Wednesday, May 16, 2012

Conflicts of Interest -- Is "Playbook" Information (aka "Special Insight" into Former Client Thought Patterns/Strategies) a Basis for Disqualification?

A fascinating, sometimes ferocious, but friendly debate and discussion worth reading at the Legal Ethics Blog: "Playbook Information and Conflicts of Interest." Discussion focuses on the attempt to apply a poker metaphor (tell) to the question:

Some highlights of the exchange between Monroe Freedman, Professor of Law at Hofstra Law and John Steele, publisher of the site and legal ethics specialist:
  • Monroe Freedman: "Abbe and I discuss playbook information in connection with COI in ULE at p. 259.  The idea originated in a discussion by Richard Zitrin at a Hofstra Ethics Conference.  Richard is both an experienced litigator and avid poker player, and talked about the importance of the tell – information about how a player reacts in critical situations.  He then related this to information gained in a former representation about how the former client reacts in negotiations and litigation, e.g., a disposition to settle (and for how much) rather than litigate.  The idea was endorsed, also at a Hofstra conference, by Chuck Wolfram, who referred to it as playbook information. "
  • John Steele: "We've had some California cases squarely reject the idea -- and a recent federal case out of California that appeared to accept it too. My sense is that the doctrine is neither fully accepted nor fully rejected right now."
  • John Steele: "But, just to test the idea, let's suppose we give it credence. Henceforth, if you've ever represented a party on any matter, you are disqualified from ever being adverse to it on any matter (substantially related or not), because you have gained the ability to read and decipher poker tells. Is that the new "poker tell" rule that you favor, Monroe? Or perhaps you'd favor a rule where the party moving for disqualification needs to show that it has a poker tell that can be read by opponents?"
  • John Steele: "Notice that none of these strategies are unique and that every decent lawyer anticipates strategies of this type being employed by the opponents. Every one of those strategies has been described countless times in PLI articles and CLE conferences. Many of those litigation strategies originated in outside law firms, and it is erroneous to think of them as being uniquely the property of any particular client... When you read a motion premised on the playbook theory, ask yourself how specific the supposed strategy and techniques really are. I can't rule out the possibility that there could be someday, somewhere, sometime, a valid use of the playbook theory to capture something that isn't fully captured in the existing formulations of the former client conflict rules. But in the matters where I see it being asserted, it's just a weak rhetorical crutch that's being used because the movant lacks any sound basis for seeking disqualification."

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