Tuesday, October 12, 2010

Proper Ethical Screening Protects Firm from Disqualification (Lawyer Changes Sides Mid-Case)

The Legal Ethics Forum notes Bill Frievogel's excellent commentary on a decision just handed down denying a disqualification motion in: Silicon Graphics, Inc. v. ATI Technologies, Inc., 2010 U.S. Dist. LEXIS 107057 (W.D. Wis. Oct. 5, 2010). The complete decision is available online here.

The judge described the history of the suit as "long and contentious." Over 100 motions have been filed. This most recent issue concerns a disqualification attempt, calling out a lawyer who worked for a firm that represented the plaintiff in the same matter (Morgan Lewis), prior to joining the firm representing the defendant (Robins Kaplan).

The lawsuit was filed in 2006. The attorney in question left Morgan Lewis, joined Hogan Lovells and then moved to Robins Kaplan in the fall of 2009.

The defending firm noted that the attorney was screened from the matter -- he was located in a different office from the team (New York vs. Minneapolis) and proper ethical screening measures were put in place to ensure no information was communicated. These included circulating an internal memoranda to relevant personnel and restricting access to both physical as well as electronic files "...by a computer security protocol that prevents Leichtman from viewing or searching those records."

The plaintiff was also notified regarding the situation and the screen in the fall of 2009. Interestingly, the lawyer first asked the plaintiff for consent and a waiver. The plaintiff did not respond to the request. Upon further review of applicable rules, the ethics partner at Robins Kaplan determined that consent was not required. The firm provided notice to the plaintiff that the lateral move would take place and a screen would be erected .

The plaintiff argued that the lawyer performed significant work for its client and that a screen could not rebut the presumption of information sharing. The judge disagreed, noting, among several factors:
  •  "...law firms may avoid imputation through appropriate screening mechanisms regardless of the scope of the work performed for the former client by the disqualified lawyer."
  • "With respect to plaintiff’s motion for disqualification, I conclude that screening is an appropriate method to address concerns about confidentiality when a lawyer changes law firms in the middle of a case, even if the lawyer performed a substantial amount of work for the former client."
  • "Because plaintiff does not raise any serious challenges to the screening conducted in this case, plaintiff’s motion to disqualify Robins Kaplan will be denied."

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