask. Dec. 11, 2013). Buyers
purchased a business and related real estate from Seller. A dispute
arose, and this suit resulted. Buyers moved to disqualify Seller’s
lawyer (“Lawyer”), alleging that Buyers reasonably believed that Lawyer
was representing both Seller and Buyers in the transaction. In this
opinion the court granted the motion. First, the court held that Buyers
had a lawyer-client relationship with Lawyer during the transaction.
Second, the court held that the transaction was sufficiently related to
this suit. Third, there was a danger that Buyer’s confidences could be
used by Lawyer in this case. Last, Buyer did not wait too long to
bring the motion. While Lawyer claimed he told Buyers to get their own
lawyer for the transaction, Buyers denied that. Further, the court
seized on several facts that made Buyers’ claims more plausible. Roberts v. Legacy Meridian Park Hosp., Inc.,
2014 U.S. Dist. LEXIS 8751 (D. Ore. Jan. 24, 2014). Doctor P sued
several medical entities and individuals, including Doctor D, for race
discrimination, among other things, resulting in limitations on his
practice. Law Firm is representing Doctor D. Some years prior Law Firm
had represented Doctor P in several medical malpractice cases. For
that reason Doctor P moved to disqualify Law Firm. In this
fact-intensive opinion, after reviewing the types of information Law
Firm reasonably would have gained about Doctor P in the malpractice
cases, the court denied the motion. Rombola v. Botchey,
2014 Fla. App. LEXIS 1374 (Fla. App. Feb. 4, 2014). Personal injury
case. Lawyer took a leading role in defending during the trial. After
the trial, during the post-trial motion phase, Lawyer went to work with
the plaintiff’s lawyer. This formed a two-person law firm. The defendant
moved to disqualify the plaintiff’s law firm. Instead of opposing the
motion the plaintiff’s law firm had the court enter an order
disqualifying the plaintiff’s firm “regarding any further issues at the
trial level regarding the trial of the case.” The defendant appealed
(petitioned for cert.). In this opinion the appellate court reversed,
holding the plaintiff’s law firm should be disqualified from the case
completely, including appeal. The court said this kind of litigation
cannot be compartmentalized as trial court attempted to do. Dougherty v. Philadelphia Newspapers, LLC,
2014 Pa. Super LEXIS 36 (Pa. App. Feb. 11, 2014). In this case a
candidate for the state legislature (“Candidate”) sued the newspaper for
disparaging him about subjects, some of which related to a federal
grand jury proceeding. Law Firm appeared for the defendants in this
case. Earlier Law Firm had represented Candidate in connection with the
grand jury proceeding. Candidate moved to disqualify Law Firm. The trial
court denied the motion. In this opinion the appellate court reversed,
finding that the matters were substantially related. In re Indem. Ins. Corp., RRG,
2014 Del. Ch. LEXIS 23 (Del. Ch. Feb. 19, 2014). Complicated fact
situation surrounding the state’s seizure of an insurance company.
Several parties moved to disqualify a lawyer under Rule 1.9 because of a
prior representation. In this opinion the Vice Chancellor denied the
motion because the moving parties had failed to show that the Rule 1.9
violation “taints the fairness of the proceeding.” Accordingly, the
court held it lacked jurisdiction to address the violation. [Note:
this is an odd Rule 1.9 formulation. Usually, the court looks to whether
matters were “substantially related,” which is grounded upon
confidentiality concerns. The Vice Chancellor relied primarily on In re Infotechnology, Inc.,
582 A.2d 215 (Del. 1990). However, that case’s “taints the fairness”
test was applied because the moving person had no standing to raise the
conflict.]
Valeant Canada LP v. Minister of Health & Cobalt Pharm. Co.,
2014 FCA 50 (CanLII) (Fed. Ct. App. Feb. 24, 2014). Proceeding under
Canada’s Notice of Compliance regulations relating to generic drugs. The
proceeding began when Cobalt served its Notice of Allegation on
Valeant. Lawyer is employed in-house by Cobalt. Lawyer had previously
worked at a law firm that was representing Valeant on matters relating
to diltiazem hydrochloride, the substance involved in this case. Lawyer
had worked on one of those matters. Valeant moved to disqualify Lawyer.
The Federal Court granted the motion. In this opinion the Federal Court
of Appeals affirmed. The court held that once it was established that
Lawyer had Valeant’s confidential information, Lawyer’s disqualification
was “automatic.” Valeant had also requested that Cobalt’s Notice of
Allegation be invalidated. The court felt the record thus far did not
establish that Cobalt had misused Valeant’s confidential information in
preparing the Notice of Allegation, which, at a minimum, would have to
be shown. Sunbeam Prods. Inc. v. Oliso, Inc.,
No. C 13-03577 SI (N.D. Cal. March 4, 2014). Patent infringement action
involving “vacuum packaging technology.” Lawyer represented Company A
for some years in vacuum packaging technology cases. In 2006 the
plaintiff in this case purchased Company A and merged it into the
plaintiff. Because Lawyer now represents the defendant, the plaintiff
moved to disqualify Lawyer. In this opinion the court granted the
motion. First, the court held that by virtue of the merger the plaintiff
is deemed a former client of Lawyer. Second, the court held the
representations were substantially related. Same Property; Different Issue (posted March 11, 2014) Foster v. Trustee for JP Morgan Mortgage, U.S.,
2014 U.S. Dist. LEXIS 10017 (W.D. Va. March 7, 2014). Plaintiff is
suing Defendant for mishandling Plaintiff’s mortgage. Law Firm
represents Defendant. Seven years before this case two lawyers at Law
Firm represented Plaintiff on an easement issue involving the property
that is the subject of this case. Those two lawyers left Law Firm about
six years ago. Plaintiff moved to disqualify Law Firm in this case. In
this opinion the magistrate judge denied the motion. First, the court
held the matters were not substantially related. A second independent
ground is that the absence of the two lawyers in question triggered
application of Virginia’s version of MR 1.10(b).
Hepburn v. Workplace Benefits, LLC,
2014 U.S. Dist. LEXIS 52628 (E.D.N.C. April 16, 2014).
Employment-related suit (wrongful discharge, failure to promote, etc.)
Lawyer appeared for Plaintiff. Lawyer previously was an employee of
Defendant with the title of Provider Relations Legal Specialist.
Lawyer’s duties included the occasional legal task as well as non-legal
work. Defendant is in the business of giving guidance to companies on
employee relations. Defendant moved to disqualify Lawyer. In this
opinion the court denied the motion. The court said Defendant had not
shown that Lawyer’s employment was “essentially identical” to this case.
Thus, no substantial relationship. Sessa v. Parrotta,
2014 N.Y. App. Div. LEXIS 2861 (N.Y. App. Div. April 30, 2014). Law
Firm earlier represented W in preparation of a will. In this divorce
case Law Firm is representing H against W. W moved to disqualify Law
Firm. The trial court granted the motion. In this opinion the appellate
court reversed, noting that W offered only “conclusory allegations”
about W's information shared with Law Firm. The court also noted that
the validity of H and W’s prenuptial agreement was not at issue in this
case and that H and W had “waived their rights of equitable
distribution.” Tendeka, Inc. v. Glover,
2014 U.S. Dist. LEXIS 67109 (S.D. Tex. May 15, 2014). Plaintiff filed
this action against Defendants for breach of a License and Supply
Agreement (“LSA”), dated October 2009, and for tortious interference
with the LSA. Law Firm, on behalf of Plaintiff, helped draft the LSA.
Law Firm appeared in this case on behalf of one of Defendants. Plaintiff
moved to disqualify Law Firm. In this opinion the court granted the
motion, finding that the matters were substantially related. SalDan v. Super. Bus. Dev. Bank,
2014 ONSC 2979 (CanLII) (Ont. Super. Ct. May 15, 2014). Law Firm
represented Defendant in Defendant’s creation. In this case Law Firm is
asserting a construction lien for Plaintiff against Defendant. Defendant
moved to disqualify Law Firm. In this opinion the court granted the
motion. In a fact-intensive analysis the court found the earlier
representation sufficiently related to the the construction project. The
court also noted playbook elements such as Law Firm’s knowledge of
Defendant’s “legal and business strategies and risk tolerances,” which
would provide Plaintiff with “a distinct advantage” in this case.
Avra Surg., Inc. v. Dualis TedTech GmbH,
2014 U.S. Dist. LEXIS 71803 (S.D.N.Y. May 27, 2014). Lawyer, in-house
counsel for A, represented A and an unrelated party, B, in negotiating a
contract with C. The relationship between A and B soured, and Lawyer,
representing A, filed this case against B. B moved to disqualify Lawyer.
In this opinion the court granted the motion. The result was clearly
correct. However, the court engaged in an unnecessary discussion of
whether loyalty (as opposed to confidentiality) played a role in
applying Rule 1.9(a), holding that it did. This is wrong, Charles W.
Wolfram, Former-Client Conflicts, 10 Geo. J. Legal Ethics 677, 691-702 (1997).
Zerger & Mauer LLP v. City of Greenwood,
2014 U.S. App. LEXIS 10060 (8th Cir. May 30, 2014). Big Co. was hauling
massive amounts of gravel through City. City, represented by Lawyers,
brought a public nuisance proceeding against Big Co. They settled. Part
of the settlement required all further gravel movements be confined to
Second Avenue in City. Lawyers then represented persons having land on
Second Avenue in a private nuisance suit seeking damages from Big Co.
(this case). City intervened in this case to move to disqualify Lawyers.
The trial court granted the motion. In this opinion the appellate court
upheld the disqualification and severely criticized Lawyers.
Avendano v. Security Consults. Grp.,
2014 U.S. Dist. LEXIS 75598 (D. Nev. June 2, 2014). Employees brought
an arbitration against Employer and Union claiming wrongful termination.
The arbitrator ordered Employees reinstated. Employees then filed this
case claiming the reinstatements were being conducted wrongfully. Law
Firm represented Union in the arbitration, but represents Employees in
this case. Law Firm’s involvement with Union in the arbitration case
ended in May 2012. Its involvement in this case began in October 2012.
Union moved to disqualify Law Firm in this case. In this opinion the
magistrate judge denied the motion. First, the arbitrator noted the
differences between the arbitration, which involved unlawful
termination, and this case, which involved claims that the
reinstatements were handled wrongfully. The court accepted the argument
that Law Firm, in the termination case, would not naturally have
discussed with Union the future possibility of reinstatement and how it
would be handled. The court also noted that Law Firm’s lawyers’
statements about not having discussed the latter with Union personnel
were direct and unequivocal, while the Union statements were vague and
unspecific.
Douglass v. Priddy,
2014 Ohio App. LEXIS 2821 (Ohio App. June 30, 2014). Lawyer represented
Employer in negotiating and drafting Employee’s employment contract.
After leaving Employer, Employee set up a competing business. Employer
sued Employee in this case alleging various theories of unlawful
competition. Lawyer appeared for Employee. Employer moved to disqualify
Lawyer. The trial court granted the motion. In this opinion the
appellate court affirmed.
Former Client (posted July 8, 2014) Atmosphere Hospitality Mgmt. Servs., LLC v. Royal Realties, LLC,
2014 U.S. Dist. LEXIS 91100 (E.D. Mich. June 26, 2014). Law Firm
represented Hotel Company in labor and employment matters. Two years
later Law Firm filed a suit against Hotel Company on behalf of another
company for contract-related claims arising out of management of Hotel
Company’s hotel. In a good discussion of the substantial relationship
test the court in this opinion granted a motion to disqualify Law Firm.
Fiduciary Trust Int’l of Cal. v. Super. Ct., 160 Cal. Rptr. 3d 216 (Cal. App. 2013). Law Firm represented H and W in estate planning. After they both passed away, a dispute arose over which trust of several trusts had to pay how much estate and inheritance tax. Law Firm took a position, which was adverse to W’s personal representative. W’s personal representative moved to disqualify Law Firm. The trial court denied the motion. In this opinion the appellate court reversed (granted mandamus). The court said that the fact that Law Firm had represented both H and W did not affect a straightforward substantial relationship test analysis.
Matthews v. Matthews, 2014 BCSC 1179 (CanLII) (S. Ct. B.C. July
23, 2014). Family Law matter. W is represented by Lawyer. Ten years ago H
consulted Lawyer about H’s relationship with another woman. H also
introduced W to Lawyer to assist W regarding her son from another
relationship. Because of these earlier matters, H moved to disqualify
Lawyer in this case. Lawyer averred he remembered nothing about the
prior matters and that, because he had changed firms twice since, he had
no access to the earlier files. In this opinion the court denied the
motion.
In re Colony Ins. Co., 2014 Tex. App.
LEXIS 9902 (Tex. App. Sept. 2, 2014). Lawyer for the plaintiff in this
case against InsCo represented InsCo in two prior matters. In the first,
the issue was InsCo’s duty to defend or indemnify an insured in a
wrongful death case. In the second, the issue was whether InsCo’s policy
covered a legal malpractice claim. In this case InsCo claims its policy
was cancelled for non-payment of premiums. The trial court in this case
denied InsCo’s motion to disqualify Lawyer. In this opinion the
appellate court denied mandamus because it could not disturb the trial
court’s “factual determinations” “by mandamus review.” [Note: this
opinion discusses the interplay between Texas’ odd versions of MRs 1.6
and 1.9. We do not understand those rules or the court’s analysis,
although the result appears to be appropriate.]
United States v. City of Romulus,
2014 U.S. Dist. LEXIS 122417 (E.D. Mich. Sept. 3, 2014). Plaintiff, a
former City employee, brought this case against City and two former
officials of city. She claims wrongful retaliation and discharge, and
violation of the False Claims Act. Plaintiff was represented by her
husband, who had been an Assistant City Attorney for City during the
time of the conduct alleged in the complaint. The defendants moved to
disqualify Lawyer. In this fact-intensive opinion the court found a
substantial relationship between what Lawyer did for City and this case
against City. For some reason the court repeated the process with a different appearing opinion at 2014 U.S. Dist. LEXIS 143583 (E.D. Mich. Oct. 9, 2014). The court followed up and explained what she did at United States v. City of Romulus, 2014 U.S. Dist. LEXIS 122417 (S.D. Mich. Sept. 3, 2014). There she denied rehearing and noted that the two prior opinions were substantively identical.
Galaxy Fireworks, Inc. v. Kozar, 2014 Fla. App. LEXIS 14235 (Fla.
App. Sept. 14, 2014). This is a suit for breach of a joint venture
agreement. Lawyer represents Plaintiff. Lawyer earlier, as a favor to
Lawyer’s primary client (Plaintiff in this case), had represented
Defendant in a landlord-tenant dispute. Lawyer did not charge Defendant.
The trial court granted Defendant’s motion to disqualify Lawyer. In
this opinion the appellate court reversed, holding that the matters were
not substantially related.
Men Women N.Y. Model Mgmt. v. Kavoussi, 2014 N.Y. Misc. LEXIS
4289 (N.Y. Sup. Ct. Sept. 29, 2014). Substantial relationship analysis.
One matter involved an employment agreement, the other a termination
agreement. No substantial relationship.
State of N.Y. v. Monfort Trust, 2014 U.S. Dist. LEXIS 142589
(E.D.N.Y. Oct. 7, 2014). We will simplify the facts (perhaps overly so)
to make this summary manageable. Polluted real estate. Owners entered
into a consent order with State for cleanup costs. A disagreement arose
over how much was owing, so State filed this action against Owners to
recover cleanup costs. Owners filed third-party actions against a former
property manager (“Manager”) who had bought the property and signed an
indemnification agreement arguably covering amounts recovered by State
in this action. Lawyer appeared for Manager. Owners moved to disqualify
Lawyer because Lawyer had represented Owners in the negotiation with
State of the original consent order. Lawyer had nothing to do with the
negotiation or preparation of the indemnification agreement between
Owners and Manager. In this opinion denying disqualification the
magistrate judge ruled that Lawyer’s involvement with the consent order
was not substantially related to this third-party claim for
indemnification.
In re Ruvalcaba, 2014 Tex. App. LEXIS 11198 (Tex. App. Oct. 9,
2014). Party 1 moved to disqualify Lawyer, member of Law Firm, who was
representing Party 2. The reason was that Lawyer had earlier represented
the spouse of Party 1 and had learned confidences of Party 1 in the
earlier matter. The trial court granted the motion as to Lawyer, but not
as to Law Firm. Party 1 appealed the failure to disqualify Law Firm.
Party 2 did not appeal the disqualification of Lawyer. In this confusing
opinion the appellate court held that Law Firm should be disqualified. [Note:
for no reason ever explained to us Texas decided to tamper extensively
with the ABA Model Rules, both as to numbering and terminology. This
makes it impossible for us fully to understand what the courts were
doing here. Evidently, the appellate court was relying on Texas Rule
1.9(b), which resembles Model Rule 1.10(a).]
The Copper Cellar Corp. v. Ole Smokey Distillery, 2014 U.S. Dist.
LEXIS 146054 (E.D. Tenn. Oct. 14, 2014). Trademark case. Lawyer for
Defendant has in the past done trademark work for Plaintiff. Plaintiff
moved to disqualify Lawyer in this case. In this opinion the magistrate
judge denied the motion. In a fact-intensive analysis the court noted
that Lawyer’s work for Plaintiff involved different trademarks and said
that “[t]he Court is not prepared to find that all trademark matters are
substantially related” within the context of Rule 1.9.
Anderson & Anderson LLP-Guangzhou v. N. Am. Foreign Trading Corp.,
2014 N.Y. Misc. LEXIS 4611 (N.Y. Sup. Ct. Oct. 20, 2014). Client hired
Lawyer to collect an arbitration award. Lawyer drafted the contingent
fee agreement between Lawyer’s law firm “Law Firm”) and Client. Law
Firm, representing itself, brought this action against Client to enforce
the fee agreement. Client moved to disqualify Lawyer in this case. In
this opinion the court disqualified Lawyer and Law Firm under Rule 1.9
(former client rule). The court also ruled that Lawyer, but not Law
Firm, was disqualified under Rule 3.7 (lawyer as witness). [Note: it
is not clear to us why the court dwelled on Rule 3.7 at all, when Rule
1.9 provided the grounds for disqualifying both Lawyer and Law Firm.]
Pinnacle Surety Servs., Inc. v. Loehnert, 2014 U.S. Dist. LEXIS
163106 (W.D. Ky. Nov. 20, 2014). Clients left Co. No. 1 to join Co. No.
2. Co. No. 1 sued Clients and Co. No. 2 for tortious interference, etc.
(Suit 1). Law Firms defended Suit 1 for Co. No. 2 and Clients. Clients
then left Co. No. 2 to set up a new company. Co. No. 2 sued Clients for
damages, etc. (“This Case”). Law Firm appeared for Clients against Co.
No. 2 in This Case. Co. No. 2 moved to disqualify Law Firm in This Case
because Law Firm had earlier represented Co. No. 2 in Suit 1. In this
opinion the court granted the motion. In a fact-intensive analysis the
court pointed out how the issues in Suit 1 and This Case were close
enough to give Law Firm an undue advantage in This Case. The court denied rehearing at Pinnacle Security Servs., Inc. v. Loehnert, 2015 WL 1136647 (W.D. Ky. March 12, 2015). The court certified the case for appeal.
In re Caryl S.S., 2014 WL 6780656 (N.Y.
Sup. Ct. Nov. 25, 2014). This is a proceeding for appointment of a
guardian of the person and property for an alleged incapacitated person
(“AIP”). Among other things, the court in this opinion disqualified the
lawyer for the applicant because the lawyer had earlier prepared two
deeds and a will for the AIP.
City of Chicago v. Purdue Pharma L.P.,
2014 U.S. Dist. LEXIS 172975 (N.D. Ill. Dec. 15, 2014) Private Lawyer
was hired to represent City in this case. Defendant moved to disqualify
Private Lawyer pursuant to D.C. Rule 1.11(a). Private Lawyer had
previously been Attorney General (“AG”) of D.C. Prior to her becoming
AG, subordinates in that office had been conducting an investigation
into Defendant involving the same type of claims as in this case.
Private Lawyer’s role in that investigation was minimal and superfluous.
Her name appeared on a few pleadings, and she authored a press release
announcing a successful settlement. In this opinion, denying the motion
to disqualify, the court made two findings: (1) Defendant had standing
to make the motion; and (2) Private Lawyer did not participate in the
D.C. proceedings “personally and substantially” as required by D.C. Rule
1.11(a).
De La Cruz v. Virgin Isles. Water & Power Auth.,
2014 WL 7398889 (3d Cir. Dec. 30, 2014). Plaintiff, who was painting a
building, was electrocuted when his “painting pole” contacted Power
Co.’s power line. Law Firm filed a personal injury suit for Plaintiff
against Power Co. An associate in Law Firm had previously, at another
law firm, done work for Power Co. on a case involving an alleged
defective guy wire. Power Co. moved to disqualify Law Firm. The trial
court granted the motion. In this opinion the Third Circuit affirmed,
holding that a guy wire case was substantially related to a power line
case.
Doe v. City of Memphis, 2015 WL 65288
(W.D. Tenn. Jan. 5, 2015). This class action deals with the alleged
failure of City to deal properly with rape evidence, which failure
extended back at least 25 years. The plaintiffs’ lawyer had been City
Attorney of the defendant from 1997 to 2004. City moved to disqualify
the plaintiffs’ lawyer and his law firm. In this opinion the court
granted the motion as to the former City Attorney, but not his firm. The
court found a violation of Rule 1.11 due to the lawyer’s “policymaking
and leadership roles” as City Attorney. The court allowed the firm to
continue provided it comply with the screening provisions of Rule
1.11(b). The district judge reversed as to the former City Attorney at Doe v. City of Memphis, 2015 WL 4019550 (April 8, 2015).
PilePro, LLC v. Chang, 2015 WL 300636
(W.D. Tex. Jan. 22, 2015). Chang’s motion to disqualify Plaintiffs’
lawyers (“Lawyers”). Lawyers represented Chang in an Earlier Matter.
Both cases involve alleged fraud by Chang while CFO of PilePro. In a
fact-intensive substantial relationship analysis the court concluded
that Lawyers would have gotten into Chang’s head in Earlier Matter in
ways that would relate substantially to Chang’s activities in this case.
IAR Sys. Software, Inc. v. Shehayed,
2015 WL 294822 (Cal. App. Jan. 22, 2015). In this case IAR, represented
by Law Firm, is suing its former CEO for misuse of company funds. Law
Firm had represented IAR for many years and had worked closely with CEO
on company matters. CEO hired Law Firm to defend IAR in an earlier
wrongful termination case brought by another employee. Law Firm prepared
CEO for his deposition in that case and accompanied him to the
deposition. CEO moved to disqualify CEO in this case. The trial judge
denied the motion, finding that Law Firm never represented CEO. In this
opinion the appellate court affirmed. Evidently, CEO never asserted to
Law Firm that he believed it was representing him. By the same token,
Law Firm never declared that it was representing only IAR and not CEO.
The court noted that the only information CEO gave Law Firm during the
earlier case was company information and not his personal information.
Close.
Sirisup v. It’s Thai, L.L.C., 2015 WL
404096 (C.D. Cal. Jan. 29, 2015). In this opinion, in denying a motion
to disqualify, the court held that a brief representation in an earlier
case involving corporate governance was not substantially related to
this trademark case. The court also held that waiting six months to
bring the motion was grounds for denial.
Boies, Schiller & Flexner LLP v. Host Hotels & Resorts, Inc.,
2015 WL 1035841 (2d Cir. March 11, 2015). Party A moved to disqualify
Law Firm, which represented Party B. Law Firm had earlier represented
Party A. The trial court granted the motion and ordered sanctions
against Law Firm for its bad faith in resisting disqualification
(conduct “‘far, far, worse’ than mere negligence”). In this brief
opinion the appellate court affirmed. It noted that when Party A
confronted Law Firm with the conflict, Law Firm provided its outside
ethics counsel with “an unreasonably narrow description” of its earlier
work for Party A. The court also noted that Law Firm accepted this
matter adverse to Party A, its former client, without reviewing billing
records from the earlier matter and that Law Firm declared it had no
conflict before completing its review of the files from the earlier
matter.
Maricultura Del Norte, S. De R.L. De C.V. v. Worldbusiness Capital, Inc.,
2015 WL 1062167 (S.D.N.Y. March 6, 2015). Law Firm represents several
defendants in this case. At some point Lawyer A, a partner at Law Firm,
had had communications with a lawyer at Plaintiff. Based upon these
communications, Plaintiff moved to disqualify Lawyer A and Law Firm.
Much of the opinion deals with whether Lawyer A ever had a lawyer-client
relationship with Plaintiff. In a fact-intensive analysis the court
held that there was a lawyer-client relationship, and held that Lawyer A
should be disqualified. The court refused to disqualify Law Firm
because it had established a screen between those working on this case
and those who dealt with Plaintiff.
Northern Natural Gas Co. v. Approximately 9117 Acres, 2015 WL
1097488 (D. Kan. March 9, 2015). This is a condemnation action brought
by GasCo to acquire land into which GasCo’s underground storage facility
is leaking gas. Defendant 1 is represented by Lawyer. Defendant 2 moved
to disqualify Lawyer because Lawyer had earlier represented Defendant 2
in a lease dispute involving a tract of land involved in this action.
In this opinion the court found that the earlier lease dispute was not
substantially related to this condemnation action. Defendant 2 failed to
show how any confidences Lawyer might have learned in the lease dispute
would be relevant to this action. Lawyer had also represented Plaintiff
in a divorce but could recall nothing of that matter and had retained
no files relating to it. Further, Plaintiff made no showing of what
Lawyer might have learned in the divorce matter that would be relevant
to this action.
2368230 Ont. Inc. v. Fu, 2015 ONSC 2378 (CanLII) (Ont. Superior
Ct. April 13, 2015). Landlord moved to disqualify the law firm for the
Tenant (Law Firm), claiming Landlord was a former client of Law Firm. In
denying the motion, the court assumed for the sake of argument that
Landlord was a former client. But, the court said that the earlier
handling of the sale of real estate was not related to the current
dispute regarding the payment of rent. No confidences were involved, and
Law Firm was not attacking its earlier work.
McElroy v. Pacific Autism Ctr. for Educ., 2015 WL 2251057 (N.D.
Cal. May 13, 2015). This is a suit by Parents against a private school
for autistic children, for mistreatment of Parents’ autistic child. The
school moved to disqualify one of the Parents’ lawyers because he had,
for several years up until 2005, served as one of the schools directors
and as Executive Director. The alleged mistreatment occurred in
2010-2012. The lawyer had never done legal work for the school.
Nevertheless, the court did a substantial relationship analysis and
found the matters not related. The lawyer’s primary responsibility at
the school was financial and fund-raising. This suit is about
mistreatment of a single student years after the lawyer had left his
school positions.
Avigdor v. Rosenstock,
2015 WL 2238881 (N.Y. Sup. Ct. May 12, 2015). This is a routine
substantial relationship analysis of no apparent precedential value.
What is off-putting, however, is the court’s heavy, but not exclusive,
reliance on the “appearance of impropriety.”
Innovative Memory Solutions, Inc. v. Micron Tech., Inc., 2015 WL
2345657 (D. Del. May 15, 2015). Patent infringement case. Two of
Plaintiff’s lawyers formerly worked at a law firm where they represented
Defendant in seven patent cases and a trade secret case, all of which
involved NAND flash technology. This case involves similar flash
technology. In this opinion the court granted a motion to disqualify
Plaintiff’s law firm, finding the prior matters were substantially
related to this case.
Somers v. Digital Realty Trust, Inc.,
2015 WL 2354807 (N.D. Cal. May 15, 2015). This is an employment-related
case by Plaintiff against Employer A. Employer A is represented by Law
Firm. Before Plaintiff went to Employer A, he was advised by a partner
at Law Firm about negotiating with prospective Employer B. He was billed
for 2.1 hours by Law Firm. Because of that prior representation
Plaintiff moved to disqualify Law Firm in this case. In this opinion the
court did not find a substantial relationship and denied the motion.
Pace v. Williams, 2015 WL 3751405 (S.D. Ala. June 16, 2015). W is
suing H, among others, for unlawfully causing her to be committed.
Lawyer is representing W. Earlier, Lawyer had sent a demand letter to
one of the defendants indicating that Lawyer represented both H and W.
Lawyer also participated in the preparation of affidavits of both H and W
relating to the subject matter of this suit. In this suit W is
complaining that H’s affidavit is a complete fabrication. One of the
defendants (not H) moved to disqualify Lawyer, but that defendant was
dismissed. Even though H did not raise the conflict, the court
considered it anyway. The court found a violation of Rule 1.9 and gave
the parties a choice among the following: (1) Lawyer withdraw; (2)
Lawyer obtain consents from both H and W; or (3) W dismiss the claims
against H, without prejudice.
Moore v. Olson, 2015 WL 4031624 (Alaska July 2, 2015). In this
opinion the court affirmed a trial court’s holding that Lawyer did not
have a conflict under Rule 1.9(a). The earlier matter involved
negotiation of a helicopter hangar lease. This case involves enforcement
of a business break-up settlement agreement. Not substantially related.
Somers v. Digital Realty Trust, Inc., 2015 WL 4483955 (N.D. Cal.
July 22, 2015). This is an employment-related case against Co. B. Law
Firm is representing Co. B. Earlier Plaintiff engaged Law Firm to assist
him in applying for employment at Co. A. Law Firm billed Plaintiff for
2.1 hours. At some point Plaintiff notified Law Firm that he was going
with Co. B. Plaintiff moved to disqualify Law Firm in this case. In this
opinion the court denied the motion. The court found no confidences to
be involved, and that the matters were not related.
O’Rear v. City of Carbon Hill, 2015 WL 5286140 (N.D. Ala. Sept.
8, 2015). This a suit by citizens of City, represented by Lawyer,
relating to City’s failure to redistrict following the 2010 census. Some
ten years ago Lawyer represented City in preparing a plan for city
council member districts and in moving to dismiss a case based on that
work. City moved to disqualify Lawyer in this case. In this opinion the
magistrate judge recommended the motion be denied, finding no
substantial relationship. Also, in this opinion, the district judge
adopted the recommendation.
Sonos, Inc. v. D&M Holdings Inc.,
2015 WL 5277194 (D. Del. Sept. 9, 2015). Patent infringement case
involving wireless audio technology. Law Firm 1 filed this case and
later withdrew. Plaintiff is now represented by Law Firm 2. Law Firm 1
formerly did work for the defendants in this case. Lawyers A, B, C,
& D left Law Firm 1 to form Law Firm 2. Prior to leaving Law Firm 1
Lawyers A, B, & C had done patent work for the defendants. However,
the defendants had not acquired the technology involved in this case
until after Lawyers A, B, & C had left Law Firm 1. In denying a
motion to disqualify Law Firm 2, the court found that the work A, B,
& C had done for defendants was not substantially related to this
case. The earlier work involved different technologies. In an oblique
rejection of the playbook theory, the court said familiarity with the
defendants’ “general strategy for handling patent litigation” was not
enough to justify disqualification.
Lieu v. Cohen & Slamowitz, LLP, 2015 WL 5579876 (E.D.N.Y.
Sept. 22, 2015). This is a suit by debtors against Law Firm under the
Fair Debt Collection Practices Act. Lawyer represents several name
plaintiffs. Lawyer had previously worked at Law Firm on collection
matters. While with Law Firm Lawyer consulted with Law Firm lawyers on
the settlement of an earlier matter brought by different debtors against
Law Firm. Law Firm moved to disqualify Lawyer in this case. In this
opinion the court granted the motion. The court found that Lawyer had
represented Law Firm in the earlier case and that the earlier case was
substantially related to this case. The court also found that Lawyer
would have learned Law Firm confidences, which would help Lawyer in this
case.
Woods v. Mich. Dep’t of Corr., 2015 WL 7075922 (E.D. Mich. Nov.
13, 2015). In January 2015 Woods brought this employment discrimination
case against Agency and two Agency employees. One of the employees was
named “Burton.” It turns out that Burton also went by the name, Swain.
Law Firm represents Woods in this case. Earlier, also in January 2015,
Swain retained Law Firm to file an unrelated accident case for her. In
July 2015 Agency’s lawyer flagged the conflict and threatened to move to
disqualify Law Firm. Agency subsequently did file a motion (date not in
opinion). Shortly thereafter Law Firm terminated its representation in
Swain’s accident case. In this opinion the court denied the motion to
disqualify. First, the court held that because Law Firm had terminated
its representation of Swain, the analysis should be under Rule 1.9,
rather than Rule 1.7. Second, the court ruled that the accident case was
not substantially related to this discrimination case. Next, the court
found that there was no showing that Swain disclosed relevant
confidences to Law Firm. Last, the court found that Law Firm’s
sloppiness in not noting the conflict initially would not be a basis for
disqualifying Law Firm.
Gjoni v. Swan Club, 2015 WL 8825274 (N.Y. App. Div. Dec. 16,
2015). In this employment case Gjoni sued Club for gender
discrimination. Lawyer represents Gjoni. Eleven years ago Lawyer
represented Club defending an employment claim by another woman who
claimed she was abused by Gjoni. Club moved to disqualify Lawyer in this
case. The trial court denied the motion. In this opinion the appellate
court reversed. Lawyer claimed he remembered nothing about the earlier
case. However, the court said Club was “entitled to freedom from
apprehension” of prejudice because of the earlier case.
Lyons v. Lyons, 2015 WL 8708553 (N.Y.
Sup. Ct. Dec. 11, 2015). Divorce case. H moved to disqualify W’s lawyer
(“Lawyer”) because Lawyer had represented H in two child support
proceedings involving a prior wife. H moved to disqualify Lawyer in this
case. In this opinion the court denied the motion. [
Note: The
opinion is rambling and confusing. Among other things, it contains
repeated and unnecessary references to the old New York Code of
Professional Responsibility and the discredited “appearance of
impropriety” standard.]
Seifert v. Unified Gov’t of Wyandotte County,
2016 WL 187994 (D. Kan. Jan. 14, 2016). This appears to be a case where
Plaintiff, a former policeman, seeks to overturn a denial of his return
to the force. The parties have just learned, days before trial, that
the law firm representing Defendants (“Law Firm”) had, back in 1980,
represented Plaintiff, while he was on the force, in a fatal shooting
incident. Plaintiff moved to disqualify Law Firm. In this opinion the
court granted the motion. First, the court found substantial
relationship. As to application of Rule 1.10 to the entire firm, Law
Firm claims that the individual lawyers who represented Plaintiff in
1980 were gone or dead and that the file had been in off-premise storage
and not accessed by Law Firm “for decades.” Nevertheless, the court
said Law Firm “has information” within the meaning of Rule 1.10.
McDonald v. City of Wichita, 2016 WL 305366 (D. Kan. Jan. 26,
2016). McDonald was a prosecutor employed by City for 14 years. City
abolished McDonald’s position in 2012. McDonald then brought this
employment discrimination case. Prior to joining City, in about 1999,
McDonald was a prosecutor employed by County. She was the lead
prosecutor in a case resulting in a conviction. The conviction was
reversed by the appellate court on grounds of prosecutorial misconduct.
McDonald became the subject of an ethics matter arising out of the
reversed conviction. Law Firm A and Lawyer Cline represented McDonald in
the ethics matter. Lawyer Cline left Firm A in 2004 to join Law Firm B.
Both Cline and Firm B have appeared for the defendants in this case.
McDonald moved to disqualify Cline and Firm B. In this opinion the
magistrate judge granted the motion. She found that Cline would have
learned too much about McDonald as a prosecutor and that, therefore, the
ethics matter and this case were substantially related. The court
disqualified Cline and Firm B. The disqualified lawyers moved for rehearing. At
McDonald v. City of Wichita, 2016 WL 1298090 (D. Kan. March 31, 2016), the magistrate judge denied rehearing, but granted the lawyers' request to appeal under 28 U.S.C. § 1292(b).
Rule 1.11. Goodwine v. City of N.Y., 2016 WL 379761 (S.D.N.Y. Jan. 29,
2016). Plaintiff formerly worked at City IT department. Plaintiff moved
to substitute counsel with Lawyer, formerly “Senior Director for Equal
Employment Opportunity” of the same department. In this opinion the
court denied the motion. Applying N.Y. Rule 1.11, in a fact-intensive
analysis, the found that Lawyer’s involvement in Plaintiff’s case, while
at City, was just too extensive to permit Lawyer to be adverse to City
in this case.
Dougherty v. Pepper Hamilton LLP, 2016 WL 430551 (Pa. App. Feb.
3, 2016). John Dougherty (“John D”) was involved in a federal
prosecution, but not as a target. He hired Law Firm to represent him in
connection with the prosecution. In order to obtain a warrant to search
John D’s home, prosecutors attached, under seal, to its motion an
affidavit regarding John D. Later, in a criminal proceeding involving
Donald Dougherty (“Donald D.,” no relation to John D) the aforesaid
affidavit regarding John D mistakenly surfaced, and became public. Law
Firm stopped representing John D in 2007. In 2008 Newspaper ran articles
suggesting John D, then running for a state senate seat, had committed
crimes. John D sued Newspaper for libel (not this case). Law Firm
appeared for Newspaper. John D moved to disqualify Law Firm. The trial
court denied the motion. The appellate court reversed. John D then filed
this case against Law Firm for breach of fiduciary duty, among other
things. The trial court granted summary judgment to Law Firm. In this
opinion the appellate court reversed and remanded, primarily for a
finding whether the information about John D. that Law Firm used to
defend Newspaper was “generally known” within the meaning of
Pennsylvania Rule 1.9(c)(1) and the comment to that rule. The opinion
refers to several authorities on the extent to which merely being a
public record makes a document “generally known.” It is not clear what,
upon remand, the trier of fact could add to that analysis.
In re Nat’l Lloyds Ins. Co., 2016 WL 552112 (Tex. App. Feb. 10,
2016). Law Firm 1 represents InsCo in hail storm litigation. Lawyer
formerly worked at Law Firm 1 during that litigation. Lawyer had nothing
to do with hail storm litigation while at Firm 1 and learned nothing
about InsCo or that litigation. Lawyer left Firm 1 and joined Law Firm
2, which represented claimants against InsCo in hail storm litigation.
Firm 2 put Lawyer to work on those cases. InsCo moved to disqualify
Lawyer and Law Firm 2 in this hail storm case. The trial court denied
the motion. In this opinion the appellate court affirmed (denied
mandamus).
Erfindergemeinschaft Uripep GbR v. Eli Lilly & Co., No.
2:15-CV-1202-WCB (E.D. Tex. Feb. 26, 2016). Law Firm represented Co. A
regarding a patent relating to geographic search technology (not this
case). That representation ended in June 2014. In March 2015 Law Firm
filed this case for Co. B against Co. A. This suit claims that Co. A
infringes Co. B’s patent relating to dispensing Cialis. Co. A moved to
disqualify Law Firm in this case. In this opinion the court denied the
motion. The crux of the holding was that the two matters were not
substantially related. Co. A made weak factual arguments that Law Firm
learned things in the earlier case that would help Law Firm in this
case, but the court was not persuaded.
Radici v. ICF Merc. LLC, No. 2:14-cv-07133 (SRC)(CLW) (D.N.J.
March 2, 2016). This is a business dispute between A and B, investors in
Company. When A and B were starting their business relationship, A had
immigration issues. Law Firm handled those issues. Law Firm also did
work on the formation of A and B’s business relationship. Law Firm is
opposing A in this case. A moved to disqualify Law Firm. In this “letter
order” the magistrate judge denied the motion. First, the court said A
failed to show how what Law Firm did on the immigration issues provided
Law Firm with ammunition relating to this case. Second, the court noted a
very clear advance waiver signed by A early on that permitted Law Firm
to oppose A in a case such as this one.
Fried v. Abraitis, 2016 WL 917885 (Ohio App. March 10, 2016).
Decedent’s estate matter. The estate’s original administrator (“OA”)
hired Lawyer to assist in the estate administration, which Lawyer did
for about three years. In 2014 the court, sua sponte, removed OA and
approved a successor administrator (“SA”). SA brought this action
against OA for concealing estate assets. Lawyer appeared for OA. SA
moved to disqualify Lawyer, alleging that the estate was a former client
of Lawyer. The trial court granted the motion. In this opinion the
appellate court reversed. The court held that Lawyer never represented
the estate, just OA.
Costello v. Buckley, 2016 WL 1042981 (Cal. App. March 16, 2016).
In this case Leslie attempts to collect money from Peter she lent to
Peter while they were in a relationship. Peter hired his brother
(“Lawyer”) to represent him in this case. Lawyer had earlier represented
Leslie in an easement matter. Leslie moved to disqualify Lawyer in this
case. The trial court granted the motion, finding that Leslie had
shared with Lawyer confidences about her relationship with Peter. In
this opinion the appellate court affirmed. The court noted that Peter
would defend this case on the theory that Leslie did not expect
repayment of the loan because of the romantic relationship.
In re Innovation Res. Solutions, LLC, 2016 WL 1254058 (Tex. App.
March 31, 2016). In this case Owner is suing Defendant to quiet title to
real estate. Defendant had claimed that a certain “Earnest Money
Contract” entitled Defendant to buy the property. Lawyer appeared for
Defendant in this case. Prior to bringing this action Owner had sought
legal advice from Lawyer about the same property. Lawyer advised Owner
to file a motion to remove an invalid lien (presumably the aforesaid
contract), which led to this suit. Owner moved to disqualify Lawyer in
this case. The trial court granted the motion. In this opinion the
appellate court affirmed (granted mandamus), finding that the trial
court could reasonably conclude that the matters were substantially
related.
McCutcheon v. 3 Princesses & AP Trust, 2016 WL 1367955 (N.Y.
App. Div. April 7, 2016). 3 Princesses Trust owned certain property.
John Randall and Annelie Randall (“the Randalls”) used a road over the
property. 3 Princesses Trust sued the Randalls to adjudicate who could
use what. The Randalls hired Lawyer to represent them. That suit
resulted in a negotiated easement. Later, 3 Princesses Trust erected a
locked gate on the same road. McCutcheon had been using the road for
many years and hired Lawyer, who sued the Randall Family Trust among
other defendants, to obtain a prescriptive easement. John and Annelie
Randall individually were not defendants. Nevertheless, the Randall
Family Trust moved to disqualify Lawyer. The trial court granted the
motion. In this opinion the Appellate Division affirmed. The extent to
which the two litigations overlap is not clear. Also troublesome is the
court’s grounding its decision on an “appearance of impropriety.”
Parke v. Cowley County Comm’rs, 2016 WL 2609610 (D. Kan. May 6,
2016). Plaintiff, represented by Lawyer, brings this civil rights case
against County, Deputy, and others because Deputy shot and killed
Plaintiff’s son. In 2007 Lawyer had represented Deputy, County, and
others, arising out of the arrest and strip-search of another person.
The defendants in this case moved to disqualify Lawyer. In this opinion
the magistrate judge granted the motion, finding the matters were
substantially related. The court noted that Lawyer had prepared Deputy
for his deposition in the earlier case, which made it likely Lawyer
would have learned Deputy’s confidences. Moreover, both cases involved
claims of negligent supervision by County.
Gillette Co. v. Provost, 2016 WL 2610677
(Mass. Super. Ct. May 5, 2016). Lawyer was in-house patent counsel at
Gillette, working on wet shaving products, until 2006. In 2012 Lawyer
went to work for ShaveLogic, a competing company. ShaveLogic hired
Lawyer, in part, to assist it in avoiding infringing Gillette patents.
More recently, Gillette brought this action against ShaveLogic, Lawyer,
and several other former Gillette employees for stealing its secrets,
and the like. In this opinion the trial judge dismissed the claim
against Lawyer. It found Lawyer was not violating Rule 1.9 because
Lawyer was not currently “materially adverse” to Gillette and that what
Lawyer did for Gillette was not “substantially related” to what Lawyer
is doing for ShaveLogic. The court said it was permissible to help
ShaveLogic avoid infringing Gillett patents, provided Lawyer not attack
those Gillette patents that Lawyer worked on at Gillette. The judge also
noted that despite ample time to amend, Gillette had not identified any
of its confidences relevant to this case. revealed by Lawyer or used by ShaveLogic.
Phila. Op. 2016-3 (June 2016). Lawyer did work for Client No. 1 from
2006 until 2009 and for several months in 2013. Now, Client No. 2 wants
Lawyer to collect from No. 1 a loan of $140,000. Lawyer had nothing to
do with that loan transaction. In this opinion the committee, citing
Rules 1.9(b) and 1.6, said that Lawyer’s familiarity with No. 1’s assets
and asset protection strategies disqualifies Lawyer from working on the
new matter.
Brice v. Hoffert, 2016 WL 3981361 (E.D. Pa. July 25, 2016).
Father and Mother owned several businesses. Daughter helped run the
businesses. Daughter accompanied Father and Mother to visit Lawyer about
several issues regarding ownership of the businesses. Lawyer attempted
to document that Father and Mother only were the clients. In this case
Father and Mother, represented by Lawyer, sued Daughter over ownership
of the businesses. Daughter moved to disqualify Lawyer. In this opinion
the court granted the motion. First, the court held that, by virtue of
all the Daughter’s contacts with Lawyer, Lawyer represented Daughter.
Second, because Lawyer’s work for Daughter related to ownership issues,
that work and this case are substantially related.
Tierra Tech de Mex. SA de CV v. Purvis Equip. Corp., 2016 WL
4062070 (N.D. Tex. July 29, 2016). Law Firm represents the plaintiff,
TTMX, in this breach of a distribution agreement between TTMX and the
defendants Purvis and John Manley. Earlier, Law Firm had represented
Manley and TTMX for the sole purpose of creating TTMUSA. The defendants
moved to disqualify Law Firm in this case. In this opinion the court
denied the motion because the earlier work in creating TTMUSA was not
substantially related to this case, which involves a breach of the
agreement with TTMX.
Hutton v. Parker-Hannifin Corp., 2016 WL 4140736 (S.D. Tex. Aug.
4, 2016). Buyer Co. purchased “significant patent rights” from Seller
Co. The sale also involved an asset purchase agreement and employment
agreements for owners of Seller Co. (“Plaintiffs”). This is a suit by
Plaintiffs against Buyer Co. for the latter’s violation of the
employment agreement, for misrepresentation, and related causes of
action. Lawyer and Law Firm represent Plaintiffs. Lawyer and Law Firm
did not participate in the sales transaction. However, Lawyer had for
many years done patent work for Buyer Co. Buyer Co. moved to disqualify
Lawyer and Law Firm. In this opinion the court granted the motion. Given
the difference between the earlier patent work and this contract
action, the court found no substantial relationship. However, the court
did find that, in the earlier representation, Lawyer would have gained
information about the patents in question and Buyer Co.’s proclivities,
thus running afoul of Texas’ version of Model Rule 1.9.
The Marshall Tucker Band, Inc. v. MT Indus., Inc., 2016 WL
4555336 (D.S.C. Sept. 1, 2016). This is a suit for trademark
infringement and related causes of action. Lawyer, who represents
Plaintiff, had previously represented Defendant. Defendant moved to
disqualify Lawyer. In this opinion the court denied the motion. The
court first did a Rule 1.7, current-client, analysis. In a
fact-intensive discussion the court concluded that Defendant could not
credibly contend that the earlier representation of it had not
concluded. The court moved to a Rule 1.9, former-client, analysis. The
work Lawyer had done for Defendant included contracting, issuing stock
certificates, handling a cease and desist matter involving pre-1984
songs, and reviewing corporate by-laws. The court found no substantial
relationship between that work and the current trademark infringement
case. Nor, could Defendant point to any information Lawyer might have
obtained in the earlier work that would have any meaning for this case.
473440
Alberta Ltd. v. Lenaco Homes Masterbuilder Inc., 2016 ABQB
435 (CanLII)(Ct. Q.B. Alberta Aug. 31, 2016). This is a food fight
among companies and individuals in the building business. Lawyer
represents Defendants. Lawyer had previously done work for Plaintiffs on
two other matters. Plaintiffs moved to disqualify Lawyer in this case.
In this opinion the court disqualified Lawyer. The evidence was
conflicting, but, on balance, the court believed that Lawyer would have
learned things about Plaintiffs in the earlier matter that would have
been relevant to the tasks in this matter. In our view, this was
essentially an application of the “playbook” rule, as it it known in the
U.S.
Dynamic 3D Geosolutions LLC, v. Schlumberger Ltd., 2016 WL 4729505 (Fed. Cir. Sept. 12, 2016). Patent infringement
case. Lawyer worked at Defendant for seven years with wide
responsibility for IP matters. While there she was involved in a project
“that evaluated further patentable aspects of Petrel [Plaintiff’s oil
well mapping software] and assessed the risk of lawsuits against it.”
This included analysis of the ‘319 patent, which is the subject of this
case. Lawyer left Defendant and went to work for Plaintiff, where she
was involved in the decision to bring this case and hire Law Firm, for
this case. The trial court granted Defendant’s motion to disqualify
Lawyer, Plaintiff’s entire law department, and Law Firm. The court also
dismissed this case without prejudice. In this opinion the Federal
Circuit affirmed. The court agreed that Lawyer’s prior work at Defendant
was substantially related to this case. The court said Plaintiff’s law
department should be treated as a law firm under rule 1.10. The court
affirmed disqualification of Law Firm because it had become privy to
confidences Lawyer had brought from Defendant. As to dismissal without
prejudice, this meant that Plaintiff, under different management
supervision, and with new lawyers, would have to “break new ground with a
fresh complaint and clean docket.”
Regalo Int’l, LLC v. Munchkin, Inc., 2016 WL 5667624 (D. Del.
Sept. 29, 2016). Regal, represented by the Panitch Firm, is suing
Munchkin for patent infringement (something to do with “sleep
bedrails”). Laura Genovese, a partner at the Panitch Firm, left in
December 2014 to form a new firm. While at the Panitch Firm, Genovese
did trademark work for Munchkin. When Genovese left, she took the
Munchkin work with her. Munchkin moved to disqualify the Panitch Firm in
this case. In this opinion the magistrate judge denied the motion. In a
lengthy and fact-intensive analysis the judge found that the trademark
work Genovese did while at the Panitch Firm was not substantially
related to this patent case. The court found that the playbook doctrine
simply would not work on these facts and noted that courts in the Third
Circuit rarely used it.
U.S. v. Prevezon Holdings Ltd., 2016 WL 6069181 (2d Cir. Oct. 17,
2016). For approximately nine months in 2008 & 2009, Law Firm
represented Co. #1 in proceedings involving fraud in Russia. Co #1 then
changed law firms. Co. #2 retained Law Firm to defend this case, which
involves essentially the same fraud. Co. #1, not a party in this case,
moved to disqualify Law Firm. The district court denied the motion. In
this opinion the Second Circuit reversed (granted mandamus). There was a
lot about jurisdiction and appellate procedure. However, the crux of
the merits was that after terminating the relationship with Co. #1, and
when the government turned its guns on Co. #2, Law Firm made arguments
that the fraud was really Co #1’s fault. The Second Circuit treated this
as a former-client situation, and found that the representations were
substantially related, and that the current representation was adverse
to Co #1.
Audio MPEG, Inc. v. Dell, Inc., 2016 WL 6246772 (E.D. Va. Oct.
25, 2016). Patent infringement case involving three patents that
“facilitate the playing of music and other audio on electronic devices.”
Plaintiff moved to disqualify Defendant’s law firm because that law
firm had brought in a lawyer who previously represented Plaintiff in
connection with two of those patents. In this opinion the court granted
the motion. In a fact-intensive analysis the court found the matters
substantially related. The court also noted that Virginia is not a
screening state.
Lallis v. Hagerty, 2016 WL 6436828
(Ariz. App. Nov. 1, 2016). Post-divorce-decree proceedings. H moved to
disqualify W’s lawyer (“Lawyer”). The trial court granted the motion. In
this opinion the appellate court affirmed. In 2008 Lawyer had
represented W and H in a civil case. In 2009 Lawyer filed an application
for H and W to collect proceeds from a trustee’s sale. In 2011-2012
Lawyer represented H in a negligence action. In this opinion the court
said Lawyer, in the three enumerated cases, “could have obtained
confidential information relevant” to this case.
Hwlitsum First Nation v. Canada, 2016 BCSC 2104 (B.C.S. Ct. Nov.
15, 2016). The actual dispute among the parties to this action is not
clear to us. Indian Nation No. 1 finds itself opposing Nation No. 2.
Lawyer was Attorney General of B.C. for a time, including when the
treaty in question was signed. While Lawyer was A.G., the chief of
Nation 1 visited him to discuss the treaty. The chief claims he gave
confidences to Lawyer. Lawyer, no longer A.G., has surfaced on behalf of
Nation No. 2. Nation No. 1 moved to disqualify Lawyer. In this opinion
the court denied the motion. The court found that Nation No. 1 was not a
“near client,” of the type to claim a duty of confidentiality on the
part of Lawyer. Lawyer’s sole duty as A.G. was to B.C. Moreover, Lawyer
asserted that he never would have agreed to the meeting had Nation No. 1
requested confidential treatment of the information to be exchanged at
the meeting.
Chessler v. All Am. Semiconductor, 2016 WL 6992409 (Fla. App.
Nov. 30, 2016). Plaintiff was a creditor of Company and took an
assignment of Company’s claims against Company’s former CEO, the
defendant in this case. Law Firm appeared for the defendant. Law Firm
had previously represented Company, including on matters relating to the
claims in this case. Plaintiff moved to disqualify Law Firm. The trial
court granted the motion. The defendant appealed (petitioned for cert.).
In this opinion the appellate court affirmed.
Stewart v. Stewart, 2016 BCSC 2256 (S.
Ct. B.C. Dec. 1, 2016). Deceased was a very successful real estate
developer. He left Wife and four children. In this case the children are
fighting over the disposition of Deceased’s businesses and various
trusts set up for the children’s benefit. The plaintiff here is one of
the children. The defendants include said businesses, the trusts in
question, and the other children. Law Firm represents the plaintiff. Law
Firm had, in 2003, done work on creating a tax shelter for Deceased and
Wife, called a “Quebec Truffle.” The defendants in this case moved to
disqualify Law Firm because of that work. In this very fact-intensive
analysis the court denied the motion. At bottom the ruling was based on
the lack of relationship between the Quebec Truffle and the current
dispute. All the lawyers who worked on the Quebec Truffle left Law Firm
years ago and all the documentation from that work is either stored
off-premise or electronically unavailable. Law Firm had been brought
into the Quebec Truffle work by an accounting firm, so Law Firm had
relatively little contact with Deceased’s family.
Hendricks v. Barker, 2016 WL 7235459
(Tex. App. Dec. 13, 2016). This suit involves a dispute about a
“contract for deed” entered into by Buyer and Seller. Buyer, represented
by Lawyer, filed the suit. Lawyer had earlier written to Seller about
various aspects of the contract. Seller moved to disqualify Lawyer in
this case. The trial court granted the motion. In this opinion the
appellate court affirmed. While there was conflicting evidence about
whether there had been a lawyer-client relationship with Seller, the
opinion says the trial court’s finding of representation was reasonable.
Second, the court held that the earlier work for Seller in analyzing
the contract was substantially related to the issues in this case.
Bartlett v. Bartlett, 2016 WL 7374276 (N.D. Ill. Dec. 20, 2016).
Brothers, Mark and James, jointly owned cash-lending stores. They are
fighting, and, in this case, Mark is suing James and James’ wife for
fraud and related remedies. Law Firm is representing Mark. Because Law
Firm earlier had done estate planning work for James, and had also
represented some of their companies, James moved to disqualify Law Firm.
In a routine substantial-relationship analysis the court, in this
opinion, denied the motion. Among other things, the court reiterated
that “appearance of impropriety” is no longer grounds for
disqualification.
Hydrogen Master Rights, Ltd. v. Weston, 2016 WL 7411523 (D. Del.
Dec. 22, 2016). Three individuals, A, B, and C, hired Law Firm to assist
them in acquiring certain technology. Later A, joined by other parties,
sued several parties, including B, for various business torts. Law Firm
filed the case. B moved to disqualify Law Firm. In this opinion the
court granted the motion under Delaware Rule 1.9(a). The first issue was
whether B was ever a client of Law Firm. The court said yes primarily
because the entity A, B, and C intended was never formed. The second
issue was whether the original work for A, B, and C was substantially
related to this case. The court said yes based upon a fact-intensive
analysis (not worth hashing out here). The last issue was whether B
consented to Law Firm’s conflict. The court said the consent language in
the engagement letter was too open-ended. [
Our note: Law Firm had
sought to work around these issues with consent language in the original
engagement letter. That language just did not do the trick. Any law
firm anticipating that it will represent individuals only until the
entity is formed might take a look at the court’s analysis.]
CytImmune Scis., Inc. v. Paciotti, 2017 WL 57213 (D. Md. Jan. 5,
2017). Co. sued Inventor for, among other things, violation of a
non-disclosure agreement (“NDA”). Lawyer appeared for Inventor. Co.
moved to disqualify Lawyer and his new law firm (“Firm 2”). In a
confusing juxtaposition of Rules 1.9 and 1.7, in this opinion, the
court granted the motion and disqualified Lawyer and Firm 2. The
evidence was pretty clear that Lawyer’s prior firm (“Firm 1”)
represented Co. on a variety of things, including on formulating its
NDA. There was some evidence that Lawyer did some of the work on the
NDA. Thus, the application of Rule 1.9 is not confusing. The application
of Rule 1.7(a)(2) as it relates to Lawyer’s “limited” ability to
represent Inventor is unclear. There was no evidence as to whether
Inventor consented to any of this. The court noted only that Co. was not
consenting. Most confusing was the court’s partial reliance on Rule 3.7
(lawyer as witness). [
Our note: We have always thought that in a “pure” Rule 1.7(a)(2) situation the only consent needed was that of the client.]
Scotia Mortgage Corp. v. Furlong, 2917 CanLII 4833 (NL SCTD) (S.
Ct. Newf. Lab. Feb. 3, 2017). Law Firm represented Borrower and Lender
in a mortgage transaction. Law Firm brought this action on behalf of
Lender against Borrower to enforce the mortgage because of a claimed
default. Borrower moved to disqualify Law Firm. In this opinion the
court granted the motion. First, the court held that both
representations were “related," thus requiring disqualification. The
court was emphatic that the duty of “loyalty” to a former client
transcends notions of confidentiality. Second, the court held that under
the circumstances of this case, Lender was not entitled to recover Law
Firm’s fees from Borrower for the period in which Law Firm was acting in
the conflict of interest.
Velazquez-Velez v. Molina-Rodriguez, 2017 WL 395105 (D.P.R. Jan.
30, 2017). Political discrimination case against City. Plaintiffs’ law
firm (“Law Firm”) for a period of years, until 2013, handled a wide
variety of matters for City, including discrimination cases. City moved
to disqualify Law Firm “near the start of discovery.” Noting that the
First Circuit can be more “lenient” on timing, the court held that the
motion was timely. As to the substantial relationship test, in a
fact-intensive analysis of what Law Firm had done for City, and what it
would have learned in the process, the court found a violation of Rule
1.9(a).
Pa. Op. 2017-001 (Jan. 7, 2017). This opinion
does not appear to be online. Everything we know about it appeared in
the February 22, 2017 online edition of the Current Report of the
ABA/BNA Lawyers’ Manual on Professional Conduct. The opinion holds that a
lawyer who represented H and W in the purchase of real property could
later represent H in a divorce proceeding. It holds that, under Rule
1.9(a), the purchase was not substantially related to the divorce.
Further, under Rule 1.9(c), any information that the lawyer might have
learned from W earlier would have been known to H, in any event.
N.M.F. v. S.C., 54
Misc. 3d 1219(A) (N.Y. Sup. Ct. Feb. 21, 2017). Divorce case. W moved to
disqualify H’s lawyer (“Lawyer”) because two years ago, before the
marriage, Lawyer represented W in her purchase of a house. Because the
judge could not see what confidences W would have given Lawyer, the
judge denied the motion. [
Our note: The judge managed to opine on,
and dispose of, this former client matter without once mentioning Rule
1.9 or “substantial relationship.”]
McCarthy v. Labonte, 2017 ONSC 4
(CanLII) (Ont. Super. Ct. Jan. 3, 2017). Marital dispute between H and
W. H moved to disqualify W’s lawyer (“Lawyer”) because Lawyer had
earlier jointly represented H and W in preparing wills and transferring
ownership in certain real estate. In this fact-intensive opinion the
court granted the motion. Among other things, the court noted that
Lawyer did not provide an affidavit saying he received no confidences
from H.
Freeman Equip., Inc. v. Caterpillar, Inc., 2017 WL 959022 (N.D.
Ill. March 13, 2017). Patent infringement case. Plaintiff’s lawyer had,
some years ago, acted as local counsel for Caterpillar in a different
infringement case. Caterpillar moved to disqualify Plaintiff’s lawyer in
this case. In this opinion the court denied the motion. The court held
the “substantially related” test requires more than “mere speculation”
about what local counsel would have learned about Caterpillar’s
procedures and methods in patent cases. The court also held that six
months was too long a delay to bring the motion to disqualify.
Prince v. Chatman, 2017 NLTD(G) (CanLII) (S. Ct. Newf. & Lab.
March 2, 2017). Suit by Prince to quiet title. Chatman hired Law Firm
to defend him. Prince moved to disqualify Law Firm. In this opinion the
court denied the motion. The evidence was that in 1975 a senior partner
in Law Firm had briefly represented Prince’s husband in an attempt to
get several family members to agree on a division of the property in
question. Both the husband and the senior partner have since passed
away. In a fact intensive analysis the court held that the senior
partner in 1975 would not have received “confidential information” from
the husband that would be “relevant” to this proceeding or that a
current member of Law Firm will use such information to the prejudice of
Prince.
Santander Sec. LLC v. Gamache, 2017 WL 1208066 (E.D. Pa. April 3,
2017). Gamache worked at Santander as a financial advisor until 2016.
He then went to work for Citizens Securities. In this case Santander is
suing Gamache for taking Santander customer lists and related wrongs.
Citizens has not been sued. Law Firm is representing Santander. Because
Law Firm had earlier represented Citizens in similar types of cases,
Gamache moved to disqualify Law Firm in this case. First, after a
thorough discussion of cases on standing, the court felt “inclined” to
deny Gamache’s motion on that basis. However, because “the law in this
area is less than clear,” the court moved on to whether Rule 1.9(a) was
implicated. In part because Law Firm had ended work for Citizens before
Gamache joined Citizens, the court held Law Firm’s work for Citizens on
similar cases was not substantially related to this case. This was more
or less a rejection of the “playbook” theory.
Salager v. Dye & Durham Corp., 2017 BCSC 470 (CanLII) (S. Ct.
B.C. March 23, 2017). This is a suit, filed in December 2014, for
defamation and breach of a settlement agreement. Law Firm represents
Plaintiff. The original defendant in this case was Co. A., Plaintiff’s
former employer. Co. A purchased all of Co. B in March 2016. Cos. A
& B amalgamated in July 2016. The problem is that Law Firm did
sporadic HR work for Co. B from 2005 until September 2015. There was no
written retainer agreement and no express termination by Law Firm until
October 2016. The amalgamated defendants moved to disqualify Law Firm in
this case. In this opinion the court denied the motion. Given the
looseness of the relationship between Law Firm and Co. B, the court
seems to have shifted the analysis from a current-client one to a
former-client one. Among other things, the court found that Law Firm
would have not learned any relevant confidential information from Co. B.
The court discussed the concept of loyalty to former clients and said
it should be applied narrowly — that is to situations where a lawyer
might attack his or her earlier work for the former client. This was not
such a case.
Boyle v. Evolve Bank & Trust, No. 16-02171 (W.D. Tenn. April
20, 2017). Boyle sued Bank for wrongful termination and related claims.
Law Firm represents Bank. Boyle and Kuehn are in business together
competing with Bank. Kuehn is not a party in this case but evidently
fears Bank may sue him. Bank wants Kuehn’s deposition in this case.
Kuehn has moved to disqualify Law Firm in this case, primarily because
Law Firm had done estate planning for his family, including setting up a
conservatorship for Kuehn’s child. In this opinion the court denied the
motion to disqualify. In a fact-intensive analysis the court found no
substantial relationship between Law Firm’s earlier work for Kuehn’s
family and the employment issues in this case or the issues likely to be
raised if Bank were to sue Kuehn. There was also a lengthy discussion
of Rules 1.9 and 1.10, particularly relating to the fact that the
estate-planning lawyer has left Law Firm. There was also a discussion
about when and how Law Firm’s relationship with Kuehn had terminated and
how the remaining files might relate (not) to this case.
McCleary v. City of Des Moines Zoning Bd.,
2017 WL 1400870 (Ia. App. April 19, 2017). This case involves
Plaintiff’s challenge of City Zoning Board rulings. The lawyer for City
(“Lawyer”) had, in 2011, briefly participated in the preparation of a
letter of intent for Plaintiff involving the purchase of a business.
Plaintiff moved to disqualify Lawyer in this case. The trial judge
denied the motion. In this opinion the appellate court affirmed, finding
no substantial relationship.
The Prudential Ins. Co. of Am. v. Chelchowski, 2017 WL 1549466
(D.N.J. April 28, 2017). Decedent died with a life insurance policy from
InsCo. Decedent’s girlfriend (“GF”) and several of decedent’s survivors
are claiming the insurance proceeds. InsCo filed this interpleader
action against all concerned. The estate administrator and the relatives
hired Law Firm to defend them jointly. GF’s lawyer objected to this
“conflict.” Shortly thereafter, the administrator hired a different
lawyer. GF moved to disqualify Law Firm from representing the relatives.
In this opinion the court denied the motion. First, the court noted
that Rule 1.7 did not apply because Law Firm no longer represented the
administrator. The court moved to Rule 1.9. First, the court held that
the positions taken by the relatives were not “materially adverse” under
Rule 1.9(a). Second, the court noted that the relatives had signed very
clear written waivers of any conflict of Law Firm.
Selenberg v. Bates, 2017 WL 1822310 (5th Cir. May 8, 2017).
Lawyer failed to file, on time, a suit for Client. Lawyer had no
insurance and was in financial difficulty. So, Lawyer gave Client a note
for $275,000. Lawyer later filed bankruptcy. The bankruptcy judge and
the district judge held that the debt was non-dischargeable. In this
opinion the Fifth Circuit affirmed. The court held that giving the note
in violation of Louisiana’s version of MR 1.8(h) - that is, not advising
Client in writing to get another lawyer’s advice - constituted a “false
representation” within the meaning of Bankruptcy Act § 523(a)(2)(A).
Imputation; Screening (posted May 10, 2017)
Bleacher v. Bose,
2017 WL 1854794 (Del. Super. Ct. May 3, 2017). Medical malpractice case
against Doctor. Lawyers A and B were, at all times, partners in Law
Firm. Lawyer A earlier defended Doctor in a different malpractice case,
through trial. Lawyer B represents Plaintiff in this case. Doctor moved
to disqualify Law Firm. A and B filed affidavits saying B is screened
from the earlier case. In this opinion the trial judge granted the
motion under Rule 1.10(a). The court said the screening exception under
Rule 1.10(c) was not available because this case did not involve a
“migrating” lawyer.
New Horizon Kids Quest III, Inc. v. Eighth Jud. Dist. Ct., No.
69920 (Nev. April 6, 2017). Lawyer worked at Firm 1 for a time,
including when Firm 1 represented New Horizon. Lawyer moved to Firm 2,
which is adverse to New Horizon in this case. Lawyer was put to work on
this case. New Horizon moved to disqualify Firm 2. The trial court
denied the motion. In this opinion the supreme court affirmed (denied
mandamus). The submissions established that Lawyer did nothing for New
Horizon at Firm 1 and learned nothing about New Horizon while at Firm 1.
Stone v. Bowen, 2017 WL 3017709 (S.D. Fla. July 14, 2017). This
case is a dispute over the meaning of a pre-marital agreement between H
and W. W is the plaintiff. H is deceased. The defendants are trustees of
a trust created by H. Law Firm, representing W in this case, had done considerable
estate planning work, much of it related to the issues in this case, for
H before he died. The defendants moved to disqualify Law Firm. In this
opinion the magistrate judge granted the motion. H had been trustee of
the trust, which is the subject of this case. The defendants are
successor trustees. Thus, the court held that the defendants are former
clients of Law Firm, within the meaning of Rule 1.9. On this point the
court cited only Daniel Ebner, Does the
Duty to Not Act Materially
Adverse to the Interests of a Former Trusts & Estates Client in a
Substantially Related Matter Survive the Client's Death?, ABA Section of Real Property & Estate Law eReport (June 2011).
Baker v. Baker, 2017 WL 3326933 (Md. App. Aug. 4, 2017). Law Firm
represented Son in applying for Mother's guardianship. Law Firm
withdrew from that proceeding. Eight years later a Law Firm lawyer
showed up as administrator of Mother's decedent estate. Son, among other
things, seeks removal of the administrator. The trial court denied that
relief. In this opinion the appellate court affirmed. In considering
Md. Rule 1.9 the court found that there was nothing about the earlier
representation that would prejudice anyone in the current estate
administration.
CWT Canada II Ltd. P’ship v. Bridges, 2017 WL 3534977 (D. Ariz.
Aug. 17, 2017). The court found that an issue
regarding the failure to remit tax credits (this case) was not
substantially related to an earlier defamation case.
Residences at Bay Point Condo. Ass'n, Inc. v. Chernoff Diamond & Co., LLC,
2017 WL 3531683 (D.N.J. Aug. 17, 2017). This is a suit by a condo
association ("CA") against certain developer/managers for purchasing the
wrong kind of insurance for CA. Defendants moved to disqualify CA's
lawyer ("Lawyer"). In this opinion the court denied the motion. First,
Defendants claimed that Lawyer had earlier represented one of the
defendants in this matter. The court rejected that ground based upon a
totality of circumstances showing no lawyer-client relationship with
that defendant. Lawyer's retainer agreement said Lawyer would represent
CA. There were no communications indicating that Lawyer represented the
defendant. Last, there was no showing that the defendant had conveyed
confidences to Lawyer.
Watkins v. Trans Union, LLC, No. 17-1142 (7th Cir. Aug. 22,
2017). For several years, until 12 years ago, Lawyer worked extensively
on FCRA cases representing Trans Union. Lawyer brought this FCRA case
against Trans Union. Trans Union moved to disqualify Lawyer. The trial
court denied the motion. In this 2-1 decision the Seventh Circuit
affirmed. Both the majority and dissent emphasized the role of Indiana
Rule 1.9 and the commentary. The split occurs over the application of
the "playbook" analysis - although neither the majority nor the minority
use that term. Reading both opinions provides a classic glimpse into
how courts can differ on the application of Rule 1.9 and the commentary
to a lawyer possessing a great deal of general knowledge about a former
client.
Fidelity & Deposit Co. of Md. v. Travelers Cas. & Surety Co. of Am.,
2017 WL 3594259 (D. Nev. Aug. 21, 2017). School District ("SD") hired
Contractor No. 1 to do HVAC work for SD. Contractor No. 1 provided a
performance bond issued by InsCo No. 1. One of the subcontractors,
Contractor No. 2, provided a performance bond issued by InsCo No. 2.
Contractor No. 1 went bankrupt before finishing the work for SD. SD,
represented by Law Firm, sued InsCo No. 1 for not living up to its
performance bond. That case settled. One of the products of the
settlement was an assignment by SD to InsCo No. 1 of certain of SD's
rights. This case was brought by InsCo No. 2 against InsCo No. 1. After
this case began, Law Firm appeared for InsCo No. 2. InsCo No. 1 moved to
disqualify Law Firm in this case. In this opinion the court denied the
motion. First, the court held that the terms of the aforesaid assignment
did not make InsCo No 1 a former client of Law Firm. (That is a matter
of contract interpretation, and we will not parse it here.) Second, the
court noted that Law Firm was not privy to InsCo No. 1's confidences
during the earlier case. Last, the court rejected the argument that the
issues in this case are such that Law Firm may change positions
requiring it to cross-examine SD employees. The court noted that SD had
repeatedly declined InsCo No. 1's request to demand that Law Firm
withdraw. Thus, the court said that InsCo No. 1's last argument was too
thin a reed to justify disqualification.
Mt. Hebron Dist. Missionary Baptist Ass'n of AL, Inc. v. Sentinel Ins. Co. Ltd.,
2017 WL 3928269 (M.D. Ala. Sept. 7, 2017). Lawyer represents Plaintiff.
Third-Party Plaintiff ("TPP") moved to disqualify Lawyer because TPP
had retained Lawyer to consult on the very matters raised by this
action. In this opinion the magistrate judge granted the motion.
Everyone agrees that TPP met with Lawyer at least twice. There was some
dispute about what exactly was discussed. Lawyer billed TPP for each
meeting. The magistrate judge held that TPP subjectively believed he had
retained Lawyer and held that that belief was reasonable. The court
also held that consulting with Lawyer about recovering money from
Plaintiff for work done, was substantially related to this case, which
is about recovering for that work from an insurance company.
Lynn v. George, 2017 WL 4173330 (Cal. App. Sept. 21, 2017). This
case involves interactions among several real estate firms and law
firms. The plaintiffs moved to disqualify the defendants' law firm. The
trial court granted the motion, not because the law firm had a current
or former client relationship with plaintiffs, but rather because the
law firm had a "confidential nonclient relationship" with the
plaintiffs. In this opinion the appellate court reversed. The analysis
was hugely fact-intensive, and reviewing the facts here would serve no
precedential purpose. The court discussed a leading California case on
"confidential non client relationships,"
Acacia Patent Acquisition, LLC v. Superior Court,
234 Cal. App. 4th 1091 (2015), as well as Restatement Sec. 121, and
concluded that the facts of this case were not consistent with those
authorities.
Tax Court - Innocent Spouse (posted September 21, 2017)
Gebman v. Comm'r of Int. Rev.,
T.C. Memo. 2017-184 (T.C. Sept. 18, 2017). H and W filed joint returns.
The IRS found a deficiency and assessed penalties. H and W appealed and
appeared together pro se for a trial. Amidst much confusion the court
offered a volunteer lawyer ("Lawyer") to represent H and W, which they
accepted. Almost immediately after conferring with Lawyer, H declared
that he owed the deficiency and penalty. Lawyer continued on behalf of W
under the theory that she was an innocent spouse. H later reneged on
his concession. One of the issues in this opinion was whether Lawyer had
a conflict in continuing to represent W. The court concluded that he
did under Model Rule 1.9(a) (Tax Court applies ABA Model Rules). The
court found that H was a former client of Lawyer, that the
representation of W was materially adverse to H, and that the earlier
representation of H was substantially related to W's case. [
Our note:
In seventeen years of publishing this site, the is the first "innocent
spouse" conflict case we have seen. There may have been others; we just
did not encounter them. We have omitted here much arcana of federal
taxation and Tax Court procedures appearing in the opinion. Tax
practitioners in the audience might give the opinion a look.]
Anderson v. City of N.Y., 2017 WL 4382163 (S.D.N.Y. Sept. 29,
2017). Anderson brought this civil rights case against several jail
guards for assaulting him in his cell. One of the guards had earlier
been a party in an auto accident case. His lawyer in that case is
Anderson’s lawyer in this case. The defendants moved to disqualify
Anderson’s lawyer in this case. In this opinion the magistrate judge
granted the motion. The guard had been injured in the auto accident. The
guard is defending this case by claiming that Anderson attacked and
injured him in Anderson’s cell. Thus, the cause of the guard’s injuries
provided the nexus between the accident case and this case.
Gentile v. Gentile, 2017 WL 4423508 (N.Y. Sup. Ct. Oct. 3, 2017).
In this post-judgment divorce action, W moved to disqualify H's law
firm ("Firm 2"). In this opinion the court granted the motion. During
the actual divorce trial, Lawyer was with the six-lawyer firm ("Firm 1")
that represented W. Lawyer did not participate in the case. Lawyer left
Firm 1 and formed Firm 2. She is not participating in this case,
either. Nevertheless, primarily because of Firm 1's "small firm
atmosphere" there was too great a risk that Lawyer picked up W's
confidences during the earlier divorce trial. Thus, Lawyer was
disqualified for this case, and her disqualification was imputed to Firm
2.
Hibu, Inc. v. Peck, 2017 WL 4422661 (D.
Kan. Oct. 5, 2017). Lawyers 1 & 2 previously worked at Firm A. Firm
A has done extensive work for Hibu in other cases involving disputes
with former executives of Hibu. This case, too, involves similar
disputes and some of the same witnesses. There was no showing that
Lawyers 1 & 2 worked on Hibu matters while at Firm A or learned
anything about Hibu. Firm A, no longer representing Hibu, appeared for a
defendant in this case adverse to Hibu. When challenged for having a
conflict, Firm A withdrew from this case. Before Firm A's withdrawal,
Lawyers 1 & 2 entered their individual appearances for the
defendant. They, too, then withdrew. Lawyers 1 & 2 then left Firm A
and joined Firm B, which is representing the defendant in this case.
Lawyers 1 & 2 obtained permission to appear for defendant in this
case. Hibu moved to disqualify Lawyers 1 & 2. In this opinion the
court granted the motion. The court did not extend the disqualification
to the entire Firm B, saying that a hearing would be required. [
Our
note: The court ruled that Firm A's conflict was imputed to Lawyers 1
& 2, even though there was not showing that Lawyers 1 & 2 ever
acquired knowledge about the earlier Hibu cases. We are not sure that
Rule 1.10 (the imputation rule) was designed to work that way.]
Anderson v. City of New Brunswick, 2017 WL 4444194 (D.N.J. Oct.
5, 2017). In denying a motion to disqualify, both the magistrate judge
and the district judge held that a freedom of speech and freedom of
association suit was not substantially related to an excessive force
suit.
W.C. Thornton v. Zamirski, 2017 ONSC
6464 (CanLII) (Super. Ct. Ont. Oct. 27, 2017). Plaintiff, represented by
Lawyer, brought this suit for repayment of a loan. The loan was to
assist Defendant in conducting a litigation funding business. Lawyer had
earlier represented Defendant in the purchase of a golf course.
Defendant moved to disqualify Lawyer in this case. In this opinion the
court denied the motion, finding that the golf course purchase had
nothing to do with this case. The court was especially critical of the
weakness of the Defendant’s lawyers’ supporting materials.
Worley v. Moore, 2017 WL 6063137 (N.C. Dec. 8, 2017). The trial
court had disqualified a lawyer ("Lawyer") for Defendants, because
Lawyer had earlier represented a plaintiff in other litigation. In this
opinion the court held that the trial court had used the wrong standard,
reversed the trial court, and remanded to the trial court to apply the
proper standard. Among other things, the N.C. Supreme Court said the
trial court should not have used the obsolete appearance-of-impropriety
test. The trial court's other error involved its erroneous application
of Rule 1.9. The trial court had sought to determine whether Lawyer had
actually learned things in his earlier representation of Plaintiff that
he could use against Plaintiff in this case. The Supreme Court said the
better test was whether the earlier matter was one in which Lawyer would
"normally" have learned information relevant to this case. A further
complication was that the earlier representation of Plaintiff was
subject to an engagement letter, which limited Lawyer's role to
discovery matters. Supposedly, the trial court will sort all this out on
remand.
Funk v. Williams,
2017 FCSC 2136 (CanLII)(S. Ct. B.C. Nov. 23, 2017). Kenneth and Rhonda
were romantic companions. They wished to buy a house. Because of credit
issues, Kenneth and Rhonda's mother, Brenda, purchased the house in
joint tenancy. Law Firm represented both Kenneth and Brenda in the
purchase. Kenneth and Rhonda lived in the house for about ten years.
Then, they broke up. Kenneth has sued Rhonda and Brenda over ownership
of the house. Law Firm has appeared for Rhonda and Brenda. Kenneth moved
to disqualify Law Firm. In this opinion the court denied the motion.
The court believed the purchase of the house was sufficiently related to
this case. However, the court relied on the fact that Kenneth would
have conveyed no confidences to Law Firm to which Brenda would not have
been privy.
Fid. & Deposit Co. of Md. v. Travelers Cas. & Surety Co. of Am.,
2017 WL 6520912 (D. Nev. Dec. 19, 2017). School District hired Big Town
to install HVAC systems in five schools. Big Town obtained a
performance bond from Travelers. Big Town did not perform. Travelers
took over and hired F.A.S.T. to complete the work. F.A.S.T. obtained a
performance bond from Fidelity. F.A.S.T. did not perform, so Fidelity
took over. It hired Perini to take over. The Fidelity team, too, failed
to complete the project. Travelers had to take over again, and they
finally completed the project. School District, represented by Law Firm,
sued Travelers over the delays. Travelers settled, paying $5 million,
and School District assigned its claims to Travelers. In this case
Fidelity, represented by Law Firm, is suing Travelers for certain
damages arising from all the above debacles. Travelers moved to
disqualify Law Firm in this case. The magistrate judge denied the
motion. In this opinion the district judge affirmed. Both courts held
that Travelers lacks standing because it is not a former client of Law
Firm. They rejected Travelers argument that the assignment in the School
District vs. Travelers case included the right to disqualify Law Firm.
They rely, largely, on the language of the assignment (you may want to
read it). There is more, but we have hit the high points.
Castelino v. Rose-Hulman Inst. of Tech.,
2017 WL 6523410 (S.D. Ind. Dec. 21, 2017). First, the court held that
waiting a year after learning of the conflict, and five months after
this case was filed, was a waiver of any conflict. The court
nevertheless went on to look at the merits. A lawyer in the firm
representing the defendant had earlier represented the plaintiff in an
eviction case. In this case the firm is defending the university
defendant in a dispute over the plaintiff's re-admission to the
university. Thus, no substantial relationship under Rule 1.9. The court
also noted that both representations overlapped somewhat resulting in a
violation of Rule 1.7. However, the court took a "no-harm-no-foul"
approach in denying the motion to disqualify, but "directed" the firm to
shape up its conflicts-checking procedures.
Wynveen v. Corsaro, 2017 6540640 (Ohio App. Dec. 21, 2017).
Lawyer No. 1 and Law Firm represented Doctor on a variety of matters,
including estate planning, for many years. This included setting up, and
serving as trustee of, trusts for Son A and Son B. Lawyer also did work
for Son B relating to Doctor’s estate and the trusts. After the death
of Doctor and Son A, a dispute arose regarding who should pay the estate
tax on Doctor’s estate. Son B sued Lawyer No. 1 for Lawyer’s conduct in
administering Doctor’s estate and the trusts. Lawyer No. 1
counterclaimed against Son B for amounts Son B owed to Doctor’s estate
and Son B’s trust. Lawyer No. 2, also a member of Law Firm, appeared for
Lawyer No. 1 on the counterclaim against Son B. Son B moved to
disqualify Lawyer No. 2. The trial court granted the motion. In this
opinion the appellate court affirmed. Basically, both courts found that
the work that Law Firm did for Son 2 was substantially related to the
issues in this case.
In re Catherine A., 2017 WL 5615874
(N.Y. App. Div. Nov. 22, 2017). In this case Mother seeks custody of her
three children, currently with Grandmother. Mother prevailed in Family
Court. Lawyer represents the children. Earlier, Lawyer had represented
Mother in a criminal drug matter. In this opinion the court rejected
Grandmother’s charge that Lawyer was violating Rule 1.9 (former client
rule). The court held that the matters were unrelated, and Lawyer was
not acting adversely to Mother.
Funk v. Williams,
2017 FCSC 2136 (CanLII)(S. Ct. B.C. Nov. 23, 2017). Kenneth and Rhonda
were romantic companions. They wished to buy a house. Because of credit
issues, Kenneth and Rhonda's mother, Brenda, purchased the house in
joint tenancy. Law Firm represented both Kenneth and Brenda in the
purchase. Kenneth and Rhonda lived in the house for about ten years.
Then, they broke up. Kenneth has sued Rhonda and Brenda over ownership
of the house. Law Firm has appeared for Rhonda and Brenda. Kenneth moved
to disqualify Law Firm. In this opinion the court denied the motion.
The court believed the purchase of the house was sufficiently related to
this case. However, the court relied on the fact that Kenneth would
have conveyed no confidences to Law Firm to which Brenda would not have
been privy.
Mahoney (Edward) v. Mahoney (Garrett),
2017 CanLII 87168 (CanLII) (S. Ct. Newf. & Lab. Dec. 29, 2017). Suit
to collect on a debt. Defendant moved to disqualify law firm for
Plaintiff ("Law Firm") based on earlier contacts Defendant had with Law
Firm. The two primary issues were whether Law Firm ever represented
Defendant and whether the earlier representation was "sufficiently
related" to this one to be a conflict. In this opinion the court
answered yes to the first question and no to the second. The analyses as
to both issues were painfully fact-specific and of little, if any,
precedential value. It might be worth reading for the process employed
by the court.
Rule 1.11. Barnett v. Hommrich, 2018 WL 736313 (E.D. Tenn. Feb. 6, 2018).
Lawyer practiced family law for a time. She began working for the
Tennessee Department of Children Services ("DCS") in January 2011.
Lawyer went on medical leave in December 2015. She was hospitalized in
March 2016 and returned to work in April 2016. She resigned from DCS
effective May 2016. During her medical leave a matter arose involving
Family. She did not work on that matter, although she had handled
matters for Family prior to joining DCS. Also, Lawyer's title at DCS put
her technically in charge of the matter. Lawyer now, in this case,
represents Family against DCS personnel, involving the above events. DCS
is not a party although DCS personnel are. Defendants moved to
disqualify Lawyer. In this opinion the court denied the motion. The
analysis was very fact-intensive. The focus was on Rule 1.11 and whether
Lawyer "participated personally and substantially" in this matter while
at DCS. The court held she did not. [
Our note: There is more to the
case, but given the fact-intensiveness, we will leave it at that.]
WFG Nat'l Title Ins. Co. v. Meehan,
2018 WL 777122 (Ohio App. Feb. 8, 2018). Defendant moved to disqualify
Plaintiff's law firm. The trial court denied the motion. In this opinion
the appellate court affirmed because Defendant failed to establish that
the law firm represented Plaintiff, "the first prong of the Dana test."
[
Our note: Dana was a 1990 Sixth Circuit case. One wonders why an Ohio
appellate court would not cite the applicable Ohio Rule, adopted in
2007.]
Alexander v. Alexander, 2018 ONSC 728 (CanLII) (Super. Ct. Ont.
Jan. 1, 2018). Master's opinion granting Plaintiffs' motion to
disqualify Defendants' law firm ("Law Firm"). Plaintiffs are H and W.
Defendants are Daughter (of H and W) and Son-in-Law. This case started
out as a defamation case against Defendants, which spawned counterclaims
alleging sexual abuse, and so forth. A family food fight. Previously,
Law Firm represented H in a variety of family and related business
matters. In this case Law Firm is attempting to represent Defendants
only in relation to W's claims, and not in relation to H's claims. After
a lengthy discussion of all of Law Firm's representations of H, the
master concluded that there was just too much opportunity for Law Firm
to parlay the information it might have learned to prejudice both H and W
in this case. Thus, the matters are "sufficiently related." Also, the
public would conclude that the "proper administration of justice"
requires disqualification.
Naqvi v. Ill. Health & Science, 2018 WL 1090320 (C.D. Ill.
Feb. 28, 2018). Plaintiff is a former CFO of certain of the defendants.
He is suing them for wrongful discrimination, retaliation, and
termination. He moved to disqualify the law firm representing the
defendants ("Law Firm") because he was either a former client or
prospective client of Law Firm. In this opinion the magistrate judge
denied the motion. The analysis was heavily fact-specific. Basically,
the court found that Plaintiff communicated with Law Firm as CFO of the
defendants and not as a client. [
Our note: On the disqualification issue, the court cited only Westinghouse Elec. Corp. v. Kerr-McGee Corp.,
580
F.2d 1311 (7th Cir. 1978), a decision, which caused quite a stir forty
years ago. Oddly, the court did not mention Illinois Rules 1.9 and 1.18,
which were adopted much more recently by the Central District of
Illinois (Local Rule 83.6(D)).]
In re Riley, 2018 WL 1129599 (Ariz. App.
Feb. 28, 2018). Decedent's estate. Family Members moved for removal of
Administrator and disqualification of Administrator's law firm ("Law
Firm"). The trial court denied both motions. In this opinion the
appellate court affirmed. Law Firm had earlier represented one of the
objecting family members in this proceeding. However, the trial court
found, and the appellate court agreed, that the former client could not
show "evidence of injustice to himself" other than his objection to the
conduct of the administrator.
Village of Tinley Park v. Connolly,
2018 WL 1054168 (N.D. Ill. Feb. 15, 2018). Lawyer was representing
Village on several matters unrelated to this one. During those
representations Lawyer had a twenty-minute telephone conversations with
several village officials about early developments in this case. All
Lawyer's representations of Village have ceased, and Lawyer appeared for
a defendant in this case. Village moved to disqualify Lawyer. In this
opinion the court granted the motion. The court analyzed the case under
"Model Rule" 1.9(a) (no mention of Rule 1.18). After a fact-intensive
analysis the court found that Village was a client of Lawyer during the
phone call and that the subject of the phone call was substantially
related to this case.
Tobia v. Bd. of Educ., 2018 WL 1247426 (N.J. App. March 12,
2018). Plaintiff was a "tenured special-education supervisor" employed
by School District. An arbitrator ruled that she should be terminated.
The trial court agreed. In this opinion the appellate court affirmed.
One of the arguments raised by Plaintiff is that the law firm
representing District was also her law firm. Referring to New Jersey's
somewhat unique version of MR 1.13, the court ruled that Plaintiff was
not part of the "control group" of District as that term is used in the
rule and, thus, was never a client.
United States v. Rolls-Royce N.A., Inc., 2018 WL 1547369 (March
29, 2018). George Gage brought this qui tam case against Rolls-Royce.
Gage's lawyer ("Lawyer") had been Rolls' in-house lawyer from 1997 to
2008. He also represented Rolls in one matter as outside counsel. In
granting disqualification of Lawyer, the court found that the matters
are substantially related under Texas' version of MR 1.9. (This opinion
does not reveal the nature of the relationship.) An interesting point
made by Gage is that Lawyer should be able to proceed because of the
bodily harm exception to Texas' version of Rule 1.6. The court sagely
noted that the duty of confidentiality under Rule 1.6 (Tex. Rule 1.05)
does not affect the duty not to have a conflict under the former-client
rule.
Marshall v. The Rawlings Co., LLC, 2018 WL
1138429 (W.D. Ky. March 1, 2018). Marshall, a former employee of
Defendant, sued Defendant for wrongful retaliation and discrimination.
Lawyer represents Marshall. From 2009 until 2011 Lawyer worked for
Defendant as a "subrogation analyst." Lawyer did not work on employment
matters. Defendant moved to disqualify Lawyer. In this opinion the court
denied the motion, finding that this case was not related to what
Lawyer did for Defendant. Defendant claimed, to no avail, that Lawyer
had become familiar with the employees supervising Marshall. However,
Lawyer never had anything to do with Marshall's situation at Defendant.
The opinion also involves a flap over whether Defendant should pay
sanctions. This largely involved Rule 11; the court ordered no
sanctions.
Harris v. Griffith,
2018 WL 1150097 (Wash. App. March 5, 2018). We will be brief because
the issue is simple. Law Firm for a time represented the administrator
of a decedent's estate and several of decedent's relatives. Later, Law
Firm became adverse to the administrator on behalf of family members.
The trial court granted a motion to disqualify Law Firm. In this opinion
the appellate court affirmed. While Law Firm argued that it formerly
represented "the estate," the court held that representing the estate
means representing the personal representative. Thus, the administrator
was a former client, requiring disqualification.
Stevens v. Wal-Mart Stores, Inc., 2018 WL 2766876 (D. Nev. June
8, 2018). This is a slip and fall case against Wal-Mart. Plaintiff’s law
firm employs a lawyer who had, from 2011 to 2014, at a previous law
firm, handled 37 tort cases for Wal-Mart. For that reason Wal-Mart moved
to disqualify Plaintiff’s law firm. In this opinion the magistrate
judge denied the motion. Wal-Mart failed to provide enough specifics
about those 37 cases to show prejudice to Wal-Mart in this case. In our
view, this was an implied rejection of the playbook approach.
TWit, LLC v. Twitter, Inc.,
2018 WL 2470942 (N.D. Cal. June 1, 2018). TWit previously consulted
with Law Firm about a third party’s threatened patent suit against TWit.
In this case TWit sues Twitter for trademark infringement and breach of
contract. Law firm appeared for Twitter. TWit moved to disqualify Law
Firm. In this opinion the magistrate judge denied the motion, finding
that the matters were not substantially related.
Hilliard v. House,
2018 IL App (1st) 171787-U (Ill. App. June 6, 2018). Three former
employees of Defendant sued Defendant for unpaid wages. Lawyer, who
represents Plaintiffs, formerly represented Defendant. Based upon
Lawyer’s alleged conflict, Defendant moved to dismiss the complaint,
which the trial court granted. We will skip the unusual (at least to us)
procedure that occurred in this case and get to the relevant issue
discussed in this opinion: Was Lawyer’s work for Defendant substantially
related to this case? In holding that it was, the appellate court noted
that Lawyer’s work for Defendant included wide-ranging duties related
to employment law and employee compensation. Thus, this was an implicit
adoption of the playbook approach.
Oved & Oved, LLP v. Zane, 2018 WL 3058795 (N.Y. App. Div.
June 21, 2018). Law Firm suing for fees. Defendant moved to disqualify
Law Firm from representing itself. The trial court denied the motion. In
this opinion the appellate court affirmed. The court said the "lawyer
as witness" rule does not apply where the lawyer is a litigant, and that
Rule 1.9 does not apply where Law Firm is acting pro se to recover
fees.
Moradi v. Baxi, 2018 ONSC 4645 (CanLII) (Super. Ct. Ont. Aug. 2,
2018). Parties A and B retained Lawyer to obtain specific performance of
a real estate sales contract, in which they are the sellers. Lawyer did
much work on the case including substantial communications with both A
and B. A and B had a falling out, and now B, among other things, seeks
to become a defendant. B moved to disqualify Lawyer from representing A
in this case. In this opinion the master granted the motion. The court
noted this is the "same" matter in which Lawyer had represented B and
that Lawyer had almost certainly received confidential information from
B. The master went on to say that just the duty of loyalty to his former
client, notwithstanding confidences, was enough to be disqualifying.
Gloger v. Evans, 2018 ONSC 4919 (CanLII) (Ont. Super. Ct. Aug.
16, 2018). Decedent left a will leaving his estate in equal shares to
Child A and Child B and designating them as co-trustees of a trust. In
this case Child A is suing Child B for misconduct as trustee. Child B
hired Law Firm for this case. Law Firm had drafted the estate plan in
question. Child A moved to disqualify Law Firm. In this opinion the
court denied the motion. Child A claims he was briefly Law Firm's
client. The court found no such relationship. Child A claims that Law
Firm, in drafting Decedent's estate plan, would have been privy to
Decedent's confidences. The court could not see how Decedent's
instructions to Law Firm would be relevant to this case involving
alleged trustee misconduct.
Third-Party Action. In re Waterstone Owners Ass'n, Inc.,
2018 WL 4016860 (Tex. App. Aug. 23, 2018). Homeowners association
("HA") filed this action against Developer for construction defects.
Developer filed a third-party action against a successor ("Successor")
to Developer. (Successor had purchased the development from Developer.)
Law Firm represents HA in this case. Law Firm had earlier represented
Successor in negotiating a settlement with members of HA. Both HA and
Successor consented to Law Firm's representation of HA in this case.
Nevertheless, Developer moved to disqualify Law Firm. The trial court
granted the motion. In this opinion the appellate court reversed
(granted mandamus). "Defendants . . . provided only speculative
allegations of possible prejudice." In Footnote 10 the court also
suggested that Defendants' nine-month delay would be grounds for denying
the motion to disqualify.
Woliner v. Sofronsky, 2018 WL 4039311 (S.D. Fla. Aug. 23, 2018).
Plaintiff is a doctor whose license was revoked by State Agency ("SA").
Plaintiff is suing employees of SA for conduct relating to the
revocation. Law Firm is representing Defendants. Lawyer is a member of
Law Firm but is not working on this case. Plaintiff moved to disqualify
Law Firm. In this opinion the magistrate judge denied the motion. While a
prosecutor, Lawyer had prosecuted two persons for unauthorized practice
of medicine. Plaintiff claims he was the complainant in those two
prosecutions and a "key witness" in them. In addition he had "several
communications" with Lawyer about the prosecutions. The court held that
Florida's version of MR 1.11 did not apply because the prosecutions did
not relate to revocation of Plaintiff's license. The court also noted
that Lawyer had not learned any of Plaintiff's confidences during the
prosecutions.
Nasdaq, Inc. v. Miami Int'l Holdings, Inc., 2018 D.N.J. Sept. 6,
2018). This is a suit for patent infringement and trade secret
violations, all related to electronic trading technology. One of
Defendants' law firms ("Firm 1") represented Plaintiff until about seven
years ago. Over some twelve years of representing Plaintiff, Firm 1
prosecuted four of the seven patents involved in this case. Recognizing
the conflict issues, Firm 1 arranged to bring in another law firm ("Firm
2") to handle the patent issues. Firm 1 also erected a screen around
its Boston office, the office that had done Plaintiffs' work. Plaintiff
moved to disqualify Firm 1. In this opinion the magistrate judge granted
the motion. First, the court noted that the patents and the trade
secrets involved "the same general field of technology." The court also
seemed sympathetic to Plaintiffs' claim the Firm 1 was "intimately
familiar" with Plaintiff's "strategic approaches to managing its
technology and inventions." On balance the court believed Firm 1 simply
knew too much about Plaintiff to continue. District judge affirmed making same observations, No. 17-6664-BRM-DEA, 2018 WL 6171819 (D.N.J. Nov. 26, 2018).
Russ v. Philip Morris USA, Inc.,
2018 WL 4211788 (Fla. App. Sept. 5, 2018). This is a wrongful death
case against Tobacco Company ("TC"). TC moved to disqualify Plaintiff's
law firm ("Law Firm") because for a time Law Firm employed a lawyer
("Lawyer") who had previously worked on tobacco cases at TC's law firm.
The trial court granted the motion. In this opinion the appellate court
denied certiorari. The court noted that in several cases involving
Plaintiff's law firm, the same issues were raised and were not resolved
consistently. One variation involves cases which arose after Lawyer left
Law Firm.
Acad. of Allergy & Asthma in Primary Care v. La. Health Serv. & Indem. Co.,
2018 WL 4739690 (E.D. La. Oct. 2, 2018). Plaintiffs are doctors
providing "therapeutic allergy and asthma care." In this suit they claim
that the defendants, health care insurers, conspired to deny wrongfully
coverage to Plaintiffs' patients. Law Firm appeared for one of the
insurers. The problem is that earlier Law Firm represented Plaintiffs in
negotiations with the state medical board regarding their allergy and
asthma care practices. Plaintiffs moved to disqualify Law Firm. In this
opinion the court granted the motion. First, Law Firm claimed that its
earlier services to Plaintiffs were somehow not legal services, taking
them outside Rule 1.9(a). The court rejected that claim, noting that
references to "legal services" appeared throughout the representation
documentation. Second, in a fact-intensive analysis, the court found
that the representations were substantially related.
McLean v. Suhr, 2018 FC 1000 (CanLII)
(Fed. Ct. Oct. 4, 2018). In 2016 Indian Nation ("Nation") hired Law Firm
to negotiate with Canada regarding an alleged shortfall of agriculture
benefits Nation was entitled to under a treaty. Under a tentative
settlement, Nation had to submit the settlement terms to Nation's
membership for a vote. Law Firm supervised this process. This case is an
application for Judicial Review of a decision of the Electoral Officer
relating to the make-up of Nation's membership, which will affect
administration of the settlement. Law Firm appeared for the applicants.
The Electoral Officer and Nation are respondents. The respondents moved
to disqualify Law Firm. In this opinion the court granted the motion.
The court said that (1) this application was tantamount to being adverse
to Nation, and (2) Law Firm was likely to have received non-public
information during the earlier representation that would help applicants
in this case. [Our note: Much of this decision turns on the
organization of Nation and the relationships of its officers. We are
giving these details short shrift to keep things brief.]
Teva Pharm. USA, Inc. v. Impax Labs., Inc., 2018 WL 5771542 (Pa.
App. Nov. 2, 2018). Prior to this case, Law Firm had defended Impax in a
patent infringement suit. The issue was whether Impax' product,
Budeprion XL, infringed Biovail's patent on the extended release design
of Biovail's product, Wellbutrin XL. In this case Teva seeks contractual
indemnification from Impax. Budeprion XL is arguably involved in this
case. However, Law Firm is representing Teva. Impax moved to disqualify
Law Firm. The trial court denied the motion. In this opinion the
appellate court affirmed, finding no substantial relationship between
the matters. [Our note: We have wildly oversimplified this case. The
relationship between the technology in the infringement case and how
that technology might relate to this contract case is very complex and
would require an unduly lengthy discussion here.]
Human Longevity, Inc. v. J. Craig Venter Inst., Inc.,
2018 WL 5840045 (S.D. Cal. Nov. 8, 2018). This is a suit by Plaintiff
against against a former employee and related entities for
misappropriation of trade secrets and related wrongs. Law Firm appeared
for Defendants. Until earlier this year Law Firm had represented
Plaintiff in a similar trade-secret-related suit for Plaintiff. The
earlier case was against a party not involved in this case. Plaintiff
moved to disqualify Law Firm in this case. In this opinion the court
denied the motion. In a very fact-specific analysis the court held that
Plaintiff had not shown what information Law Firm had learned in the
earlier case that would be relevant in this case. Further, the court
held that the two cases were not substantially related. As to
playbook-type information, it would be relevant to the substantial
relationship test only if it were "'directly in issue or of critical
importance' in the present matter." Plaintiff failed to make either
showing.
Holmes v. Credit Prot. Ass'n, L.P.,
No. 1:17-cv-3995-WTL-MPB, 2018 WL 5777324 (S.D. Ind. Nov. 2, 2018).
Holmes, represented by Law Firm, sued Defendant ("CPA") for violating
the Telephone Consumer Protection Act ("the Act"). Hinshaw represents
CPA. CPA has moved to disqualify Law Firm. In this opinion the court
granted the motion. One of Law Firm's lawyers ("Lawyer") worked at
Hinshaw until recently. While at Hinshaw, Lawyer did extensive work on
another case against CPA ("Other Case") involving a different plaintiff
and different facts. However, both this case and the Other Case involved
alleged violations of the Act, in part through use of an automated
telephone dialing system. On balance, the court found Lawyer had too
many opportunities at Hinshaw to learn things about CPA, the technology,
and the law, that could be used against CPA in this case.
Schluter v. Bethesda Healing Ministry, Inc.,
2018 WL 6111284 (S.D. Ohio Nov. 21, 2018). Schluter founded BHM in 1994
and was executive director until terminated in 2017. She wrote a
manual, "A Guidebook to Healing," for women affected by abortion. In
this suit Schluter is claiming that BHM is violating her copyright by
its continued use of the manual. Lawyer is Schluter's "local counsel."
BHM moved to disqualify Lawyer. In this opinion the court granted the
motion. Lawyer had served on BHM's board until 2011. While there he
provided advice to the board on, among other things, BHM's protection of
it copyrights. There was a dispute over whether Lawyer was acting as a
board member or acting as BHM's lawyer. In a fact-intensive analysis the
court found Lawyer was acting as BHM's lawyer. Last, the court found
that because Lawyer gave BHM copyright advice while the manual in
question was in existence, this case, which is a copyright dispute
involving the manual, is substantially related to the earlier advice.
USA Satellite & Cable, Inc. v. Mac Naughton, 2019 WL 118494
(N.D. Ill. Jan. 6, 2019). Lawyer represented USA in a suit brought by
RMG ("Other Case"). When a dispute about fees arose between USA and
Lawyer, USA got another lawyer. The Other Case settled for $261,374,
payable to RMG. USA paid all but $120,000. To collect his fee Lawyer
acquired RMG's interest in the unpaid $120,000. USA brought this suit
against Lawyer for interference with a business relationship and breach
of fiduciary duty. The court granted summary judgment to Lawyer on both
counts. USA moved to alter or amend the judgment under FRCP 59(e). In
this opinion the court upheld the ruling on the interference claim, but
granted relief to USA (denied summary judgment) on the breach of
fiduciary duty claim. The court said that if this were merely a fee
dispute, the former client rule (1.9(a)) might not apply. However,
Lawyer's acquisition of RMG's claim, to use it against USA, brought this
case within the former client rule. [Our note: We are not sure the
distinction between an ordinary fee claim and the acquisition of the RMG
claim holds up. Moreover, the court refers to the duty of loyalty to
former clients in a way suggesting that it implicates more than
confidentiality.]
P&L Dev. LLC v. Bionpharma Inc., 2019 WL 357351 (M.D.N.C.
Jan. 29, 2019). In this case P&L ("PLD") is suing Bionpharma
("Bion") for breach of contract and related causes of action. Charles
Cain has been GC for PLD since September 2016. From 2000 to March 2013
Cain was GC of Banner Pharmacaps, PLD's predecessor. Bion moved to
disqualify Cain and the law firm Cain retained for this case, Kilpatrick
Townsend. In this opinion the court denied the motion. The court
bottomed the denial on a finding that Cain's earlier work for Banner
was not substantially related to this case, under N.C. Rule 1.9(a).
While at Banner, Cain had been involved in the preparation and
distribution of the contracts involved in this case. However, this case
involves Bion's conduct after the contracts were finalized. The court
said any concerns Bion might have about the relationship of the
preparation of the contracts to the conduct of Bion leading to this case
are "speculative." The finding under Rule 1.9(a) was preceded by a
confusing, and unnecessary, discussion of whether Banner's
"attorney-client privilege" passed to Bion upon Bion's purchase of
Banner's business. (369)
Zappin v. Comfort, 2019 WL 409831 (S.D.N.Y. Feb. 1, 2019). Zappin
moved to disqualify the law firm ("Law Firm A") for certain defendants
in this case because Law Firm A had earlier, in another case,
represented a law firm ("Law Firm B") being sued by Zappin for
malpractice. In this opinion the court denied the motion. First, the
court noted that Law Firm had never represented Zappin. Second, the
court applied the substantial relationship test. Both the earlier case
and this case involve Zappin's divorce case. However, the conduct of Law
Firm B involved issues arising before July 2014 when Law Firm B stopped
representing Zappin. The issues in this case involve matters occurring
after July 2014. Last, the court held that Zappin could not show that
Law Firm A, while opposing Zappin in the earlier case, had received any
of Zappin's information that would "taint" this proceeding or
"prejudice" Zappin.
Janes v. Anctil, 2019 WL 438563 (Mass. App. Feb. 5, 2019). Lawyer
Anctil represented Fairview Orchards, Inc., owner of adjacent lots, 116
and 120. Lawyer drafted an easement agreement regarding access,
parking, and sewage, anticipating that the lots would ultimately be
owned separately. Plaintiff Janes now owns 116. PCM, a trust, owns 120
and intends to use it in manner adverse to 116. Evidently, Anctil is
representing PCM in this effort. Janes brought this action for
malpractice against Anctil. The trial judge granted a motion to dismiss.
In this opinion the appellate court affirmed. One claim by Janes was
that Anctil gave the town a "pro-PCM interpretation" of the easement
detrimental to Lot 116. The court noted that Anctil had drafted the
easement for Fairview, and not as Janes' lawyer. The court also said
that Janes failed to plead anything that Anctil might have done for her
that related to her claim for malpractice. Last, the court said that
Janes had not shown what confidences of hers Anctil might have shared
with others.
Plonsey v. Lanigan, 2019 WL 493569 (N.D. Ohio Feb. 8, 2019). In
this case Plaintiff claims Defendants breached their agreement to sell
their healthcare business to Plaintiff. Law Firm filed this case for
Plaintiff. Defendants moved to disqualify Law Firm. Between 2010 and
2012 Law Firm advised Defendants on the sale of their business to a
different purchaser (not Plaintiff). The parties disputed whether Law
Firm did anything for Defendants after 2012. In this opinion the court
granted the motion, holding, without a lot of discussion, that the
earlier services regarding sale to a different purchaser were
substantially related to this case.
Harris v. City of Kansas City, 2019 WL 1367672 (D. Kan. March 26,
2019). Plaintiff was a fireman. He is suing for unlawful termination.
One of the defendants is Plaintiff's local union chapter ("Union").
Plaintiff moved to disqualify Union's lawyer in this case ("Lawyer").
Prior to this suit, Union filed a grievance for Plaintiff. It went to
arbitration, and Plaintiff lost. At various times Plaintiff met with
Lawyer to discuss the case. The sole issue is, under Rule 1.9, whether
Lawyer ever represented Plaintiff. In a fact-intensive analysis the
magistrate judge found that Lawyer never represented Plaintiff. These
union-member relationships are fraught with opportunities to argue that
the union's lawyer also represented the member. The court discussed
several other cases where the court sorted through these situations and
found that the lawyer represented the union and not the member.
In re Liebbe, 2019 WL 1416637 (Tex. App.
March 29, 2019). Susan Whomble suffers from Alzheimer's disease. In this
proceeding Richard Whomble applied to be guardian of Susan's person.
Donna Liebbe, Susan's friend, contested Richard's application. Donna's
lawyer was Bill Liebbe. Richard moved to disqualify Bill. The trial
court granted the motion. Donna appealed. In this opinion the appellate
court affirmed (denied mandamus). Bill had earlier represented Richard
in two personal injury cases. The appellate court dwelled upon the
interplay of Texas Rules 1.5 (Texas' confidentiality rule) and 1.9
(Texas' former client rule). Put simply, because it was probable that
Bill violated Texas Rule 1.5, the prohibition of Rule 1.9 was triggered.
[Our note: This opinion can only be useful to Texas lawyers, so we
are not going to say any more about it. Because of the uniqueness of
Texas rules in circumstances such as this, we are completely unable to
say whether this opinion has precedential value in Texas (or anywhere
else, for that matter.]
SC Innovations, Inc. v. Uber Techs., Inc., 2019 WL 1959493 (N.D.
Cal. May 2, 2019). In this case Plaintiff is suing Uber for violating
federal antitrust laws and state unfair practice laws. This includes
predatory price manipulation. The law firm representing Plaintiff ("Law
Firm") represented Uber in nine cases between 2012 and 2016. That work
included the "defense of several antitrust cases." Law Firm and Uber
parted company because of a billing disagreement. Uber moved to
disqualify Law Firm in this case. In this opinion the magistrate judge
granted the motion. The court relied principally on a Maryland case
that Law Firm defended. That case also contained claims against Uber for
predatory pricing. The opinion includes a lengthy description of the
substantial relationship test and a fairly fact-intensive description as
to Law Firm's opportunities to learn things about Uber that would be
helpful in this case.
Chingee v. Canada, 2019 FC 532 (CanLII)
(Fed. Ct. Canada May 1, 2019). Lawyer No. 1 did work for Indian Band in
the 1980s on a title claim, and in the 1990s on an election dispute
regarding interpretation of Indian Band's election law. Lawyer No. 1
brought this action on behalf of Plaintiff against Indian Band seeking a
declaration that Plaintiff is a "Headman" under a certain treaty.
Lawyer No. 2 substituted for No. 1 under a notice of change of
solicitor. Indian Band moved to disqualify No. 1 and No. 2. In this
opinion the court denied the motion. In a fact-intensive analysis the
court found that No. 1 did not learn anything confidential and relevant
to this case in his earlier representations of Indian Band. It would
appear that whatever information possibly relevant to this case held by
Indian Band had been public for many years. Thus, No. 1 was not in a
position to relay to No. 2 any confidential Indian Band information
relevant to this case.
Encore Energy, Inc. v. Morris Ky. Wells, LLC,
No. 1:18-CV-00180-GNS-HBB (W.D. Ky. May 7, 2019). In this case Encore
seeks a declaration that it is a "financial institution" within the
meaning of 15 U.S.C. § 6801. Law Firm appeared for Morris. About seven
years ago Law Firm represented Encore regarding enforcement of a
covenant not to compete in an employment contract. Encore moved to
disqualify Law Firm in this case. In this opinion the court granted the
motion. The court said that in the earlier case Law Firm would have to
show the nature of Encore's business in order to establish the scope of
the covenant not to compete. Thus, the matters are substantially
related.
Wiederman v. Halpert, 2019 WL 2274485 (N.Y.
App. Div. May 29, 2019). In this case Plaintiff seeks to collect a
$600,000 judgment entered in a Connecticut court. Defendants moved to
disqualify Plaintiff's lawyer ("Lawyer") because Lawyer had earlier
represented Defendants in various matters. In one matter Lawyer
represented Defendants in claiming identity theft. In another matter
Lawyer represented Defendants' children for an alleged bank fraud. The
trial court granted the motion to disqualify. In this opinion the
appellate court affirmed. The opinion does not mention any ethics rule.
It says only that Defendants' confidential disclosures to Lawyer in the
earlier matters "resulted in a substantial risk of prejudice" and caused
"the very appearance of a conflict of interest."
Dorsey v. Sokoloff,
2019 WL 2192432 (D. Md. May 21, 2019). Decedent died nine months after
receiving stun gun shocks from a deputy sheriff. His family, represented
by Law Firm, has sued several members of the sheriff's department and
state and county officials. A former sheriff/defendant (Berry) moved to
disqualify Law Firm because Law Firm had represented him in 2012. In the
earlier case Berry sued another former sheriff for obstructing
investigations, retaliation, and related claims. In this opinion the
court denied the motion, finding the matters were not substantially
related.
Alderwood Estate & Ret. Centre Ltd. v. Regular,
2019 NLSC 87 (CanLII) (S. Ct. Newf. & Lab. April 23, 2019). This is
a misrepresentation claim by Plaintiff against several defendants
involving the sale of a retirement home. One of the defendants (Kirby)
moved to disqualify the law firm for Plaintiff ("Law Firm") because, as
recently as five years ago, Law Firm had represented Kirby in five
matters. In a very fact-intensive analysis, in this opinion, the court
denied the motion. The court found that the earlier matters were not
sufficiently related to this case, that it was not all likely that Law
Firm had learned anything from Kirby relevant to this case, and that Law
Firm was not, in any way, attacking the work that it had done for
Kirby. The earlier matters basically involved the purchase and sale of
other retirement homes.
Annie Sloan Interiors, Ltd. v. Kappel, 2019 WL 2492303 (E.D. La.
June 14, 2019). Defendant, a lawyer, formerly did trademark work for
Plaintiff, Annie Sloan Interiors ("ASI"), including registering and
defending the CHALK PAINT® trademark. After that representation
terminated, Defendant began representing another client and attacked
that same trademark. ASI brought this suit against Defendant for breach
of fiduciary duty. Defendant moved to dismiss. In this opinion the court
denied the motion, relying primarily on Louisiana Rule 1.9 (appears to
be the same as MR 1.9). It remains to be seen, as the case plays out,
the extent to which, if any, confidentiality plays a role in this case.
Goff v. Goff, 2019 WL 2607258 (Fla. App. June 26, 2019).
Post-dissolution proceeding. W moved to disqualify H's lawyer
("Lawyer"). Lawyer has known H since H was a child. Lawyer also became a
friend to W after H and W married. Lawyer represented W once, in a
dispute with W's sister. The trial court granted the motion to
disqualify. In this opinion the appellate court reversed. First, the
court held that W's dispute with her sister was not related to this
post-dissolution proceeding. Second, the court noted that W's financial
affairs were fully disclosed in the dissolution proceedings, so nothing W
might have disclosed to Lawyer earlier remained confidential.
Van Hoek v. McKesson Corp., 2019 WL 3536705 (M.D. Fla. Aug. 2,
2019). This is an "employment action" by Van Hoek against McKesson and
others. At the outset of this case the firm Sizemore, Gonzalez
represented the defendants. In April 2019 Sizemore, Gonzales merged
into the firm GrayRobinson. The problem is that Sandra Sheets is a
lawyer at GrayRobinson. About ten years ago Sheets did estate planning
work for Van Hoek. In January 2010 Sheets wrote Van Hoek something
resembling a termination letter and has done no work for her since.
Nevertheless, Van Hoek moved to disqualify GrayRobinson as the
defendants' law firm. In this opinion the court denied the motion.
First, the court found that Van Hoek was not a current client of
GrayRobinson. Last, the court found that the earlier estate planning was
not substantially related to this employment action. (The opinion does
not state the nature of the employment action.)
Chhabra v. Couture Interior Design Int'l Inc., No. 653644/2018
(N.Y Sup. Ct. Aug. 13, 2019). Law Firm represents Plaintiff against
Defendants claiming that Plaintiff paid Defendants for home
improvements, which Defendants failed to deliver. One defendant, Durite
USA LLC, moved to disqualify Law Firm because Law Firm had earlier
represented Durite in certain patent matters. This included obtaining a
patent for the "Durazzo" process for design finishes. In this opinion
the court denied the motion to disqualify. It simply could find not any
relevant relationship between obtaining the patent for the Durazzo
process and Defendants' failure to deliver home improvements.
Blamey v. Menadier, 2019 WL 4180044 (Fla. App. Sept. 4, 2019).
Lawyer, representing Corp., prepared a term sheet regarding the change
in ownership of Corp. Lawyer, representing Plaintiff, filed this suit
against Corp., claiming that Corp. and its owner failed to follow
through on the change in ownership. Corp. moved to disqualify Lawyer in
this case. The trial court denied the motion. In this opinion the
appellate court reversed. The court found that preparation of the term
sheet providing for the transfer of ownership was substantially related
to the claim in this case for failure to "consummate the transfer."
United States Soccer Fed'n Found., Inc. v. United States Soccer Fed'n, Inc.,
2019 WL 4673718 (D.D.C. Sept. 25, 2019). Foundation is suing Federation
for a declaratory judgment that Foundation is not infringing four of
Federation's trademarks. Federation moved to disqualify Robert Raskopf
and his firm, Quinn Emanuel, from representing Foundation. In this
opinion the court denied the motion. Raskopf had done odd trademark work
for Federation at two earlier firms. At one of those firms Raskopf, in
1980, filed applications for trademarks not at issue here. At another
firm, Raskopf had done some maintenance and renewal work for the
trademarks that are at issue here. In a very fact-intensive
analysis of Raskopf's earlier work for Federation, the court found that
that work was not substantially related to this case. The court said
that had Raskopf worked on the registration of the trademarks at issue, a
stronger case could be made that the matters are substantially related.
Fragolo v. Piao, 2019 WL 5064661 (D.N.J. Oct. 9, 2019).
Defendants purchased a massage establishment from Plaintiff. Due to
Defendants' alleged carelessness after the sale, in allowing the
appearance that Plaintiff was still involved with the business,
Plaintiff was mistakenly prosecuted for prostitution. The prosecution
was later dropped, but Plaintiff had suffered monetary loss. Plaintiff,
represented by Lawyer, brought this suit against Defendants for this
loss. Defendants moved to disqualify Lawyer. In this opinion the
magistrate judge granted the motion. Simply stated, the court found that
Lawyer had represented Defendants in the sale and that the sale was
substantially related to Defendants' post-sale conduct. There is more
regarding Defendants' possible waiver of the conflict. The court was
troubled by the fact that Defendants' first language was Korean. Thus,
the waiver was not adequate.
Dhaliwal v. Hunjan, 2019 ONSC 5464 (CanLII) (Super. Ct. Ont.
Sept. 20, 2019). Corp. operates a Sikh temple. Lakhivir Dhaliwal is
suing Gurmukh Hunjan and Gurmeet Singh for wrongfully removing him as a
director and member of Corp. They respond that Dhaliwal stole cash from
donation boxes. Law Firm appeared for Hunjan and Singh. Dhaliwal moved
to disqualify Law Firm. While a director Dhaliwal had numerous dealings
with Law Firm regarding Corp. governance and operations. In this opinion
the court granted the motion. In a fact-intensive analysis the court
found that the earlier representations were sufficiently related to this
case and that there was a substantial likelihood that Law Firm, in the
earlier matters, learned information from and about Dhaliwal the it
could use to his disadvantage in this case.
Garcia v. Marion County Bd., 2019 WL 5863896 (M.D. Fla. Nov. 8,
2019). Plaintiffs are Marion County Fire Rescue Captains. Law Firm has
filed this FLSA action against County because it failed to pay
Plaintiffs overtime. County moved to disqualify Law Firm. In this
opinion the court denied the motion. A member of Law Firm ("Lawyer") had
been general counsel of the local fire firefighters union. The current
Fire Chief was previously vice president of the union local. While the
Chief was vice president, Lawyer wrote him a letter regarding union
business. The court could not find any evidence that Lawyer represented
the Chief personally. The court also found that the letter was not
substantially related to this case.
Martley v. City of Basehor, 2019 WL 6340132 (D. Kan. Nov. 27,
2019). Plaintiff, Lloyd Martley, is suing City for violating equal pay
laws. Martley was police chief from 2008 to 2018. During that time
Martley would also act as part-time city administrator. Patrick Reavey,
Martley's lawyer in this case, was city attorney for City from 2007
until 2011. City moved to disqualify Reavey. In this opinion the
magistrate judge denied the motion. City cited both Rule 1.11 and 1.9.
The court, relying on ABA Op. 97-409, ruled that because Rule 1.11
applied, Rule 1.9 would not apply. As for the application of Rule 1.11,
the court's analysis was highly fact-specific, and of questionable
precedential value. As city attorney, Reavey had occasional and episodic
contact with Martley and the details of Martley's employment. Thus,
under Rule 1.11(a), Reavey was not involved "personally and
substantially" as to Martley. The court also considered Rule 1.11(b)
& (e) and found no application.
Imputation. J.G.S. v. L.M.S., 2019 WL 6650231 (N.J. App. Div. Dec. 6, 2019).
Lawyer, while at Firm A, represented Defendant in a matter related to
this one. Lawyer is now at Firm B. Firm B represents Plaintiff in this
case. Defendant moved to disqualify Lawyer and Firm B in this case. The
trial court disqualified Lawyer but not Firm B. In this opinion the
appellate court applied New Jersey's version of ABA Rule 1.10 according
to its terms and ruled that Firm B should also have been disqualified.
The court focused on N.J. Rule 1.10(c)(1), finding that Lawyer had
"primary responsibility" in the earlier matter.
Sun Life Assur. Co. of Canada v. Wilmington Savs. Fund Soc'y, FSB, 2019 WL 6998156 (Super. Ct. Del. Dec. 19, 2019). [Caution: This case involves securitization of life insurance benefits, about which we know little. We will do the best we can.]
Sun Life ("Sun") issued a life insurance policy on the life of Gordon
Bartelstein. In this case Sun seeks a finding that the policy "is void
as a stranger-oriented life insurance ("STOLI") wager." The policy was
sold to investors presumably with no insurable interest in Bartelstein's
life. Defendant, Wilmington Savings Fund Society ("WSF"), is the
"securities intermediary" for the investor-beneficiaries. Sun's law firm
is Cozen & O'Connor ("Cozen"). One of the investor-beneficiaries
was formerly known as Ocean Gate. Cozen had advised Ocean Gate on the
legal status of acquired life insurance benefits (that is, on STOLI
issues). It issued opinion letters. Either WSF or Ocean Gate's successor
moved to disqualify Cozen in this case. In this opinion the trial court
granted the motion. Cozen screened the affected lawyers. However, the
court said little could be done if parties attempted to introduce
Cozen's opinion letters to Ocean Gate. Those letters could prejudice the
defendants in this case. The court later denied a motion for reargument at Sun Life Assur. Co. of Canada v. Wilmington Savs. Fund Soc'y, FSB, No. C.A. No. N18C-080074 PRW CCLD (Del. Super. Ct. April 9, 2020).
In re Fenenbock, No. 08-19-00248-CV (Tex. App. March 27, 2020).
Family dispute. This case involves a probate proceeding about whether a
member of the family forfeited her interest in a family trust. In
another case members of the family are fighting over a merger of family
businesses and valuation of certain shares. Lauren was involved in that
fight. Lawyer represented Lauren at a shareholders' meeting and met with
Lauren before the meeting to review Lauren's situation and her wishes.
When litigation erupted in the merger case, Lauren was represented by
another law firm. In this probate case Lauren is adverse to another
family member, Glenna. Lawyer has appeared for Glenna. Lauren moved to
disqualify Lawyer in the probate case. The trial court denied the
motion. Lauren sought mandamus. In this opinion the appellate court
granted mandamus (reversed). In a highly fact-specific analysis the
court found that the work Lawyer did for Lauren in the merger case was
substantially related to this probate case. (Tex. Rule 1.09) Part of
Glenna's problem was that initially Lauren was not a party to the merger
case. But, Glenna made Lauren a party by filing a third-party action
against her.
Samnick v. Goodman, No. A20A0562 (Ga. App.
April 1, 2020). W sued H for divorce and for "equitable division of the
marital property and debts." Lawyer appeared for H. W moved to
disqualify Lawyer. The trial court granted the motion. In this opinion
the appellate court affirmed. Lawyer had previously represented W in W's
dispute with her employer over unpaid commissions. During that
representation W shared with Lawyer "information about her commission
structure and earnings." Thus that representation was substantially
related to this proceeding dealing with marital property and debts.
Abboud v. Xcel Energy, Inc., No.
19-cv-2826 (PJS/TNL (D. Minn. March 24, 2020). Abboud worked for Xcel
until 2013. He brought this employment case against Xcel claiming he was
let go because of his whistle-blowing activities. He moved to
disqualify Xcel's lawyer, Martinez, because Martinez earlier represented
Xcel and Abboud in a race-discrimination claim brought by another
employee. In this opinion the court denied the motion, finding that the
matters were not substantially related. Abboud made a half-hearted
playbook argument about all the things Martinez had learned about
Abboud, but the court held that Abboud had not shown how any of that
mattered in this case.
Quantico Tactical Inc. v. United States, Nos. 20-120C &
20-150C (Ct. Cl. May 26, 2020). A government agency solicited bids for
equipment. Quantico submitted a proposal. In December 2019 the agency
informed Quantico that it was "excluded from the competitive range."
Quantico, represented by Latham & Watkins, brought this action to
overturn the agency's determination. Another bidder, ADS, moved to
intervene and to disqualify Latham. The problem was that Latham, in 2010
and 2011, had represented ADS in ADS' IPO. In this case Quantico is
alleging misconduct by ADS. ADS argues that in the IPO matter Latham
would have had access to much of ADS' confidential information, some
directly bearing on Quantico's allegations in this case. In this opinion
the court granted the motion to disqualify. [Our note: We do not
quarrel with the result. It is unfortunate that the court makes a number
of confusing, and potentially misleading, statements about a law firm's
supposed "duty of loyalty" to former clients. As Professor Wolfram has
made abundantly clear, the only value recognized by Rule 1.9(a) is one
of confidentiality, Charles W. Wolfram, Former-Client Conflicts, 10 Geo.
J. Legal Ethics 677, 691-699 (1997). We will continue to dust off that
cite, and remind readers about it, until a better analysis comes along.]
WhatsApp Inc. v. NSO Group Techs. Ltd., No. 19-cv-07123-PJH (N.D.
Cal. June 16, 2020). King & Spalding ("K&S") represents the
defendants. From December 2015 to July 6, 2016 K&S represented
plaintiff WhatsApp as local counsel in another case, which involved
WhatsApp's "core technology." Three of the K&S lawyers who did work
for WhatsApp have left K&S. One, who did minimal work, remains.
WhatsApp moved to disqualify K&S in this case. In this opinion the
court denied the motion. The court held that the two cases are not
substantially related, a test under either Rule 1.9 or 1.10. The
relevant material in the earlier case is under seal, and key parts of
this opinion are redacted. So, it is hard for us to describe
meaningfully why the court deemed the matters not substantially related.
Evidently, the WhatsApp technical information K&ST had access to in
the earlier case, involved open source software, which, by definition
is public information. The physical files from the earlier case had been
moved to K&S' off-site storage. For purposes of this motion, the
files had transferred to K&S' General Counsel, where they are not
available to other K&S lawyers. The opinion contains an apparently
helpful review of the evolution of the substantially related test in
California.
L'Oreal USA Creative, Inc. v. Drunk Elephant, LLC, No.
1:18-CV-982-LY (W.D. Tex. June 10, 2020). Plaintiff is suing Defendant
for infringing Plaintiff's '841 patent. The Lerner law firm is
representing Defendant. Lerner had done patent prosecution work for
Plaintiff from 2003 until early 2016. Plaintiff moved to disqualify
Lerner in this case. In this opinion the court denied the motion,
primarily because the earlier work was not substantially related to this
case. The opinion deals with the relationship (or lack thereof) of the
earlier patent work that Lerner did for Plaintiff and the patent in this
case. Moreover, the court considered what knowledge remaining in the
Lerner firm could be harmful to Plaintiff and the extent (or lack
thereof) to which the lawyers working on this case had access to that
knowledge. Moreover, Plaintiff did not make its motion as soon as it
could have. On balance, the "equities weigh on the side of" Defendant.
Quezada v. Pizarro, No. 651434/2020 (N.Y. Sup. Ct. July 17,
2020). Plaintiffs bought a restaurant from Defendant in 2010. For some
years after the sale, Defendant stayed on as general manager of the
restaurant. In this suit Plaintiffs are claiming that Defendant stole
money from the restaurant. Defendant moved to disqualify Lawyer from
representing Plaintiffs in this case. Lawyer had represented Defendant
when she sold the restaurant to Plaintiffs. However, Lawyer claims he
remembers almost nothing about the sales transaction. In this opinion
the court found that the matters were substantially related and granted
the motion. Among other things, Defendant's finances had to have been
involved in the sales transaction as well as in this case.
Volterra Semiconductor LLC v. Monolithic Power Sys., Inc.,
No.19-2240-CFC (D. Del. Aug. 26, 2020). Volterra is suing Monolithic for
infringing three patents relating to direct current to direct current
("DC-to-DC") power converters involving "a coupled inductor
architecture." Monolithic has moved to disqualify Volterra's law firm
("Law Firm") because Law Firm did patent work for Monolithic from 2007
to 2012. The only issue is whether Law Firm's work for Monolithic was
substantially related to this case. The work for Monolithic did involve
DC-to-DC converter technology but did not involve Volterra. In this
opinion the court denied the motion to disqualify. The court found that
the subject of DC-to-DC converter technology was broad and varied. Thus,
one could not conclude that because Law Firm worked on that technology
from 2007 to 2012 for Monolithic, Law Firm would have learned anything
that would give it an advantage in this case. Further, Monolithic has
not identified any specific information Law Firm would have learned in
the earlier work that would give it an advantage in this case.
Bayes v. Biomet, Inc., No. 4:13-cv-00800-SRC (E.D. Mo. Nov. 12,
2020). Product liability case involving an allegedly defective
hip-implant system. Manufacturer/Defendant ("ManDef") moved to
disqualify Law Firm for Plaintiffs ("Firm 2") because Lawyer moved from
ManDef's law firm ("Firm 1") to Firm 2. In this opinion the court denied
the motion. Missouri is not a screening state, and screening by Firm 2
did not even come up. The court's analysis is under Rule 1.9 and focuses
on whether what Lawyer worked on at Firm 1 was substantially related to
this case. The court applied the six-factor Carey test established in In re Carey,
S.W.3d 477 (Mo. 2002). Space will not permit repeating the court's
discussion of each of those factors, or a discussion of the facts of
this case in detail. The genesis of the motion was the fact that Lawyer
at Firm 1 had done entry-level associate work on cases involving
hip-implant systems of Zimmer Holdings. Zimmer was a direct competitor
of Biomet, Inc. Zimmer and Biomet merged. Then Lawyer left Firm 1 and
joined Firm 2. The system at issue in this case is not the system Lawyer
worked on for Zimmer. Yet, one could argue that all the stuff Lawyer
learned about Zimmer could slop over to the way the combined companies
are defending the technology in this case. After a fact-intensive
analysis the court said its denial was not a "close call," but rather a
"tactical matter [of ManDef] attempting to coerce a continuance of the
trial date."
Am. Transit Ins. Co. v. Kaisman, No 508784 (N.Y. Sup. Ct. Kings
Cty. Nov. 30, 2020). Iqbal Sakandar was injured in a 2016 automobile
accident. In this litigation he has become adverse to his no-fault
insurance company ("InsCo"). Lawyer is representing Sakandar. From 2010
to 2015 Lawyer had represented InsCo in some 500 no-fault insurance
matters. Thus, InsCo moved to disqualify Lawyer in this case. In this
opinion the court denied the motion. InsCo made no showing that Lawyer
was ever involved in Sakandar's insurance relationship with InsCo and
that InsCo's claim that Lawyer had InsCo's confidences was "vague and
conclusory."
Berkeley Ventures II, LLC v. Sionic Mobile Corp., No.
1:19-cv-05523-SDG (N.D. Ga. Dec. 11, 2020). This is a securities fraud
case by Berkeley against Sionic. Law Firm represents Berkeley. A named
partner in Law Firm ("Lawyer A") represented Patrick Gahan, a member of
Sionic's board, for about four years until 2017. Sionic moved to
disqualify Law Firm. The court initially denied the motion. In this
opinion the court, on rehearing, granted the motion. Lawyer A had
advised Gahan on contributing Gahan's Sionic stock to charity. Part of
this case is about Sionic's use of charitable donations to misrepresent
its financial condition. Thus, the earlier advice and this case are
substantially related. The court was also troubled by a telephone call
to Gahan Lawyer A's partner had made. Because Gahan is a Sionic board
member, and given his role at Sionic, that call was tantamount to
calling Sionic, a represented party. Thus, the call violated Rule 4.2.
Capra v. Capra, No. C084032 (Cal. App. 3d Dist. Dec. 22, 2020). Yes, that
Capra. It is only appropriate that this case, decided during the
Holiday season, should involve contested ownership and control of a
dwelling ("the cabin") left by Frank Capra, producer, director, and
co-writer of It's a Wonderful Life. Capra's children are squaring
off against each other in this case. Son, Thomas, the defendant, is
represented by Emanuel Barling. Plaintiffs, other Capra family members,
moved to disqualify Barling. The trial court denied the motion. In this
opinion the appellate court affirmed. One issue is whether Barling
currently represents anyone other than Thomas. On the facts, no. Another
issue is whether Barling previously represented any of the plaintiffs
on matters substantially related to this case. On the facts, no. The
last issue worth mentioning is whether Barling's alleged earlier
representation of Frank Capra Productions, Inc. was tantamount to
representation of the officers or shareholders (primarily family
members). Answer, no. The holdings were so fact-specific, that the
opinion, although surprisingly not excluded from publication, is of
little, if any, precedential value.
TAL Props. of Pomona, LLC v. Village of Pomona,
No. 19-CV-06838 (PMH) (S.D.N.Y. Dec. 30, 2020). Lawyer represents
Pomona in this case, which involves Pomona's alleged religious
discrimination related to construction of a home. In 2017-2018 Lawyer
represented TAL against Pomona claiming religious discrimination related
to construction of a home. TAL moved to disqualify Lawyer in this case.
In this opinion the court granted the motion. The court noted that
Lawyer, in opposing the motion, did not "endeavor to demonstrate" how
the two matters "are not substantially related."
Allen v. The Hanover Ins. Group, No. 2:19-cv-12024 (E.D. Mich.
Jan. 14, 2021). In an auto accident, Allen was a passenger, and Watts
was the driver. In this case, Allen, represented by Keel, sued Watts for
injuries. Initially, Keel had represented Watts in two matters arising
out of the accident. One was defending Watts in a drunk driving charge.
The other was a dispute with Watts' under-insured motorist carrier.
Those got resolved quickly, with little activity, and Keel's
representation of Watts ceased. Keel then filed this case against Watts.
Watts moved to disqualify Keel. In this opinion the court denied the
motion. First, Watts, after seeking the advice of another lawyer, signed
a waiver of Keel's conflict, enabling Keel to sue Watts. The court
noted that although Watts was not a lawyer, the situation was not
"complex," and Watts had been advised about the waiver by another
lawyer. As to Rule 1.9(c), Keel had used Watts' drunk driving guilty
plea in a summary judgment motion in this case, but that was "public
record" or generally known.
Wozniak v. Wozniak, 2021 SKQB 3 (CanLII) (Q.B. Sask. Jan. 6,
2021). H and W purchased land from W's mother. A dispute arose as to the
clearing of the homequarter portion. In 2010 H and W retained Law Firm
to resolve the dispute, which it did. That work took about four months. W
filed this "marital" case against H. H hired Law Firm to defend. W
applied to disqualify Law Firm. In this opinion the court denied the
application. W claimed that she disclosed confidences to Law Firm that
might relate to this case. The court noted that Law Firm's earlier
involvement involved the simple removal of property from the purchased
property and that all correspondence involved Law Firm, H, and W.
Further, W failed to identify what sort of confidences she might have
shared with Law Firm ten years ago that could have any bearing on this
case.
Barto v. Miyashiro, No. 19cv2261-WQH(KSC) (S.D. Cal. Feb. 5,
2021). Plaintiff is a member of School Board. Plaintiff brought this
case against the school superintendent and other Board members for
mistreating her, including excluding her from certain Board meetings.
The defendants are represented by Lawyer. In an earlier case, not
brought by Plaintiff, Lawyer, who was representing School Board
defendants, had represented Plaintiff only in defending her deposition.
Plaintiff's lawyer has raised the issue of whether Lawyer can be adverse
to Plaintiff in this case. In this opinion the magistrate judge found
no conflict. While Lawyer was taking Plaintiff's deposition in this
case, Lawyer did ask about Plaintiff's being excluded from Board
meetings, possibly including a meeting dealing with the earlier case.
However, the judge concluded that Plaintiff would not be disadvantaged
in this case by anything Lawyer might have learned defending Plaintiff's
deposition in the earlier case.
In re Bowen, No. 20-13 (Vt. Feb. 12, 2021). Disciplinary case
opinion upholding a three-month suspension. Pure conflict-of-interest
disciplinary cases are rare. This is one worth mentioning. It involves
two married couples, H1 & W1, and H2 & W2. H1 and W1 divorced.
In a post-decree dispute, Lawyer represented H1 against W1. The result
favored W1. H1, unhappy with the result, refused to pay Lawyer's final
invoice of $11,000. At the end of the day, H1 did wind up owning an
undeveloped residential lot ("the Lot"). H2 & W2, owning a house
next to the Lot, wished to buy it to enhance the value of their house.
H2 & W2 hired Lawyer to represent them in purchasing the Lot from H1
(Recall, H1 is Lawyer's former client who owes Lawyer $11,000.). H1 had
another lawyer ("New Lawyer") for the sale of the Lot. Lawyer told New
Lawyer that Lawyer planned to withhold purchase funds to satisfy H1's
$11,000 debt to Lawyer. New lawyer said Lawyer should not do that
because there were no liens on the Lot. Lawyer immediately, without
telling H2 & W2, or New Lawyer, obtained an ex parte writ of
attachment on the future sale proceeds and recorded a lien on the Lot.
Once everyone became aware of what Lawyer had done, all hell broke
loose. H1 was furious that his former lawyer was "working him over" (our
words) in the Lot sale transaction to secure the $11,000 fee. Lawyer's
new clients, H2 & W2, were upset that the Lot purchase deal was
jeopardized over Lawyer's ex parte proceeding, etc. At "the eleventh
hour," just before closing, Lawyer agreed to accept one-half of the
$11,000. As a result the deal closed and H2 & W2 got the Lot. During
this disciplinary proceeding against Lawyer the hearing panel found
that Lawyer had violated Rules 1.9(c)(2) and 1.8(b). Lawyer conceded
that he violated Rule 1.9(c)(2) (revealing information about his issues
with his former client, H1). In this appeal Lawyer contests the finding
as to Rule 1.8(b) and the three-month suspension. In this opinion the
court affirmed both. We are not sure about the court's analysis of the
applicability of Rule 1.8(b). You should read the opinion if you are
curious about that. We believe that Lawyer violated two rules not
raised: Rule 1.7(a)(2) (protecting his own interests, jeopardizing sale
of the Lot); and Rule 1.4 (failing to tell H2 & W2 about his dispute
with H1, and his ex parte proceeding, which would inevitably complicate
their ability to close on the Lot).
Paul v. Davidson, No. 158999/2017 (N.Y. Sup. Ct., N.Y. County,
Feb. 26, 2021). Plaintiff resided on the first floor of Coop. The second
floor flooded, causing Plaintiff's apartment to be uninhabitable.
Plaintiff brought this suit against the residents upstairs and others,
including Coop. Corp., the latter for failing to inspect and oversee
work on the second floor apartment. The presence of mold was one of many
issues in this case. Coop. Corp. moved to disqualify Plaintiff's lawyer
("Lawyer") because Lawyer had represented Coop. Corp. ten years ago in a
matter involving mold. In this opinion the court denied the motion.
First, Coop. Corp. waited three years from this case's inception to file
the motion. Second, the court found that the mold issue was so
insignificant in this case as to render this case not substantially
related to the earlier case. Thus, the motion fails on either ground.
Threatt v. Sylacauga Housing Auth., 2021 WL 535534 (N.D. Ala.
Feb. 12, 2021). Threatt had been CEO of Housing Authority until late
2019. In the months leading up to his termination, Threatt had several
contacts with Lawyer about whether HUD might have claims against
Authority for race discrimination. Threatt, represented by Lawyer,
brought this discrimination and retaliation claim against Authority and
several Authority officials. Because of the HUD-related contacts the
defendants moved to disqualify Lawyer in this case. In this opinion the
court denied the motion. The court looked at two issues: (1) whether
Lawyer had ever represented Authority, and (2) if so, whether the
earlier representation was substantially related to this case. In an
extremely fact-specific analysis the court answered both questions no.
NRT Tech. Corp. v. Everi Holdings Inc.,
No. 19-804-MN-SRF (D. Del. Feb. 26, 2021). In this suit Plaintiffs are
claiming that Defendants violated Section 2 of the Sherman Act. A lawyer
in Plaintiffs' law firm ("Lawyer" and "Law Firm"), when in another
firm, had represented Defendants in a state regulatory proceeding. Thus,
Defendants moved to disqualify Lawyer and Law Firm in this case. In a
highly complex and fact-specific analysis the magistrate judge denied
the motion to disqualify, finding that the matters were not
substantially related.
Metris-Shamoon v. City of Detroit, 2021 WL 973076 (E.D. Mich.
March 16, 2021). This is an opinion by a magistrate judge denying
Plaintiffs' motion to disqualify the City Law Department. It is a jumble
and - for us - hard to follow. City has been represented by an outside
law firm. However, a member of Law Department (Patrick Cunningham)
appeared for City to respond to certain discovery. The City Corporation
Counsel is Lawrence Garcia. The problem, according to Plaintiffs, is
that Garcia, before becoming Corporation Counsel, had represented a
former city cop, Arthur Leavells, in another case involving alleged
police misconduct. Leavells is not a party in this case but, evidently,
is somehow involved. First, the court held that Plaintiffs' motion to
disqualify should fail because no Plaintiff had never been Garcia's
client. Last, the court held that Garcia's (Cunningham's?) position in
this case is not adverse to Leavells. While we have little doubt about
that conclusion, we don't follow how the court got there.
Kemp Invs. N., LLC v. Englert, No. 5D20-1553 (Fla. App., 5th
Dist., March 26, 2021). Carol Geisler sold her property to Kemp. Barry
Walker and his law firm "acted as closing agents and issued title
insurance." Geisler signed an acknowledgement that Walker was not acting
as her lawyer in that transaction. After the closing, an earlier deed
was discovered in which Geisler had supposedly conveyed an interest in
the property to another person. Walker had Geisler come to his office to
sign an affidavit swearing that she did not sign the earlier deed --
that it was a forgery. After that Walker filed this suit for Kemp, in
which Geisler was a defendant, claiming she had committed fraud. Geisler
successfully moved to disqualify Walker. In this opinion the appellate
court affirmed the trial court. Although Walker had not represented
Geisler at the closing, the trial court reasonably concluded that by
getting Geisler to sign the forgery affidavit and advising her on its
import, Walker had become Geisler's lawyer.
MD Helicopters, Inc. v. Aerometals, Inc., No.
2:16-cv-02249-TLN-AC (E.D. Cal. March 31, 2021). In this case Plaintiff
is claiming intellectual property rights in drawings Defendant used "to
compete in the civilian market for MD 500 Series" helicopters. Gibson
Dunn appeared as one of Plaintiff's law firms. Defendant moved to
disqualify Gibson Dunn because in the early 2000s Gibson Dunn
represented Defendant in matters related to MD 500 helicopters. In this
opinion the court granted the motion. The opinion is long and highly
fact-specific. We will provide a few highlights. First, the court
discussed at great length California jurisprudence on the substantial
relationship test under California Rule 1.9. Second, the court
discussed, and rejected, Gibson Dunn's attempt to screen from this case
three lawyers who worked a few hours on the earlier matters. Third,
Gibson Dunn retained voluminous paper and electronic files from the
earlier matters, some of which are arguably important to this case. Were
the court's conclusions correct? Our response: "Probably, but you had
to be there."
Bd. of County Comm'rs v. Ass'n of County Comm'rs of Okla. Self-Insured Group
("Group"), No. 118613 (Okla. April 6, 2021). In an underlying case an
inmate had sued Sheriff for sexual assault. Group, in effect, provided
insurance for the claim with a limit of $2 million. That case resulted
in a judgment against Sheriff far exceeding the limit. As a result,
Board filed this malpractice case against the law firm defending
Sheriff, and against Group. Law Firm 2 is defending. One of the lawyers
("Lawyer") appearing for Board in this case had, about eight years ago,
at another firm ("Firm 1"), participated in defending Group in a
different, but similar, matter. Group moved to disqualify Lawyer and
Firm 2 in this case. The trial court, after a hearing, denied the
motion. In this opinion the Supreme Court affirmed. The earlier case
also arose out of alleged mistreatment of inmates by a sheriff in
another county. While the cases were "similar," Lawyer's role in the
earlier case appears to have been subordinate to other lawyers in Firm
1, and Lawyer came away with no confidential information from Group.
Skii km Lax Ha v. Mali,
2021 BCCA 140 (CanLII) (Ct. App. B.C. April 7, 2021). This a
territorial dispute between two Aboriginal groups ("Nation A" and
"Nation B"). Warning: We are completely unfamiliar with property issues
confronting Aboriginal Canadians, so this note will be a bare bones
discussion of the conflict issues as we see them. Lawyer represents
Nation A in this case. Some twenty years ago Lawyer represented Nation B
in a territorial dispute. Nation B moved to disqualify Lawyer in this
case. The chambers judge dismissed the motion finding that the "two
cases were non-overlapping," that they were not sufficiently related,
and that Lawyer could not have learned anything in the earlier case that
would be prejudicial to Nation B in this case. In this opinion the
appellate court affirmed. Nation B attempted to make a "playbook"
argument, claiming Lawyer would have learned much about Nation B's
history, approach to litigation, philosophies, and the like. Both the
chambers judge and the appellate court rejected that approach, the
latter holding that, in any event, all that material was already public.
Gulf Coast Mktg. Group, Inc. v. JTH Tax LLC, 2021 WL 1990175
(E.D. Va. May 18, 2021). Defendant, JTH, does business as Liberty Tax
Service. This is a dispute between Liberty and Plaintiff, to whom
Liberty, in 2009, had sold the right to create tax preparation
franchises (the "AD agreement"). Lawyer represents Plaintiff. The
problem is that Lawyer had worked in-house at Liberty for six years,
until 2013. So Liberty moved to disqualify Lawyer in this case. In this
opinion the court denied the motion. The sole issue was whether Lawyer's
work for Liberty was substantially related to this case. The court said
no. Lawyer had nothing to do with Plaintiff's dealings with Liberty.
This dispute arose years after Lawyer left Liberty. Lawyer did
litigation for Liberty and had nothing to do with the ongoing
contractual relationships with other AD agreement-parties. Lawyer's
general knowledge of AD agreements and the law relating to them was not
enough to satisfy the substantial relationship test.
Colonial Pipeline Co. v. Metro. Nashville Airport Auth.,
3:20-cv-00666 & 00809 (M.D. Tenn. July 27, 2021). Under a 1976
easement agreement, Colonial has a liquid fuel pipeline under the
airport. One of these cases involves assigning fault for a 2019 puncture
of the pipeline. The other involves whether Colonial is currently
obligated to relocate the pipeline at its own expense. The Waller firm
represents Colonial in both cases. The Bass firm represents the airport
authority. During the period 1999-2004 Lawyers A and B, at the Waller
firm, did about 10 hours work for the airport authority on Colonial
easement issues. Lawyer A left Waller in 2003. Lawyer B left Waller in
2010. The airport authority moved to disqualify Waller in both cases. In
this opinion the magistrate judge denied the motion. The opinion is
very fact-specific as to what documents resulted from Waller's work for
the airport authority and who said what to whom. After a thorough
discussion of application of the substantial relationship test, the
judge concluded that no information Waller has from the minimal, earlier
work for the airport authority would give it a leg up in these cases.
T1 Payments LLC v. New U Life Corp., No. 2:19-cv-01816-APA-DJA
(D. Nev. Aug. 4, 2021). T1 and New U had an agreement under which T1
(Plaintiff) would handle payments for New U. (Defendant). The issues in
this case are (1) who ended the agreement, (2) who is entitled to funds
held by T1, and (3) whether T1 committed fraud. New U's lead lawyer
("Lawyer") was admitted pro hac vice. Because Lawyer had earlier done
work for T1, T1 moved to disqualify Lawyer, Lawyer's law firm ("Firm
A"), and Lawyer's local counsel ("Firm B"). In this opinion the court
ruled that Lawyer is disqualified, that Firm A and Firm B screen Lawyer
from this case, that Lawyer is not to share any fees from this case, and
that Firms A and B file a notice of the screen by August 20, 2021.
Lawyer's earlier work for T1 included litigation similar to this case,
and Lawyer drafted the template for the agreement at issue in this case.
Thus, the matters are substantially related. The court cited
Restatement § 132 cmt. d(ii) (2000), which provides that a lawyer
attacking his former work constitutes substantial relationship.
Avco Corp. v. Turner, 2021 WL
3722274 (E.D. Pa. Aug. 23, 2021). Avco makes piston engines for
airplanes. Until 2018 Turner represented Avco in product liability
cases. Turner has recently assisted a plaintiffs' law firm on Daubert
matters including cases in which Avco was, or had been, a defendant.
Avco brought this case against Turner for damages, for declaratory
relief, and for injunctive relief. In this opinion the court granted
Turner summary judgment. The focus was on Pa. Rule 1.9(a). First, the
court found that Avco had not shown any damages. As to declaratory or
injunctive relief, the court would not speculate as to how, in the
future, Turner "might violate her duty to Avco." The opinion is not
clear on when Turner's Daubert work was adverse to Avco in a meaningful way.
Madden v. Elara Caring, LLC, No. CIV-19-1178-G (W.D. Okla. Sept.
21, 2021) Lawyer represents Plaintiff in this employment-related case.
Lawyer had, for several years, served as an executive in several
corporate predecessors of Defendant. At one point she had the title of
"general counsel." Defendant moved to disqualify Lawyer. In this opinion
the court denied the motion. While Lawyer did sign Plaintiff's
employment agreement for the company, she had not drafted it. In a
routine former-client analysis the court found Lawyer's involvement with
the companies would not "materially advance" Plaintiff's position in
this case.
Epicentrx, Inc. v. Carter, No. 3:20-cv-01058-LAB-LL (S.D. Cal.
Sept. 29, 2021). In this case Epicentrx is suing its former CEO for
misconduct while CEO. Epicentrx moved to disqualify the law firm ("Law
Firm") representing the CEO because, several years ago, Epicentrx
retained Law Firm to collect money from another company. In this opinion
the court denied the motion, finding the matters not substantially
related. The opinion contains an extensive discussion of all the ways
Law Firm might have learned things applicable to this case, but, at
bottom, the collection case was not substantially related to this
misconduct case.
JKAYC, LLC v. Noah Bank, No. 20-CV-943 (PKC) (SMG) (E.D.N.Y.
Sept. 30, 2021). Landlord is suing Tenant for breach of a commercial
lease ("The Lease"). Tenant is counterclaiming for certain damages
arising out of the termination of The Lease. Tenant moved to disqualify
Landlord's law firm ("Law Firm") because Law Firm had for many years
represented Tenant on other matters. All that ended in June 2019. The
magistrate judge granted the motion. In this opinion the district judge
denied Landlord's motion for reconsideration. Law Firm did not represent
Tenant in negotiating or executing The Lease. However, Law Firm's
of-counsel (and office sharer) did. The of-counsel did communicate with
Law Firm about various aspects of the lease. The decisions turned on
substantial relationship, and, to a small extent, playbook. Because of
the factual intensity of both courts' opinions and, because it all is of
dubious precedential value, we will not burden you more with
background.
LRY, LLC v. Lake County, 2021 WL 4993480 (D. Ore. Oct. 27, 2021).
County owns a 55-mile long railroad branch ("the Branch"). LRY entered
into a lease with County to operate the Branch. Lawyer advised and
represented LRY on the legal ramifications of the lease and assisted in
its drafting. The parties had a falling-out, and County terminated the
lease. LRY brought this case against County, Lawyer's decedent estate,
Lawyer's law firm ("Law Firm"), and others. Among the others were
Cornerstone Industrial and its individual owner, Addington. Cornerstone
was one of only two user's of the branch. The claim against Law Firm is
based upon the fact that after Law Firm no longer represented LRY, it
began representing Cornerstone and Addington, in seeking termination of
the lease. A number of parties filed motions for summary judgment. This
discussion will be limited to Law firm's motion. In this opinion the
court denied that motion in important part. The denial was based upon a
finding that Law Firm's work for LRY was substantially related to its
work for Cornerstone and Addington, that the relationship can be the
basis for breach of fiduciary duty to LRY, and that the breach can be
the basis for LRY's lawsuit against Law Firm. The opinion regarding Law
Firm's liability is long, detailed, and very fact intensive. The
discussion of Oregon authorities suggests that Oregon can be a friendly
venue for such actions against law firms.
First Fid. Trust Servs., Inc. v. Shelter Cove Condo. Ass'n, Inc.,
No. 1D20-1423, et al. (Fla. App. 1st Dist. Nov. 3, 2021). Petro
obtained a judgment against Ass'n. Ass'n failed to pay. The trial court
appointed Receiver No. 1 to govern the Ass'n and assume powers necessary
to satisfy the judgment. Receiver No. 1 hired Law Firm No. 1 to assist.
Several years later Receiver No. 2 replaced Receiver No. 1, discharged
Law Firm No. 1, and hired Law Firm No. 2. Law Firm No. 1 re-appeared in
the Petro case on behalf of Mortgage Co., which had a lien on one of the
Ass'n units. This required Law Firm No. 1 to take positions adverse to
Receiver No. 2. Ass'n moved to disqualify Law Firm No. 1. The trial
court granted the motion. In this opinion the appellate court affirmed
the disqualification, finding that Law Firm No. 1 violated Florida Rule
1.9 (former client; substantial relationship). Among other things,
Mortgage Co., assisted by Law Firm No. 1, is challenging a special
assessment in favor of Petro. That assessment had been imposed by
Receiver No. 1 while represented by Law Firm No. 1.
Musser v. Youngstown Ortho. Ass'n, Ltd., No. 21 MA 0024 (Ohio
App. 7th Dist. Nov. 29, 2021). This is another routine, fact-specific,
substantial relationship test case, involving an orthopedic surgeon
("Surgeon") suing an orthopedic firm ("Ortho Firm"). Law Firm appeared
for Ortho Firm in this case. Because Law Firm had earlier represented
Surgeon in another case ("Other Case," nature not described), and
because Law Firm had advised surgeon on the impact of Other Case on
Surgeon's association with Ortho Firm, Surgeon moved to disqualify Law
Firm in this case. The trial court granted the motion to disqualify. In
this opinion the appellate court affirmed. Because both the earlier
representation by Law Firm of Surgeon, and this representation against
Surgeon involved Surgeon's relationship with Ortho Firm, the matters are
substantially related. [Comment: The opinion makes much of Dana
Corp. v. Blue Cross & Blue Shield Mut. Of N. Ohio, 900 F.2d 882 (6th
Cir. 1990), as the talisman for substantial relationship analyses in
the Sixth Circuit. Honestly, the "Dana Test" is no different from the
test applied elsewhere in the U.S. Basically, "you know it when you see
it."]
Total Quality Logistics, LLC v. Integrity Express Logistics, LLC,
2021 WL 5764276 (Ohio App. Dec. 6, 2021). The parties are competing
freight transportation brokers. Total is claiming that its employee had
provided Total's pricing information to Integrity and that Integrity
misused Total's trade secrets. Total moved to disqualify Integrity's law
firm ("Law Firm") because some years earlier Law Firm had represented
Total in a number of cases concerning Total employees' violation of
non-compete agreements. In a highly fact-specific, substantial
relationship, analysis the trial court denied Total's motion (actually
two motions, denied each time). In this opinion the appellate court
affirmed. [Our note: We were tempted to ignore this one because of
its routine former-client analysis. However, the fact pattern --
involving freight transportation brokers -- was a new one to us and of
possible help to some readers.]
Manani Invs. v. 1936028 Ont. Inc.,
2021 ONSC 7495 (CanLII) (Super. Ct. Ont. Nov. 12, 2021). Plaintiffs
moved to disqualify Steven Gadbois, lawyer for Defendant. Plaintiff
Damani claimed that Gadbois had earlier represented him in an action
involving the same property. In the earlier action Damani's lawyer was
William Hoskinson. In that action Hoskinson did ask Gadbois to file a
pleading with Damani's name on it, but, in this opinion denying the
motion, the court found that Damani had never met Gadbois nor gave
Gadbois any information. The court further found that the motion was
brought for "tactical reasons." Thus, "the bright line rule" enunciated
in Canadian Nat'l Rys. Co. v. McKercher LLP, 2013 SCC 39, "does not apply."
H&H Mfg. Co., Inc. v. Tomei, No. A-4209-19 (N.J. App. Div.
Dec. 29, 2021). This is one of two cases involving a family feud and
control of the family corporation, H&H. In the first case, in
Pennsylvania, Law Firm filed papers on behalf of H&H and a family
member, Vincent Tomei, against another family member, Thomas Tomei. That
suit failed because the courts found, among other things, that the
H&H board never approved retention of Law Firm or the suit's filing.
In the second case (this case) filed by H&H against Vincent, Law
Firm appeared for Vincent. H&H moved to disqualify Law Firm, under
Rule 1.9(a), because of Law Firm's "representation" of H&H in the
Pennsylvania case. The trial court granted the motion. In this opinion
the Appellate Division disagreed, finding that Law Firm's earlier,
unauthorized, representation of H&H did not amount to a
representation under Rule 1.9(a). Thus, Law Firm's work in the
Pennsylvania case was not disqualifying. But, in the face of claims that
Law Firm had represented H&H in other matters, the Appellate
Division remanded the case for findings on those claims.
L.D. v. Seymour, No. 8:20-CV-1203
(N.D.N.Y. Jan. 3, 2022). The facts and the parties' relationships are
not clear to us; we will do the best we can. Plaintiff appears to be
suing several local government entities arising out of an alleged sexual
assault by an individual defendant ("Seymour"). Law Firm represents one
of the entities ("County Services"), which evidently was Seymour's
employer. Plaintiff moved to disqualify Law Firm in this case because
some twenty-five years earlier Law Firm had represented Plaintiff in "a
matrimonial action." In this opinion the magistrate judge denied the
motion. Lawyers who represented Plaintiff in the matrimonial action
("Team One") are still with Law Firm, but they are not the lawyers
("Team Two") working on this case. On balance, the magistrate judge
seemed to feel that the information, if any, that might flow from Team
One to Team Two, would not prejudice Plaintiff in this case. The court
alludes to the New York Rules of Professional Conduct, screening, the
substantial relationship test, notions of confidentiality, etc. It cites
a potpourri of New York federal court cases, many of questionable
relevance here, and most of which predate New York's adoption of the
Rules. Particularly irking are references to individual defendant,
Seymour, suggesting that he was involved in the earlier case, which
cannot be. Overall, a real mishmash.
Centripetal Networks, Inc. v. Palo Alto Networks, Inc., 2022 WL
610176 (E.D. Va. March 1, 2022). Patent infringement case. Law Firm
represents Defendant, Palo Alto. Plaintiff, Centripetal, moved to
disqualify Law Firm. In this opinion the court denied the motion. In an
earlier "financing transaction" between Centripetal and Silver Point
Finance ("SPF"), Law Firm represented SPF. (SPF is not a party here.)
Centripetal and SPF signed an NDA. Centripetal claims that the NDA, in
effect, made Centripetal a current or former client of Law Firm, or that
Centripetal enjoys some kind of "Third Person" protection. Basically,
the court said nothing in the NDA creates any such relationship, and
that Law Firm never received any confidential information in the
financing transaction relevant to this patent infringement case.
Dental Health Assocs. South Jersey, P.A. v. RRI Gibbsboro, LLC,
2022 WL 710220 (N.J. App. Div. March 10, 2022). Plaintiffs are suing
Defendants for interfering with Plaintiffs' dental practice. The Archer
Firm and partner Kerri Chewning are representing Plaintiffs. Anthony
Dougherty joined the Archer Firm in 2021. While at his prior firm, from
2015 to 2017, Dougherty personally represented certain of Defendants in
New York litigation where they were being sued for interfering with the
dental practice of entities not parties in this case. Defendants moved
to disqualify the Archer Firm in this case. The trial court granted the
motion. In this opinion the appellate court reversed and remanded the
case for "further fact finding" by the trial court. The opinion makes
much of City of Atlantic City v. Trupos, 201 N.J. 447 (2010), a kind of talisman for New Jersey courts and lawyers in former-client conflict matters. Trupos
basically requires that the movant show, with evidence, the sharing of
confidential information relevant to this proceeding and the prior
proceeding. The appellate court found that the only showing here was an
"unproven allegation" in a pleading. Thus, the need for more facts. [Our
comment: New Jersey is unique in having *the case* (Trupos) on
former-client conflicts. At bottom, we believe the analysis in New
Jersey will be the same as in the rest of the U.S.: "We know it when we
see it."]
Crib & Teen Expo N.Y., LLC v. Castle Kid Bedrooms, LLC, No.
65737/2021 (N.Y. Sup. Ct. Westchester County March 25, 2022). In 2020
Law Firm represented both Plaintiff and Defendant in holdover
proceedings relating to property in Hartsdale, N.Y. In this case Law
Firm is representing Plaintiff in action to collect rent from Defendant,
under a sublease of the same property. Defendant moved to disqualify
Law Firm in this case. In this opinion the court granted the motion,
finding the two proceedings were substantially related. The court
rejected Plaintiff's reliance on a written waiver, because, by its
terms, it related only to the holdover case.
Heldman v. Heldman, No. B304072 (Cal. App.
2d Dist. Unpub. May 16, 2022). Because the opinion is unpublished, we
will keep this description short. William and John are fighting over
several aspects of the handling of their father's ("Father") estate.
Lawyer is representing William. John moved to disqualify Lawyer because,
in 1983, Lawyer had represented John at John's deposition. That matter
involved Father's conveyance of certain property to John. The trial
court granted the motion to disqualify, finding that the 1983 matter was
substantially related to this case. In this opinion the appellate court
reversed, saying John had failed to specify what confidences Lawyer
might have learned about John in 1983 that relate to this case.
A. Secondino & Son, Inc. v. Cantos Carpentry, 2022 WL 1585191
(Conn. Super. Ct. May 19, 2022). This is a trial court decision denying
a motion to disqualify. The court held that a labor matter seven years
ago was not substantially related to this breach of contract case.
In re TMD Def. & Space, LLC, No.
08-21-00050-CV (Tex. App. 8th Dist. May 31, 2022). TMD is suing SDC
because SDC messed up a road that TMD needed to receive truck shipments.
SDC moved to disqualify TMD's lawyer ("Lawyer") and law firm because, a
year so earlier, Lawyer had represented SDC in a matter involving an
allegedly defective detention pond. At the disqualification hearing SDC
personnel testified about their communications with Lawyer about the
detention pond. In a fact-intensive analysis the trial court granted the
motion to disqualify. The court found that the matters were not
substantially related. However, under Texas' unique version of MR 1.9
(Texas Rule 1.09(a)(2)) the court found that there was a "reasonably
probability" that Lawyer's current representation of TMD "will involve a
violation of [Tex.] Rule 1.05," which is Texas' version of MR 1.6
(confidentiality). In this opinion the appellate court denied TMD's
petition for mandamus (affirmed trial court), finding that the trial
court had not abused its discretion in disqualifying Lawyer and his law
firm. Don't ask us why Texas structured MR 1.9 the way it did.
Metro Container Grp. v. AC&T Co., Inc., No 18-3623 (E.D. Pa.
May 31, 2022). Plaintiff is an unincorporated association of entities
that has settled with the EPA regarding storage of hazardous materials
at a site near Philadelphia. Plaintiff is suing various entities for
contribution because they put hazardous materials at the same site. Law
Firm is representing two defendants. Plaintiff moved to disqualify Law
Firm because 30-some years ago lawyers at Law Firm had represented
several members of Plaintiff in an environmental case involving the same
site. In this opinion the district judge ordered Law Firm not to be
disqualified, but ordered Law Firm to erect a screen between the lawyers
handling the earlier case and the lawyers handling this case. The judge
also ordered Law Firm to report to the court and Plaintiffs the
"details of the screen and its date of implementation."
2658396 Ont. Inc. v. Sanayei, 2022 ONSC 3189 (CanLII) (Super. Ct.
Ont. May 30, 2022). The defendant moved to disqualify the lawyer
("Lawyer") for the plaintiff. In this opinion the court granted the
motion because (1) the defendant had earlier consulted with Lawyer about
matters related to this case, and (2) Lawyer would likely be a witness
in this case. We almost never discuss lawyer as fact witness and won't
on this occasion. As to the conflict, the opinion is so fact-specific as
to have almost no precedential value. Thus, we will be brief. It is all
about real estate, mortgages, and foreclosure actions. The defendant
claims that in the earlier consultation, he did convey confidences to
Lawyer. Lawyer agrees the consultation took place but does not remember
what, if anything, he learned at the time. The court concluded, "I
accept that [Lawyer] received confidential information from [the
defendant]." The court also accepted that the information could be used
to the defendant's "detriment." As to the defendant's delay in raising
the conflict, the court said the delay would be considered in fixing
costs.
Victaulic Co. v. Am. Home Assur. Co., No A163396 (Cal. App. 1st
Dist. June 28, 2022). The Pillsbury firm represents Victaulic in various
cases against AIG-related insurance entities, including this case. The
AIG entities moved to disqualify Pillsbury in this case because two
lawyers, Greenspan and Aizley, have recently joined Pillsbury. In years
past Greenspan and Aizley had worked at the Sedgwick firm, and while
there, worked on various AIG matters. The trial court denied the motion
to disqualify. In this opinion the appellate court affirmed, finding
that the trial court had not abused its discretion in denying the
motion. First, because of AIG's complicated organization, the trial
court found that AIG had failed to establish that Greenspan and Aizley
had actually represented the AIG entities in this case. Second,
Greenspan and Aizley had not worked on any Victaulic matters while at
Sedgwick. Third, AIG failed to show that Greenspan and Aizley had
brought any relevant AIG confidences to Pillsbury. That means Greenspan
and Aizley were not in violation of California Rule 1.9(a). Last,
because Greenspan and Aizley were not in violation, there was nothing to
impute to Pillsbury. In any event, the court found that the screen
Pillsbury established around Greenspan and Aizley was adequate to
resolve any imputation issues. While the screen was not put in writing
immediately upon their joining Pillsbury, it had been established orally
at the time of their hiring. That was good enough for the trial court
and the appellate court.
HP Ingredients Corp. v. Sabinsa Corp., 2022 WL 3363231 (D.N.J.
Aug. 10, 2022). HP sells herbal extracts under the trademark "PARACTIN."
Sabinsa sells herbal extracts under the name "PANICIN." In September
2021 HP brought this suit against Sabinsa for trademark infringement
(unclear whether also under the Lanham Act). J. Mark Pohl is
representing HP in this case. Sabinsa moved to disqualify Pohl. In this
opinion the magistrate judge granted to motion. The analysis was under
N.J. Rule 1.9(a). The first contested issue was whether Sabinsa and
Pohl had a previous lawyer-client relationship. The court's answer was
yes based upon a six-month relationship between them during which
Sabinsa "shared confidential documents and information." There was not a
formal engagement document, but the court held the relationship was
implied. The other issue was whether the earlier exchanges were
substantially related to the issues in this case. Again, the court
answered yes, because both matters involved "Sabinsa's revenue, pricing
and competitive strategies."
In re Krivulka, 2022 WL 3693103 (N.J. App. Div. Unpub. Aug. 26,
2022). H and W were in a second marriage. H died leaving a substantial
estate. W and Lawyer became co-executors of the estate. They are
fighting over the management and disposition of the estate. W moved to
disqualify Lawyer's law firm ("Law Firm") from representing Lawyer in
this case. The trial court denied the motion. In this unpublished
opinion the appellate court reversed. In the years leading up to H's
death Law Firm represented H and W in their businesses and in their
estate planning. The court found that this case was substantially
related to the earlier estate planning, thus finding a violation of Rule
1.9(a). The court also found that W was a current client of Law Firm
when the dispute between W and Lawyer arose, thus finding a violation of
Rule 1.7(a). H and W had signed a conflicts waiver early on, but the
court, after carefully parsing the waiver, found that it was not
adequate to prevent disqualification here.
Hong v. Hong,
2022 ABQB 555 (CanLII) (Ct. Q.B. Alb. Aug. 18, 2022). In this opinion
the court disqualified Defendants' counsel ("Law Firm") because of a
conflict of interest. Plaintiff had retained Law Firm to handle a tax
appeal regarding the sale of certain property. Because this case
involves, in part, the disposition of the same property, the two matters
are "sufficiently related" to cause a risk that Plaintiff's confidences
revealed in the earlier matter would be used against her in this
matter.
Cypress Holdings, III, LP v. Sport-BLX, Inc., No. 22 Civ. 1243
(LGS) (S.D.N.Y. Aug. 23, 2022). Cypress is suing Sport-BLX, GlassBridge
Enterprises (Sport's majority shareholder), and two individuals, for
securities fraud and related business torts. The defendants moved to
disqualify Fox Rothschild ("Fox") as Cypress' law firm because Fox had
earlier represented GlassBridge in negotiations with the Pension Benefit
Guaranty Corporation ("PBGC"). Fox's representation of GlassBridge
ended in November 2021. Fox filed this case on behalf of Cypress in
January 2022. In this opinion the court granted the motion to
disqualify. The court found that the PBGC matter and this case were
substantially related. The analysis was highly fact-specific. One of the
factors in the PBGC matter was that Fox needed to be involved in the
value GlassBridge attributed to its subsidiary, Sport. There was also a
whiff of "playbook" in the court's analysis, noting that in this case
Cypress "appears to put at issue" GlassBridge's "state of mind," its
"compliance efforts," and its "corporate culture," things that Fox may
well have been exposed to in the PBGC matter.
Ryan v. Ryan, 2022 MBKB 198 (CanLII) (Ct. K.B. Man. Oct. 26,
2022). In this divorce action Law Firm represents W. Prior to this
action H had retained Lawyer at Law Firm to discuss separating from W
and related property issues. The dates are not nicely laid out, but it
is apparent that W had retained Law Firm for this case while Lawyer was
still representing H. At some point Lawyer informed H that Law Firm had a
conflict and could no longer represent H. Lawyer returned to H the
retainer that H had given Lawyer. In this opinion the court granted a
motion by H to disqualify Law Firm. In a fact intensive analysis the
court concluded that H would have shared confidential information with
Lawyer that Law Firm could use to W's advantage in this case. We will
call that a former-client analysis. The court went on to say that Law
Firm's dropping H as a client in order to continue for W was a violation
of Law Firm's duty of loyalty to H, while a current client. We will
call that a "Hot Potato" analysis.
Baer v. M/V Americana, 2022 WL 17054449
(11th Cir. Nov. 17, 2022). Plaintiff is suing for unpaid wages.
Plaintiff moved for disqualification of Defendant's law firm ("Law
Firm") because Law Firm had earlier represented Plaintiff in the
purchase of a boat. The magistrate judge denied the motion. In this
opinion the appellate court affirmed, holding that the earlier purchase
of a boat was not substantially related to this claim for unpaid
seaman's wages.
Staton Techie, LLC v. Samsung Elecs. Co., Ltd.,
2022 WL 16964746 (E.D. Tex. Nov. 16, 2022). Earlier Ahn and Cho were
in-house lawyers for Samsung. There, they were involved with software
that is the subject of this patent infringement case. In this case, Ahn
and Cho are owners of one of the plaintiffs claiming that Samsung is
infringing the patent on that software. Samsung moved to have Ahn and
Cho disqualified from certain aspects of this case. Given the clear
relationship between their work at Samsung and this case, the magistrate
judge ordered that their participation in this case be limited as to
the patent issues.
Avco Corp. v. Turner, No.
2:20-cv-04073-JDW (E.D. Pa. Nov. 28, 2022). Lawyer formerly represented
Avco in product liability cases involving piston engines. A plaintiff in
such a case hired Lawyer for the limited purpose of responding to
manufacturers' Daubert motions ("the Torres case"). Avco had been
a defendant in the Torres case, but was dismissed. The plaintiff has
been trying to drag Avco back into that case. In this case Avco sued
Lawyer for damages. After an appeal the only issue here is whether
Lawyer had breached her fiduciary duty to Avco and whether Lawyer should
disgorge fees earned from Avco. In this opinion the court granted
Lawyer summary judgment. The court held that Avco had failed completely
to show how Lawyer was using information against Avco in the Torres case
that Lawyer had obtained while representing Avco.
Saulsberry v. Elder, 2022 WL 17414989 (S.D. Fla. Dec. 5, 2022)
Defamation case. Defendant moved to disqualify Plaintiff's law firm
("Law Firm") because Law Firm had earlier represented Defendant in
negotiating a record contract. In this opinion the magistrate judge
denied the motion because the record contract matter was not
substantially related to this defamation case.
Excel Holdings Urban Renewal, LLC v. Town of Harrison,
2022 WL 17419615 (N.J. App. Div. Dec. 6, 2022). This is a dispute
between Town and Hotel Company regarding calculation of an annual
service charge to be paid by Hotel Company to Town. Town moved to
disqualify Hotel Company's law firm ("Law Firm") because Law Firm had
represented Town in three earlier matters. The trial court denied the
motion. In this opinion the appellate court affirmed, holding that the
earlier matters were not substantially related to this case. The earlier
matters were: (1) whether an arena was exempt from property taxes; (2)
development of parking facilities within Town; and (3) re-financing of
debt on a garage in Town.
Flexible Fundamentals, Inc. v. McGrath, 2022 WL 17971738 (Mass.
App. Unpub. Dec. 28, 2022). Lawyer represented Flexible in preparing
noncompete agreements with Flexible employees. Subsequently, Flexible
file this case against former employees for violating those agreements.
Lawyer appeared for the former employees. Flexible moved to disqualify
Lawyer. The trial court granted the motion. In this unpublished opinion
the appellate court affirmed. "Here, the overlap between former and
current representations is patent." The court also found this appeal was
"frivolous" and awarded lawyer fees and "double costs."
D Stadtler 2015 Trust v. Gorrie, 2023
WL 355887 (D. Ariz. Jan. 23, 2023). The plaintiffs moved to disqualify
Lawyer for the defendants. In this opinion the court denied the motion.
The analysis is fact-intensive and, quite frankly, legally questionable.
This case arises out of an earlier transaction. In the transaction
Lawyer represented the plaintiffs and at least one of the defendants.
Lawyer is representing the defendants in this case. The basis of the
motion to disqualify is that Lawyer is being adverse to his former
clients, the plaintiffs in this case. The court assumed arguendo that
Lawyer actually represented the plaintiffs in the earlier transaction.
The court said that under Arkansas law the parties were deemed to know
everything during the transaction and, thus, the duty of confidentiality
to former clients was off the table. So, what's the harm in Lawyer's
opposing them? The court then embarked upon a discussion of the
accommodation client doctrine as set forth in Allegaert v. Perot, 565
F.2d 246 (2d Cir. 1977). That case and those following it (some don't)
recognize a distinction between a primary client and a secondary client
("accommodation client"). This opinion seems to assume the plaintiffs
were "accommodation clients" during the earlier transaction without
saying what made them so.
Dr. Gilbert AKL Inc. (& Ackel) v. Shapiro,
2023 QCCS 78 (CanLII) (Quebec Super. Ct. Jan. 17, 2023). Shapiro agreed
to sell his dental practice to Ackel. Shapiro recommended that they be
jointly represented by Lawyer to save on fees. In this case Ackel is
suing Shapiro to cancel the sale. Lawyer appeared for Shapiro. Ackel
moved to disqualify Lawyer. In this opinion the court granted to motion
and disqualified Lawyer’s firm, as well. Very fact-specific analysis. It
appears doubtful that Lawyer learned any confidences from Ackel during
the transaction. Nevertheless, the Lawyer’s duty of loyalty to Ackel was
determinative.
Hong v. Hong, 2023 ABCA 33 (CanLII) (Alb. Ct. App. Feb. 1, 2023).
This case is a dispute among family members over ownership and/or
possession of certain real estate. Plaintiff moved to disqualify Law
Firm for Defendants. Law Firm had earlier represented Plaintiff jointly
with certain of Defendants in an appeal to the Tax Court of Canada. The
trial court held that the issues in the tax appeal were sufficiently
related to the issues in this case to justify disqualification. In this
opinion the appellate court rejected that finding, noting that whatever
of Plaintiff's confidences were disclosed to Law Firm in the tax appeal
would also have been known to certain Defendants due to their family
relationship with Plaintiff. However, the appellate court did uphold
disqualification of Law Firm because the need for one of its members to
testify was "highly likely."
Woroch v. Northfield Trim & Door Inc.,
2023 ONSC 218 (CanLII) (Super. Ct. Ont. Jan. 9, 2023). Company is owned
by Family Members. In 2012 Family Members entered into a shareholders'
agreement prepared by Lawyer while representing Company. The agreement
included an employment agreement for Plaintiff (also a Family Member) to
be President. The shareholders' agreement also contained a buy/sell
provision. In 2021 a transaction occurred under the buy/sell provision. A
dispute arose between Plaintiff and Company and other Family members as
to the meaning and enforcement of the shareholders' agreement. Lawyer
withdrew as counsel to Company and immediately took Plaintiff's side in
the dispute. The dispute ripened into this proceeding, in which Lawyer
is adverse to Company and Family Members. Defendants moved to disqualify
Lawyer. In this opinion the court granted the motion. The court held
that Lawyer's earlier representation of Company, including preparation
of the shareholders' agreement, was sufficiently related to this case,
which is about the interpretation and enforcement of the agreement.
Moreover, there was no showing that Lawyer had not learned relevant
Company confidences while representing Company. The court seemed
influenced by the rather shady (not dishonest) way Lawyer went about the
business of firing Company with no advance notice and commencing to do
battle for Plaintiff. Among other things, the case has a strong whiff of
hot potato (see "Hot Potato" at this site).
Maersk Tankers MR K/S v. M/T Swift Winchester, 2023 WL 1824832
(S.D. Tex. [Galveston] Feb. 8, 2023). Winchester commits its vessel to a
"tanker trading pool," of which Maersk is the manager and Winchester is
a member. Maersk tasked the Winchester vessel to transport petroleum
products from Texas to Mexico. The Coast Guard detained the vessel for
suspected "deficiencies." Maersk brought this suit against Winchester
for damages related to the detention. Law Firm appeared for Maersk.
Winchester moved to disqualify Law Firm. In this opinion the magistrate
judge granted the motion. Winchester is a member of a "protection and
indemnity club" ("P&I Club"), in which shipowners agree to insure
each other for maritime losses. Law Firm acted as "local
correspondents" to the P&I Club. In this role a Law Firm partner
boarded the vessel to confer about the detention. Among other things,
Law Firm gave advice to Winchester about the detention. The magistrate
judge identified other factors that made Law Firm's representation of
Winchester during that period "clear and unmistakable." We will not
detail all of that here. Additionally, the magistrate judge found that
Law Firm's work while representing Winchester was substantially related
to the issues in this case. Thus, Law Firm cannot represent Maersk
against Winchester. [Our historical note: The P&I Club, as
described by the magistrate judge, is reminiscent of stories about the
formation of Lloyd's of London, which started around the seventeenth
century with shipowners meeting at Lloyd's Coffee House in London and
agreeing to insure each other's ships.]
Hunter v. Hamilton County Bd. of Comm'rs, 2023 WL 2071530 (S.D.
Ohio Feb. 17, 2023). Plaintiff, a lawyer, is suing county officials for
the way she was escorted out of a courtroom in 2019. She moved to
disqualify the law firm for the county defendants ("Law Firm") because
in 2014-2015 a lawyer in Law Firm had given her advice about her
suspension from the practice of law. That lawyer denies any contact with
Plaintiff after 2015. In this opinion the magistrate judge denied the
motion to disqualify, finding the two matters were not substantially
related.
Brown v. Rite Aid Corp., No. 1362 MDA 2021 (Pa. Super. Ct. March
27, 2023). Brown had been officer, director, and "chief counsel" for
Rite Aid "for many years." In 1999 Shareholders brought a derivative
action against Rite Aid and its officers and directors (including Brown)
for misstating financial results. Law Firm defended all defendants.
That case settled in 2000. In 2002 Rite Aid, represented by Law Firm,
sued Brown for breach of fiduciary duty and other wrongs ("Underlying
Case"). Brown succeeded in enjoining Rite Aid from maintaining
Underlying Case because it violated the settlement and release terms of
the derivative action. In 2018 Brown brought this case ("This Case")
against Rite Aid and Law Firm for abuse of process and related causes of
action. Brown moved to disqualify Law Firm from representing Rite Aid
in This Case. The trial court in This Case denied the motion to
disqualify. In this opinion the appellate court affirmed. The court
noted that the derivative action ended twenty-one years ago and that Law
Firm learned nothing from Brown in the derivative action that would be
relevant in This Case. Further, the appellate court agreed that the
representations were not substantially related. The court brushed aside
Brown's Rule 1.7 argument, noting that Law Firm is not representing
Brown.
Citrangola, Jr. v. Citrangola, Sr., No. 613502/2022 (N.Y. Sup.
Ct. Suffolk County April 6, 2023). Junior and Senior together owned and
ran a restoration company ("CO"). They are now fighting over various
documents concerning CO. Senior moved to disqualify Junior's law firm
("Law Firm"). Lawyer in Law Firm had earlier represented Senior, Junior,
and CO in various matters relating to CO. Law Firm defends the motion
to disqualify claiming it has erected a screen between Lawyer and the
rest of Law Firm. In this opinion the court granted the motion to
disqualify, primarily because Law Firm has filed nothing demonstrating
that any information acquired by Lawyer "is unlikely to be significant
or material in this litigation."
Bancor Group, Inc. v. Rodriguez, 2023 WL 2954463 (S.D. Fla. April
13, 2023). Plaintiffs have filed this derivative action against various
Defendants for violating banking and related laws. Lawyer Michael Diaz
is a member of Law Firm B. Firm B represents Defendants. Plaintiffs
moved to disqualify Diaz and Firm B. In this opinion the magistrate
judge disqualified Diaz, but not Firm B. Diaz' problem is that while at
another firm, Firm A, Firm A represented Juan Santaella in a matter
involving these parties. Santaella is not a party in this case; however,
Santaella is a beneficial owner of one or more of the plaintiffs in
this case. Thus, the magistrate judge found that Plaintiffs had standing
to make the motion to disqualify Diaz. The judge also found that Diaz
did, himself, have some involvement in the representation of Santaella.
In a fact-intensive analysis the court found that the matters were
substantially related. Thus, Diaz is out. As to Firm B, the court found
it could stay because Plaintiffs have not shown that Diaz learned any
relevant confidences of Santaella in the earlier representation. [Our
note: We have not done an in-depth analysis of the magistrate judge's
stitching together various authorities leading to the judge's
interpretation of the imputation provisions of Florida's version of MR
1.10. You are on your own.]
In re Gutierrez & NRG Energy, Inc., 2023 WL 3356701 (Tex.
App. 1st Dist. May 11, 2023). In this Texas proceeding, parties in a
Louisiana case seek, through a letter rogatory, the deposition of a
Texas resident, Mauricio Gutierrez. The Texas trial court ordered the
deposition to proceed. In this opinion the Texas appellate court
affirmed. Much of the opinion deals with application of Texas' "apex
deposition" rule. The parts relevant to this audience deal with whether
the law firm for the party seeking the deposition had a former client
relationship with Gutierrez and his related organizations and whether an
earlier proceeding was substantially related to this one. The
relationships are exceedingly complex, fact-specific, and of doubtful
precedential value (Texas appellate court citing Texas cases
exclusively). We will leave it at that. If the above concepts interest
you, read the opinion.
Doe v. JPMorgan Chase Bank, N.A., 2023 WL 3383724 (S.D.N.Y. May
11, 2023). In this class action Plaintiffs are accusing Bank of looking
the other way from Jeffrey Epstein's sex trafficking while doing
business with Epstein ("supporting" his "venture"). Several plaintiffs
moved to disqualify Law Firm from representing Bank in this case. Law
Firm had represented an anti-sex-trafficking organization in filing an
amicus brief in support of a claim by a woman who was trying to
circumvent Epstein's 2008 Florida non-prosecution agreement. In this
opinion the court denied the motion to disqualify, finding the two
matters not substantially related. The court also questioned the
plaintiffs' standing (not being former clients of Law Firm), and the
slowness with which the plaintiffs in this case raised the conflict
matter.
Veritas Legal Plan, Inc. v. Freedom Legal Plans, LLC, 2023 WL
4077655 (S.D. Fla. June 20, 2023). In September 2020 Plaintiff and
Defendants entered into a transaction including a non-compete provision.
Plaintiff is complaining that Defendants violated the non-compete
provision. Lawyer represents Defendants in this case. In 2016 Lawyer's
prior law firm had represented Plaintiff in revising the non-compete
agreement. (Lawyer himself was not involved.) Plaintiff has moved to
disqualify Lawyer and his current law firm. In this opinion the
magistrate judge denied the motion to disqualify "without prejudice."
Lawyer had argued against disqualification stating Defendants will not
attack the non-compete agreement, but rather will rely on Plaintiff's
conduct after the agreement was executed. The judge took Lawyer at his
word, but said he would revisit the disqualification issue if Defendants
did "attack the facial validity of the non-compete clause."
Rose v. Francis, No. 5:22-civ-00405 (S.D. W. Va. Sept. 15, 2023).
Former inmates, represented by Law Firm, brought this class action
against a state prison authority (“Agency”). While this case was
pending, Law Firm hired Lawyer. Lawyer had previously represented Agency
in one case involving an employment/discrimination claim and did only
discovery work in that case. Nevertheless, Defendants moved to
disqualify Law Firm in this case. In this opinion the court denied the
motion, finding that the employment claim was not substantially related
to this inmate class action. The court noted that Agency was a public
body and anything Lawyer might have learned about Agency either was
public, or would become public in the course of this case.
LCC Enters. LLC v. Cresto, 2023 WL
5519336 (S.D. Cal. Aug. 24, 2023). Plaintiff purchased Company from
Defendants ("The Sale"). Plaintiff is suing Defendants for fraud and
related wrongs because Defendants did not disclose Company's problems
prior to The Sale. Plaintiff moved to disqualify Defendants' law firm in
this case ("Law Firm") because Law Firm had represented Company before
The Sale. In this opinion the court granted the motion to disqualify.
Before The Sale, Law Firm had assisted Company in responding to claims
by third parties. These claims appear to have been matters Plaintiff is
claiming were not disclosed by Defendants prior to The Sale. Thus, the
matters are substantially related. [Our note: We are not certain that
the opinion holds together. For example, the court responded to
Defendant's standing argument, by holding simply that in the Ninth
Circuit standing is not a requirement for a motion to disqualify. As to
the main issue, we will leave it to our California friends to determine
whether the court's analysis of California's substantial-relationship
jurisprudence is sound.
Re/Max Nova v. Lockyer, 2023 CanLII 87344 (NSSM) (N.S. Small
Claims Sept. 14, 2023). This is a claim by Claimant against Respondent
for a real estate commission. The law firm for Claimant ("Law Firm") had
earlier handled a matter involving the estate of Respondent's late
mother. Respondent moved to disqualify Law Firm. In this opinion the
Adjudicator denied ("dismissed") the motion. The current matter is a
"fresh and independent matter wholly unrelated" to the estate matter. As
to whether Law Firm might have learned any confidential information in
the estate matter that might prejudice Respondent in this matter, it
might arguably have involved the value of real estate inherited by
Respondent and reflected upon Respondent's net worth. The Adjudicator
said that all that information would be public record, thus, no
prejudice.
Nowarta Biopharma, Inc. v. Merchant Star Int'l Gen. Trading, LLC,
2023 WL 5659685 (Cal. App. 4th Dist. Unpub. Sept. 1, 2023). Nowarta is
suing Merchant for breach of contract. Nowarta moved to disqualify
Merchant's law firm ("Law Firm"). Three of Merchant's owners are lawyers
in Law Firm. Law Firm had represented Nowarta in the past. One Law Firm
lawyer was Nowarta's general counsel "for nearly three years,"
including when the "transactions at issue" in this case occurred. The
trial court granted the motion to disqualify. In this unpublished
opinion the appellate court affirmed. The matters were clearly
substantially related. Law Firm claimed that if it were disqualified, a
new law firm would have access to the information of the Law Firm
lawyers who were owners of Merchant. "No," said the appellate court.
Those lawyers are barred by Cal. Bus. & Prof. Code, § 6068 (e) and
Cal. Rule 1.6(a) from revealing anything they learned about the
underlying transactions.
United States v. Google LLC,
2023 WL 6811024 (E.D. Va. Oct. 16, 2023). The U.S. brought this case in
January 2023 seeking relief related to Google's "digital advertising
business." This area is sometimes called the "ad tech industry." Paul,
Weiss ("PW") represents Google. Two non-parties ("NPs") have moved to
disqualify PW because PW formerly represented NPs in arguably related
matters. Thus, PW might be in a position to use information from the
earlier representation to NPs disadvantage in this case. In this opinion
the court denied the motion to disqualify. The court said the earlier
representation involved Google's "Internet search business," which is
not substantially related to this "Ad Tech business" case. Moreover, the
two PW lawyers primarily involved in the NP representation have left
PW. A remaining lawyer, with a minor role in the NP representation, has
been screened from this case. (Note: Virginia is not what we call a
"screening state." Still, the court thought the screen helped.) Reaching
this non-disqualification result required some hair-splitting and a lot
of balancing.
Brandice M.C. v. Joyce M. Wilder, C.N.M., 2023 WL 7981353 (N.Y.
App. Div. 4th Dept. Nov. 17, 2023). This is a medical malpractice case
brought against Doctor by Lawyer. The suit relates to Doctor's alleged
negligence in managing Plaintiff's pregnancy and delivery. Because
Lawyer had earlier, in another case, defended Doctor in a pregnancy and
delivery case where injuries to the baby were similar to those alleged
in this case, Doctor moved to disqualify Lawyer in this case. The trial
court denied the motion. In this opinion the appellate court reversed,
holding that Lawyer and Lawyer's firm should be disqualified. It was not
enough that after Lawyer had begun the representation, he was "taken
... off this case."
City of Winnipeg v. 3177751 Man. Ltd, 2023 MBCA 100 (CanLII) (Ct.
App. Man. Dec. 12, 2023). Expropriation proceeding by City against 317
Corp. Law Firm represents City. 317 moved to disqualify Law Firm because
Law Firm has represented members of 317's corporate/entity family. One
matter was still pending when City retained Law Firm for this case. The
trial court denied ("dismissed") the motion to disqualify. In this
opinion the appellate court affirmed ("dismissed" the appeal). The
opinion contains an extended discussion of application of rules both as
to current (the "bright line" rule) and former client conflicts
("sufficient relationship"). The analysis was very fact specific, and
the need for brevity prevents us from discussing it further. The legal
analysis of conflicts in Canada is comprehensive and one of the best
overall discussions we have seen. The appellate court nicely pulls
together the application of Supreme Court decisions in MacDonald Estate, Neil, Strother, and McKercher, with spot-on quotes from each.
Original LULAC Council No. 2 v. Rey Feo Scholarship Foundation, Inc.,
No. SA-23-CV-1307-XR (W.D. Tex. Feb. 14, 2024). The parties are
fighting over who has the rights to certain trademarks. Plaintiff moved
to disqualify the defendant's lawyer ("Lawyer") on former-client (Rule
1.9) grounds. There were two primary issues: (1) whether Lawyer
previously represented Plaintiff, and (2) whether the earlier matter was
substantially related to this case. In this opinion the court denied
the motion, on both grounds. The analyses were too routine and
fact-specific to be of precedential value. The most interesting aspect
was that Lawyer had represented a predecessor company to Plaintiff. The
court found that the predecessor was too defunct, and predecessor's
relationship to Plaintiff too attenuated, for Plaintiff to claim that
Plaintiff had been Lawyer's client.
Bold, Ltd. v. Rocket Resume, Inc.,
2024 WL 589116 (N.D. Cal. Feb. 13, 2024). Copyright infringement case.
Bold moved to disqualify Resume's law firm ("Law Firm"). In this opinion
the court granted the motion. Lots of lawyers with various affiliations
moving around, some of whom had done work for Bold and were later with
Law Firm. The key issue was substantial relationship under Rule 1.9.
Routine analysis of questionable precedential value. Very
California-centric.
Clear View West, LLC v. Steinberg, Hall & Assocs., Inc., No.
23-cv-04774-SI (N.D. Cal. March 29, 2024). Plaintiff ("CVW"),
represented by Lawyer, is suing Defendant ("HIS") for trademark
infringement and related remedies. In 2013 CVW and HIS were embroiled in
disputes with a company ("Company") not involved in this case. CVW's
case was in arbitration; HIS's in federal court in Florida. Because the
matters were related, CVW and HIS retained Lawyer to handle both
matters. As to conflicts, Lawyer signed an agreement with both saying
what could go wrong, what was confidential, and so on. HIS moved to
disqualify Lawyer from representing CVW in this case. In this opinion
the court denied the motion. In a lengthy discussion of California's
Rule 1.9, the court stressed the importance of confidentiality under
Rule 1.9 and expressed doubt that Lawyer learned anything from HIS
during the 2013 matters that would prejudice HIS in this case. Not
helpful to HIS concerning this motion was that HIS's owner ("Steinberg")
worked for CVW for a time after the 2014 settlement and is being
accused of secret and nefarious marketing activities harmful to CVW.
Lloyd v. Baltimore Police Dep't, 2024 WL 1465700 (D. Md. April 4,
2024). Law Firm represents Raymond Lloyd, formerly a sergeant in the
Department, against the Department, for violation of the Family &
Medical Leave Act ("F&MLA") in 2022. Law Firm formerly represented
Jerome Forrest, a current lieutenant in the Department, for race
discrimination in 2018-19. A problem is that Forrest was Lloyd's
superior in 2022 and had some involvement in the Department's violation
of F&MLA. Although, the Department's alleged violation occurred in
the Department's "upper management." Because of these two different
representations, the Department has moved to disqualify Law Firm in this
case. In this fact-intensive opinion the magistrate judge denied the
motion to disqualify. The court found the two matters involved
"different claims and time periods, and [Forrest] and [Lloyd] [did] not
play a significant role in each other's cases." The Court also found
that this representation of Lloyd is not materially adverse to Forrest.
Law Firm has never represented the Department, but the magistrate judge
makes no mention of standing.
HDMI Licensing Administrator, Inc. v. Availink Inc., No.
22-cv-06947-HSG (N.D. Cal. April 22, 2024). Plaintiff is claiming
Defendant is infringing its trademark. Defendant has filed an antitrust
counterclaim. The market is "consumer electronic HDMI." Plaintiff moved
to disqualify one of Defendant's law firms ("Law Firm") because Law Firm
has, in the past, represented Plaintiff in antitrust matters. In this
opinion, the court granted the motion. Law Firm has offices in China and
in New York. Law Firm's New York office is representing Defendant in
this case. Law Firm's China lawyers represented Plaintiff in the earlier
matters. The court found that, notwithstanding the differences between
Chinese and American competition law, the matters were "substantially
related." Among other things, both representations involve an "Adopter
Agreement," which we will not detail here (the analysis was highly
fact-intensive). Law Firm claimed that it screened the Chinese matter
from this one. In an extensive discussion of Kirk v. First Am. Title Ins. Co.,
108 Cal. Rptr. 3d 620 (Cal. App. 2010), and related cases, the court
said the screen was late. Moreover, the distance of the Chinese practice
from the New York practice was not enough to overcome the presumption
of prejudice.
Richard v. Wyoming State Bar, No. S-23-0155 (Wyo. April 26,
2024). Over the years, Lawyer Richard has been the subject of
disciplinary proceedings relating to her litigation conduct. In at least
one of those proceedings Lawyer Reeves represented Richard "briefly."
Reeves began acting as Special Bar Counsel against Richard in this
proceeding, which also involves alleged litigation misconduct. Richard
moved to disqualify Reeves and the Office of Bar Counsel. The Review and
Oversight Committee ("ROC") disqualified Reeves but not the Office of
Bar Counsel ("OBC"). Richard appealed the latter holding. In this
opinion the supreme court reversed and ordered ROC to appoint "a new,
conflict-free special bar counsel" to start over on the pending
complaints. In a lengthy, fact-intensive, discussion of the substantial
relationship test, the court found that the matters were substantially
related. Because OBC had not complied with Wyoming's screening rule,
Reeves' conflict was imputed to the entire OBC, and the court instructed
OBC not to share Reeves' work product with new bar counsel. [Our note: We have simplified what happened, but you get the idea.]
Consumers Beverages, Inc. v. Kavcon Dev. LLC, No. 48 CA 23-00199
(N.Y. App. Div. 4th Dep't May 3, 2024). CBI is suing Kavcon to collect
on a $3.8 million note. CBI and Kavcon were created by the same family
patriarch and are currently run by various members of the patriarch's
family. Law Firm represented both companies when the note was negotiated
and signed. Law Firm is representing only CBI in this case. Kavcon
moved to disqualify Law Firm. The trial court denied the motion. In this
opinion the appellate court affirmed. The only issue was substantial
relationship. The court found none. This action involves only the
collection of a debt. The previous representation arose out of a claimed
breach of fiduciary duty of one of the family members.
N.Y. Op. 1265 (April 26, 2024). Lawyer in private practice previously
worked for Legal Aid Society. Lawyer now seeks, in a new matter, to be
adverse to Party A. While Lawyer was at Legal Aid, other lawyers at
Legal Aid, but not Lawyer, were representing Party A. Lawyer may handle
the new matter unless Lawyer had obtained Party A's confidences while at
Legal Aid and those confidences were substantially related to the new
matter. The opinion discussed application of New York Rules 1.6 and 1.9.
Gov't of Nunavut v. Stantec Architecture Ltd.,
2024 NUCJ 9 (CanLII) (Nunavut Ct. J. April 19, 2024). Gov't is suing
Stantec for its architectural work on a new arena. Earlier, Gov't
claimed in arbitration that Contractor did defective construction work
on the arena. Stantec cooperated with Gov't's law firm in the
arbitration. In connection with that cooperation, the parties agreed
that Stantec would not be a client of the lawyers on the case. The
arbitration settled. Stantec moved to disqualify Gov't's law firm in
this case. In this opinion the court denied the motion. Using a
"near-client" analysis, the court noted that Stantec had to have
anticipated that this case would probably follow and would govern itself
accordingly during its arbitration work regarding its confidences.
Dye & Durham Ltd. v. Ingarra,
2024 FCA 76 (CanLII) (Fed. Ct. App. April 18, 2024). Defendant, Dye
& Durham, sells software for law firms. Plaintiffs brought this
action under Section 45 of Canada's Competition Act. Defendant moved to
disqualify Plaintiffs' law firm. The trial court denied the motion. In
this opinion the appellate court affirmed. Given the dizzying array of
companies involved and movements of lawyers, we cannot do the case
justice in this format. The basics: (1) the appellate court held that
representations under Sections 45 (criminal) and 79 (civil) of the
Competition Act are "sufficiently related" for conflict purposes; and
(2) disqualification was not appropriate here because there was no
showing that one of the suspect lawyers had, in fact, conveyed
Defendant's confidences to Plaintiffs' law firm.
In re Estate of Goldberg, 2024 WL 2855382 (S. Ct. Utah June 6,
2024). Trust beneficiaries are suing former trustees for misconduct
while acting as trustees. The beneficiaries have moved to disqualify the
law firm ("Law Firm") representing the former trustees in this case.
Law Firm had represented the former trustees while they were trustees
and advised them on their trust duties. The beneficiaries are claiming
that Law Firm is being adverse to former clients, the trust and its
beneficiaries. The trial court granted the motion to disqualify. In this
opinion the Utah Supreme Court reversed, holding that, ordinarily,
trust counsel represents only the trustees in their capacity as
trustees, and not the trust as an entity or the beneficiaries. While
under exceptional circumstances, not present here, the trust as an
entity could be deemed a client. [Our note: The above appears to be
the majority rule across the U.S. See, for example, the ACTEC Commentary
to Model Rule 1.13. However, rely on this case cautiously; it cites
only a handful of Utah cases -- not helpful ones (in our view) at that.]
Hutchinson v. Pyros,
No.:2:24-cv-201-JES-KCD (M.D. Fla. June 6, 2024). Plaintiff formerly
was in-house counsel for Defendants. He is now suing Defendants for
fraud, unlawful termination, and related causes of action. In this order
the magistrate judge denied Defendants' motion to disqualify
Plaintiffs' law firm. The analysis is routine and not worth a lengthy
discussion. At bottom, the court is saying a former in-house lawyer
suing his former employer does not automatically disqualify the lawyers
representing him.
Veeva Sys. Inc. v. Tact.AI Techs., Inc., No. 23-1032 (D. Del.
July 3, 2024). Patent Infringement case. Law Firm represents Defendant. A
Law Firm partner ("Lawyer") is a lawyer of record for Defendant.
Earlier, Lawyer, at another firm, represented Plaintiff in patent
matters. Plaintiff moved to disqualify Lawyer and Law Firm in this case.
In this opinion the court granted the motion. First, the last point:
Plaintiff offered to "walk away" (drop the matter) if Law Firm would
screen Lawyer from the case. Electing "to go all-or-nothing," Law Firm
refused to screen. The main issue is substantial relationship under Rule
1.9. As in many substantial relationship analyses the thing is in the
eye of the beholder. Briefly, both representations involved digital
messaging software. After a lengthy, fact-specific, discussion the court
concluded that the representations involved "the same [Plaintiff]
technology," based upon a "troubling technical overlap."
X Corp. v. Bright Data Ltd., 2024
WL 3408220 (N.D. Cal. July 12, 2024). In this case X Corp., a social
media company owned by Elon Musk, is suing Bright Data for Bright Data's
"data scraping" practices. Quinn Emanuel ("Quinn") is representing X
Corp. Bright Data moved to disqualify Quinn in this case because Quinn
earlier represented Bright Data. In this opinion the court granted the
motion. Although the court referred to Quinn's duty of "loyalty" to its
former client, Bright Data, the analysis was pure "substantial
relationship," focussing on confidentiality. Quinn's engagement letter
to Bright Data had advance waiver language. But, in it, Quinn agreed
not to take on a future matter adverse to Bright Data if the future
matter was "substantially related" to the engagement, mirroring Rule
1.9. Quinn's task in the earlier representation was to analyze Bright
Data's ability to withstand attacks on it data scraping business model.
In this case Quinn, on behalf of X Corp., is attacking Bright Data's
data scraping practices. [Our note: We do not know enough about the
parties' businesses, or about the technology, to know if the court's
lengthy analysis holds water.] (484)
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