Monday, April 3, 2017

On Disqualifications: You win some, you lose some

We know that it can be less than pleasant to find one's firm noted on these virtual pages in relation to a disqualification. (Though, a fictional character or two of note, known to be quoted from time to time, would likely suggest that in this arena most players understand that this is "all in the game.") With that, we find two timely examples, featuring a firm recently both winning and losing in this arena:

First: "Judge declines to disqualify Boston law firm in trademark suit" --
  • "Law firm DLA Piper should not be disqualified from representing the defendant in a trademark infringement suit even though one of its attorneys had represented the plaintiff in the past, a federal judge ruled after finding that the January retirement of the attorney removed any remaining risk of a conflict of interest."
  • "The plaintiff, California Association of Realtors, argued that disqualification was required because DLA Piper had represented it in the past and had not taken steps to close its “general advice” account until after the law firm became aware of the potential conflict with the defendant, website operator PDFfiller."
  • "But U.S. District Court Judge Indira Talwani concluded that the retirement of Jeffrey Shohet, the lawyer who handled the plaintiff’s account, in addition to ethical screens put in place to protect the plaintiff’s confidential information, warranted permitting DLA Piper’s continued representation of an opposing party in a matter unrelated to the firm’s prior work for the former client."
  • "The judge wrote that 'no attorney remaining at DLA Piper has confidential information material to the matter. For these reasons, as to future litigation, Shohet’s retirement removes the bar against DLA Piper attorneys’ representation here.'"
Next: "Judge Disqualifies Kasowitz and DLA Piper in Contract Dispute, Citing Conflicts of Interest for Both Sides" --
  • "A recent disqualification ruling that prevents Kasowitz, Benson, Torres & Friedman from representing InterActiveCorp in a property contract dispute with The Georgetown Co. had an unusual side effect: It revealed why a high-profile family law practice left Kasowitz last year."
  • "But the decision, issued by New York Supreme Court Justice O. Peter Sherwood, was unusual in another way: The judge also disqualified Georgetown's lawyers from DLA Piper, effectively barring counsel on both sides from representing their respective clients."
  • "At the time, Rose was also a client of Kasowitz's in a long-running divorce case handled by former partners Eleanor Alter, Adam Wolff and Jenifer Foley. The trio left Kasowitz along with a handful of others in May 2016 to form their own family law boutique, Alter, Wolff & Foley... Sherwood also disagreed with Kasowitz's position on the conflict question, and on March 3 disqualified the firm from continuing to represent IAC in the property rights case. 'In this case, Kasowitz seeks to represent a party whose interests are not merely competing but are substantially adverse to Rose,' the judge wrote."
  • "Sherwood's ruling didn't only include an analysis of Kasowitz, however. The judge also found that Georgetown's lawyers at DLA Piper had a conflict of their own, since the firm had previously represented IAC subsidiary in an unrelated case in California."
Of course, as a different fictional character, representing a literal figure, would likely also note: "When you got skin in the game, you stay in the game / But you don’t get a win unless you play in the game"


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