Tuesday, March 8, 2016

Deconstructing Disqualification News

A heaping update harvesting a heaping helping of disqualification discussion in the news. First: "Federal Circuit Judge Bryson Denies Motion to Disqualify Plaintiff’s Counsel"
  • “Providing a rare glimpse into a Federal Circuit judge’s views on the rules of professional conduct governing conflicts of interest, on February 26, 2016, Federal Circuit Judge William Bryson, sitting as a trial judge, denied a motion to disqualify the law firm of Fish & Richardson, P.C.Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., No. 2:15-CV-1202 (E.D. Tex. Feb. 26, 2016).”
  • “Fish represented the co-defendant in the present case, Brookshire Brothers, Inc., in a previous patent infringement suit, GeoTag, Inc. v. The Western Union Co., No. 2:10-CV-574 (E.D. Tex. 2010). Brookshire moved to disqualify Fish because it now represents Uropep against Brookshire.”
  • “Judge Bryson decided first whether Brookshire was Fish’s former, not current, client at all relevant times. When Brookshire hired Fish for the GeoTag case, Brookshire and Fish entered into an engagement agreement providing that Brookshire was retaining Fish for only the GeoTag case and that any other matter would require another agreement. The engagement agreement contained also a broad waiver by Brookshire of future conflicts, extending to Fish’s representation of parties against Brookshire in subsequent matters that were not the same as the GeoTag case. The GeoTag case against Brookshire settled on November 20, 2013, and Fish provided no further services to Brookshire except responding to a question about the settlement agreement in June 2014.”
  • “Judge Bryson found that Brookshire was a former client of Fish at all relevant times... Judge Bryson found that the GeoTag case and the present case are not substantially related... Judge Bryson considered next whether Fish received confidential information from Brookshire in theGeoTag case that might be used against Brookshire in the present case, and rejected Brookshire’s arguments that it did... Judge Bryson next considered Brookshire’s assertion that Fish’s notice of termination of the attorney-client relationship in May 2015 was improper...”
  • “Finally, in response to Brookshire’s challenging the validity of the prospective conflict waiver in the engagement letter, Judge Bryson acknowledged that ‘[s]uch sweeping advance conflict waivers are of dubious validity, at least where the precise nature of the prospective conflict is not spelled out with scrupulous care.’ But Judge Bryson found that disqualification was not required regardless of the validity of the advance waiver provision in the engagement agreement.”
Next: "Prior Work for Other Side Not Cause to Disqualify Day Pitney" --
  • A federal judge in Newark has denied a motion to disqualify Day Pitney from representing the defendants in a dispute between business partners, finding no evidence that the firm used its prior representation of the plaintiff to gain an unfair advantage in the present case.”
  • “Day Pitney attorneys Michael Dunne and Elise Berman represented Radici in 2013 in connection with a visa application as he sought to move from Brazil to the United States to form a business partnership with Ronner, according to Waldor's opinion. Meanwhile, Dunne was also representing Ronner in his formation of the partnership with Radici.”
  • “When Radici sought Day Pitney's representation on the visa application, the firm obtained signatures from both Radici and Ronner on a letter seeking their waiver of potential conflicts of interest. The letter stated, in part, that Radici would not use Day Pitney's representation of him in the visa application as a basis to disqualify the firm from representing ICF or Ronner in any litigation that may arise between ICF or Ronner and Radici, according to Waldor.”
  • “Radici and Ronner's business relationship eventually soured and the present litigation arose. Day Pitney's prior representation of Radici became an issue in the present case when defendants served multiple interrogatories and document requests on him concerning his visa applications. He argued that his visa status was irrelevant to the present case and that Day Pitney was using its prior representation of him to his detriment, according to Waldor.”
  • “Waldor said to disqualify Day Pitney, Radici would have to demonstrate that the present case and the immigration matter are "substantially related," which requires a showing that the firm received confidential information from him during the earlier representation that is relevant to the present case. Radici failed to demonstrate that his immigration status was confidential and that the firm had that information because of its prior representation of him, Waldor said.”
And, finally, for those that have made it to the very end, comes the award for story title I’m glad I didn’t come up, which goes to: “Knife Maker Takes Another Stab At Locke Lord DQ In 2nd Circ” --
  • “The maker of copycat Victorinox Swiss Army knives doubled down Friday in its effort to have Locke Lord LLP cut from an appeal of a $1.7 million infringement judgment, telling the Second Circuit the law firm has not shown that it is free of conflict in the case.”
  • “B&F System Inc. is citing Locke Lord's January 2015 merger with Edwards Wildman Palmer LLP as the reason the law firm should be disqualified as Victorinox AG’s counsel. Locke Lord potentially has access to sensitive B&F information because the firm actually represented the warring parties simultaneously, B&F contends.”
  • The company claims it was dropped by the law firm it had known as Locke Liddell & Sapp PLLC 'without explanation' shortly thereafter. The reason turned out to be that Edwards Wildman had been representing Victorinox in the district court case, which B&F argues is tantamount to concurrent representation considering the law firms' eventual merger.”
  • Victorinox has argued the merger creating Locke Lord took place years after it first accused B&F of infringing on its signature knives and the request for disqualification is purely a tactical move to boot attorneys who are 'intimately knowledgeable' about the case.”

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