Thursday, March 20, 2014

More on Playbook Conflicts Stemming from Lateral Hires

We've posted news, discussion and debate about playbook conflicts before (see past stories). The fundamental question is whether insight into the thought patterns and strategies of former clients is a basis for disqualification. Bloomberg BNA reports on a panel discussion at the recent Hinshaw legal risk conference: "Panelists Scope Out ‘Playbook’ Conflicts That Laterals May Bring to Their New Firms"--
  • "Where a lawyer represents a client against a former corporate client in the same type of case that she previously handled for the entity--or even in a different type of case--the former client may claim that the lawyer has confidential 'inside' information that can be used to its disadvantage in the current representation, such as knowledge of the former client's litigation strategies and internal decision-making."
  • "At the session on ''Playbook' Disqualifications,' general counsel from two law firms gave the audience an inside look at their own playbooks for analyzing and dealing with these troublesome conflicts."
  • "Topics included the murky and ever-evolving definition of a disqualifying playbook conflict, unearthing potential playbook conflicts in the lateral hiring process and options for addressing a developed playbook conflict."
  • "Panelist Michael J. Silverman [GC of Duane Morris] said 'there's less of a methodology for figuring out the playbook conflict' than for other conflicts between former and current matters. The hardest part of analyzing these conflicts, he said, is that 'the case law is all over the board.'"
  • "Flynn said one question in analyzing an alleged playbook conflict is whether it's the lawyer's playbook or the client's. If it is the lawyer's strategy, he said, it's not playbook knowledge. Similarly, he said, if the client's strategy changes when it retains a different lawyer, or if cases are being handled differently now, the lawyer's knowledge shouldn't be disqualifying."
  • "Another question, Flynn said, is what type of case the current matter involves... It also matters, Silverman said, whether the former client's current decision-makers are the same individuals as when the supposedly conflicted lawyer was representing the former client."
See the complete article for deeper analysis and discussion, including relevant case law.

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