Monday, September 28, 2015

Risk News: Playbook Conflicts (Hinted at), Unauthorized Practice Flagged

From the always vigilant Bill Freivogel comes a playbook reference: "Former Client (posted September 16, 2015) 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."
From Karen Rubin at Thomson Hine comes a reminder: "Unauthorized practice — a continuing risk for unregistered in-house lawyers" --
  • "We’ve written before to remind in-house lawyers that even if you don’t sign pleadings or appear in court on behalf of your corporate employer, you are still practicing law when you give advice and participate in business transactions on your employer’s behalf.  If you do so without being duly licensed, you are straying into unauthorized practice, in violation of ethics rules — and in many jurisdictions, in violation of statutory law.  Here are the two latest cautionary tales."
  • "The lawyer was general counsel of a company headquartered in Massachusetts.  When the company relocated its HQ to Philadelphia, the  GC moved there and continued to work, but failed to obtain the “Limited In-House Corporate Counsel License” required under Pennsylvania law. Here’s the kicker:  the GC only advised the company on issues under Massachusetts and federal law, and referred issues concerning Pennsylvania law to outside legal counsel."
  • "The second tale of disciplinary woe comes from North Dakota, where last month a lawyer was admonished for violating North Dakota’s version of Rule 5.5, based on merely having been “held out” in a press release as authorized to practice there when he was not."
  • "These rules are technical, and can appear to be designed to guard state borders in a way that can seem monopolistic; but you ignore them at the risk of inconvenience and embarrassment, at the very least."

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