Freivogel on Conflicts
 
 
 
 
Former Client - Part II
"Other Cases"

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Former Client - Part I
 

  
 

        Good discussion of differences between Rules 1.9 and 1.11 and their applicability to former government lawyers. Babineaux v. Foster, 2005 U.S. Dist. LEXIS 4844 (E.D. La. March 21, 2005).

        Different Offices Successively Handling Related Matters Do not Save Law Firm.  Senior Living Properties LLC Trust v. Clair Odell Ins. Agency LLC, 2005 U.S. Dist. LEXIS 8993 (N.D. Tex. May 13, 2005); and In re ESM Government Securities, Inc., 66 B.R. 82 (S.D. Fla. 1986).

        Mid-States Building Services, Inc, vs. Richfield Senior Housing, Inc., 2002 Minn. App. LEXIS 1066 (Minn. App. September 17, 2002).  A lawyer had represented a contractor in sixteen different pieces of litigation against subcontractors.  A year and a half after ceasing to represent the contractor, the lawyer showed up representing a subcontractor against his former client, the contractor.  The contractor moved to disqualify the lawyer, and the appellate court affirmed the trial court’s order of disqualification.

        University of West Virginia v. VanVoorhies, 278 F.3d 1288 (Fed. Cir. 2002).  A law firm represented a university in applying for a patent in the name of a professor.  A dispute later arose between the university and the professor over ownership of the patent.  The law firm appeared on behalf of the university.  The professor moved to disqualify the law firm.  The court held that the nature of the earlier “representation” was not such to prevent the law firm from being adverse to the professor.  Same result with clear engagement letter, Synergy Tech & Design Inc. v. Terry, 2007 U.S. Dist. LEXIS 34463 (N.D. Cal. May 2, 2007).

        Exterior Systems, Inc. v. Noble Composites, Inc., 175 F. Supp. 2d 1112 (N.D. Ind. 2001).  (This discussion also appears at the page entitled "Client Mergers/Asset Sales.")  Gillard and her law firm represented Fabwel, Inc. and its founder, Edward Welter, on many matters over several years.  Among other things, Gillard drafted the non-competition agreement signed by one of Fabwel’s executives, Larry Farver.  Fabwel was sold to, and merged into, Exterior Systems, Inc.  Farver and Welter later set up another business, which Exterior claims, among other things, violates Farver’s non-competition agreement.  Exterior sued the new company, Welter, and two Farvers, including Larry Farver.  Gillard and her firm appeared on behalf of Welter.  Exterior moved to disqualify Gillard and her firm.  The court granted the motion holding that the law firm was being adverse to a former client (Fabwel, now a division of Exterior) on matters substantially related to its former representation.  The court was mostly influenced by the fact that the law firm had drafted the non-competition agreement that was a subject of the lawsuit. 

        Williams v. Bell, 793 So. 2d 609 (Miss. 2001).  Plaintiff sued Defendants in a tort case.  The Langston firm, represented the plaintiff.  Defendants went to the Boackle firm for help because their liability insurance might not be adequate to cover Plaintiff’s damages.  Allred worked at the Boackle firm for several months.  Allred was assigned the task of forming a corporation for the Defendants and conveying Defendants’ personal assets to the corporation.  Allred then left the Boackle firm and joined the Langston firm.  Six months after Allred joined the Langston firm, the Defendants moved to disqualify the Langston firm.  Allred denied having any confidential information about the lawsuit.  The trial court disqualified the Langston firm.  In a 4-3 split, the supreme court reversed, on two grounds.  First, the court held that Allred’s work in transferring the Defendants’ assets was not substantially related to defending the lawsuit.  Second, the court held that by waiting six months to make the motion, the Plaintiff waived the right to bring the motion.  The three dissenting justices challenged both findings.

        In re Roseland Oil & Gas, Inc., 68 S.W.3d 784 (Tex. App. 2001).  Suit concerning an oil and gas lease.  A lawyer started out representing all six defendants.  After one of the defendants gave a deposition, the lawyer decided he had to drop the deponent and the deponent’s wife as clients.  He attempted to remain in the case for the other defendants.  The plaintiffs then moved to disqualify the lawyer.  The court overruled the trial judge and said the lawyer must be disqualified.  The court held that the lawyer may have obtained negative information from and about his “former clients” and be forced to choose between maintaining his duty of confidentiality of the dropped clients and his duty to do the best possible job for his remaining clients.

        Discipline.  Florida Bar v. Dunagan, 731 So. 2d 1237 (Fla. 1999).  A lawyer was suspended for 90 days for representing a husband in a divorce matter against the wife.  The lawyer had previously represented both the husband and the wife.  In In re Capper, 757 N.E.2d 138 (Ind. 2001), an associate of Respondent had represented the wife in a dissolution proceeding.  Several months after the dissolution, Respondent attempted to represent the former husband in getting the dissolution decree changed.  When challenged by the former wife’s new lawyer, Respondent withdrew from representing the former husband.  The court admonished and reprimanded Respondent for that conflict (and for two unrelated Rule 4.2 violations).  In Schwartz v. Kujawa (In re Kujawa), 270 F.3d 578 (8th Cir. 2001), Schwartz represented Kujawa on several matters.  After they were concluded, Schwartz showed up as counsel for a creditor in Kujawa’s bankruptcy proceeding.  The Missouri Supreme Court disciplined Schwartz for this.  In this case the Eighth Circuit upheld a $66,000 fee award in favor of Kujawa and against Schwartz.

        Russell v. DiSalvo, N.Y.S. Ct., QDS: 82456925.  This case is reported in the January 12, 2001, online edition of the New York Law Journal.  Neither the opinion nor the article discloses the exact date of the opinion.  A lawyer filed a slip and fall case on behalf of the plaintiff.  The defendant (owner of the premises) had been married to the lawyer, but the marriage ended some ten years ago.  The defendant moved to disqualify the plaintiff's lawyer.  The court granted the motion saying that the lawyer could use confidences of his former wife, and saying that the representation gave the appearance of impropriety.

        Estate planning.  In Leber Associates, LLC v. The Entertainment Group Fund, Inc., 2001 U.S. Dist. LEXIS 20352 (S.D.N.Y. 2001), Herrick, Feinstein had done estate planning for the Lebers.  The firm later sought to represent the defendant in a suit brought by a corporation owned by the Lebers.  The Lebers moved to disqualify Herrick, Feinstein.  The court denied the motion.  Its principal holding was that the estate planning was not substantially related to the litigation.  To the same effect, see Friedman v. Kalail, 2002 Ohio App. LEXIS 1509 (Ohio App. 2002) and Benson v. McNutt, 2008 Ga. App. LEXIS 153 (Ga. App. Feb. 11, 2008).  For a different result, see Kim v. Superior Court, 2010 Cal. App. Unpub. LEXIS 152 (Cal. App. Jan. 11, 2010).

        Former Matter Bankruptcy.  In re Balocca, 151 P.3d 154 (Ore. 2007) .  Lawyer discipline case.  Lawyer represented A in a bankruptcy matter.  Later Lawyer represented B in a paternity action adverse to A.  The court held that the information Lawyer would have obtained from A in that representation would disqualify Lawyer from representing B in the paternity action.

        Lewis-Calabrette v. Calabrette, 35 Pa. D. & C.4th 417 (Bucks County, Common Pleas 1996).  Wife was suing husband for divorce.  The husband's lawyer had previously represented the wife on a variety of business and personal matters, including a prior divorce, estate planning, and preparation of an ante-nuptial agreement.  The court granted the wife's motion to disqualify, saying:

For the plaintiff to be forced to accept Mr. Litzenberger as counsel for defendant is to force her to fear that some confidence revealed to her former attorney may, in ways yet unknown, be used improperly against her. This she should not have to fear.

        Fallacaro v. Fallacaro, 1999 Conn. Super. LEXIS 947 (Conn. Super. 1999).  Husband sued wife for divorce.  The husband moved to disqualify the wife's lawyer because he had represented the husband eleven years prior in a child support matter.  The court granted the motion because the matters were "substantially related."

        In re Gadbois, 786 A.2d 393 (Vt. 2001).  Lawyer represented husband in first divorce, then opposed husband thirteen years later in second divorce.  Court held the second representation violated Rule 1.9(a).

       Bunkers v. Bunkers, 2005 Ohio App. LEXIS 1206 (Ohio App. March 18, 2005.  This is a divorce proceeding.  H moved to disqualify W’s lawyer because that lawyer had represented H in an earlier divorce proceeding.  Many of the assets involved in the earlier case are involved in this case.  For that reason the appellate court affirmed the trial court’s order disqualifying W’s lawyer.

        Earlier Divorce Case Substantially Related Because of Relevance of Assets. Trustees for Flint Plumbing and Pipefitting Ind. Health Care Fund v. Premier Plumbing & Heating, Inc., 2008 U.S. Dist. LEXIS 55867 (E.D. Mich. July 23, 2008).

        In re Hines, 825 N.E.2d 763 (Ill. App. 2005).  This is a “postdissolution-of-marriage proceeding.”  W moved to disqualify H’s lawyer, because he had represented her ten years prior on matters involving W’s and H’s divorce.  The trial court granted the motion, but the appellate court reversed.  The earlier representation involved marital assets, which were distributed shortly after that representation.  Thus, the appellate court ruled that the current representation was not substantially related to the earlier one.

        More Cases Involving Former Divorce.  Duvall v. Bledsoe, 617 S.E.2d 601 (Ga. App. 2005).  The court said not substantially related.  Besides the lawyer won't tell because of Model Rule 1.9(c)(1).  This the same court that said there were few cases on substantial relationship.  A New York case going the other way is Galanos v. Galanos, 797 N.Y.S.2d 774 (N.Y. App. 2005). 

        Mo. Informal Op. 2004-0049 (undated).  Lawyer represented H in a divorce action.  Children were mentioned but custody was not awarded in the divorce action.  H currently has custody.  A third party now wants to hire Lawyer to help obtain visitation rights of the children.  The Missouri Bar Ethics Counsel opined that the matters are substantially related and that Lawyer would have a conflict.

        Gray v. Gray, 2002 Tenn. App. LEXIS 675 (Tenn. App. September 19, 2002).  A lawyer drafted wills for H and W ten years ago.  Now the lawyer is attempting to represent W in a divorce proceeding against H.  H moved to disqualify the lawyer.  The court made two very interesting rulings.  First, the court held that the fact that the lawyer did not write a termination letter after the wills were executed did not mean that the lawyer-client relationship did not terminate.  In that connection, the court was influenced by the fact that the lawyer did nothing for H for the next ten years.  Thus, H was not a current client of the lawyer.  The court then moved to the substantial relationship test applied in former client cases.  H claims that because the estate planning ten years prior would have involved the lawyer knowing about H’s property, it would be substantially related to the property division issues in this divorce case.  The court disagreed.  First, the court said the property issues would have changed significantly during the ten years since the wills were done.  Second, the court was influenced by the fact that H and W met with the lawyer together, and everything H told the lawyer was told in W’s presence.

        Ethics opinion.  Kan. Op. 02-05 (2002) (Committee said lawyer could not represent woman seeking estate proceeds where lawyer's partner had counseled the decedent.)

        Canada v. Hernandez, 193 F. Supp. 2d 409 (D.P.R. March 21, 2002).  Plaintiffs are former employees of the Puerto Rican Department of Education, one of the defendants.  Their law firm represented the Department under a prior administration, and continued on pending cases several months into the current administration.  The defendants moved to disqualify the plaintiffs' law firm.  The court denied the motion, because the defendants did not make a showing as to what information the law firm might have gotten during is earlier representation of the Department.

        Md. Op. 2-10 (December 4, 2001).  Committee opines that law firm that represented husband and wife in recent bankruptcy filing could not represent the husband in a divorce proceeding against the wife.

        Crawford v. Antonacci, 746 N.Y.S.2d 94 (N.Y. App. 2002).  Personal injury action.  The accident in this case occurred in 2000.  The plaintiff moved to disqualify the defendant’s law firm, because it had represented him in a workmen’s compensation matter arising out of a 1987 accident.  In a 2-1 decision the court denied the motion.  The majority noted that the injuries were different and remote in time.  It also noted that all the medical information about the plaintiff would surface anyway.  The dissent said the fact that both matters involved physical injuries:

implicates potential confidences, such as whether plaintiff presents his injuries sincerely or appears as a malingerer, whether he is cooperative in his treatment and with his counsel, and whether he is able to clearly communicate the effect of injuries upon his life.

        Continental Resources, Inc. v. Schmalenberger, 656 N.W.2d 730 (N.D. 2003).  The plaintiffs’ law firm had previously done title and mineral acquisition work for defendant.  Thus, the defendant moved to disqualify the plaintiffs’ law firm.  The trial court denied the motion, and the North Dakota Supreme Court reversed.  The court noted that this case, brought to enforce mineral rights of the plaintiffs, involved several of the same parcels in which their law firm had assisted the defendant.  Although conceding that the North Dakota rules no longer recognize the “appearance-of-impropriety” test, the court declared that the test had not been abandoned “in spirit,” and relied on the appearance of “side-switching” as part of its ruling.

        Richard B. v. State, 71 P.3d 811 (Alas. 2003).  Proceeding to terminate parental rights.  The lawyer for the mother, Henderson, is the partner of the lawyer, Kay, who once had represented the father in a criminal matter.  The conviction in the criminal matter is one of the bases for terminating his parental rights.  The court found the matters substantially related. 

          Only in Texas.  Woolley v. Sweeney, 2003 U.S. Dist. LEXIS 8110 (N.D. Tex. May 13, 2003).  Breach of contract case.  Plaintiff and defendant had been business partners.  Now, they are fighting.  Defendant’s law firm has three lawyers who used to be with the law firm that represented plaintiff and defendant when they were partners (and not fighting).  The magistrate in this case has granted plaintiff’s motion to disqualify defendant’s law firm.  The opinion is something of an over-long mishmash.  The facts are not clear.  Defendant’s counsel, while purporting to disclose the possible conflict, arguably did not disclose enough.  Thus, the magistrate held that the waivers plaintiff arguably gave were not knowing.  Among other things, the magistrate relies in part on the “appearance-of-impropriety” test under old ABA Canon 9.  Another factor making the opinion of questionable use – outside Texas, at least – is Texas’ odd version of ABA Model Rule 1.9.  It provides in a former-client situation a lawyer may not be adverse to a former client in a matter:

in which such other person [the current client] questions the validity of the lawyer’s services or work product for the former client; or . . .

        Blue Planet Software, Inc. v. Games International, LLC, 331 F. Supp. 2d 273 (S.D.N.Y. 2004).  John Kirby filed this action on behalf of plaintiffs, Blue Planet, et al. against the defendants over the ownership rights to the game, Tetris.  Earlier, Kirby had represented Nintendo in a suit against Tengen, Inc. over ownership of Tetris.  Nintendo had licensed rights to Tetris from “Soviet Elorg.”  In connection with that license Soviet Elorg had agreed to assist Nintendo in any disputes with third parties over the ownership of Tetris.  The Nintendo/Tengen litigation was just such a dispute.  Thus, Soviet Elorg opened up its files and records to Kirby.  In this case defendant Elorg USA claims to be a successor in interest to Soviet Elorg and moved to disqualify Kirby and his law firm Latham & Watkins.  The court granted the motion.  First, the court held that Kirby had a duty of confidentiality to Elorg USA even though he had never had a lawyer-client relationship with Soviet Elorg or Elorg USA.  Second, the court held that although the issues in the two cases were not identical, it would still be necessary to trace carefully the ownership of Tetris in either case.  Thus, Kirby’s access to Soviet Elorg’s information would give him an undue advantage over Soviet Elorg’s “alleged” successor, Elorg USA.  Third, while the relationship between Soviet Elorg and Elorg USA was “not 100 percent clear,” the court felt Elorg USA had better facts than Kirby did, and the court found that Elorg USA was a successor in interest to Soviet Elorg.  Last, the court held that Latham, too, must be disqualified.  The court noted that the Second Circuit was skeptical of screens and found them wanting if “subject to doubt.”  The court held here that a screen would be “bootless” (unavailing) because Kirby himself was substantially involved in the case.

        Chapter 11 court disqualifies lawyer in different proceeding before different judge.  In re Adelphia Communications Corp., 2005 U.S. Dist. LEXIS 2722 (S.D.N.Y. Feb. 16, 2005).  This is a Chapter 11 proceeding.  Carla Horn had been “staff counsel” at Adelphia in Pennsylvania.  She was a member of the Pennsylvania Bar but not of the New York Bar.  The Rigas family controlled Adelphia.  After disclosure of improprieties, various members of the Rigas family resigned as officers in the spring of 2002.  Horn stayed on until relieved in July 2002.  After the Rigases resignations but while still at Adelphia, Horn sent an inventory of Adelphia property she had prepared to Timothy Rigas, one of the departed officers.  She also forwarded a confidential E-mail, which she had received from Adelphia’s new counsel, to a lawyer representing the Rigases.  After leaving Adelphia, Horn was retained to assist in the defense of the Rigases’ criminal matters in the Southern District of New York.  She did not appear of record in those proceedings.  Nevertheless, Adelphia moved in this Chapter 11 proceeding to disqualify Horn from working on the criminal matters.  The Bankruptcy judge granted the motion, and in this opinion, the district judge affirmed.  The court held that because the money funding the criminal defense was, in actuality, Adelphia’s money, and because the Bankruptcy Court had jurisdiction over all of Adelphia’s finances, the court had sufficient jurisdiction over Horn to disqualify her in the separate criminal matters.  The court went on to hold that Horn was in violation of Pennsylvania’s version of Model Rule 1.9(c) (the use of confidences subsection), relying on the disclosures to Timothy Rigas and the Rigases’ counsel.

        Not much educational value, but very funny.  Rosenthal v. Gordon, 800 N.Y.S.2d 355 (N.Y. Sup. 2005).  This is a real estate dispute.  The plaintiff’s law firm formerly represented the defendant, Gordon, in an unrelated eviction proceeding, in which Gordon was the plaintiff.  In this case one of the plaintiffs lawyers in a declaration, regarding his former client, stated the following:

. . . . Gordon is . . . notorious for having no scruples and . . . he will take whatever action is necessary, whether legal or not.

. . . . I have personally come across Mr. Gordon and his nefarious ways more than once.

As I am familiar with some of Mr. Gordon's escapades, I can only presume that the threats and illegal acts detailed in the annexed affidavit of Scott Rosenthal are very true.

Gordon moved to disqualify the plaintiff’s law firm.  The court responded as follows:

Attacks on a party's credibility have particular weight when supported by a law firm which includes a lawyer who previously represented defendant. In light of the fact that the credibility of the parties is at issue in this case, the Court finds that the decision by [plaintiff’s law firm] to vouch for defendant Nicholas Gordon's lack of credibility is sufficient to merit disqualification.

        Odd California Case.  Cal West Nurseries, Inc. v. Superior Court, 29 Cal. Rptr. 3d 170 (Cal. App. 2005).

        Lawyer Who Drafted Organizational Documents for Homeowners' Association Cannot Later Oppose Association where Documents Are Involved.  Estright v. Bay Point Improvement Ass’n., Inc., 921 So. 2d 810 (Fla. App. 2006).

       "Freedom from Apprehension."  Columbus Construction Co., Inc. v. Petrillo Builders Supply Corp., 799 N.Y.S.2d 97 (N.Y. App. 2005).  This is a routine former client/substantial relationship case.  The court found an unremarkable substantial relationship.  The court said the former client did not need to show actual use or sharing of information from the former representation because the former client was “entitled to freedom from apprehension and to certainty that [its] interests will not be prejudiced.”

        Bangkok Crafts Corp. v. Capitolo Di San Pietro in Vaticano, 376 F. Supp. 2d 426 (S.D.N.Y. 2005).  The opinion is a bit cryptic as to who is doing what to whom, but here is our understanding of the relationships.  Plaintiff sued A, B, C, and D.  A, B, and C filed a third-party action against E.  D counterclaimed against Plaintiff and F (who evidently was not a plaintiff).  Initially Lawyer represented A, B, & C.  Lawyer then withdrew and later appeared on behalf of F (the non-plaintiff/counterclaim defendant).  A, B, and C (former clients of Lawyer in this case) moved to disqualify Lawyer in his role as lawyer for F.  Because A, B, and C could not show how F’s interests in the litigation were adverse to them, the court denied the motion.

        Questionable Application of Irrebuttable Presumption of Information-Sharing.  In re Gayken, 2005 Tex. App. LEXIS 4688 (Tex. App. June 16, 2005).

        City of Stockton v. Land Utilization Alliance, 2005 Cal. App. Unpub. LEXIS 6686 (Cal. App. July 29, 2005).  The city sued two not-for-profit entities, X and Y.  Law Firm initially represented both defendants.  X and Y began viewing the case differently.  Therefore, X discharged Law Firm.  Having discharged Law Firm, X moved to have Law Firm disqualified from representing Y, claiming Law Firm had X’s confidential information.  The trial court granted the motion.  In this opinion the appellate court reversed.  The court based its ruling upon the fact that an organizer and officer of Y had previously served on the board of X and would have been privy to all the information X is claiming to be confidential.  Thus, the court said, it would do no good to disqualify Law Firm because Y would just hire another law firm and disclose the information to the new firm.

        Firm Cannot Represent both Plaintiffs against Corporation if One Plaintiff had Earlier Represented the Corporation.  Mancheski v. Gabelli Group Capital Partners, Inc., 802 N.Y.S.2d 473 (N.Y. App. 2005).

       To Avoid Disqualification Because of Departed Lawyer, under Rule 1.9(a) or Rule 1.10(b), Law Firm Must Show that the Departed Lawyer Did not Share Information with Lawyers that Remained.  Other Issues as Well.  Ferguson v. DDP Pharmacy, Inc., 621 S.E.2d 323 (N.C. App. 2005).  Employees of DDP Pharmacy reported to police that Susan Ferguson had attempted to purchase Oxycontin with a forged prescription.  When she was charged with the crime, she consulted with Lawyer C at Firm ABC.  Lawyer C told her not to talk with the police.  He also told her that he would contact the police and attempt to have the charge dismissed.  Later when Ferguson met with C, C informed her that the firm had a conflict and that he could not represent Ferguson.  Ferguson was tried and acquitted of the charge.  She then sued DDP and several of its employees for malicious prosecution, among other things.  By this time Lawyer C had left Firm ABC.  DDP appeared in the civil case represented by Lawyer A of Firm ABC.  Ferguson moved to disqualify Firm ABC, and the trial court granted the motion.  The appellate court, in this case, affirmed.  First, the court held that the disqualification was appealable, pursuant to the North Carolina Supreme Court’s ruling in Goldston v. American Motors Corp., 392 S.E.2d 735 (N.C. 1990). Next, the court ruled that the trial court did not abuse its discretion in ruling that Ferguson has established a lawyer-client relationship with Lawyer C and Firm ABC, even though they had not charged her a fee.  Next, the court held that the civil case was substantially related to the criminal case, in which Ferguson had consulted with Lawyer C.  Last the court ruled that Firm ABC should be disqualified pursuant to N.C. Rules 1.9(a) and 1.10(b), because Firm ABC failed to produce any evidence that Lawyer C had not shared Ferguson’s confidences with lawyers still at Firm ABC.

        Lawyer/Plaintiff Causes Law Firm to Be Disqualified in Suit against Lawyer/Plaintiff's Former Client.  Pallon v. Roggio, 2006 U.S. Dist. LEXIS 59881 (D.N.J. Aug. 23, 2006).

        Having Attended Practice Group Meetings at his Former Firm Gets Lawyer Disqualified.  Herrmann v. Gutterguard, Inc., 2006 U.S. App. LEXIS 23361 (11th Cir. Sept. 11, 2006).

        City of Waukegan v. Martinovich, 2005 U.S. Dist. LEXIS 34528 (N.D. Ill. Dec. 16, 2005).  This is an environmental suit by the city against a landowner.  The city moved to disqualify one of the defendant’s lawyers.  She had earlier done legal work for the city in connection with the redevelopment of the city’s waterfront.  In doing that work she had communications with the defendant in this case because his land, which is the subject of this suit, was within redevelopment area.  The court granted the motion, finding that the matters were substantially related.

        Irrebuttable Presumption.  DeFazio v. Wallis, 459 F. Supp. 2d 159 (E.D.N.Y. 2006) .  The defendant claims that the plaintiff’s lawyer used to represent the defendant on matters related to this one.  The defendant moved to disqualify the plaintiff’s lawyer.  A magistrate judge denied the motion because the defendant had not shown that the lawyer learned any confidential and material information from the defendant during the earlier representation.  In this opinion the district judge reversed, holding that where the lawyer’s role in the earlier representation was more than peripheral, there was an “irrebuttable presumption” that the lawyer learned confidences from his earlier client, the defendant.

        Presence of Current Client at All Meetings with Former Client During Earlier Representation Does not Prevent Disqualification.  Knight v. Ferguson, 57 Cal. Rptr. 3d 823 (Cal. App. 2007) .  Lawyer briefly represented Plaintiff before this case was filed.  After the case was filed, Lawyer began representing the defendants.  The plaintiff moved to disqualify Lawyer.  The trial court granted the motion, and, in this opinion, the appellate court affirmed.  The substantial-relationship analysis was very fact-intensive, and no purpose would be served by discussing it further.  The one interesting tidbit relates to the fact that during Plaintiff’s meetings with Lawyer while Lawyer was representing her, the defendants were present.  Thus, the confidentiality concerns regarding the substantial-relationship test would not be present.  The court disagreed, making vague references to a lawyer’s “loyalty” to former clients.

        Rare Case Involving Trademark Work.  Lappert’s Ice Cream, Inc. v. Lappert’s, Inc., 2007 U.S. Dist. LEXIS 21349 (N.D. Cal. March 6, 2007).  This is a routine former-client/substantial-relationship analysis and very fact-specific.  What is unique is that it involves trademark work.

        Server Architecture and the Substantial Relationship Test.  Biax Corp. v. Fujitsu Computer Systems Corp., 2007 U.S. Dist. LEXIS 35770 (E.D. Tex. May 16, 2007).

        Eight Years Later and Still Substantially Related.  Forbes v. NAMS Int’l., Inc., 2007 U.S. Dist. LEXIS 45161 (N.D.N.Y. June 21, 2007) (magistrate judge).  The district judge later affirmed the magistrate judge, and even later, the district judge denied the plaintiff's motion for rehearing at Forbes v. NAMS Int'l, Inc., 2007 U.S. Dist. LEXIS 69743 (N.D.N.Y. Sept. 20, 2007). 

         Client in Name only not a Client.  Moorman v. Heyen, 2007 Wash. App. LEXIS 2019 (Wash. App. July 17, 2007).

        Working Closely with, and Sharing Information with, Non-client Can Be "Equivalent to a Solicitor/Client Relationship."  Stanley v. Advertising Directory Solutions Inc., 2007 BCSC 1125 (CanLII) (S. Ct. of Brit. Col. July 26, 2007).

        Lawyer Disqualified Even though Patent Assigned.  Robbins & Myers Canada Ltd v. Torque Control Systems Ltd, 2007 FC 957 (CanLII) (Fed. Ct. of Can. Sept. 24, 2007).  Lawyer prosecuted Patent for Co. A.  Co. A assigned Patent to Co. B.  In this case Co. B sued Co. C for infringement of Patent.  Lawyer appeared for Co. C.  Co. B moved to disqualify Lawyer in this case, and, in this opinion, a prothonotary granted the motion.  The court inferred that one of the individual inventors must have conveyed confidential information to Lawyer during the prosecution.  The court also noted that Co. A had an interest in having the validity of Patent upheld.  Thus, the court reasoned, Lawyer’s appearance in this case caused a serious appearance of impropriety and justified Lawyer’s disqualification.  In Robbins & Myers Canada, Ltd. v. Torque Control Systems Ltd., 2008 FC 332 (CanLII) (Fed. Ct. Canada March 12, 2008), the judge affirmed the prothonotary.

        Suit for Trespass and Quiet Title not Substantially Related to Earlier Suit to Establish Ownership of the Same Property.  Adams Creek Associates v. Davis, 2007 N.C. App. LEXIS 2302 (N.C. App. Nov. 6, 2007).  To a similar effect, and, again, referring to the same piece of property, Quicken Loans v. Jolly, 2008 U.S. Dist. LEXIS 48266 (E.D. Mich. June 24, 2008, and Belous v. Bartlett, 2008 Wash. App. LEXIS 2447(Wash. App. Oct. 14, 2008). 

        Canada.  Richmond Taxi Co. Holdings Ltd. v. Robbins, 2007 BCSC 1680 (CanLII) (B.C. S. Ct. Nov. 20, 2007).  Lawyer represented a taxicab company (“Taxi Co. 1“) in applying for licenses in 2005 (“Proceeding 1“).  Later, Lawyer represented another taxicab company (“Taxi Co. 2”) in applying for licenses for operations in the geographical area in which Taxi Co. 1 operated (“Proceeding 2“).  This latter application, if granted, would result in more competition for Taxi Co. 1.  During the pendency of Proceeding 2, Taxi Co. 1 filed this action to have Lawyer enjoined from representing Taxi Co. 2 in that Proceeding 2.  In Proceeding 1, Lawyer had submitted confidential information regarding Taxi Co. 1’s finances and operations, some of which the regulators arguably would keep confidential.  Moreover, it appeared that in Proceeding 2 Lawyer would have to cross-examine Taxi Co. 1’s employees, because Taxi Co. 1 was actively opposing Taxi Co. 2’s application.  In this opinion the court granted an interim injunction enjoining Lawyer from doing so.  The court first determined that Taxi Co. 1 was not a current client of Lawyer.  The court then ruled that under Canada’s former client rules (1) the information gathered by Lawyer from Taxi Co. 1 in Proceeding 1 was “relevant” to Proceeding 2, and (2) the evidence did not show that “a reasonably informed member of the public would be satisfied that no use of confidential information would occur.”  While much of the analysis dealt with the potential misuse of Taxi Co. 1’s confidences, there was also a bit of “playbook” analysis, as well.

        Dropping Defenses Removes Substantial Relationship.  UMG Recordings, Inc. v. MySpace, Inc., 2007 U.S. Dist. LEXIS 91179 (C.D. Cal. Dec. 10, 2007).  [Warning: the following is overly simplified; it is intended to flag the issues raised and no more.]  UMG moved to disqualify the law firm for MySpace (“Law Firm“), based upon Law Firm’s earlier representation of UMG (“Earlier Matter“).  Law Firm, through a series of communications with UMG during the Earlier Matter obtained UMG’s advance waiver, provided the new matters were not related to the Earlier Matter.  Law Firm also agree to set up screens as appropriate.  UMG’s motion to disqualify in this case arose out of Law Firm’s assertion in this case of certain defenses that related to the Earlier Matter.  When UMG asserted the conflict, Law Firm withdrew the offending defenses.  In this opinion the court denied the motion to disqualify.  The main reasons were the withdrawal of the offending defenses and the failure of UMG to establish that the screens Law Firm set up were not breached.  The court was critical of Law Firm’s handling of the alleged conflict and ordered MySpace to pay UMG’s fees for litigating the motion.

        In re Estate of Wright, 2007 Ill. App. LEXIS 1311 (Ill. App. Dec. 3, 2007).  Law Firm represented Mother in transferring $1.8 million from Mother’s trust to Son.  Mother executed an amendment to the trust stating that the transfer was a loan.  No note was ever signed.  After Mother’s death litigation ensued over the validity of the trust amendment and over whether the transfer was a gift or a loan.  Law Firm attempted to represent Son in the litigation, but in this opinion, the appellate court affirmed the trial court’s disqualification of Law Firm.  The opinion is a conventional substantial-relationship-test analysis.

        Deals with Lawyer-Plaintiff Suing Former Client Using Same Firm as other Plaintiffs.  Murphy v. Simmons, 2008 U.S. Dist. LEXIS 594 (D.N.J. Jan. 3, 2008).  This fact-intensive opinion is largely devoted to the substantial relationship test, which we will not discuss here.  There are two aspects worth spending a little time on.  First, the court discussed application of the playbook analysis in some detail and applied it in this case.  The second aspect needs some explanation.  One of the plaintiffs (“Lawyer”) is a lawyer who formerly did  much environmental work for the defendants.  Two of the plaintiffs are non-lawyer consultants who worked with Lawyer on some, but not all, of the defendants‘ matters.  All the plaintiffs filed this action using the same law firm (“Law Firm”).  The court concluded that because Lawyer had much confidential information from his prior representation of the defendants - that the other plaintiffs did not have - Lawyer should have counsel separate from the other plaintiffs.  However, because of the joint representation that had already occurred in this case, and the possibility that Lawyer could have shared some of his confidential information about the defendants with Law Firm, the court, in this opinion, disqualified Law Firm.

          Crowe v. Kearin, 2008 U.S. Dist. LEXIS 16829 (N.D. Ill. March 4, 2008).  Plaintiff sued City over City’s having “booted” Plaintiff’s car.  City moved to disqualify Plaintiff’s lawyer, because the lawyer had previously represented the City in parking matters.  In a routine substantial relationship analysis in this opinion the court granted the motion.

        Where Relationship Exists, Confidentiality not Important.  Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 (CanLII) (Nova Scotia Ct. App. March 19, 2008).  This opinion is a good discussion of the former client rule in Canada.  The relationship analysis was routine, but the court confirmed that where the matters are related, confidential information need not be implicated for the lawyer to be disqualified.  The court affirmed the lower court’s order disqualifying the law firm because both in the prior matter and in this matter the former clients’ honesty was in issue.

          Good Review of Texas and Interplay of Model Rules 1.6 and 1.9.  In re Hoar Construction, L.L.C., 2008 Tex. App. LEXIS 4075 (Tex. App. May 29, 2008).  As is true of many former-client cases, this one has no precedential value, and we will not explore the facts here.  The opinion is, however, a lengthy and careful analysis of the interplay between Texas’ versions of Model Rules 1.6 and 1.9, particularly the “use-of-information” provisions of Rule 1.9.  The opinion also contains a lengthy analysis of waiver with the passage of time.

         Extent to which an Individual Acting in his "Official Capacity" Can Be the Subject of a Former Client Analysis.  Falk v. Chittenden, 2008 N.Y. LEXIS 1822 (N.Y. June 26, 2008).

        No Substantial Relationship, but Court Orders Screen.  Liko AB v. Rise Lifts, Inc., 2008 U.S. Dist. LEXIS 58033 (E.D. Pa. July 31, 2008).  This opinion contains an unremarkable substantial relationship anlysis.  One interesting tidbit is that in denying a motion to disqualify the court ordered the law firm in question to screen from “this litigation” lawyers who had previously done work for the former client.

        Odd Florida Decision.  Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 2008 U.S. Dist. LEXIS 60689 (S.D. Fla. July 28, 2008).  The court denied a motion to disqualify by a former client.  Citing two Eleventh Circuit opinions, which pre-dated the adoption by Florida of the ABA Model Rules, the court ruled that because there was “no specifically identifiable  evidence of wrongdoing” by the lawyer, disqualification was inappropriate.  The moving party had made a vigorous “playbook” argument, but the court ignored it and mentioned nothing of Florida’s version of Model Rule 1.9(a) or the substantial relationship test.

        Representing Executor.  In re Harris, 2008 N.Y. Misc. LEXIS 4797 (N.Y. S. Ct. Aug. 19, 2008).  Lawyer represented the executor of the Harris estate.  The executor discharged Lawyer.  In this proceeding Lawyer represented an heir in a petition to remove the executor.  The executor moved to disqualify Lawyer.  In this opinion the court granted the motion.  The opinion contains a discussion of who the client is in estate representation.

        In re Estate of Markheim, 2008 Me. LEXIS 136 (Me. Sept. 4, 2008).  Court held that a special administrator’s suit is not a suit to collect a fee, which is an exception to Maine’s former client rule.

        Hill v. Hunt, 2008 U.S. Dist. LEXIS 68925 (N.D. Tex. Sept. 4, 2008).  In this opinion the court granted a motion to disqualify the plaintiff’s law firm, Bickel & Brewer (“B&B”).  This suit involves allegations of mismanagement of two Hunt family trusts.  Two issues were whether B&B currently represented one of the defendants or whether B&B had formerly represented that defendant.  This decision is very fact intensive and, as far as we can tell, has no precedential value.  But, it is interesting.  Some of the factors discussed include who paid what fees, what bills were sent to whom, the significance of E-mails, the significance of who appeared at what meetings and what was discussed at the meetings, who sought legal advice, who directed the activities of B&B, and so forth.  The court frequently used the term “appearance of impropriety,” even though both the ABA Model Rules and the Texas rules dropped that expression when they were adopted.  The court did not discuss the fact that Texas is the only state whose version of Model Rule 1.7 allows a lawyer to represent a client on one matter and be adverse to that client on an unrelated matter, but the court did acknowledge that the Fifth Circuit in both American Airlines and Dresser Industries held that the ABA rules, and not the Texas rules, would apply in this context in the Fifth Circuit.  That distinction would not have changed the result in this case because the court held that the matters in question were related.

        Ritchie v. Gano, 2008 U.S. Dist. LEXIS 67770 (S.D.N.Y. Sept. 8, 2008).  This is a suit by one principal member of the band, Violent Femmes, against another for breach of contract, etc.  In this very fact-intensive opinion a magistrate judge denied the plaintiff’s motion to disqualify the defendant’s lawyer.  The issue was whether the lawyer had ever represented the plaintiff or the plaintiff’s erstwhile partnership, whether there ever had been a partnership, and so forth.

        OneBeacon America Ins. Co. v. Safeco Ins. Co., 2008 WL 4059836 (S.D. Ohio Aug. 25, 2008).  In this case Lawyer and Law Firm are adverse to InsCo on a coverage issue.  Law and Law Firm had previously represented InsCo on coverage issues.  Both this case and many of the prior cases involved whether a series of events were one "occurrence" or more than one occurrence.  At one point in this case Lawyer wrote to InsCo and said that its coverage position was inconsistent with positions it had taken when he was representing it.  InsCo moved to disqualify Lawyer and Law Firm in this case.  Based upon the foregoing, particularly the letter, the court in this opinion granted the motion to disqualify Lawyer.  The court did not disqualify Law Firm, saying that others in the firm could handle this case.  A related case is R.E. Kramig Co., Inc. v. Resolute Mgm't, Inc., 2009 U.S. Dist. LEXIS 48838 (May 18, 2009).
      
         Goodman v. Goodman, 2008 Mo. App. LEXIS 1375 (Mo. App. Oct. 7, 2008).  Husband and Wife met with Lawyer to discuss a divorce.  Lawyer was married to Husband's mother.  As a result of the meeting Lawyer prepared a petition for dissolution, in which Wife was petitioner and Lawyer was Wife's lawyer.  Wife never signed the petition, and it was never filed.  Husband then hired another lawyer who filed a petition for Husband (this case).  Before trial of this case Lawyer appeared for Husband.  Wife moved to disqualify Lawyer, which the trial court denied.  In this opinion the appellate court affirmed.  The court said that the result would be the same whether Rule 1.7 or Rule 1.9 applied because, in either case, Wife was not able to show that the conflict did "clearly call in question the fair or efficient administration of justice."  Among other things the court noted that Wife never met separately with Lawyer, except for a phone call to schedule a meeting during which she indicated she might go see another lawyer.

        Styles v. Mumbert, 79 Cal. Rptr. 3d 880 (Cal. App. 2008).  Creditor sued Debtor.  Lawyer represented Debtor.  After default judgment, and during pendency of an appeal of the default, Debtor sued Lawyer for malpractice, and Lawyer counterclaimed for fees.  Lawyer then purchased Creditor's judgment (judgment assigned) and sought leave to substitute for Creditor in the appeal of the default.  In this opinion the appellate court held that Lawyer had a serious conflict and should not be allowed to substitute.  The court stressed Lawyer's duty of confidentiality to Debtor.

        In re Bacot, 2008 N.Y. Misc. LEXIS 6390 (N.Y. Misc. Oct. 29, 2008).  Bacot, represented by Law Firm, brings this action to appoint a guardian for the estate of Winston, an incompetent.  Wiggins opposes this action and moves for disqualification of Law Firm.  Law Firm had earlier brought an action on behalf of Winston to recover money from Wiggins.  Wiggins had sold some of Winston's property and kept the proceeds for himself.  In this opinion the court denied the motion to disqualify.  First, the court held that Law Firm had never represented Wiggins, so Wiggins did not have standing.  But, the court went on to rule on the merits of the motion.  First the court held that Law Firm had never really represented Winston, because it brought the earlier action at the request of one of Winston's relatives.  Law Firm had never communicated with Winston.  Lastly, the court held that the earlier suit for damages was not substantially related to this proceeding for appointment of a guardian.

        Pilgrim v. Pilgrim, 2008 NLTD 162 (CanLII) (S. Ct. Newfoundland & Labrador Oct. 21, 2008).  Domestic dispute.  The law firm for the wife ("Law Firm") had previously represented two corporations, in which the husband has a minority interest.  The husband moved to disqualify Law Firm, and in this opinion the court granted the motion.  The basis for the disqualification was that Law Firm, in the earlier representation of the corporations, might have learned information that could be helpful to the wife in this litigation.

        No Formal Attorney-Client Relationship Formed, Still . . . . Lexjac, LLC v. Beckerman, 2008 U.S. Dist. LEXIS 93133 (E.D.N.Y. Nov. 14, 2008).  Defendant approached Lawyer for legal advice about the property, which is the subject of this case.  They had several conversations, but no formal attorney-client relationship was ever formed.  Lawyer's partners showed up in this case as counsel of record for Plaintiff.  In this very fact-intensive opinion the court granted Defendant's motion to disqualify Plaintiff's counsel.

        MKD Security Awareness & Training Inc. v. Summerville, 2008 CanLII 67903 (Ont. Sup. Ct. Dec. 12, 2008).  Routine substantial relationship analysis.  Until shortly before this case, a lawyer for plaintiff in this case ("Lawyer") had represented one of the defendants in a contract dispute with a banquet hall over the defendant's daughter's wedding.  The defendant moved to disqualify Lawyer claiming that Lawyer learned about the defendant's financial resources in the banquet hall case.  In denying the motion, in this opinion, the court held that was not a "clear and cogent" showing that Lawyer learned anything relevant to this case.

        “Near Client.  Canadian Union of Public Employees, Local 569 v. Human Rights Comm'n, 2009 NLTD 1 (CanLII) (S. Ct. Newf. and Lab. Jan. 7, 2009).  Employee worked for City.  City terminated Employee.  Union, of which Employee was a member, hired Lawyer to seek Employee's reinstatement in arbitration.  In the course of that representation Lawyer met privately with Employee, at which time Lawyer obtained much information from Employee.  Later, Employee sued City and Union (this case).  Union retained Lawyer to defend this case.  Employee moved to disqualify Lawyer.  In this opinion the court granted the motion.  The court acknowledged that in the earlier arbitration Lawyer's client was Union, not Employee.  However, using terms such as "near client," the court held that because Employee reposed confidences in Lawyer, Employee was in that class of non-clients who should be protected.

        CLS Catering Services Ltd. v. Mahil, 2011 BCCA 321 (Ct. App. B.C. July 14, 2011).  In this action Plaintiff sued Defendant for defrauding Plaintiff while Defendant was controller of Plaintiff.  Law Firm represents Plaintiff.  Earlier Law Firm had represented an unrelated company ("UC"), of which Defendant was a director, in the purchase of a franchise.  For that reason Defendant moved to disqualify Law Firm in this case.  The trial court denied the motion.  In this opinion the appellate court affirmed.  Defendant claimed that he gave confidential information to Law Firm in connection with the franchise matter.  A member of Law Firm denied that.  The trial court sided with the Law Firm because there would not have been a reason for Defendant giving personal information in the franchise matter.  The appellate court agreed.  [Note: the court did not deal with whether Defendant was ever a client of Law Firm.  It appears that Canadian courts will protect confidences of persons in the position of Defendant.  We believe some Canadian courts would use the term "near client" for such a person.  Such was the case in the Canadian Union case just above.]

        Rohm & Haas Co. v. Dow Chem. Co., 4309-CC, (Del. Ch. Feb. 12, 2009).  Wachtell represented Dow in 2007 and 2008 in an employment matter.  It now represents Rohm & Haas in this case against Dow.  Dow moved to disqualify Wachtell, on both current client and former client principles, and in this brief letter opinion the chancellor denied the motion.  In our view, the only point of interest to this audience is how the court determined that Dow was not a current client of Wachtell.  In mid-2008 Wachtell, without objection from Dow, wound up across the table from Dow, representing Rohm & Haas in merger negotiations with Dow.  That, the court said, should have been notice to Dow that Wachtell was no longer its law firm, thus dispensing  with Dow's current client argument.  The former client argument was resolved with a traditional, and unremarkable, substantial relationship analysis.

        Anti-SLAPP Motion Denied.  United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton, 2009 Cal. App. LEXIS 333 (Cal. App. Mr. 12, 2009).  Law Firm represented Ins. Co. in Action No. 1.  After Ins. Co. became a former client of Law Firm, Law Firm appeared opposite Ins. Co. in Action No. 2.  Ins. Co. filed this action ("Action No. 3") to enjoin Law Firm from opposing Ins. Co. in Action No. 2.  Law Firm filed an anti-SLAPP motion in this action to dismiss this action.  (If you do not know what an anti-SLAPP motion is, don't worry about it.  You don't need to know.  Only in California . . . .)  The trial court denied the motion because Ins. Co. showed a "probability of success on the merits."  The appellate court affirmed on other grounds, holding that Law Firm's conduct in Action No. 2 was not "protected activity" with the meaning of California's anti-SLAPP law.  For those practicing in California, this opinion appears to be a good discussion of what is "protected activity" under the anti-SLAPP law.  Similar result in PrediWave Corp. v. Simpson Thacher & Bartlett LLP, 2009 Cal. App. LEXIS 1925 (Cal. App. Dec. 2, 2009).

        Not “Sufficiently Related.”  Walsh v. TRA Co. Ltd., 2009 NLTD 9 (CanLII) (S. Ct. of Newf. & Lab. Jan. 26, 2009).  Lawyer did some work for the defendant in this case, but not on this case.  Lawyer then went to another firm, where he began working on this case for the plaintiff in this case.  The defendant moved to disqualify Lawyer and his law firm, and in this opinion the court denied the motion.  This was a fact-intensive analysis, in which the court had to decide whether the work Lawyer did for the defendant at his former firm was sufficiently related to this case to warrant Lawyer's disqualification.  The court found that it was not.  The opinion contains a thorough analysis of Canadian Supreme Court decisions as well as recent lower court decisions from around Canada dealing with former client conflicts.

        Doucet v. Cousineau, 2009 CanLII 1801 (Ont. Super. Ct. Jan. 22, 2009).  The plaintiff is a lawyer suing over expenses relating to a building.  The law firm representing the defendant has a partner, Ms. Barazzutti, who formerly worked for the plaintiff.  The plaintiff moved to disqualify the defendant's law firm.  In this opinion the court denied the motion.  The court noted that Ms. Barazzutti never had a lawyer-client relationship with the plaintiff.  The court also noted that the plaintiff made little or no showing that Ms. Barazzutti had obtained confidential information relating to this action while she was employed by the plaintiff.  [Note: the court included a discussion of the Neil case and the concept of loyalty to current clients.  To us, this seemed unnecessary and confusing.  After all, this case involved a former non-client.]

        Dixon v. Chevron U.S.A., Inc., 2009 Cal. App. Unpub. LEXIS 1374 (Cal. App. Feb. 20, 2009).  While Dixon was doing real estate consulting for Chevron, he was deposed in another case (not this case) as Chevron's "person most knowledgeable" ("PMK") (evidently the equivalent to persons designated under FRCP 30(b)(6)).  During part of this deposition Lawyer appeared with Dixon.  After Dixon and Chevron had a falling-out, Chevron, represented by Lawyer, brought this action against Dixon.  Because of Lawyer's activities in the earlier PMK deposition, Dixon moved to disqualify Lawyer in this case.  The trial court denied the motion.  In this fact-intensive opinion the appellate court affirmed.  The court looked at many factors, including the fact that Dixon had his own lawyer at the PMK deposition, and concluded that Lawyer never had a lawyer-client relationship with Dixon.  The court also included that Lawyer had never obtained any confidential information with Dixon in connection with the PMK deposition.

        PIKA Int'l, Inc. v. American Pulverizer, Inc., 2009 U.S. Dist. LEXIS 40443 (E.D. Mo. May 13, 2009).  Plaintiff is suing Defendant over a machine that Plaintiff purchased from Defendant.  Some months prior to the filing of this suit the law firm that is representing the Plaintiff in this suit represented a bank in seeking to terminate a trust of which the bank was trustee.  The sole trust assets were shares of stock of Defendant.  The partner doing the work for the bank is not involved in bringing this case.  Defendant moved to disqualify Plaintiff's law firm in this case because of that earlier work for the bank/trustee.  In this opinion the court denied the motion, primarily because there was no showing that Plaintiff's law firm received any information about Defendant in representing the bank that would be useful to Plaintiff in this case.

        Cole v. Salt Creek, Inc., 2009 U.S. Dist. LEXIS 41792 (D. Utah May 15, 2009).  David Cole ("Cole") was an officer and major shareholder of Salt Creek.  In 2002 all the outstanding stock of Salt Creek was sold to Inve Asia, at which time  Cole entered into an employment agreement with Inve.  Inve terminated Cole in 2008.  In this suit Cole, represented by Robert Mansfield, is suing Salt Creek and Inve over the employment agreement.  Mansfield had been at the Van Cott firm and had represented Salt Creek from 1992 until 2008, when he left Van Cott and joined the Snell firm.  In 2002 when Cole sold his stock to Inve, Mansfield represented Cole in negotiating Cole's employment agreement.  Mansfield billed that time to Salt Creek.  In this opinion a magistrate judge denied the defendants' motion to disqualify Mansfield.  First, the court held that Mansfield's work for Salt Creek was not substantially related to this case.  As to Mansfield's work on the employment agreement, the court said that everything Mansfield learned about the matter he learned from Cole.

        R&D Muller, Ltd. v. Fontaine's Auction Gallery, LLC, 2009 Mass App. LEXIS 653 (Mass. App. May 18, 2009).  This is an action by plaintiff against John and Dina Fontaine and their companies for mishandling the plaintiff's solid gold Mickey Mouse at an auction in 2003.  Law Firm, which represents the plaintiff in this case, had represented the Fontaines between 1980 and 1990, giving corporate advice, among other things.  This included the formalities attending the setting up and maintaining of corporate entities.  One of the issues in this case is whether the plaintiff can pierce the "corporate veil" to get to the Fontaines personally.  One of the allegations is that the Fontaines did not comply with the corporate formalities in maintaing the defendant corporations.  The defendants moved to disqualify Law Firm, the trial court granted the motion, and, in this opinion, the appellate court affirmed.  The court found that the overlap of the representations was clear, even given the lapse of time between them.

        Koch Industries, Inc. v. Hoechst AG, 2009 U.S. Dist. LEXIS 52418 (S.D.N.Y. June 4, 2009).  Law Firm did an antitrust audit for the plaintiff in 2000.  In 2003 the plaintiff brought this fraud suit against defendant arising out of the plaintiff's purchase of a business from the defendant.  The defendant's alleged fraud was in failing to disclose that it was violating antitrust laws.  In 2008 Law Firm appeared in this case for the defendant.  The plaintiff moved to disqualify Law Firm, and in this opinion the court denied the motion.  This was a very fact-intensive application of the substantial relationship test, the court finding none.

        Hybrid Kinetic Automotive Holdings, Inc. v. Yeung, 2009 U.S. Dist. LEXIS 52322 (N.D. Miss. June 18, 2009).  Law Firm had represented the defendants in negotiating contracts with European vendors.  Shortly after that work ceased, Law Firm appeared for the plaintiffs in this case, which dealt with the ownership and control of certain defendants.  In this opinion the magistrate judge granted the defendants' motion to disqualify Law Firm.  The analysis was unremarkable and fact-intensive.  [Note: unfortunately, the magistrate judge just had to refer to the wrong-headed notion that the duty of loyalty is a factor in applying Model Rule 1.9.  Is it in the water down there, or what?]

        Eighteen Years Later.  Lamanna v. Lamanna, 2009 CanLII 33046 (Ont. Super. Ct. June 29, 2009).  This action involves, among other things, the right to certain real estate.  Each side moved to disqualify the other's lawyer.  One lawyer was disqualified because he would be a witness.  The other was disqualified because he had formerly represented the opposing party.  He did not recall the earlier representation, which had occurred 18 years ago.  Nevertheless, the court disqualified the lawyer because the earlier matter was clearly related to this matter.

        Derrett v. BW Imaging Incinfluenced., 2009 MBQB 174 (CanLII) (Q.B. Manitoba June 24, 2009).  This is an unlawful employment discharge case.  The defendant moved to disqualify the law firm for the plaintiff ("Law Firm") because 6 years prior Law Firm had represented the president of the defendant in a domestic dispute.  The president is a witness in this case.  In this opinion the court denied the motion, finding no sufficient relationship between the domestic dispute and this employment dispute.  The court also seemed influenced by the fact that the earlier matter was some 6-8 years prior.

        Trade Dress vs. Patent Prosecution.  Innovation Ventures, Inc. v. N2G Distributing, Inc., 2009 U.S. Dist. LEXIS 66295 (E.D. Mich. July 31, 2009).  Evidently, this is a trade dress case.  This opinion involves a motion to disqualify the defendant's law firm ("Law Firm").  Law Firm had earlier represented the plaintiff in prosecuting at least one patent for the product that is the subject of this case.  The court held that the two matters were substantially related and granted the motion to disqualify.

        Greenwood Land Co. v. Omnicare, Inc., 2009 U.S. Dist. LEXIS 74374 (W.D. Pa. Aug. 20, 2009).  This was a fact-intensive substantial relationship analysis.  At the end of the day, the magistrate judge, in granting a disqualification motion, seemed to rely primarily on the fact that the two matters in question involved the same lease, the same issues under the lease, and the same parties.

        Commonwealth Title Ins. Co. v. St. Johns Bank & Trust Co., 2009 U.S. Dist. LEXIS 87151 (E.D. Mo. Sept. 22, 2009).  The facts are complex, so we will try to simplify things.  This suit was filed by the plaintiff ("InsCo") in late 2008.  Law Firm A appeared for the defendant ("Bank").  In early 2009 Law Firm A merged with Law Firm B, resulting in Law Firm AB.  Firm B was not in this case.  However, Firm B was representing InsCo in at least one other matter at the time of the AB merger.  Moreover, Firm B had represented InsCo, and InsCo's corporate affiliates in a number of former matters.  InsCo moved to disqualify AB in this case, and, in this opinion, the court granted the motion.  The judge could not bring himself to forgive the current client conflict.  That wasn't all.  The judge felt the situation was aggravated by the former representations, which involved litigation not dissimilar to this case.  First, the court seemed to embrace the playbook approach to the substantial relationship test.  Second, the corporate affiliates were related as "brother-sister" rather than "parent-subsidiary."  The court was particularly impressed with the extent to which InsCo's corporate parent had coordinated and unified the corporate family members' approach to litigation, including personnel, procedures and settlement strategy.

        Apeldyn Corp. v. Samsung Electronics Co., LTD, 2009 U.S. Dist. LEXIS 93396 (D. Del. Sept. 30, 2009).  Lawyer had done substantial work for Defendant in an earlier case involving DRAM technology.  He then changed firms.  His new firm is representing Plaintiff in this case, which involves liquid crystal technology.  Lawyer was assigned to work on this case.  Defendant moved to disqualify Lawyer and his current firm, and, in an earlier opinion, the court granted the motion, Apeldyn Corp. v. Samsung Electronics Co., LTD, 660 F. Supp. 2d 557 (D. Del. 2009).  The plaintiff moved for rehearing, and in this opinion the court denied the motion.  In the earlier opinion the court embraced somewhat the long-discredited appearance-of-impropriety test.  In this opinion the court, while not rejecting that test outright, emphasized in some detail the substantial relationship of DRAM and liquid crystal technologies.  The Federal Circuit affirmed at In re Apeldyn Corp., 2010 U.S. App. LEXIS 15954 (Fed. Cir. Aug. 2, 2010).

        Kaplan v. Divosta Homes, L.P., 2009 Fla. App. LEXIS 16358 (Fla. App. Nov. 4, 2009).  In this personal injury action the plaintiffs moved to disqualify the defendant's law firm ("Law Firm").  In this opinion the appellate court affirmed the trial court's denial of the motion.  One ground of the motion was that a lawyer in Law Firm ("Lawyer") represents the personal representative of an estate in which a plaintiff is a beneficiary.  The court rejected that ground because the plaintiff was never a client of Law Firm or Lawyer.  Another ground is that the plaintiffs revealed information about this case to relatives of a lawyer whose firm represents another party in the aforesaid estate proceeding.  The court rejected that ground in part because the plaintiffs could not have reasonably expected the information to remain private.

        JDI Holdings, LLC v. Jet Mg'mt, Inc., 2009 U.S. Dist. LEXIS 105277 (N.D. Fla. Oct. 26, 2009).  Prosaic substantial relationship analysis.  There had been a former representation, and both the former represenation and this representation involved airplane transactions.  However, in denying a motion to disqualify, the court said:

The prior representation did not involve the same parties or aircraft as the current litigation nor did the prior legal dispute involve allegations of fraud or an alleged secret finder's fee arrangement as in this case. No attorney work from the prior representation is at issue here. Additionally, there is no evidence that any confidences of Mr. Kerr were used to his disadvantage in this case.

        Thorner v. Sony Computer Entertainment Amer., Inc., 2009 U.S. Dist. LEXIS 108422 (D.N.J. Nov. 20, 2009).  Impossible to separate earlier work on Sony PlayStation controllers from the work in this case.

        Fabric Selection, Inc. v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 111329 (C.D. Cal. Nov. 17, 2009).  In this action Plaintiff claims that the design of fabric sold by Wal-Mart infringed Plaintiff's copyrights.  Several years prior, Plaintiff's law firm ("Law Firm") had represented Wal-Mart in defending a fabric design copyright infringement case.  Thus, Wal-Mart moved to disqualify Law Firm in this case.  In this opinion the court denied the motion.  First, Wal-Mart could not point to any confidences in the earlier case that were material to this case.  Second, because this case involved different parties, different fabric, and different designs, this case was not substantially related to the earlier one.  Last, the court noted that in the earlier case Wal-Mart was successful in tendering the defense to its suppliers and, thus, was not in control of the defense of that case.

        Revise Clothing, Inc. v. Joe's Jeans, Inc., 2010 U.S. Dist. LEXIS 12766 (S.D.N.Y. Feb. 1, 2010).  Trademark infringement case.  Defendant's law firm ("Law Firm") had previously done trademeark work for Plaintiff.  Thus, Plaintiff moved to disqualify Law Firm in this case.  In this fact-intensive opinion the magistrate judge denied the motion.  The court refused to find that Plaintiff was a "current" client of Law Firm, noting: (1) the earlier retainer was narrow, and the matter had terminated; (2) the fact that the settlement agreement of the earlier matter designated Law Firm to receive notice for Plaintiff was not determinative; and (3) the fact that Law Firm continued to send promotional E-mail bulletins ("blasts") to Plaintiff was also not determinative.  That left the court with a former client/substantial relationship analysis.  First, the court was negative on Plaintiff's playbook assertions.  Second, the court emphasized that one of the representations involved stitching designs on jeans, while the other involved use of words.

        Wade v. City of Chicago, 2010 U.S. Dist. LEXIS 11844 (N.D. Ill. Feb. 11, 2010).  This is a civil rights suit by Plaintiff regarding her arrest by two police officers.  Two lawyers, A and B, seek to appear for Plaintiff.  Lawyer A was previously employed by the city to defend such cases.  In fact, while employed by the city, Lawyer A defended the same two police officers in a very similar case.  The similar case involved an arrest just a few blocks from the arrest in this case, and the arrests were just a few weeks apart.  Declaring the two incidents "too close for comfort," the court found the matters substantially related and denied the admission of Lawyer A.

        Oasis West Realty, LLC v. Goldman, 2010 Cal. App. LEXIS 287 (Cal. App. March 3, 2010).  For about a year Law Firm and Partner in Law Firm did work for a real estate developer ("Developer"), involving a hotel and condo development.  Two years after Developer and Law Firm parted company, Partner did two things: (1) at a public meeting Partner took a position adverse to Developer on how a local referendum should be held; and (2) Partner and his wife did some work on getting voter support for the referendum, which required that the project be approved by voters.  Developer then filed this action alleging various breaches of duty including conflict of interest and breach of confidentiality.  Law Firm and Partner immediately moved to strike the complaint under California's anti-SLAPP statute.  The trial court denied the motion, but, in this opinion, the appellate court reversed.  The court held that Partner's actions supporting the referendum  were in his citizen capacity, not in connection with representing a client.  The court further held that Partner had not disclosed any of Developer's confidences during the referendum-related activities.

        Alpha Capital Mgmt., Inc. v. Rentenbach, 2010 Mich. App. LEXIS 446 (Mich. App. March 9, 2010).  Another annoying use of the term, “loyalty” in a former client context.

        Jacob North Printing Co., Inc. v. Mosley, 2010 Neb. LEXIS 36 (Neb. March 19, 2010).  Mosley worked for Company No. 1.  Mosley then left Company No. 1 and went to work for Company No. 2 (the plaintiff in this case).  Company No. 1 sued Mosley for violating a covenant not to compete (not this case).  Company No. 2 hired its long-time law firm ("Law Firm") to represent Mosley, which it did.  Several years later Mosley left Company No. 2 and went to work for Company No. 3.  Company No. 2, represented by Law Firm, then filed this action against Mosley alleging a breach of loyalty, misappropriation of trade secrets, conversion and a violation of Nebraska's Consumer Protection Act.  Mosely moved to disqualify Law Firm in this action.  The trial court granted the motion.  In this opinion the Nebraska Supreme Court reversed the trial court, holding that the two matters were not substantially related.  That is because the earlier case involved a breach of a covenant not to compete while this action involves the conversion of Company No. 2's customer list.  The court was also influenced by the fact that the earlier matter preceded this matter by three years.

        Cardinal Robotics, Inc. v. Moody, 2010 Ga. LEXIS 265 (Ga. March 22, 2010).  This is a partition action.  Law Firm is representing the plaintiff, the executor of the estate of Decedent. Cardinal Robotics, Inc. ("Cardinal") is the defendant.  Earlier Law Firm had represented Cardinal in a quiet title action involving the same property.  However, that representation lasted only three days and was orchestrated, and paid for, by Decedent, a major investor in Cardinal.  Cardinal moved to disqualify Law Firm in this case.  In this opinion the court affirmed the trial court's order denying the motion.  The court held that the two matters were not substantially related.

        In re David Cutler Indus., Ltd., 2010 Bankr. LEXIS 1019 (E.D. Pa. April 20, 2010).  Although this case involves a Chapter 11 proceeding, the issues really are former client ones.  The analysis is very fact specific.  The issue is whether Lawyer could represent defendants in four adversary proceedings brought by the debtor. The bankruptcy judge first found that  Lawyer had represented the debtor, but that the representation was limited in scope and duration and had ended.  The court then found that this "limited" representation was not substantially related to the adversary claims in question.

        Openwave Systems, Inc. v. 724 Solutions (US) Inc., No. C09-3511 RS (N.D. Cal. April 22, 2010).  This a very straight forward, but very fact-intensive application of the substantial relationship test to successive patent representations.  It involved patents dealing with internet access over cell phones, "voicemail agents," and "PIM sync."  The court disqualified the law firm in question.  One interesting feature is the court's rejection of the subject law firm's screen between the sets of lawyers on each representation.  The court mentioned Kirk v. The First American Title Ins. Co., 2010 Cal. App. LEXIS 478 (Cal. App. April 7, 2010) (recognizing screens in some situations), but said that the screen did not work in this case.

        Welch LLP v. Optical Vision of Canada Ltd., 2010 ONSC 2865 (CanLII) (Super. Ct. Ont. May 27, 2010).  Tax preparation and franchise dispute are “sufficiently related,” where overlapping business information is involved.

        Miller v. Yukondetail, 2010 YKSC 22 (CanLII) (S. Ct. Yukon May 26, 2010).  This case is way too fact-specific to detail here.  It involves a lawyer's representation of a native nation in this case adverse to another native nation that the lawyer had represented on other "sufficiently related" matters.  The opinion is a good recitation of the factors Canadian courts consider when deciding whether a former-client relationship should cause disqualification.

        E.A.G. v. D.L.G., 2010 YKSC 24 (CanLII) (Yukon S. Ct. June 4, 2010).  In this custody case H has moved to disqualify W's lawyer because that lawyer had, ten-years prior, represented H in H's first divorce.  In this opinion the court denied the motion.  First, the court found there was an insufficient showing that the matters were "sufficiently related."  Second, the court found that a delay of six months in bringing the motion was an additional basis for denying the motion.

        Bluestone Coal Corp. v. Superior Court, 2010 W. Va. LEXIS 85 (W. Va. S. Ct. App. June 23, 2010).  The plaintiff is a purchaser of coal under a coal supply agreement.  The defendant signed the agreement to supply the coal.  This is suit is for breach of the agreement.  The defendant moved to disqualify the plaintiff's law firm ("Law Firm") because Law Firm had previously represented defendant in defending a nearly identical case involving another purchaser.  The trial court denied the motion.  In this opinion the West Virginia high court reversed (granted writ of prohibition).  First, the court held that a writ of prohibition is appropriate where lower court erroneously failed to disqualify counsel.  Second, the court held that successive cases involving breach of a coal supply contract were substantially related.

        Hartford Cas. Ins. Co. v. American Dairy & Food Consulting Labs., IncIn., 2010 U.S. Dist. LEXIS 70238 (E.D. Cal. June 17, 2010).  Lawyer did insurance coverage work for Ins. Co. from 1985 until 1992.  In this case Lawyer is adverse to Ins. Co. on insurance coverage matters.  Several of the the earlier cases involved property theft and vandalism, as did this case.  Ins. Co. moved to disqualify Lawyer, and in this opinion the magistrate judge denied the motion, finding no substantial relationship.  Among other things, the court noted that Ins. Co.'s claims manual was adopted after Lawyer had stopped representing Ins. Co.  The court also said it could not avoid factoring in the passage of time since Lawyer represented Ins. Co.

        In re Estate of Power, 2010 N.Y. Misc. LEXIS 3103 (N.Y. Sup. Ct. July 14, 2010).  Lawyer sought to represent the decedent's former girlfriend in opposing a petition by the special administrator of the estate regarding funds held by a bank.  Lawyer had earlier represented the decedent regarding decedent's receipt of those funds from decedent's estranged wife.  Because the estate was the "legal embodiment" of the decedent, the court ruled that Lawyer was in violation of N.Y. Rule 1.9(a) (former client).

        Sunbeam Products, Inc. v. Hamilton Beach Brands, Inc., 2010 U.S. Dist. LEXIS 74001 (E.D. Va. July 22, 2010).  Patent infringement case.  The plaintiff's law firm ("Firm P") now employs a lawyer ("Lawyer") who formerly worked at the defendant's law firm ("Firm D").  While at Firm D Lawyer worked on patents involved in this case.  The defendant moved to disqualify Firm P, and in this opinion the court granted the motion.  In a fact-intensive analysis, the court found the matters substantially related.  The court noted the variation around the country in approaches to applying the substantial relationship test to successive patent matters, but that the Fourth Circuit's preferred to avoid "hair-splitting" and resolve any doubts in favor of disqualification, citing United States v. Clarkson, 567 F.2d 270, 273 (4th Cir. 1977).

        Decedent’s Estate.  In re Hostetter, 2010 Ore. LEXIS 558 (Ore. July 29, 2010).  Disciplinary case.  Lawyer represented Borrower in several loan transactions.  After Borrower passed away, Lawyer represented Lender in attempting to collect the loans from the estate.  In this opinion the court concluded that Lawyer violated the former client rule.

        Balancing Test.  In re DataTreasury Corp., No. 2010-M928 (Fed. Cir. Aug. 5, 2010.  At one time Lawyer briefly represented Plaintiff regarding the licensing of a patent.  The representation was so brief, Lawyer did not bill time to it.  Lawyer then joined Law Firm.  Law Firm is representing Defendant in this patent infringement action.  The subject patent is the patent involved in Lawyer's earlier work for Plaintiff.  Lawyer left Law Firm.  Plaintiff moved to disqualify Law Firm.  The trial court denied the motion.  In this opinion the Federal Circuit denied mandamus.  Both courts held that Law Firm's substantial work on this case outweighed any possible harm from the conflict.

        Cone Financial Group, Inc. v. Employers Ins. Co. of Wausau, 2010 U.S. Dist. LEXIS 81326 (M.D. Ga. Aug. 11, 2010).  The plaintiff in this case had, in an earlier worker's compensation case, sought, and received, the carrier's consent to hire its own lawyer ("Lawyer").  During that case Lawyer had much contact with the carrier's personnel.  When the case was settled, the lawyer signed the settlement agreement, "Attorney for Employer/Insurer."  In this case the plaintiff, represented by Lawyer, is suing the carrier for mishandling cases brought by the plaintiff's employees.  The carrier moved to disqualify Lawyer.  In this unremarkable opinion the court granted the motion.

        North Carolina State Bar v. Sossomon, 2010 N.C. App. LEXIS 1768 (N.C. App. Sept. 7, 2010).   Discipline.  Fact-specific.  Complex.  Lawyer was suspended for one year for being insensitive to conflict and confidentiality rules.  If you want to know how not to handle the sale and resale of undeveloped real estate, read the opinion.

        Bak v. Home Video Franchising Corp., 2010 U.S. Dist. LEXIS 82005 (S.D. Ind. Aug. 12, 2010).  In this case Plaintiff sued the defendants over issues raised by a video store franchise agreement.  Certain members of Plaintiff's law firm ("Law Firm") while with a predecessor firm had, four years prior to this action, advised several of the defendants on corporate matters such as non-disclosure agreements, vendor agreements, non-competition agreements, and trademark issues.  None of these lawyers advised the defendants on franchise issues.  Plaintiff moved to disqualify Law Firm, and in this opinion the court denied the motion.  In addition to the above, the court noted that Plaintiff could not specify any confidential information Law Firm learned from the earlier representation that was relevant to this action.  Very fact-specific and of little precedential value.

        Edelstein v. Optimus Corp., 2010 U.S. Dist. LEXIS 108351 (D. Neb. Sept. 24, 2010).  Defendant moved to disqualify the law firm ("Law Firm") for the plaintiffs.  Law Firm had represented Defendant on several isolated matters some years prior.  There were two issues.  The second issue was whether the current representation, involving construction of an ERISA plan, was substantially related to the earlier representation, which involved a corporate acquisition.  The court held it was not.

        Rescigno v. Vesali, 2010 Ga. App. LEXIS 1006 (Ga. App. Oct. 27, 2010).  This is an appeal in a wrongful eviction case.  Plaintiff had moved below to disqualify Defendant's law firm, because that firm had previously represented Plaintiff in a paternity/custody matter.  In this opinion the court affirmed the lower court's denial of the motion.  The court held that the paternity/custody matter was not substantially related to this eviction matter.

        Capital Machine Co., Inc. v. Miller Veneers, Inc., 2010 U.S. Dist. LEXIS 11438 (S.D. Ind. Oct. 22, 2010).  Patent infringement case.  Defendant's law firm ("Law Firm") previously represented Plaintiff.  Plaintiff moved to disqualify Law Firm.  The court granted the motion in September 2010.  In this opinion the court denied Defendant's motion for reconsideration.  The opinion contains a fact-intensive substantial relationship analysis.  A couple of things stand out.  First, while working for Plaintiff, Law Firm worked on a patent that was cited as prior art in the application for the patent in this case.  Second, Law Firm had done tax work for Plaintiff and claimed that the tax work had nothing to do with this infringement case.  However, the court noted that Defendant had sought tax records in discovery requests in this case, thus admitting, in effect, that the earlier tax work was related to this case.

        H2O Plus, LLC v. Arch Personal Care Prods., L.P., 2011 U.S. Dist. LEXIS 28657 (D.N.J. March 21, 2011).  Plaintiff, H2O, makes skin-care products, and defendant, Arch, manufactures chemicals used in skin-care products.  In this action H2O is claiming breach of contract by Arch, among other things.  The law firm representing the defendants in this action ("Law Firm") in 2008 represented H2O in the sale of its business.  H2O moved to disqualify Law Firm, and a magistrate judge granted the motion, finding that the 2008 matter was substantially related to this case.  In this opinion the district court affirmed the magistrate judge.  A couple of facts are interesting.  First, prior to the commencement of this action Arch, through Law Firm, sent H2O a letter responding to a demand letter from H2O.   Law Firm's response letter made reference to H2O's involvement with the FDA, which involvement Law Firm might well have learned of in its earlier representation of H2O.  Second, during the sale of H2O in 2008, H2O created on online "data room" for prospective purchasers, containing thousands of documents, many of them confidential.  As H2O's counsel, Law Firm accessed the "data room" to review documents in connection with the sale.

        Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2010 ONCA 788 (CanLII) (Ct. App. Ont. Nov. 22, 2010).  Appellee moved to disqualify the lawyer for the appellant ("Lawyer").  In this opinion the court granted the motion.  This appeal involves a certain mall.  In 1999 Lawyer had briefly represented Appellee in connection with the development of the same mall.  Among other things, the court rejected the notion that Lawyer could not remember the earlier representation by noting that memories "come and go."  The court also talked about the public's confidence in the process and emphasized that a lawyer's duty to a former client goes beyond the duty of confidentiality.

        Discovery Request in this Case Regarding “Other” Case Does not Establish Substantial Relationship.  Bank of America, N.A. v. Klein, 2011 U.S. Dist. LEXIS 164 (D. Conn. Jan. 3, 2011).  Defendant, Samuel Klein, moved to disqualify Law Firm from representing Plaintiff, Bank.  About two years prior to filing this action Law Firm had represented Klein in two Delaware cases.  Klein moved to disqualify Law Firm in this case.  In this opinion, in a fact-intensive substantial-relationship analysis, the court denied the motion.  One point perhaps makes the opinion worth discussing.  In this case Law Firm had filed a request for admissions on Klein, which sought admissions concerning the earlier Delaware cases.  Thus, argued Klein, the request provided the nexus between those cases and this case.  The court rejected the argument.  First, the court said that it did not see the point of Law Firm's request for admissions regarding the Delaware cases.  Second, the court noted Klein's failure to cite any case in which an "improper request for an admission" could create a substantial relationship and, thus, grounds for disqualification.

        Possible Research Tool on Loyalty.  Lariviere, Grubman & Payne, LLP v. Phillips, 2011 U.S. Dist. LEXIS 13584 (D. Col. Feb. 11, 2011).  This case does not involve a conflict of interest as such.  But, the opinion contains a very brief discussion of whether a lawyer's fiduciary duty to a client continues after the representation ends, not yet decided in Colorado.  The court said that Colorado courts would hold that a "limited duty of loyalty" survives the end of a representation.  This would clearly include confidentiality, but the court was unclear as to what other sort of duty remained.  The opinion cites a number of cases from other jurisdictions, so it may be a useful research tool on loyalty to former clients.

        American Civil Liberties Union of Minn. v. Tarek ibn Ziyad Acad., 2011 U.S. Dist. LEXIS 16164 (D. Minn. Feb. 17, 2011).  No substantial relationship.  This suit was brought under the Establishment Clause and related provisions, while the earlier contacts related to creation of a "power buying" organization.  While the court characterized Defendants' position as "weak," the court declined to impose sanctions against them.

        Continental Cas. Co. v. Przewoznik, 2011 Fla. App. LEXIS 2645 (Fla. App. March 2, 2011).  In this case InsCo, represented by Law Firm, sued owners of a sunken boat.  In an earlier case Law Firm had represented another insurance company adverse to the same boat owners in a case arising out of the same sunken boat.  The boat owners moved to disqualify Law Firm.  The trial court granted the motion.  In this opinion the appellate court reversed, finding no conflict.

        United States v. Precision Impact Recovery, LLC, 2011 U.S. Dist. LEXIS 15517 (N.D. Tex. Feb. 14, 2011).  This is a construction dispute involving a performance bond, among other things.  Law Firm started out representing one of the contractors ("Contractor") and InsCo.  At some point InsCo unsuccessfully attempted to assert claims against Contractor.  Law Firm continued to represent InsCo.  Contractor moved to disqualify Law Firm.  In this opinion the court granted the motion.  The court held that Law firm was in violation of both the Texas version of Rule 1.9, as well as the Model Rule version.

        Square, Inc. v. REM Holdings 3, LLC, 2011 U.S. Dist. LEXIS 26792 (E.D. Mo. March 16, 2011).  This is a proceeding to "correct inventorship" of a patent.  Inventor No. 1 is one of the plaintiffs.  Inventor No. 1 moved to disqualify the lawyer for the defendant ("Lawyer") because earlier Lawyer had represented Inventor No. 1 in obtaining the patent involved in this case.  The only issue was whether Inventor No. 1 had been a client of Lawyer.  Leading up to the patent application Inventor No. 1 contacted Inventor No. 2.  Inventor No. 2 hired Lawyer.  Lawyer obtained the patent.  Inventor No. 2 was shown as the only inventor.  During the prosecution Lawyer communicated with Inventor No. 1 and submitted drafts of the application to Inventor No. 1.  After Lawyer obtained the patent, Lawyer sent Inventor No. 1 the bill for the patent work, and Inventor No. 1 paid it.  In this opinion the court granted the motion.  In addition to the above facts the court noted that there was no written record indicating that Inventor No. 1 was not a client.

        In Layne Christensen Co. v. Purolite Co., 2011 U.S. Dist. LEXIS 30471 (D. Kan. March 24, 2011), the court held that the fact that a patent licensee has to make a foreign filing in the name of the inventor does make the inventor a client.

        Kingdom Ins. Grp., LLC v. Cutler & Associates, Inc., 2011 U.S. Dist. LEXIS 36351 (M.D. Ga. April 4, 2011).  The defendant moved to disqualify the plaintiff's law firm ("Law Firm"), because Law Firm had represented both the defendant and the plaintiff in a North Carolina case, arguably related to this case.  In this opinion the court granted the motion.  Taking the holdings out of order, the court held that the cases were substantially related.  The court seemed to rely somewhat on a playbook analysis.  The court also relied, in part, on an appearance of impropriety, even though that doctrine has been discredited.  The more important holding is that the fact Law Firm represented both parties in North Carolina, in a related matter, did not save Law Firm in this case.  The court based this holding on the difference between the attorney-client privilege and the ethical duty of confidentiality, relying upon a similar analysis in Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979).

        United States v. Quest Diagnostics Inc., 2011 U.S. Dist. LEXIS 37014 (S.D.N.Y. April 5, 2011).  This is a qui tam action brought under the federal False Claims Act, and state equivalents, against several healthcare providers.  The relators were A, B, and C.  C had been general counsel for one of the defendants during certain periods of the alleged misconduct.  For this reason the defendants moved to dismiss the complaint.  In this opinion the court dismissed A, B, and C from the case, but said the United States, the real party in interest, could continue the action.  The court said C was disqualified under both the former client rule (N.Y. DR 5-108) and the confidentiality rule (N.Y. DR 4-101).  The court rejected the argument that C was not "representing" a client in this case.  The court said C was, in effect, representing the United States.  The court also dismissed A and B, saying they should not profit from C's unethical conduct or take advantage of C's confidentiality violations.

        Dalton v. Painters Dist. Council No. 2, 2011 U.S. Dist. LEXIS 38403 (E.D. Mo. April 8, 2011).  Plaintiff is a painter and belonged to the defendant union.  In this case she has sued a supervisor for sexual harassment and the union for retaliating against her, among other things.  Law Firm appeared for the defendants.  Plaintiff moved to disqualify Law Firm because she initially consulted with one or more members of Law Firm about her rights.  In this opinion the court, calling the question "close," granted the motion because doubts in such cases should be resolved in favor of disqualification.  The opinion also contains a nice recitation of how a would-be client's mental state should be analyzed when determining whether her belief that she was a client was reasonable.  In Dalton v. Painters Dist. Council No. 2, 2012 U.S. Dist. LEXIS 8535 (E.D. Mo. Jan. 25, 2012), the court denied what, in effect, was a motion for rehearing.  This opinion discussed the interplay of Rules 1.9 and 1.18.

        Oasis West Realty, LLC v. Goldman, 2011 Cal. LEXIS 4370 (Cal. May 16, 2011).  This case is somewhat controversial.  For that reason, and because it involves the intricacies of the California SLAPP statute, we will describe the outcome in the briefest and most general way.  Lawyer represented Developer on a major project for two years.  Two years after the representation ended, Lawyer showed up working against the development as a citizen, not representing a client.  Despite this opposition Developer prevailed in getting the project approved.  Developer then sued Lawyer and his law firm, essentially for breach of fiduciary duty.  The trial court denied a motion to dismiss, the appellate court reversed, and, in this opinion, the supreme court reversed the appellate court.  There is a link to the opinion at the May 16 Legal Ethics Forum.

        Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Perlberg, 2011 U.S. Dist. LEXIS 54763 (D. Md. May 20, 2011).  The court held that defending lead paint cases is not substantially related to a lead paint coverage case.

        Foley-Ciccantelli v. Bishop's Grove Condo. Ass'n, 2011 Wisc. LEXIS 326 (Wis. May 24, 2011).  The majority held that the trial court was wrong to apply an "appearance-of-impropriety" test.  The court laid out a "substantial-relationship" analysis -- rambling and confusing.  The court remanded the case to the trial court to apply the proper standard.

        Kenneally v. Clark, 2011 U.S. Dist. LEXIS 58715 (D. Mont. June 1, 2011).  A lawyer for the plaintiffs had previously represented several defendants.  The defendants moved to disqualify that lawyer.  In this opinion the magistrate judge denied the motion.  Both this case and the previous case involved disputes over easements to property.  However, the cases involved different property, and the legal issues -- and underlying documents -- for each case were different.

        Bell v. Lackawanna County, 2011 U.S. Dist. LEXIS 61006 (M.D. Pa. June 7, 2011).  Lawyer represents Defendant in this case.  In an earlier case, Lawyer also represented Defendant.  In the earlier case the plaintiff in this case was an employee of Defendant and a witness, but not a party.  Lawyer prepared the plaintiff for his deposition in the earlier case.  In this opinion the court denied the plaintiff's motion to disqualify Lawyer because Lawyer had not represented the plaintiff in the earlier case.

        AgSaver LLC v. FMC Corp., 2011 U.S. Dist. LEXIS 61668 (E.D. Pa. June 9, 2011).  This is our first pesticide/substantial-relationship case.  In this opinion the court held that advising the former client on pesticide regulatory and labeling matters was not substantially related to this case, which deals with whether certain pesticide patents were expired and whether the former client knew they were expired.

        Green v. City of New York, 2011 U.S. Dist. LEXIS 62089 (S.D.N.Y. June 7, 2011).  Lawyers represent the plaintiff against the city, arising from an alleged strip-search of the plaintiff.  Previously Lawyers had worked for the city defending strip-search cases.  The city moved to disqualify Lawyers, and in this opinion the court granted the motion.

        Bortnak v. Bortnak, 2011 SKQB 226 (CanLII) (Q.B. Sask. June 9, 2011).  This is a custody dispute between H and W.  W is represented by Lawyer.  Previously, Lawyer had represented H involving a custody dispute with a different woman and involving children from that relationship.  H moved to disqualify Lawyer in this case.  In this opinion the court granted the motion.

        Magin v. Solitude Homeowner's Inc., 2011 Wyo. LEXIS 103 (Wyo. June 30, 2011).  In this opinion the court held that because the earlier matter and this matter involved the interpretation of the same subdivision covenants, the matters were substantially related.  However, the court found that because the movant waited a year to move to disqualify, after substantial work had been done on the case, the motion to disqualify should have been denied.

        Luellen v. Gulick, 2011 U.S. Dist. LEXIS 68752 (N.D. W. Va. June 28, 2011).  There are two separate law firms named "Steptoe & Johnson," one in D.C., the other in W. Va.  They were one firm until 1980.  The W. Va. firm represents the defendants in this case.  Because the plaintiff had consulted with one of the D.C. firm's lawyers in about 2005, he moved to disqualify the W. Va. firm in this case.  The magistrate judge in this opinion had little difficulty denying the motion.

        Lander v. McDonald, 2011 MBQB 107 (Manitoba QB May 12, 2011).  In a fairly routine former-client analysis the court, denying a motion to disqualify, held that an earlier representation regarding a power of attorney was not "sufficiently related" to this action, which seeks specific performance of a contract.

        AgSaver LLC v. FMC Corp., 2011 U.S. Dist. LEXIS 61668 (E.D. Pa. June 9, 2011).  This is our first pesticide/substantial-relationship case.  In this opinion the court held that advising the former client on pesticide regulatory and labeling matters was not substantially related to this case, which deals with whether certain pesticide patents were expired and whether the former client knew they were expired.

        Sharbono v. Universal Underwriters Ins. Co., 2011 Wash. App. LEXIS 1631 (Wash. App. July 19, 2011).  Family A sued Family B for wrongful death in an auto accident case (not this case).  That case settled with Family B agreeing to sue InsCo and giving certain proceeds, if successful, to Family A (this case).  Family intervened in this case to protect its interests.  Lawyer represents Family B in this case and represented Family B in the aforesaid settlement.  Family moved to disqualify Lawyer in this case.  The trial court denied the motion.  In this opinion the appellate court affirmed.  The appellate court made three findings.  First, Lawyer was never Family A's lawyer.  Second, Family A could not succeed on a third-party beneficiary theory.  Last, Family A could not succeed under a common interest theory.  The analysis was very fact-specific, so if you have one of those issues, you may want to read it.

        Thoma-Lovell v. Lovell, 2011 ONCJ 384 (CanLII) (Ont. Ct. J. June 28, 2011).  Child support.  Law Firm represents W.  Law Firm also has represented companies owned by H in real estate and collection matters.  H moved to disqualify Law Firm.  In this opinion the court denied the motion, finding that Law Firm did not acquire confidential information about H that would be relevant to this case.

        Boone v. Corestaff Support Services, Inc., 2011 U.S. Dist. LEXIS 85454 (N.D. Ga. Aug. 3, 2011).  This is a suit for declaratory judgment regarding the validity of certain restrictive covenants and non-compete provisions in an employment agreement.  Law Firm represents the plaintiffs.  Law Firm had previously represented a defendant in matters relating to restrictive covenants and non-compete provisions in employment agreements.  In this opinion the court granted a motion to disqualify Law Firm, finding a substantial relationship between the earlier representation and this case.

        Cablevision Lightpath, Inc. v. Verizon Inc., 2011 U.S. Dist. LEXIS 96872 (E.D.N.Y. Aug. 30, 2011).  Law Firm was MCI's principal outside law firm for forty years until 2006.  In the several years prior to 2006 Law Firm, on several occasions, advised MCI on charges for interchanging VoIP services with other carriers.  In 2006 MCI merged with Verizon.  In 2011 Law Firm filed this action for carriers against Verizon to recover VoIP charges.  Verizon moved to disqualify Law Firm.  In this opinion a magistrate judge granted the motion.  In a fact-intensive analysis the judge held the matters substantially related and that the sharing of privileged information was "likely."

        Baltimore Co. v. Barnhart, 2011 Md. App. LEXIS 146 (Md. App. Oct. 27, 2011).  Lawyer was County Attorney until 2001.  About seven years later she began representing a county employee regarding his retirement benefits.  Two years after that the county sued Lawyer for a declaratory judgment that she should not represent the employee because of a conflict of interest.  The trial court found against the county.  In this opinion the Court of Special Appeals (Maryland's intermediate appellate court) affirmed.  The analysis was very fact intensive.  The court found that Lawyer had violated neither Maryland Rule 1.9 nor 1.11.  Next the court found that the county had waited too long to file the action.  Finally, the court held that only the Maryland Court of Appeals (the state's highest court) had the jurisdiction to rule on Lawyer's alleged conflict.

        Former Government Lawyer.  United States v. Villaspring Health Care Center, Inc., 2011 U.S. Dist. LEXIS 129933 (E.D. Ky. Nov. 7, 2011).  A state assistant AG ("Lawyer") was involved in the investigation of Health Co.  After assembling the information, Lawyer met with the U.S. Attorney's office to enable that office to seek civil damages.  Lawyer left the state and joined Law Firm.  In this case Lawyer is opposing the U.S. on behalf of Health Co.  The U.S. moved to disqualify Lawyer, Law Firm, and Lawyer's co-counsel from another firm.  In this opinion, applying Kentucky's version of MR 1.11, the court granted the motion as to Lawyer and Law Firm.  The court denied the motion regarding co-counsel, applying the majority rule that the movant must show that co-counsel received confidential information from the disqualified lawyer.  In a side-show Lawyer defended the motion, in part, by having obtained an opinion from the local bar ethics "hotline."  The court rejected the opinion because Lawyer had not been completely forthcoming with the Bar when seeking the opinion.

        Kane Properties, L.L.C. v. City of Hoboken, 2011 N.J. Super. LEXIS 204 (N.J. App. Div. Nov. 16, 2011).  A land owner ("Owner") obtained zoning variances from a board of adjustment.  An objector ("Objector") appealed to the city council.  When the matter reached the city council, the lawyer for Objector ("Lawyer") had become a part-time lawyer for the council.  Lawyer recused himself from the council's deliberation but attended meetings where the matter was discussed, allowed one of his memoranda to be used by substitute counsel, and gave procedural advice on the matter to the council.  The council reversed the board of adjustment.  Based upon Lawyer's "limited" involvement in the council's deliberations, the appellate court, in this opinion, reversed and remanded so that the council could consider the record without Lawyer.

        Former Government Lawyer.  United States v. Villaspring Health Care Center, Inc., 2011 U.S. Dist. LEXIS 129933 (E.D. Ky. Nov. 7, 2011).  A state assistant AG ("Lawyer") was involved in the investigation of Health Co.  After assembling the information, Lawyer met with the U.S. Attorney's office to enable that office to seek civil damages.  Lawyer left the state and joined Law Firm.  In this case Lawyer is opposing the U.S. on behalf of Health Co.  The U.S. moved to disqualify Lawyer, Law Firm, and Lawyer's co-counsel from another firm.  In this opinion, applying Kentucky's version of MR 1.11, the court granted the motion as to Lawyer and Law Firm.  The court denied the motion regarding co-counsel, applying the majority rule that the movant must show that co-counsel received confidential information from the disqualified lawyer.  In a side-show Lawyer defended the motion, in part, by having obtained an opinion from the local bar ethics "hotline."  The court rejected the opinion because Lawyer had not been completely forthcoming with the Bar when seeking the opinion.

        Love v. Fairfield Inn & Suites by Marriott, 2011 U.S. Dist. LEXIS 138791 (S.D. Miss. Dec. 1, 2011).  In this pro se action the plaintiff sued Hotel because her property was stolen from a room at Hotel.  The plaintiff moved to disqualify the law firm for Hotel because she formerly worked at the law firm.  In this opinion the court denied the motion, essentially holding that being a former employee of a law firm is not the same for conflicts purposes as being a former client.

        Lasavage v. Smith, 2011 WL 28536997 (Pa. Com. Pl. June 16, 2011).  Court said that helping set up a medical practice not substantially related to a later malpractice case against the practice.

        Eaton v. Meathe, 2011 U.S. Dist. LEXIS 135838 (W.D. Mich. Nov. 27, 2011).  This is a suit by one 50% owner of an LLC (Eaton) against the other 50% owner (Meathe).  Lawyer represents Eaton.  In another case Lawyer represented another party in obtaining a judgment against Meathe.  In that proceeding Lawyer conducted a judgment-creditor interrogation of Meathe in the presence of Meathe's lawyer.  Based upon that interrogation Meathe moved to disqualify Lawyer in this case.  In this opinion the court denied the motion.  Confusing the situation, Meathe claimed that he discussed retaining Lawyer for this matter at that interrogation.  The court acknowledged that the affidavits conflicted on this point, but the court said, based upon the circumstances of the interrogation, it could not conclude that Meathe retained Lawyer or disclosed confidences about this matter.

        Teufel v. Stepke, 2012 U.S. Dist. LEXIS 1429 (N.D. Ill. Jan. 4, 2012).  Company had two 50% owners, the plaintiff and the defendant in this case.  Law Firm represents the plaintiff.  The defendant moved to disqualify Law Firm because Law Firm had represented Company on various matters and had represented the defendant's wife in a partnership dispute.  In this opinion the court denied the motion.  The principal basis for the denial was that Law Firm had never represented the defendant personally.  The court also noted that the defendant was relying upon Rule 1.9(c) and that Subsection (c) does not, like (a) and (b), provide for disqualification.  Subsection (c) merely requires the lawyer not to use confidential information.  [Note: to our knowledge the Northern District of Illinois was the only district in the U.S. to adopt its own ethics rules.  (They were abandoned in June 2011.) We have not tried to compare the Northern District's version of Rule 1.9 with the Model Rule version.  Model Rule 1.9 also makes the distinction noted by the court here; however, we are not aware of a prior holding that Rule 1.9(c) does not provide for disqualification.]

        Black Rush Mining, LLC v. Black Panther Mining, 2012 U.S. Dist. LEXIS 3692 (N.D. Ill. Jan. 11, 2012).  Plaintiffs and Defendants were in the coal mining business together.  This suit is over disagreements about that operation.  Plaintiffs moved to disqualify one of Defendants' lawyers ("Lawyer"), claiming Lawyer had represented Plaintiffs in connection with that business.  In a highly fact-intensive analysis the court denied the motion, holding that Plaintiffs' belief that Lawyer represented them was not reasonable.  Among other things, the court noted that whenever Lawyer appeared at meetings with Plaintiffs, Defendants were always present.  Thus, Plaintiffs could not have expected that information given Lawyer would be confidential.

        Shaw v. Broad and Cassel, 2012 U.S. Dist. LEXIS 12054 (S.D. Fla. Feb. 1, 2012).  This is a legal malpractice case.  The defendant law firm ("B and C") had represented the plaintiff ("Shaw") in an earlier patent infringement case ("Underlying Case;" not this case).  The law firm representing Shaw in this case ("Firm FG") represented the parties against Shaw in the Underlying Case.  B and C moved to disqualify FG.  In this opinion the court denied the motion.  First, the court said that there was enough of an "appearance of impropriety" on FG's part that B and C had standing to make the motion.  Second, several weeks after the motion was made, FG obtained written conflict waivers from Shaw and his former opponents (FG's former clients), and B and C did not raise any specific objections concerning the waivers.  B and C's primary argument for disqualification was that FG, to prove the "case within the case" in this case, would have to attack the strength of its former clients' arguments, including their credibility, in the Underlying Case.  Thus, the need for the written waivers.

        Former Client (posted February 27, 2012) Kennedy v. Phillips, 2012 U.S. Dist. LEXIS 15834 (W.D. Wash. Feb. 7, 2012).  Routine substantial-relationship analysis.  In this case the plaintiffs claim the defendants diverted funds from a business that operated vessel A.  Some years ago the plaintiffs' lawyer represented at least one of the current defendants regarding the right to receive contractual payments relating to the sinking of Vessel B.  In denying a motion to disqualify the plaintiffs' lawyer the court in this opinion said the matters were not substantially related. 

       Former Client (posted February 27, 2012) Talon Research, LLC v. Toshiba Am. Elec. Components, Inc., 2012 U.S. Dist. LEXIS 23109 (N.D. Cal. Feb. 23, 2012).  Patent infringement suit by Talon against Toshiba.  Law Firm represents Talon.  Several of Law Firm's lawyers, who have appeared for Talon in this case, previously did work for Toshiba at another law firm.  Their work totaled several thousand hours.  Both representations involved "NAND flash" technology.  The parties disagree whether the technologies were similar enough to be "substantially similar."  In this fact-intensive analysis, the court found them similar enough and disqualified Law Firm.  The court also relied, to a degree, on the "playbook" doctrine, noting that some of Toshiba's witnesses would be the same, and noting that this case involves, in part, Toshiba's organization and approach to litigation.

        In re Derzon, 2012 Wisc. App. LEXIS 185 (Wis. App. March 6, 2012).  Law Firm prepared Decedent's estate plan.  After Decedent's death, Law Firm represented the estate, but actively assisted the personal representative ("PR") in resisting attempts by family members to get files of the PR, including non-compliance with court orders.  The trial judge disqualified Law Firm from representing the personal representative and subsequently from representing the estate.  In this opinion the appellate court affirmed.  The court found that the estate representation was substantially related to Law Firm's work with the PR.

        Dr. N. Vankoughnett Dental Prof. Corp. v. Miller Thomson LLP, 2012 SKQB 84 (CanLII) (Q.B. Sask. March 4, 2012).  This is a suit for oppression brought by a minority owner against majority owners.  The misconduct alleged occurred after creation of the entity.  Law Firm represents the majority owners in this case.  Law Firm had represented all parties in the restructuring of the business and creation of the entity.  In this opinion the court denied a motion to disqualify Law Firm.  Under a standard former client analysis the found that this action is not "sufficiently related" to the work Law Firm had done on the creation of the entity.  In analyzing the limited duty of loyalty lawyers have to former clients, "absent confidential information being at risk," the court said the focus should be on whether the lawyer is attacking the lawyer's work done previously.  Such was not the case here.

      Grovick Prop., LLC v. 83-10 Astoria Blv'd LLC, 2012 N.Y. Misc. LEXIS 1105 (N.Y. Sup. Ct. March 7, 2012).  Lawyer filed this action on behalf of the buyer of gas station property.  Earlier, while at another law firm, Lawyer also represented the sellers.  Lawyer had obtained a conflicts waiver from the sellers.  Lawyer did not obtain a new waiver when he changed firms.  In this opinion the court granted the defendants' motion to disqualify Lawyer.

        Federal-Mogul World Wide, Inc. v. Mahle GMBH, 2012 U.S. Dist. LEXIS 33648 (E.D. Mich. March 13, 2012). Patent infringement case.  Plaintiffs moved to disqualify Defendants' law firm ("Law Firm").  Between 1998 and 2004 several Law Firm lawyers did minimal work for Plaintiffs on the patents at issue in this case.  By 2004 those lawyers had left Law Firm.  Relying in part on Michigan's version of MR 1.10(b) (the departed-lawyers provision) the court denied the motion.  In a fact-intensive analysis the court noted that the actual patents were applied for by Plaintiffs' "patent counsel" (presumably in-house).  The court also noted that any information gathered by Law Firm prior to 2004 was now public.  Moreover, current members of Law Firm deny having any confidential information.

        Utah Op. 12-01 (January 10, 2012).  This opinion discusses the extent to which a lawyer can ethically represent the husband in divorce appeal.  No surprises, except the committee muddles the distinction between confidentiality and loyalty in the context of Rule 1.9.

        Starkes v. Flechner, 2012 U.S. Dist. LEXIS 48757 (S.D. Fla. April 6, 2012).  Lawyers represented LLCs in making an asset sale.  This suit by Plaintiff is against business colleagues for defrauding Plaintiff.  Defendants are represented by Lawyers.  Plaintiff moved to disqualify Lawyers.  In this opinion the court denied the motion because this suit is about the disposition of the asset sale proceeds rather than about the mechanics of the sale.  As an independent basis for denial the court held that Plaintiff's waiting four months to make the motion was a waiver of the conflict.

        Jo Ann Howard & Associates, P.C. v. Cassity, 2012 U.S. Dist. LEXIS 52178 (E.D. Mo. April 13, 2012).  Plaintiff is the receiver of certain insurance entities ("IEs").  In this case Plaintiff is suing several defendants for fraud and related causes of action.  Lawyer appeared for several defendants.  Plaintiff moved to disqualify Lawyer because Lawyer had previously represented one or more IEs in litigation.  In this opinion the court granted the motion.  First, the court found that Plaintiff as receiver had standing to raise the conflict.  Last, the court, in a fact-specific (and questionable) analysis found that this case is substantially related to the earlier cases.

        Legacy Villas at La Quinta Homeowners Ass'n. v. Centex Homes, 2012 U.S. Dist. LEXIS 61062 (C.D. Cal. April 30, 2012).  This is a typical suit by a homeowners' association against the developer and affiliates for various shortcomings in the creation of the development and formation of the association.  Law Firm represented the association.  Defendants moved to disqualify Law Firm.  In this opinion the court granted the motion.  At the inception of the association the board consisted of defendants' employees.  They retained Law Firm to represent the association.  The court based the disqualification on the intimacy of the relationship between Law Firm and the employee members of the board.  The court was impressed that on one letter to a defendant-affiliate Law Firm appended the attorney-client privilege legend.  (Cute!)  The court also noted that Law Firm lawyers would be witnesses.  Lastly, the court found that Law Firm was violating the long-discredited appearance-of-impropriety provision of Canon 9 of the ABA Model Code of Professional Responsibility.

        Bedoya v. Aventura Limo. & Transp. Service, Inc., 2012 U.S. Dist. LEXIS 59862 (S.D. Fla. April 30, 2012).  Lawyer represents Defendants in this FLSA case.  Lawyer had previously represented other plaintiffs (not this plaintiff) in similar cases.  In this opinion the court granted the plaintiff's motion to disqualify Lawyer.  [Author's Note: the court does not make a convincing argument how this "side-switching" by Lawyer harms the plaintiff in this case, or otherwise satisfies the requirements of Rule 1.9.  Lawyer's earlier plaintiff/clients did express a sense of betrayal by Lawyer, and the court was clearly irked by the side-switching.]


        Twenty-First Century Rail Corp. v. New Jersey Transit Corp., 2012 N.J. LEXIS 513 (N.J. May 7, 2012).  Law Firm represented Contractor in formulating a written agreement with other parties to a construction project.  Part of the agreement dealt with delays.  This suit involves delays in the project, and Law Firm appeared for another party adverse to Contractor.  Contractor moved to disqualify Law Firm.  The trial court denied the motion, and the appellate court affirmed.  In this opinion the supreme court reversed, holding that the earlier matter and this case were the "same" within the meaning of Rule 1.9(a).

         Bell v. Cumberland County, 2012 U.S. Dist. LEXIS 72458 (D.N.J. May 26, 2012).  The is a suit alleging that county employees abused Decedent while in their  custody, causing his death.  The plaintiff is Decedent's wife.  Several years prior Lawyer, whose law firm is representing the county, had represented the plaintiff in a worker's compensation matter and in a traffic citation case.  The plaintiff moved to disqualify the law firm.  In this opinion the magistrate judge denied the motion, principally because the worker's compensation case and traffic case were not substantially related to Decedent's death.  The court ordered the law firm to screen Lawyer from this case.  This case does have an interesting current-client twist.  The worker's compensation settlement provided that the case could be re-opened if the plaintiff's condition worsened.  The court said that even though the plaintiff might reasonably have believed that she remained a current client, that belief would no longer be reasonable once Lawyer's law firm showed up on the other side of this case.

        McGriff v. Christie, 2012 U.S. App. LEXIS 10830 (11th Cir. May 30, 2012).  Doctor operated on Patient.  Based upon his alleged neglect in this and other cases, Hospital suspended Doctor.  Doctor hired Lawyer to bring this race discrimination case.  Because Patient might also have a race discrimination claim against Hospital, Lawyer wound up representing Patient, as well.  The defendants in this case moved to disqualify Lawyer.  The trial court granted the motion.  In this opinion the appellate court affirmed.  Among other things, the court agreed with the trial court that bringing in substitute counsel to cross-examine Patient in this case was not "practical."

        Boston Sci. Corp. v. Mirowski Family Ventures, LLC, 2012 U.S. Dist. LEXIS 76307 (S.D. Ind. June 1, 2012).  In this opinion the court denied a motion to disqualify the plaintiffs' law firm.  It is very fact-intensive and complex.  It involved a former-client situation and turned on whether the law firm ever had an attorney-client relationship with the defendants.  The court held it did not.  The law firm did hold itself out as lawyer for the defendants during a reexamination proceeding before the USPTO, and it did act, in part, under powers of attorney granted it by the defendants' lawyer.  The court said that, at least in a patent context, these factors are not necessarily determinative of the issue of representation.

        MCW Construction Ltd. v. Trudel Estate, 2012 ABQB 346 (CanLII) (Ct. Q.B. Alb. May 24, 2012).  In this former-client situation the court denied a motion to disqualify holding that there had not been an attorney-client relationship with the moving party and that party had not given any confidences to the subject law firm.  It was too fact-specific to justify reciting the facts here.  It is a good discussion of how courts analyze former-client situations.

         Mountain View Credit Union Ltd. v. Cowboy Trail Realty Ltd., 2012 ABQB 351 (CanLII) (Ct. Q.B. Alb. May 25, 2012).  Lawyer filed two related foreclosure actions in 2009.  Up until 2005 Lawyer had represented the defendants in a variety of matters.  While not related to these foreclosures, the earlier matters did involve much information about the defendants' financial condition.  The defendants moved to disqualify Lawyer in this case.  In this opinion the master made several findings.  First, the master held that the financial information relevant to the earlier representations made those matters sufficiently related to these foreclosures because Lawyer would be seeking monetary relief from the defendants.  Second, the defendants waited too long to bring the motion.  Thus, the master determined that Lawyer could finish the current phase of the foreclosure but would then be removed from the case.  There was evidence that Lawyer slapped a female defendant during one of the earlier matters, which Lawyer did not deny.  For that reason the master ordered Lawyer not to act against that defendant.


       In re Wonderland Enchanted Bakery at the Grove, Inc., 2012 U.S. Dist. LEXIS 80640 (C.D. Cal. June 11, 2012).  Law Firm was retained by several related entities.  The engagement agreement provided that Law Firm would not represent any individual owners of those entities.  This case is a dispute among various of the individual owners.  The defendants moved to disqualify the lawyer for the plaintiffs in this case ("Lawyer") because Lawyer had, as of counsel, worked on several matters for Law Firm.  In this opinion the court denied the motion.  The court noted that any information that Law Firm had from the individual defendants would not have been confidential to the individual plaintiffs, because Law Firm did not represent the individuals.

        Bortnak v. Bortnak, 2011 SKQB 226 (CanLII) (Q.B. Sask. June 6, 2012).  Law Firm represented H in disputes relating to his first wife and their children.  Now H is in a dispute with his second wife, but Law Firm is appearing for her.  Both matters involved H's conduct and fitness to have custody.  In this opinion the court granted a motion to disqualify Law Firm, holding that the matters were sufficiently related.


        In re Jackson, 2012 Tex. App. LEXIS 5386 (Tex. App. July 9, 2012).  Divorce case.  W moved to disqualify H's law firm because a member of that firm had earlier represented W in matters where the partner would have learned much about W's financial situation.  The trial court granted the motion.  In this opinion the appellate court affirmed (denied mandamus), noting that the court in this case will have to order the "fair and equitable" distribution of H's and W's community estate.

         Children & Family Services of Western Manitoba v. M.S. and L.S., 2012 MBQB 192 (CanLII) (Ct. Q.B. Manitoba June 28, 2012).  In this custody proceeding Mother moved to disqualify the agency's lawyer because that lawyer's partner earlier represented Mother in the early stages of a paternity and support proceeding.  In this opinion the court denied the motion because it was unlikely that the agency's law firm would have learned anything in the former proceeding that would be relevant in this proceeding.


        Trivedi v. Slawecki, 2012 U.S. Dist. LEXIS 101890 (M.D. Pa. July 23, 2012).  This is a suit filed in 2011 for defamation and tortious interference with a business relationship.  Lawyer represents the defendant.  For four months in 2009 Lawyer served on the board of the plaintiff and did various odd jobs of a legal nature for the plaintiff.  The plaintiff moved to disqualify Lawyer.  In this opinion the court denied the motion.  The court listed the elements of both causes of action and after comparing them with Lawyer's activities while on the board, the court found that the representations were not substantially related.

        Fematt v. Finnigan, 2012 U.S. Dist. LEXIS 113596 (N.D. Ill. Aug. 13, 2012).  On behalf of the plaintiff, Lawyer filed this action against the City of Chicago and seven police officers.  Previously, Lawyer had worked for the city.  Several of the defendant/officers moved to disqualify Lawyer, claiming they were former clients of Lawyer in an earlier case. The magistrate judge denied the motion, finding they were never clients of Lawyer.  In this opinion the district judge affirmed.  Lawyer had never appeared in the earlier case.  The only contact Lawyer had in the earlier case was a five-minute conversation with one of the officers in a doorway, the substance of which no one could recall.  The opinion contains a reasonably good summary of Seventh Circuit holdings on former-client conflicts.

        John Crane Prod. Sol., Inc. v. R2R and D, LLC, 2012 U.S. Dist. LEXIS 114293 (N.D. Tex. Aug.14, 2012).  Law Firm prosecuted the trademark FINALROD.  The plaintiff in this case is claiming that the defendant's mark FIBEROD infringes FINALROD. Law Firm appeared for the defendant.  The plaintiff moved to disqualify Law Firm.  In this opinion the court granted the motion, finding, in part, that the prosecution of the FINALROD trademark was substantially related to this action.  Another issue was whether Law Firm ever represented the plaintiff.  The plaintiff acquired the FINALROD mark pursuant to an asset purchase agreement.  Considering Weintraub and other authorities, the court concluded that the seller's privilege (and, thus, the right to bring this motion) passed to the plaintiff.


        Square, Inc. v. REM Holdings 3, LLC, 2012 U.S. App. LEXIS 17257 (Fed. Cir. Aug. 14, 2012).  Lawyer prosecuted Patent for Plaintiff.  Plaintiff brought this action seeking a correction of inventorship of Patent.  Lawyer appeared in this case for Defendant.  Plaintiff moved to disqualify Lawyer.  The trial court granted the motion.  Because Lawyer's defense of the motion was in "bad faith" the court, under its inherent authority, awarded Plaintiff $15,000, the amount spent by Plaintiff bringing the motion.  This opinion dealt with the appealability of the trial court's order.

        Centennial Tire Ltd v. Anderson, 2012 SKPC 130 (CanLII) (Prov. Ct. Sask. Aug. 10, 2012).  Lawyer planned to represent both Seller and Buyer of real estate.  The deal collapsed early and before Lawyer had obtained a formal retainer agreement from the parties.  Seller, represented by Lawyer, brought this action for the deposit posted by Buyer.  Buyer moved to disqualify Lawyer.  In this opinion the court granted the motion.  First, in a fact-intensive analysis, the court concluded that Buyer had become Lawyer's client even absent the formal retainer agreement.  Noting that this case is "sufficiently related" to the real estate transaction, the court had to determine whether Buyer had disclosed confidential information to Lawyer.  Noting the several communications between Buyer and Lawyer, the court felt compelled to infer there were such disclosures, making disqualification mandatory.  The court, in an aside, noted the American rule that provides where matters are "substantially related," disqualification is automatic regardless of whether the parties can show actual disclosure of confidential information.  "Too rigid," said the court.

        Fish v. Hennessy, 2012 U.S. Dist. LEXIS 119571 (N.D. Ill. Aug. 22, 2012).  This is a suit in which Fish is attempting to enforce a guarantee signed by Hennessy.  Law Firm began representing Fish in March 2012.  Law Firm had been representing Hennessy in an SEC investigation; that ceased in February 2012.  The only lawyer working on the SEC matter left Law Firm in January 2012.  Hennessy moved to disqualify Law Firm in this case.  Applying Illinois' version of MR 1.10(b) according to its terms, the magistrate judge denied the motion.  In this opinion the district judge affirmed.

        Big Idea Co. v. Parent Care Resource, LLC, 2012 U.S. Dist. LEXIS 131239 (S.D. Ohio Sept. 14, 2012).  This case involves a lawyer who had left his law firm.  The question is whether the law firm is still subject to disqualification.  ABA Model Rule 1.10(b) would seem to provide relief from disqualification to the law firm if no lawyer remaining has information about the matter in question.  In this opinion the magistrate judge applied Ohio's version of Rule 1.10(b), which provides no such relief.

        EON Corp. IP Holdings LLC v. Flo TV Inc., 2012 U.S. Dist. LEXIS 136388 (D. Del. Sept. 24, 2012).  Patent infringement case.  Law Firm represents one of the defendants.  From 1998 to 1995 Law Firm did a lot of work for a company that became the plaintiff in this case.  The patent that is the subject of this case did not issue until two years after Law Firm ceased work for the plaintiff's predecessor.  The Law Firm lawyers working on this case were not with Law Firm during the 1998-1995 period.  The earlier work was done out of Law Firm's D.C. office.  The lawyers working on this case are based in Los Angeles.  Law Firm erected a screen between the lawyers working on this case and the lawyers that worked for the plaintiff's predecessor.  The plaintiff moved to disqualify Law Firm.  In this opinion the court granted the motion.

        Brown v. Florida Dept. of Highway Safety & Motor Vehic., 2012 U.S. Dist. LEXIS 145159 (N.D. Fla. Oct. 5, 2012).  While  working for the defendant Lawyer worked on this case.  Lawyer left the defendant and began working from home on certain matters referred to her by the plaintiff's lawyer, but not matters related to this case.  In this opinion the court denied a motion to disqualify the plaintiff's lawyer.  The court held that Lawyer had not become "associated" with the plaintiff's lawyer within the meaning of Florida's version of Model Rules 1.10 and 1.11.

        In re Est. of McCauley, 2012 Ohio App. LEXIS 4128 (Ohio App. Oct. 9, 2012).  Client had been an executor of an estate and trustee of a related trust.  After her removal from those positions, issues arose about whether certain joint bank accounts should have been assets of the estate.  That was the subject of this opinion.  Client's lawyer in this case ("Lawyer") had served as Client's lawyer in a mediation while Client was executor, but had never served in the administration of the estate.  The trial court denied a motion to disqualify Lawyer in this case.  In this opinion the appellate court affirmed.

        Cafaro v. HMC Int'l, LLC, 2012 U.S. Dist. LEXIS 146697 (D.N.J. Oct. 11, 2012).  This is one of two securities fraud cases ("This Case" and "The Other Case") both arising out of the same alleged Ponzi scheme.  Two brothers were allegedly involved with the scheme ("Brother 1" and "Brother 2").  Brother 1 is a defendant in This Case and The Other Case.  Brother 2 was a defendant in the Other Case, but not This Case.  Brother 2 hired Law Firm as local counsel to defend him in The Other Case.  Law Firm represents the plaintiffs in This Case.  Brother 1 moved to disqualify Law Firm in This Case.  In this opinion the magistrate judge denied the motion.  While the reasoning was not always clear, basically it boiled down to the fact that Law Firm had never represented Brother 1 in either case and had not learned anything relevant to This Case in defending Brother 2 in The Other Case.  Moreover, the court held that Law Firm's contentions in This Case are not necessarily conflicting with its position in The Other Case.  In The Other Case Brother 2 was not accused of running the scheme, but rather receiving proceeds from the scheme, and Law Firm did not deny in The Other Case the existence of the scheme.


        Yhan v. Hovensa, L.L.C., 2012 U.S. Dist. LEXIS 161593 (D.V.I. Nov. 12, 2012).  Employment discrimination case.  A lawyer in the plaintiffs' law firm ("Lawyer") worked at the defendant's law firm for three years until November 2011.  While at the defendant's firm Lawyer worked on employment related cases for the defendant, but not this case.  The defendant moved to disqualify the plaintiffs' law firm.  The magistrate judge granted the motion, implicitly adopting the playbook approach to the substantial relationship test.  The magistrate judge also rejected the plaintiffs' claim that Lawyer had been screened at her new firm, because the firm had not complied with the notice provision of MR 1.10 (territorial courts and the federal District of Virgin Islands have adopted the ABA Model Rules).  In this opinion the district judge vacated the magistrate judge's order and remanded the case to the magistrate judge to develop more fully the evidentiary basis for the magistrate judge's finding of substantial relationship.  The district judge did not address the screening issue.

        Walker Digital, LLC v. Axis Commc'n AB, 2012 U.S. Dist. LEXIS 166280 (D. Del. Nov. 21, 2012).  Patent infringement case.  Lawyer worked at Law Firm A from 1995 to 1999, when he joined Law Firm B.  Law Firm B represents a defendant in this case.  Lawyer appeared for that defendant.  While at Law Firm A Lawyer worked on patent matters for the plaintiff in this case.  He did not work on matters related to the patents in this case.  The plaintiff moved to disqualify Lawyer and Law Firm B.  In this opinion the court denied the motion.  In addition to working on patents unrelated to the patents in this case, Lawyer's work for the plaintiff Firm A was fairly low level, which did not bring Lawyer into contact with key personnel of the plaintiff.

        Genova v. Kellogg, 2012 U.S. Dist. LEXIS 166203 (N.D. Ill. Nov. 21, 2012).  The plaintiff in this case is suing City, City's mayor ("Mayor"), and others for unlawful discharge.  The plaintiff had worked against Mayor's re-election campaign and claims that is why he was terminated.  Lawyer filed this action for the plaintiff.  In recent history, Lawyer, while with a law firm, represented City in unlawful discharge cases.  The defendants moved to disqualify Lawyer in this case.  In this opinion the court granted the motion.  The court felt that Lawyer would have been in a position to learn confidences about how City defended discharge cases and how Mayor used his political power in similar situations.

        Gabel v. Gabel, 2012 N.Y. App. Div. LEXIS 8215 (N.Y. App. Div. Dec. 5, 2012).  H sued W for divorce and related relief.  W moved to disqualify H's lawyer ("Lawyer") because Lawyer had earlier represented W in the formation of a corporation.  The trial court granted the motion.  In this short opinion the Appellate Division reversed.  In resisting discovery about the corporation, W claimed that the corporation was "closed."

        Texas Serenity Acad., Inc. v. Glaze, 2012 U.S. Dist. LEXIS 172347 (S.D. Tex. Dec. 5, 2012).  Suit over control of School.  A defendant moved to disqualify the plaintiffs' lawyer because that lawyer had previously represented the defendant.  In this opinion the court denied the motion.  The court noted that the only prior matter relating to School was a construction dispute, which had nothing to do with the issues in this case.


        Hudak v. U.S. Int. Rev. Serv., 2012 U.S. Dist. LEXIS 181709 (D. Md. Dec. 26, 2012).  Hudak owned several Hudak Companies.  Mules was CFO of one or more of the Hudak Companies.  The IRS pursued the Hudak Companies for federal payroll and withholding underpayments.  Mules and Hudak, along with Lawyer met with the IRS.  Lawyer warned Mules and Hudak that he could not get involved with a contest between Mules and Hudak regarding their relative personal liability under IRC Sec. 6672.  Hudak personally paid some of the taxes and, represented by Lawyer, brought this action for a refund of those payments.  The IRS brought a third-party action against Mules to ensure that at least one of them would be personally liable.  When all the pleading smoke cleared, there existed the possibility that Mules and Hudak would be pointing the finger at each other.  Mule moved to disqualify Lawyer.  In this opinion the court granted the motion, disqualifying Lawyer completely, but left open the door for Hudak to obtain a modification if Hudak could demonstrate a way Lawyer could participate in some manner.

        Davis v. EMI Grp. Ltd., 2013 U.S. Dist. LEXIS 1642 (N.D. Cal. Jan. 4, 2013).  In this case Musicians sued Record Co. to enforce certain royalty provisions in contracts between them.  Law Firm represents Record Co.  Previously, for many years, Law Firm represented one of the Musicians, including drafting the contracts involved in this case and making demands upon Record Co. in connection with the contracts.  Musicians moved to disqualify Law Firm.  In this opinion the court granted the motion.  The court noted that while many of the lawyers that had worked for the Musician had left Law Firm, several remained.  Moreover, Law Firm still had, in storage, boxes of documents relating to the earlier representations.  Fairly routine, fact-intensive, application of the substantial relationship test.

        Best v. Mobile Streams, Inc., 2013 U.S. Dist. LEXIS 3313 (S.D. Ohio Jan. 9, 2013).  This is a copyright dispute in which Law Firm represents two defendants.  More than fifteen years ago Law Firm represented the plaintiff in a patent dispute.  The plaintiff moved to disqualify Law Firm in this case.  In this opinion, applying Ohio Rule 1.9(a), the magistrate judge denied the motion, holding that the earlier patent matter was not substantially related to this copyright case.

        SHFL Entm't, Inc. v. Digideal Corp., 2013 U.S. Dist. LEXIS 6635 (D. Nev. Jan. 16, 2013).  Plaintiff is suing Defendant for infringing Plaintiff's patent on a playing-card shuffling machine.  Lawyer worked in-house at Plaintiff for two years, leaving in 2007.  Lawyer is now counsel of record for Defendant.  Plaintiff moved to disqualify Lawyer and his firm.  In this opinion the magistrate judge granted the motion.  The opinion is very fact-specific on the substantial relationship test.  While with Plaintiff, Lawyer performed a variety of tasks relating to card shuffling machines, including patent and copyright work.  He even did some work relating to a patent in this case.  The court also gave substantial weight to the playbook nature of what Lawyer learned while at Plaintiff.

        Helmer v. Goodyear Tire & Rubber Co., 2013 U.S. Dist. LEXIS 11779 (D. Col. Jan. 29, 2013).  This is at bottom a straightforward "substantial relationship test" case.  It involved the manufacture of rubber hose at different times.  The materials had changed as had the method of manufacture.  But, the use remained the same.  Thus, the court found substantial relationship.  The opinion contains an interesting discussion of which ethics rules applied, suggesting that federal common law would apply.  Nevertheless, the opinion discusses the ABA Model Rules as well as the Colorado rules.

        Pixler v. Huff, 2013 U.S. Dist. LEXIS 13485 (W.D. Ken. Feb. 1, 2013).  Suit for fraud arising out of the operation and sale of multiple related businesses.  A cross-claimant ("Danny") moved to disqualify the lawyer ("Lawyer") for the cross-defendant because Lawyer had represented several of the businesses with which Danny was associated.  In this opinion the court denied the motion because Danny had not shown that Lawyer had ever represented Danny and had not shown that Danny had given Lawyer any specific information relating to this action.

        Bernhoft Law Firm, S.C. v. Pollock, 2013 U.S. Dist. LEXIS 18988 (S.D. Cal. Feb. 12, 2013).  Lawyer, while at Law Firm, was lead counsel for Taxpayer in an IRS proceeding.  Lawyer left Law Firm and took Taxpayer with him -- leaving behind a $138,000 arrearage in fees.  In this case Law Firm sued Taxpayer for the unpaid fees.  Lawyer appeared for Taxpayer.  Law Firm moved to disqualify Lawyer.  In this opinion the court granted the motion.  The court's primary rationale was that Lawyer would have to attack his own work to defend the case.

        Peter Kiewit Sons, Inc. v. Wall St. Equity Grp., Inc., 2013 U.S. Dist. LEXIS 19367 (D. Neb. Feb. 13, 2013).  Lawyer represented multiple defendants in this trademark infringement case.  One defendant ("West") fired Lawyer.  The plaintiff moved to disqualify Lawyer as to the other defendants.  In this opinion the court granted the motion.  The court discussed the ways the defendants might to adverse to one another.  One particularly troublesome aspect was that the plaintiff was attempting to show that several of the defendants were sham entities and attempting to pierce the corporate veil protecting West.


        Snow, Christensen & Martineau v. Lindberg, 2013 Utah LEXIS 15 (Utah March 12, 2013).  Original Trust was created primarily to further a religion and to assist members of the religion.  In 2005 the court ordered the trust reformed under the cy pres doctrine.  The new trust ("New Trust") was stripped of its religious purposes for reasons relating to legality (polygamy, etc.) and the First Amendment's Establishment Clause.  For a time, prior to 2005, Law Firm represented Original Trust.  In this proceeding, arguably substantially related to Law Firm's earlier work, Law Firm appeared adverse to New Trust.  Parties moved to disqualify Law Firm.  The trial court granted the motion.  In this opinion the supreme court reversed, holding that the reformed trust (New Trust) was not the same party as Original Trust, for conflict-of-interest purposes.

        Kaleta v. Clausi, 2013 U.S. Dist. LEXIS 60879 (M.D. Pa. April 29, 2013).  Two lawyers ("Lawyers") represent the plaintiff against two county commissioners and the county in a dispute over development of some 6,000 acres of county land as a park.  Lawyers previously worked for the county.  The defendants moved to disqualify Lawyers.  In this opinion the magistrate judge denied the motion.  The opinion is highly fact-specific.  While the court noted that Lawyers had touched the development in various minor ways involving the county's "budding plans" for the property, the court found that involvement "temporally and topically remote" from the issues in this case.

        Cino v. Creighton, 2013 N.Y. Misc. LEXIS 1893 (N.Y. Sup. Ct. May 6, 2013).  In this opinion the court held that a "purported fraudulent transfer of property" was not substantially related to the "operation of [a] gas station proceeding," and denied a motion to disqualify.  [An impertinent note: the court was able to base her analysis on New York's superseded Code of Professional Responsibility while completely ignoring New York's Rules of Professional Conduct (eff. April 1, 2009).  She also re-introduces the discredited notion that former client conflicts are based upon both the duty of confidentiality and the duty of loyalty.]

        Medgyesy v. Medgyesy, 2013 U.S. Dist. LEXIS 66794 (N.D. Ill. May 10, 2013).  This opinion involves a motion to disqualify the plaintiff's lawyer because he had previously represented the defendant.  The lawyer claimed that he was not acting as a lawyer in the earlier matter, but all his E-mails in the earlier matter bore the legend, "Attorney work product" and contained the lawyer's law office address.  That seemed to be enough for the magistrate judge to grant the motion.

        Ogden v. Trufolo, 2013 N.J. Super. Unpub. LEXIS 1109 (N.J. App. Div. May 9, 2013).  Plaintiff sued Defendant for defective work in building a playroom in Plaintiff's basement.  Defendant moved to disqualify Plaintiff's lawyer ("Lawyer"), because Lawyer had done Defendant's parents' estate plans in 1993.  In this opinion the court said no substantial relationship.

        Tufamerica, Inc. v. Codigo Music LLC, 2013 U.S. Dist. LEXIS 65777 (S.D.N.Y. May 7, 2013).  This is a copyright dispute.  A ninety-one year old non-party witness ("Witness") was deposed.  At the deposition he was represented by Plaintiff's lawyer ("Lawyer").  As a result of the deposition Witness was added as a defendant.  Witness moved to disqualify Lawyer.  In this opinion the court granted the motion.  On the substantial-relationship point, the court noted that the fact that Defendants thought his testimony was necessary was persuasive.

        Lema v. NY-1095 Ave. of the Ams., LLC, 2013 N.Y. Misc. LEXIS 2298 (N.Y. Sup. Ct. May 29, 2013).  Employee, while working on a scaffold at Building, was injured by a falling concrete block.  Employee sued Building.  Building filed a third-party action against Employer.  Law Firm appeared for Building.  Earlier in this case Law Firm had represented Employer.  In this opinion the court noted, sua sponte, this apparent conflict and the absence of a written waiver from Employer.  The court ordered Law Firm to file papers addressing the conflict or, in the alternative, be disqualified from representing Building.

        State of Minnesota v. 3M Co., 2014 Minn. LEXIS 202 (Minn. April 30, 2014). For many years, and until about ten years ago, Covington represented 3M on matters dealing with perfluorochemicals ("PFCs").  In this case, which also deals with PFCs, Covington appeared for State against 3M. 3M moved to disqualify Covington. The trial court granted the motion. The appellate court affirmed, holding that the matters were substantially related because they all dealt with PFCs. In this opinion the Minnesota Supreme Court remanded the case to the trial court to consider several points. First, the court should consider whether the information sought to be protected had become generally known. Second, the court should consider whether 3M waived the attorney-client privilege by suing Covington in a separate, but related, action. Third, the court should consider whether 3M waived the conflict by waiting too long to bring the motion. Upon remand the trial court denied disqualification because Minnesota waited 16 months before moving to disqualify, State of Minnesota v. 3M Co., No. 27-CV-10-28862 (Minn. Dist. Ct. Feb. 5, 2016).

        Berlinger v. Wells Fargo, N.A., 2013 U.S. Dist. LEXIS 98292 (M.D. Fla. July 15, 2013).  This Case is a suit by Beneficiaries against TrustCo, trustee of their trust ("The Trust").  Divorce Case preceded This Case.  In Divorce Case W sued H and TrustCo as trustee of The Trust.  Lawyer represented TrustCo in Divorce Case, and Lawyer represents TrustCo in This Case.  Beneficiaries moved to disqualify Lawyer in This Case.  They claim that Lawyer was really Beneficiaries' lawyer in Divorce Case.  The magistrate judge denied the motion.  In this opinion the district judge affirmed.  Beneficiaries tried to rely on Jacob v. Barton, 877 So. 2d 935 (Fla. App. 2004), and Riggs Nat'l Bank of Washington D.C. v. Zimmer, 355 A.2d 709 (Del. Ch. 1976), both of which stand for the proposition that beneficiaries may, in some circumstances, discover communications between the fiduciary and fiduciary's lawyer.  The district judge refused to extend those holdings to a finding that Lawyer "benefitted or represented" Beneficiaries in Divorce Case.

        Nextdoor.com, Inc. v. Rajabhyanker, 2013 U.S. Dist. LEXIS 101440 (N.D. Cal. July 19, 2013).  Law Firm, representing Plaintiff, filed this IP case against Defendant.  Defendant moved to disqualify Law Firm because Law Firm had earlier represented Defendant in the formation of Defendant's business.  In this opinion the court denied the motion.  The court held that the formation of the business was not substantially related to the IP claims in this case.  To the extent that Defendant tried to show that Law Firm actually did related IP work for Defendant, the court held that Plaintiff's evidence in this regard overwhelmed Defendant's evidence.  The court also noted with approval that Law Firm had erected a screen between the personnel in the earlier representation and the personnel in this case.

        Fiduciary Trust Int'l of Cal. v. Superior Court, 2013 Cal. App. LEXIS 606 (Cal. App. July 31, 2013).  H had an estate of some $200 million.  Lawyer prepared H's estate plan.  At the same time Lawyer prepared W's estate plan.  H had three children from a prior marriage and one child with W.  Lawyer created several trusts to provide for W and all four children.  H died in 1993.  After H's death W changed her estate plan, in part to prefer her child.  W died in 2011.  TrustCo is the executor of W's estate.  TrustCo filed this action against the trustees of the children's trust to resolve a disagreement over whether W's estate or the children's trust is liable for some $27 million in estate taxes.  (The total tax bite was $100 million.)  Lawyer had also died.  Lawyer's law firm ("Law Firm") appeared for the trustees.  TrustCo moved to disqualify Law Firm because of its earlier representation of W (preparing her estate plan).  The trial court denied the motion.  In this opinion the appellate court reversed (granted mandamus).  The court held that Lawyer's work for W was substantially related to this case.  The court did not seem convinced that W's confidences were particularly relevant or at risk.  Rather,  the court seemed to bottom its decision on the fact that Law Firm, in this case, would be taking positions over substantial tax allocations resulting from documents Law Firm had prepared.

        LaBuick v. Sykes, 2013 SKPC 126 (Sask. Prov. Ct. July 24, 2013).  Plaintiff is suing Defendants over debris coming from Defendants' property onto Plaintiff's property.  Plaintiff consulted with Lawyer about the debris problem back in 1999 and paid Lawyer's bill for that consultation.  Lawyer appeared for Defendants in this case.  Plaintiff moved to disqualify Lawyer.  Lawyer claimed he did not recall the "details" of the prior consultation.  Nevertheless, the court in this opinion granted the motion to disqualify.

        FlatWorld Interactives LLC v. Apple Inc., 2013 U.S. Dist. LEXIS 111496 (N.D. Cal. Aug. 7, 2013).  Law Firm A represents Apple on a variety of matters.  Lawyer was a partner doing environmental work at Law Firm A until May 2013.  Lawyer's wife is a founder and owner of the plaintiff in this case.  While at Law Firm, Lawyer assisted his wife in various activities adverse to Apple.  This included communicating with the plaintiff's law firm ("Law Firm B") in this case.  Because of Lawyer's conflict, Apple moved to disqualify Law Firm B.  In this opinion the court denied the motion, because the evidence was that Lawyer was never privy to Apple's information while at Law Firm A and, thus, could not have communicated such information to Law Firm B.

        Bhandal v. Kalsa Diwan Soc'y of B.C., 2013 BCSC 1425 (CanLII) (Sup. Ct. B.C. Aug. 8, 2013).  Various factions of a Sikh religious society have argued, and litigated, almost every year about the manner of electing officers.  In this case Law Firm is representing one of these factions against the society.  Law Firm has been involved in previous disagreements over elections for a number of years, in some cases representing the society.  The society moved to disqualify Law Firm in this case.  In this opinion the court denied the motion.  The court found, basically, that Law Firm had no confidential information relating to this case and was not attacking its earlier work.  [Note: the opinion discusses the former client rule in some detail.  It, like other Canadian courts, uses the term "loyalty" (as opposed to confidentiality) somewhat more freely than we find comfortable.  But, it appears that Canada is gravitating to a rule somewhat similar to that in the U.S.  That is, for the former client/sufficiently-related rule to be triggered, the former client's confidences must be at risk, or the law firm is being called-upon to attack its former work.]

        Love v. Permanente Med. Grp., 2013 U.S. Dist. LEXIS 133686 (N.D. Cal. Sept. 18, 2013).  Wrongful termination case.  Law Firm represents Plaintiff.  Plaintiff sued several defendants but did not sue Shigematsu, an employee of defendants, who evidently was principally responsible for Plaintiff's termination.  Much of plaintiff's complaint deals with Shigematsu's conduct.  Law Firm rents space from Lawyer.  Although Lawyer is not a member of Law Firm, Lawyer and Law Firm have worked together on cases including this case.  Lawyer has represented Shigematsu in the past on matters dealing with Shigematsu's employment at the defendants.  Because of these relationships, the defendants, and non-party, Shigematsue, moved to disqualify Lawyer and Law Firm.  In this opinion the court disqualified Lawyer, but not Law Firm.  As to Lawyer, in a fact-intensive analysis, the court found that Lawyer's work for Shigematsu was substantially related to this case.  Because the defendants made no showing that Lawyer shared any of his knowledge about Shigematsu with Law Firm, the court declined to disqualify Law Firm.  The court applied the rule that disqualification of one lawyer does not, ipso facto, result in the disqualification of co-counsel.

        Hulzebos v. City of Sioux Falls, 2013 U.S. Dist. LEXIS 134085 (D.S.D. Sept. 19, 2013).  This is a suit by a former city employee against the city for back pay and increased pension benefits.  Lawyer represents the plaintiff.  Lawyer worked as a city employee/lawyer from 1995 to 2010.  During that period he was frequently consulted on employment matters, but not relating to the plaintiff.  For that reason the city moved to disqualify Lawyer.  In this opinion the court granted the motion, finding that Lawyer violated Rules 1.11 and 1.9(c).  In so ruling, the court adopted the playbook analysis.  In addition, the court said that Lawyer did not show sufficiently that Lawyer was not privy to matters related to the plaintiff while working for the city.

        McDonald v. McDonald Est., 2013 BCSC 1732 (CanLII) (Sup. Ct. B.C. Sept. 9, 2013).  Plaintiffs moved to disqualify Defendants' Lawyer ("Lawyer").  In this opinion the court denied the motion.  The analysis was fact intensive.  Several things emerged.  First the court held that where a lawyer represents a corporation, he is not thereby representing an officer or owner.  Second, the court reiterated the principle that although a lawyer did not have relevant confidential information from an earlier representation, the lawyer still may not be adverse to the former client if it meant attacking what the lawyer had done for the former client.  Last, the court found that the four year delay in bringing the motion was reason alone to deny it.

        Bank of N.Y. v. Aponte, 2013 Ohio App. LEXIS 4592 (Ohio App. Sept. 24, 2013).  In this foreclosure proceeding Lawyer was requested by another law firm to appear for Bank at a default hearing.  Lawyer did so and billed the other law firm.  Later Lawyer appeared for the defendant to seek relief from the judgement and a stay of execution.  Bank moved to disqualify Lawyer.  The trial court granted the motion.  In this opinion the appellate court affirmed.  Lawyer argued that the appearance at the default hearing was so inconsequential as to not be a representation.  Nothing doing, said the appellate court.

        United States v. Fair Lab. Practices Assocs. v. Quest Diagnostics Inc., 2013 U.S. App. LEXIS 21709 (2d Cir. Oct. 25, 2013).  General Partnership (“GP”) was formed to bring this qui tam action.  One of the general partners of GP had been the general counsel (“GC”) of a company acquired by the defendant during times relevant to this action.  Finding that GC was violating New York’s version of MR 1.9(c), the trial court dismissed the action and disqualified GP and the lawyers representing GP.  In this opinion the appellate court affirmed.  First, the court held that the federal False Claims Act does not preempt enforcement of state ethics rules.  Second, the court held that GC’s actions went too far in disclosing the defendant’s wrongdoing (the 1.6 part of the 1.9(c) analysis).  Third, the court held that, although GC was never employed by the defendant, he was employed by the acquired company, which meant that his duties of confidentiality passed to the defendant.  Last, the appellate court agreed with the trial court that QC’s violation tainted the other partners of GP as well as GP’s outside law firms.    

        Bowers v. Ophthalmology Grp., 2013 U.S. App. LEXIS 21702 (6th Cir. Oct. 25, 2013).  Plaintiff was a partner in a medical partnership.  After tendering her resignation, to be effective in one year, the partnership voted to terminate her immediately.  Plaintiff filed this action against the partnership alleging discrimination and retaliation.  Law Firm represents the partnership.  A year or so before this suit Plaintiff had retained a partner in Law Firm to handle setting up a separate, part-time, practice for her.  Plaintiff moved to disqualify Law Firm in this case.  The trial court granted defendant summary judgment on the merits, then denied the motion to disqualify as moot.  The appellate court held that the trial court should have ruled on the motion to disqualify before ruling on the merits.  The appellate court held as a matter of law that Law Firm’s earlier work for Plaintiff was substantially related to this case.  The court disqualified law firm, vacated the summary judgment, and remanded the case to the trial court.


        Re Tex. Windstorm Ins. Ass’n, 2013 Tex. App. LEXIS 13735 (Tex. App. Nov. 7, 2013).  This opinion involves two pieces of litigation, both arising out of Hurricane Ike.  This case is a putative class action brought against InsCo on behalf of a class of municipalities.  The earlier case was brought by County against InsCo.  In the earlier case County’s lawyer (“Lawyer 1”) retained Lawyer 2, a specialist in insurance law, to opine on County’s right to overhead and profit (“O&P”) recoveries.  In this case, the class of municipalities seek to recover based upon InsCo claims handling procedures.  Lawyer 2 appeared for InsCo in this case.  Based upon Lawyer 2’s work for Lawyer 1 in the earlier case, the plaintiff(s) in this case moved to disqualify Lawyer 2.  The trial court granted the motion.  In this opinion a 2-1 majority reversed (granted mandamus).  First, the majority held that Lawyer 2 is not adverse to a former client in this case.  (Lawyer 2 is not adverse to Lawyer 1 in this case, just Lawyer 1’s clients.)  Notwithstanding that finding, the court addressed the substantial relationship test, as well.  The court held that although both cases involved the same hurricane, the issues involved were not substantially related.  The opinion was highly fact-specific.  It also focussed on Texas’ unique version of MR 1.9, citing primarily Texas cases.  Texas lawyers should read the opinion.

        Board of McCaren Park Mews Condo. v. McCaren Park Mews LLC, 2013 N.Y. Misc. LEXIS 5161 (N.Y. Sup. Ct. Nov. 7, 2013).  In this case Condominium Bd., represented by Lawyer, sued Developer for defective construction.  Lawyer had assisted in the defense of Developer in two prior suits by condominium boards for defective construction, involving different projects.  In granting Developer’s motion to disqualify Lawyer in this case, the court, in this opinion, held that the matters were substantially related.

        Board of McCaren Park Mews Condo. v. McCaren Park Mews LLC, 2013 N.Y. Misc. LEXIS 5161 (N.Y. Sup. Ct. Nov. 7, 2013).  In this case Condominium Bd., represented by Lawyer, sued Developer for defective construction.  Lawyer had assisted in the defense of Developer in two prior suits by condominium boards for defective construction, involving different projects.  In granting Developer’s motion to disqualify Lawyer in this case, the court, in this opinion, held that the matters were substantially related.

        Pearce-Ell v. Holgate, 2013 SKQB 434 (CanLII) (Ct. Q.B. for Sask. Dec. 11, 2013).  Buyers purchased a business and related real estate from Seller.  A dispute arose, and this suit resulted.  Buyers moved to disqualify Seller’s lawyer (“Lawyer”), alleging that Buyers reasonably believed that Lawyer was representing both Seller and Buyers in the transaction.  In this opinion the court granted the motion.  First, the court held that Buyers had a lawyer-client relationship with Lawyer during the transaction.  Second, the court held that the transaction was sufficiently related to this suit.  Third, there was a danger that Buyer’s confidences could be used by Lawyer in this case.   Last, Buyer did not wait too long to bring the motion.  While Lawyer claimed he told Buyers to get their own lawyer for the transaction, Buyers denied that.  Further, the court seized on several facts that made Buyers’ claims more plausible.

        Roberts v. Legacy Meridian Park Hosp., Inc., 2014 U.S. Dist. LEXIS 8751 (D. Ore. Jan. 24, 2014).  Doctor P sued several medical entities and individuals, including Doctor D, for race discrimination, among other things, resulting in limitations on his practice.  Law Firm is representing Doctor D.  Some years prior Law Firm had represented Doctor P in several medical malpractice cases.  For that reason Doctor P moved to disqualify Law Firm.  In this fact-intensive opinion, after reviewing the types of information Law Firm reasonably would have gained about Doctor P in the malpractice cases, the court denied the motion.

        Rombola v. Botchey, 2014 Fla. App. LEXIS 1374 (Fla. App. Feb. 4, 2014). Personal injury case. Lawyer took a leading role in defending during the trial. After the trial, during the post-trial motion phase, Lawyer went to work with the plaintiff’s lawyer. This formed a two-person law firm. The defendant moved to disqualify the plaintiff’s law firm. Instead of opposing the motion the plaintiff’s law firm had the court enter an order disqualifying the plaintiff’s firm “regarding any further issues at the trial level regarding the trial of the case.” The defendant appealed (petitioned for cert.). In this opinion the appellate court reversed, holding the plaintiff’s law firm should be disqualified from the case completely, including appeal. The court said this kind of litigation cannot be compartmentalized as trial court attempted to do.

        Dougherty v. Philadelphia Newspapers, LLC, 2014 Pa. Super LEXIS 36 (Pa. App. Feb. 11, 2014). In this case a candidate for the state legislature (“Candidate”) sued the newspaper for disparaging him about subjects, some of which related to a federal grand jury proceeding. Law Firm appeared for the defendants in this case. Earlier Law Firm had represented Candidate in connection with the grand jury proceeding. Candidate moved to disqualify Law Firm. The trial court denied the motion. In this opinion the appellate court reversed, finding that the matters were substantially related.

        In re Indem. Ins. Corp., RRG, 2014 Del. Ch. LEXIS 23 (Del. Ch. Feb. 19, 2014). Complicated fact situation surrounding the state’s seizure of an insurance company. Several parties moved to disqualify a lawyer under Rule 1.9 because of a prior representation. In this opinion the Vice Chancellor denied the motion because the moving parties had failed to show that the Rule 1.9 violation “taints the fairness of the proceeding.” Accordingly, the court held it lacked jurisdiction to address the violation. [Note: this is an odd Rule 1.9 formulation. Usually, the court looks to whether matters were “substantially related,” which is grounded upon confidentiality concerns. The Vice Chancellor relied primarily on In re Infotechnology, Inc., 582 A.2d 215 (Del. 1990). However, that case’s “taints the fairness” test was applied because the moving person had no standing to raise the conflict.]

        Valeant Canada LP v. Minister of Health & Cobalt Pharm. Co., 2014 FCA 50 (CanLII) (Fed. Ct. App. Feb. 24, 2014). Proceeding under Canada’s Notice of Compliance regulations relating to generic drugs. The proceeding began when Cobalt served its Notice of Allegation on Valeant. Lawyer is employed in-house by Cobalt. Lawyer had previously worked at a law firm that was representing Valeant on matters relating to diltiazem hydrochloride, the substance involved in this case. Lawyer had worked on one of those matters. Valeant moved to disqualify Lawyer. The Federal Court granted the motion. In this opinion the Federal Court of Appeals affirmed. The court held that once it was established that Lawyer had Valeant’s confidential information, Lawyer’s disqualification was “automatic.” Valeant had also requested that Cobalt’s Notice of Allegation be invalidated. The court felt the record thus far did not establish that Cobalt had misused Valeant’s confidential information in preparing the Notice of Allegation, which, at a minimum, would have to be shown.

        Sunbeam Prods. Inc. v. Oliso, Inc., No. C 13-03577 SI (N.D. Cal. March 4, 2014). Patent infringement action involving “vacuum packaging technology.” Lawyer represented Company A for some years in vacuum packaging technology cases. In 2006 the plaintiff in this case purchased Company A and merged it into the plaintiff. Because Lawyer now represents the defendant, the plaintiff moved to disqualify Lawyer. In this opinion the court granted the motion. First, the court held that by virtue of the merger the plaintiff is deemed a former client of Lawyer. Second, the court held the representations were substantially related.

        Same Property; Different Issue (posted March 11, 2014) Foster v. Trustee for JP Morgan Mortgage, U.S., 2014 U.S. Dist. LEXIS 10017 (W.D. Va. March 7, 2014). Plaintiff is suing Defendant for mishandling Plaintiff’s mortgage. Law Firm represents Defendant. Seven years before this case two lawyers at Law Firm represented Plaintiff on an easement issue involving the property that is the subject of this case. Those two lawyers left Law Firm about six years ago. Plaintiff moved to disqualify Law Firm in this case. In this opinion the magistrate judge denied the motion. First, the court held the matters were not substantially related. A second independent ground is that the absence of the two lawyers in question triggered application of Virginia’s version of MR 1.10(b).

        Hepburn v. Workplace Benefits, LLC, 2014 U.S. Dist. LEXIS 52628 (E.D.N.C. April 16, 2014). Employment-related suit (wrongful discharge, failure to promote, etc.) Lawyer appeared for Plaintiff. Lawyer previously was an employee of Defendant with the title of Provider Relations Legal Specialist. Lawyer’s duties included the occasional legal task as well as non-legal work. Defendant is in the business of giving guidance to companies on employee relations. Defendant moved to disqualify Lawyer. In this opinion the court denied the motion. The court said Defendant had not shown that Lawyer’s employment was “essentially identical” to this case. Thus, no substantial relationship.

        Sessa v. Parrotta, 2014 N.Y. App. Div. LEXIS 2861 (N.Y. App. Div. April 30, 2014). Law Firm earlier represented W in preparation of a will. In this divorce case Law Firm is representing H against W. W moved to disqualify Law Firm. The trial court granted the motion. In this opinion the appellate court reversed, noting that W offered only “conclusory allegations” about W's information shared with Law Firm. The court also noted that the validity of H and W’s prenuptial agreement was not at issue in this case and that H and W had “waived their rights of equitable distribution.”

        Tendeka, Inc. v. Glover, 2014 U.S. Dist. LEXIS 67109 (S.D. Tex. May 15, 2014). Plaintiff filed this action against Defendants for breach of a License and Supply Agreement (“LSA”), dated October 2009, and for tortious interference with the LSA. Law Firm, on behalf of Plaintiff, helped draft the LSA. Law Firm appeared in this case on behalf of one of Defendants. Plaintiff moved to disqualify Law Firm. In this opinion the court granted the motion, finding that the matters were substantially related.

        SalDan v. Super. Bus. Dev. Bank, 2014 ONSC 2979 (CanLII) (Ont. Super. Ct. May 15, 2014). Law Firm represented Defendant in Defendant’s creation. In this case Law Firm is asserting a construction lien for Plaintiff against Defendant. Defendant moved to disqualify Law Firm. In this opinion the court granted the motion. In a fact-intensive analysis the court found the earlier representation sufficiently related to the the construction project. The court also noted playbook elements such as Law Firm’s knowledge of Defendant’s “legal and business strategies and risk tolerances,” which would provide Plaintiff with “a distinct advantage” in this case.

        Avra Surg., Inc. v. Dualis TedTech GmbH, 2014 U.S. Dist. LEXIS 71803 (S.D.N.Y. May 27, 2014). Lawyer, in-house counsel for A, represented A and an unrelated party, B, in negotiating a contract with C. The relationship between A and B soured, and Lawyer, representing A, filed this case against B. B moved to disqualify Lawyer. In this opinion the court granted the motion. The result was clearly correct. However, the court engaged in an unnecessary discussion of whether loyalty (as opposed to confidentiality) played a role in applying Rule 1.9(a), holding that it did. This is wrong, Charles W. Wolfram, Former-Client Conflicts, 10 Geo. J. Legal Ethics 677, 691-702 (1997).

        Zerger & Mauer LLP v. City of Greenwood, 2014 U.S. App. LEXIS 10060 (8th Cir. May 30, 2014). Big Co. was hauling massive amounts of gravel through City. City, represented by Lawyers, brought a public nuisance proceeding against Big Co. They settled. Part of the settlement required all further gravel movements be confined to Second Avenue in City. Lawyers then represented persons having land on Second Avenue in a private nuisance suit seeking damages from Big Co. (this case). City intervened in this case to move to disqualify Lawyers. The trial court granted the motion. In this opinion the appellate court upheld the disqualification and severely criticized Lawyers.

        Avendano v. Security Consults. Grp., 2014 U.S. Dist. LEXIS 75598 (D. Nev. June 2, 2014). Employees brought an arbitration against Employer and Union claiming wrongful termination. The arbitrator ordered Employees reinstated. Employees then filed this case claiming the reinstatements were being conducted wrongfully. Law Firm represented Union in the arbitration, but represents Employees in this case. Law Firm’s involvement with Union in the arbitration case ended in May 2012. Its involvement in this case began in October 2012. Union moved to disqualify Law Firm in this case. In this opinion the magistrate judge denied the motion. First, the arbitrator noted the differences between the arbitration, which involved unlawful termination, and this case, which involved claims that the reinstatements were handled wrongfully. The court accepted the argument that Law Firm, in the termination case, would not naturally have discussed with Union the future possibility of reinstatement and how it would be handled. The court also noted that Law Firm’s lawyers’ statements about not having discussed the latter with Union personnel were direct and unequivocal, while the Union statements were vague and unspecific.

        Douglass v. Priddy, 2014 Ohio App. LEXIS 2821 (Ohio App. June 30, 2014). Lawyer represented Employer in negotiating and drafting Employee’s employment contract. After leaving Employer, Employee set up a competing business. Employer sued Employee in this case alleging various theories of unlawful competition. Lawyer appeared for Employee. Employer moved to disqualify Lawyer. The trial court granted the motion. In this opinion the appellate court affirmed.

        Former Client (posted July 8, 2014) Atmosphere Hospitality Mgmt. Servs., LLC v. Royal Realties, LLC, 2014 U.S. Dist. LEXIS 91100 (E.D. Mich. June 26, 2014). Law Firm represented Hotel Company in labor and employment matters. Two years later Law Firm filed a suit against Hotel Company on behalf of another company for contract-related claims arising out of management of Hotel Company’s hotel. In a good discussion of the substantial relationship test the court in this opinion granted a motion to disqualify Law Firm.

        Fiduciary Trust Int’l of Cal. v. Super. Ct., 160 Cal. Rptr. 3d 216 (Cal. App. 2013). Law Firm represented H and W in estate planning. After they both passed away, a dispute arose over which trust of several trusts had to pay how much estate and inheritance tax. Law Firm took a position, which was adverse to W’s personal representative. W’s personal representative moved to disqualify Law Firm. The trial court denied the motion. In this opinion the appellate court reversed (granted mandamus). The court said that the fact that Law Firm had represented both H and W did not affect a straightforward substantial relationship test analysis.

        Matthews v. Matthews, 2014 BCSC 1179 (CanLII) (S. Ct. B.C. July 23, 2014). Family Law matter. W is represented by Lawyer. Ten years ago H consulted Lawyer about H’s relationship with another woman. H also introduced W to Lawyer to assist W regarding her son from another relationship. Because of these earlier matters, H moved to disqualify Lawyer in this case. Lawyer averred he remembered nothing about the prior matters and that, because he had changed firms twice since, he had no access to the earlier files. In this opinion the court denied the motion.

        In re Colony Ins. Co., 2014 Tex. App. LEXIS 9902 (Tex. App. Sept. 2, 2014). Lawyer for the plaintiff in this case against InsCo represented InsCo in two prior matters. In the first, the issue was InsCo’s duty to defend or indemnify an insured in a wrongful death case. In the second, the issue was whether InsCo’s policy covered a legal malpractice claim. In this case InsCo claims its policy was cancelled for non-payment of premiums. The trial court in this case denied InsCo’s motion to disqualify Lawyer. In this opinion the appellate court denied mandamus because it could not disturb the trial court’s “factual determinations” “by mandamus review.” [Note: this opinion discusses the interplay between Texas’ odd versions of MRs 1.6 and 1.9. We do not understand those rules or the court’s analysis, although the result appears to be appropriate.]

        United States v. City of Romulus, 2014 U.S. Dist. LEXIS 122417 (E.D. Mich. Sept. 3, 2014). Plaintiff, a former City employee, brought this case against City and two former officials of city. She claims wrongful retaliation and discharge, and violation of the False Claims Act. Plaintiff was represented by her husband, who had been an Assistant City Attorney for City during the time of the conduct alleged in the complaint. The defendants moved to disqualify Lawyer. In this fact-intensive opinion the court found a substantial relationship between what Lawyer did for City and this case against City. For some reason the court repeated the process with a different appearing opinion at
2014 U.S. Dist. LEXIS 143583 (E.D. Mich. Oct. 9, 2014). The court followed up and explained what she did at United States v. City of Romulus, 2014 U.S. Dist. LEXIS 122417 (S.D. Mich. Sept. 3, 2014). There she denied rehearing and noted that the two prior opinions were substantively identical.

        Galaxy Fireworks, Inc. v. Kozar, 2014 Fla. App. LEXIS 14235 (Fla. App. Sept. 14, 2014). This is a suit for breach of a joint venture agreement. Lawyer represents Plaintiff. Lawyer earlier, as a favor to Lawyer’s primary client (Plaintiff in this case), had represented Defendant in a landlord-tenant dispute. Lawyer did not charge Defendant. The trial court granted Defendant’s motion to disqualify Lawyer. In this opinion the appellate court reversed, holding that the matters were not substantially related.

        Men Women N.Y. Model Mgmt. v. Kavoussi, 2014 N.Y. Misc. LEXIS 4289 (N.Y. Sup. Ct. Sept. 29, 2014). Substantial relationship analysis. One matter involved an employment agreement, the other a termination agreement. No substantial relationship.

        State of N.Y. v. Monfort Trust, 2014 U.S. Dist. LEXIS 142589 (E.D.N.Y. Oct. 7, 2014). We will simplify the facts (perhaps overly so) to make this summary manageable. Polluted real estate. Owners entered into a consent order with State for cleanup costs. A disagreement arose over how much was owing, so State filed this action against Owners to recover cleanup costs. Owners filed third-party actions against a former property manager (“Manager”) who had bought the property and signed an indemnification agreement arguably covering amounts recovered by State in this action. Lawyer appeared for Manager. Owners moved to disqualify Lawyer because Lawyer had represented Owners in the negotiation with State of the original consent order. Lawyer had nothing to do with the negotiation or preparation of the indemnification agreement between Owners and Manager. In this opinion denying disqualification the magistrate judge ruled that Lawyer’s involvement with the consent order was not substantially related to this third-party claim for indemnification.

        In re Ruvalcaba, 2014 Tex. App. LEXIS 11198 (Tex. App. Oct. 9, 2014). Party 1 moved to disqualify Lawyer, member of Law Firm, who was representing Party 2. The reason was that Lawyer had earlier represented the spouse of Party 1 and had learned confidences of Party 1 in the earlier matter. The trial court granted the motion as to Lawyer, but not as to Law Firm. Party 1 appealed the failure to disqualify Law Firm. Party 2 did not appeal the disqualification of Lawyer. In this confusing opinion the appellate court held that Law Firm should be disqualified. [Note: for no reason ever explained to us Texas decided to tamper extensively with the ABA Model Rules, both as to numbering and terminology. This makes it impossible for us fully to understand what the courts were doing here. Evidently, the appellate court was relying on Texas Rule 1.9(b), which resembles Model Rule 1.10(a).]

        The Copper Cellar Corp. v. Ole Smokey Distillery, 2014 U.S. Dist. LEXIS 146054 (E.D. Tenn. Oct. 14, 2014). Trademark case. Lawyer for Defendant has in the past done trademark work for Plaintiff. Plaintiff moved to disqualify Lawyer in this case. In this opinion the magistrate judge denied the motion. In a fact-intensive analysis the court noted that Lawyer’s work for Plaintiff involved different trademarks and said that “[t]he Court is not prepared to find that all trademark matters are substantially related” within the context of Rule 1.9.

        Anderson & Anderson LLP-Guangzhou v. N. Am. Foreign Trading Corp., 2014 N.Y. Misc. LEXIS 4611 (N.Y. Sup. Ct. Oct. 20, 2014). Client hired Lawyer to collect an arbitration award. Lawyer drafted the contingent fee agreement between Lawyer’s law firm “Law Firm”) and Client. Law Firm, representing itself, brought this action against Client to enforce the fee agreement. Client moved to disqualify Lawyer in this case. In this opinion the court disqualified Lawyer and Law Firm under Rule 1.9 (former client rule). The court also ruled that Lawyer, but not Law Firm, was disqualified under Rule 3.7 (lawyer as witness). [Note: it is not clear to us why the court dwelled on Rule 3.7 at all, when Rule 1.9 provided the grounds for disqualifying both Lawyer and Law Firm.]

        Pinnacle Surety Servs., Inc. v. Loehnert, 2014 U.S. Dist. LEXIS 163106 (W.D. Ky. Nov. 20, 2014). Clients left Co. No. 1 to join Co. No. 2. Co. No. 1 sued Clients and Co. No. 2 for tortious interference, etc. (Suit 1). Law Firms defended Suit 1 for Co. No. 2 and Clients. Clients then left Co. No. 2 to set up a new company. Co. No. 2 sued Clients for damages, etc. (“This Case”). Law Firm appeared for Clients against Co. No. 2 in This Case. Co. No. 2 moved to disqualify Law Firm in This Case because Law Firm had earlier represented Co. No. 2 in Suit 1. In this opinion the court granted the motion. In a fact-intensive analysis the court pointed out how the issues in Suit 1 and This Case were close enough to give Law Firm an undue advantage in This Case. The court denied rehearing at Pinnacle Security Servs., Inc. v. Loehnert, 2015 WL 1136647 (W.D. Ky. March 12, 2015). The court certified the case for appeal.

        In re Caryl S.S., 2014 WL 6780656 (N.Y. Sup. Ct. Nov. 25, 2014). This is a proceeding for appointment of a guardian of the person and property for an alleged incapacitated person (“AIP”). Among other things, the court in this opinion disqualified the lawyer for the applicant because the lawyer had earlier prepared two deeds and a will for the AIP.

        City of Chicago v. Purdue Pharma L.P., 2014 U.S. Dist. LEXIS 172975 (N.D. Ill. Dec. 15, 2014) Private Lawyer was hired to represent City in this case. Defendant moved to disqualify Private Lawyer pursuant to D.C. Rule 1.11(a). Private Lawyer had previously been Attorney General (“AG”) of D.C. Prior to her becoming AG, subordinates in that office had been conducting an investigation into Defendant involving the same type of claims as in this case. Private Lawyer’s role in that investigation was minimal and superfluous. Her name appeared on a few pleadings, and she authored a press release announcing a successful settlement. In this opinion, denying the motion to disqualify, the court made two findings: (1) Defendant had standing to make the motion; and (2) Private Lawyer did not participate in the D.C. proceedings “personally and substantially” as required by D.C. Rule 1.11(a).

        De La Cruz v. Virgin Isles. Water & Power Auth., 2014 WL 7398889 (3d Cir. Dec. 30, 2014). Plaintiff, who was painting a building, was electrocuted when his “painting pole” contacted Power Co.’s power line. Law Firm filed a personal injury suit for Plaintiff against Power Co. An associate in Law Firm had previously, at another law firm, done work for Power Co. on a case involving an alleged defective guy wire. Power Co. moved to disqualify Law Firm. The trial court granted the motion. In this opinion the Third Circuit affirmed, holding that a guy wire case was substantially related to a power line case.

        Doe v. City of Memphis, 2015 WL 65288 (W.D. Tenn. Jan. 5, 2015). This class action deals with the alleged failure of City to deal properly with rape evidence, which failure extended back at least 25 years. The plaintiffs’ lawyer had been City Attorney of the defendant from 1997 to 2004. City moved to disqualify the plaintiffs’ lawyer and his law firm. In this opinion the court granted the motion as to the former City Attorney, but not his firm. The court found a violation of Rule 1.11 due to the lawyer’s “policymaking and leadership roles” as City Attorney. The court allowed the firm to continue provided it comply with the screening provisions of Rule 1.11(b). The district judge reversed as to the former City Attorney at Doe v. City of Memphis, 2015 WL 4019550 (April 8, 2015).

        PilePro, LLC v. Chang, 2015 WL 300636 (W.D. Tex. Jan. 22, 2015). Chang’s motion to disqualify Plaintiffs’ lawyers (“Lawyers”). Lawyers represented Chang in an Earlier Matter. Both cases involve alleged fraud by Chang while CFO of PilePro. In a fact-intensive substantial relationship analysis the court concluded that Lawyers would have gotten into Chang’s head in Earlier Matter in ways that would relate substantially to Chang’s activities in this case.

        IAR Sys. Software, Inc. v. Shehayed, 2015 WL 294822 (Cal. App. Jan. 22, 2015). In this case IAR, represented by Law Firm, is suing its former CEO for misuse of company funds. Law Firm had represented IAR for many years and had worked closely with CEO on company matters. CEO hired Law Firm to defend IAR in an earlier wrongful termination case brought by another employee. Law Firm prepared CEO for his deposition in that case and accompanied him to the deposition. CEO moved to disqualify CEO in this case. The trial judge denied the motion, finding that Law Firm never represented CEO. In this opinion the appellate court affirmed. Evidently, CEO never asserted to Law Firm that he believed it was representing him. By the same token, Law Firm never declared that it was representing only IAR and not CEO. The court noted that the only information CEO gave Law Firm during the earlier case was company information and not his personal information. Close.

        Sirisup v. It’s Thai, L.L.C., 2015 WL 404096 (C.D. Cal. Jan. 29, 2015). In this opinion, in denying a motion to disqualify, the court held that a brief representation in an earlier case involving corporate governance was not substantially related to this trademark case. The court also held that waiting six months to bring the motion was grounds for denial.

        Boies, Schiller & Flexner LLP v. Host Hotels & Resorts, Inc., 2015 WL 1035841 (2d Cir. March 11, 2015). Party A moved to disqualify Law Firm, which represented Party B. Law Firm had earlier represented Party A. The trial court granted the motion and ordered sanctions against Law Firm for its bad faith in resisting disqualification (conduct “‘far, far, worse’ than mere negligence”). In this brief opinion the appellate court affirmed. It noted that when Party A confronted Law Firm with the conflict, Law Firm provided its outside ethics counsel with “an unreasonably narrow description” of its earlier work for Party A. The court also noted that Law Firm accepted this matter adverse to Party A, its former client, without reviewing billing records from the earlier matter and that Law Firm declared it had no conflict before completing its review of the files from the earlier matter.

       
Maricultura Del Norte, S. De R.L. De C.V. v. Worldbusiness Capital, Inc., 2015 WL 1062167 (S.D.N.Y. March 6, 2015). Law Firm represents several defendants in this case. At some point Lawyer A, a partner at Law Firm, had had communications with a lawyer at Plaintiff. Based upon these communications, Plaintiff moved to disqualify Lawyer A and Law Firm. Much of the opinion deals with whether Lawyer A ever had a lawyer-client relationship with Plaintiff. In a fact-intensive analysis the court held that there was a lawyer-client relationship, and held that Lawyer A should be disqualified. The court refused to disqualify Law Firm because it had established a screen between those working on this case and those who dealt with Plaintiff.

        Northern Natural Gas Co. v. Approximately 9117 Acres, 2015 WL 1097488 (D. Kan. March 9, 2015). This is a condemnation action brought by GasCo to acquire land into which GasCo’s underground storage facility is leaking gas. Defendant 1 is represented by Lawyer. Defendant 2 moved to disqualify Lawyer because Lawyer had earlier represented Defendant 2 in a lease dispute involving a tract of land involved in this action. In this opinion the court found that the earlier lease dispute was not substantially related to this condemnation action. Defendant 2 failed to show how any confidences Lawyer might have learned in the lease dispute would be relevant to this action. Lawyer had also represented Plaintiff in a divorce but could recall nothing of that matter and had retained no files relating to it. Further, Plaintiff made no showing of what Lawyer might have learned in the divorce matter that would be relevant to this action.

        2368230 Ont. Inc. v. Fu, 2015 ONSC 2378 (CanLII) (Ont. Superior Ct. April 13, 2015). Landlord moved to disqualify the law firm for the Tenant (Law Firm), claiming Landlord was a former client of Law Firm. In denying the motion, the court assumed for the sake of argument that Landlord was a former client. But, the court said that the earlier handling of the sale of real estate was not related to the current dispute regarding the payment of rent. No confidences were involved, and Law Firm was not attacking its earlier work.


        McElroy v. Pacific Autism Ctr. for Educ., 2015 WL 2251057 (N.D. Cal. May 13, 2015). This is a suit by Parents against a private school for autistic children, for mistreatment of Parents’ autistic child. The school moved to disqualify one of the Parents’ lawyers because he had, for several years up until 2005, served as one of the schools directors and as Executive Director. The alleged mistreatment occurred in 2010-2012. The lawyer had never done legal work for the school. Nevertheless, the court did a substantial relationship analysis and found the matters not related. The lawyer’s primary responsibility at the school was financial and fund-raising. This suit is about mistreatment of a single student years after the lawyer had left his school positions.

        Avigdor v. Rosenstock, 2015 WL 2238881 (N.Y. Sup. Ct. May 12, 2015). This is a routine substantial relationship analysis of no apparent precedential value. What is off-putting, however, is the court’s heavy, but not exclusive, reliance on the “appearance of impropriety.”

        Innovative Memory Solutions, Inc. v. Micron Tech., Inc., 2015 WL 2345657 (D. Del. May 15, 2015). Patent infringement case. Two of Plaintiff’s lawyers formerly worked at a law firm where they represented Defendant in seven patent cases and a trade secret case, all of which involved NAND flash technology. This case involves similar flash technology. In this opinion the court granted a motion to disqualify Plaintiff’s law firm, finding the prior matters were substantially related to this case.

        Somers v. Digital Realty Trust, Inc., 2015 WL 2354807 (N.D. Cal. May 15, 2015). This is an employment-related case by Plaintiff against Employer A. Employer A is represented by Law Firm. Before Plaintiff went to Employer A, he was advised by a partner at Law Firm about negotiating with prospective Employer B. He was billed for 2.1 hours by Law Firm. Because of that prior representation Plaintiff moved to disqualify Law Firm in this case. In this opinion the court did not find a substantial relationship and denied the motion.

        Pace v. Williams, 2015 WL 3751405 (S.D. Ala. June 16, 2015). W is suing H, among others, for unlawfully causing her to be committed. Lawyer is representing W. Earlier, Lawyer had sent a demand letter to one of the defendants indicating that Lawyer represented both H and W. Lawyer also participated in the preparation of affidavits of both H and W relating to the subject matter of this suit. In this suit W is complaining that H’s affidavit is a complete fabrication. One of the defendants (not H) moved to disqualify Lawyer, but that defendant was dismissed. Even though H did not raise the conflict, the court considered it anyway. The court found a violation of Rule 1.9 and gave the parties a choice among the following: (1)  Lawyer withdraw; (2) Lawyer obtain consents from both H and W; or (3) W dismiss the claims against H, without prejudice.

        Moore v. Olson, 2015 WL 4031624 (Alaska July 2, 2015).  In this opinion the court affirmed a trial court’s holding that Lawyer did not have a conflict under Rule 1.9(a). The earlier matter involved negotiation of a helicopter hangar lease. This case involves enforcement of a business break-up settlement agreement. Not substantially related.

        Somers v. Digital Realty Trust, Inc., 2015 WL 4483955 (N.D. Cal. July 22, 2015). This is an employment-related case against Co. B. Law Firm is representing Co. B. Earlier Plaintiff engaged Law Firm to assist him in applying for employment at Co. A. Law Firm billed Plaintiff for 2.1 hours. At some point Plaintiff notified Law Firm that he was going with Co. B. Plaintiff moved to disqualify Law Firm in this case. In this opinion the court denied the motion. The court found no confidences to be involved, and that the matters were not related.

        O’Rear v. City of Carbon Hill, 2015 WL 5286140 (N.D. Ala. Sept. 8, 2015). This a suit by citizens of City, represented by Lawyer, relating to City’s failure to redistrict following the 2010 census. Some ten years ago Lawyer represented City in preparing a plan for city council member districts and in moving to dismiss a case based on that work. City moved to disqualify Lawyer in this case. In this opinion the magistrate judge recommended the motion be denied, finding no substantial relationship. Also, in this opinion, the district judge adopted the recommendation.

        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.

        Lieu v. Cohen & Slamowitz, LLP, 2015 WL 5579876 (E.D.N.Y. Sept. 22, 2015). This is a suit by debtors against Law Firm under the Fair Debt Collection Practices Act. Lawyer represents several name plaintiffs. Lawyer had previously worked at Law Firm on collection matters. While with Law Firm Lawyer consulted with Law Firm lawyers on the settlement of an earlier matter brought by different debtors against Law Firm. Law Firm moved to disqualify Lawyer in this case. In this opinion the court granted the motion. The court found that Lawyer had represented Law Firm in the earlier case and that the earlier case was substantially related to this case. The court also found that Lawyer would have learned Law Firm confidences, which would help Lawyer in this case.

        Woods v. Mich. Dep’t of Corr., 2015 WL 7075922 (E.D. Mich. Nov. 13, 2015). In January 2015 Woods brought this employment discrimination case against Agency and two Agency employees. One of the employees was named “Burton.” It turns out that Burton also went by the name, Swain. Law Firm represents Woods in this case. Earlier, also in January 2015, Swain retained Law Firm to file an unrelated accident case for her. In July 2015 Agency’s lawyer flagged the conflict and threatened to move to disqualify Law Firm. Agency subsequently did file a motion (date not in opinion). Shortly thereafter Law Firm terminated its representation in Swain’s accident case. In this opinion the court denied the motion to disqualify. First, the court held that because Law Firm had terminated its representation of Swain, the analysis should be under Rule 1.9, rather than Rule 1.7. Second, the court ruled that the accident case was not substantially related to this discrimination case. Next, the court found that there was no showing that Swain disclosed relevant confidences to Law Firm. Last, the court found that Law Firm’s sloppiness in not noting the conflict initially would not be a basis for disqualifying Law Firm.

        Gjoni v. Swan Club, 2015 WL 8825274 (N.Y. App. Div. Dec. 16, 2015). In this employment case Gjoni sued Club for gender discrimination. Lawyer represents Gjoni. Eleven years ago Lawyer represented Club defending an employment claim by another woman who claimed she was abused by Gjoni. Club moved to disqualify Lawyer in this case. The trial court denied the motion. In this opinion the appellate court reversed. Lawyer claimed he remembered nothing about the earlier case. However, the court said Club was “entitled to freedom from apprehension” of prejudice because of the earlier case.

        Lyons v. Lyons, 2015 WL 8708553 (N.Y. Sup. Ct. Dec. 11, 2015). Divorce case. H moved to disqualify W’s lawyer (“Lawyer”) because Lawyer had represented H in two child support proceedings involving a prior wife. H moved to disqualify Lawyer in this case. In this opinion the court denied the motion. [Note: The opinion is rambling and confusing. Among other things, it contains repeated and unnecessary references to the old New York Code of Professional Responsibility and the discredited “appearance of impropriety” standard.]

        Seifert v. Unified Gov’t of Wyandotte County, 2016 WL 187994 (D. Kan. Jan. 14, 2016). This appears to be a case where Plaintiff, a former policeman, seeks to overturn a denial of his return to the force. The parties have just learned, days before trial, that the law firm representing Defendants (“Law Firm”) had, back in 1980, represented Plaintiff, while he was on the force, in a fatal shooting incident. Plaintiff moved to disqualify Law Firm. In this opinion the court granted the motion. First, the court found substantial relationship. As to application of Rule 1.10 to the entire firm, Law Firm claims that the individual lawyers who represented Plaintiff in 1980 were gone or dead and that the file had been in off-premise storage and not accessed by Law Firm “for decades.” Nevertheless, the court said Law Firm “has information” within the meaning of Rule 1.10.

        McDonald v. City of Wichita, 2016 WL 305366 (D. Kan. Jan. 26, 2016). McDonald was a prosecutor employed by City for 14 years. City abolished McDonald’s position in 2012. McDonald then brought this employment discrimination case. Prior to joining City, in about 1999, McDonald was a prosecutor employed by County. She was the lead prosecutor in a case resulting in a conviction. The conviction was reversed by the appellate court on grounds of prosecutorial misconduct. McDonald became the subject of an ethics matter arising out of the reversed conviction. Law Firm A and Lawyer Cline represented McDonald in the ethics matter. Lawyer Cline left Firm A in 2004 to join Law Firm B. Both Cline and Firm B have appeared for the defendants in this case. McDonald moved to disqualify Cline and Firm B. In this opinion the magistrate judge granted the motion. She found that Cline would have learned too much about McDonald as a prosecutor and that, therefore, the ethics matter and this case were substantially related. The court disqualified Cline and Firm B. The disqualified lawyers moved for rehearing. At McDonald v. City of Wichita, 2016 WL 1298090 (D. Kan. March 31, 2016), the magistrate judge denied rehearing, but granted the lawyers' request to appeal under 28 U.S.C. § 1292(b).

        Rule 1.11.  Goodwine v. City of N.Y., 2016 WL 379761 (S.D.N.Y. Jan. 29, 2016). Plaintiff formerly worked at City IT department. Plaintiff moved to substitute counsel with Lawyer, formerly “Senior Director for Equal Employment Opportunity” of the same department. In this opinion the court denied the motion. Applying N.Y. Rule 1.11, in a fact-intensive analysis, the found that Lawyer’s involvement in Plaintiff’s case, while at City, was just too extensive to permit Lawyer to be adverse to City in this case.

        Dougherty v. Pepper Hamilton LLP, 2016 WL 430551 (Pa. App. Feb. 3, 2016). John Dougherty (“John D”) was involved in a federal prosecution, but not as a target. He hired Law Firm to represent him in connection with the prosecution. In order to obtain a warrant to search John D’s home, prosecutors attached, under seal, to its motion an affidavit regarding John D. Later, in a criminal proceeding involving Donald Dougherty (“Donald D.,” no relation to John D) the aforesaid affidavit regarding John D mistakenly surfaced, and became public. Law Firm stopped representing John D in 2007. In 2008 Newspaper ran articles suggesting John D, then running for a state senate seat, had committed crimes. John D sued Newspaper for libel (not this case). Law Firm appeared for Newspaper. John D moved to disqualify Law Firm. The trial court denied the motion. The appellate court reversed. John D then filed this case against Law Firm for breach of fiduciary duty, among other things. The trial court granted summary judgment to Law Firm. In this opinion the appellate court reversed and remanded, primarily for a finding whether the information about John D. that Law Firm used to defend Newspaper was “generally known” within the meaning of Pennsylvania Rule 1.9(c)(1) and the comment to that rule. The opinion refers to several authorities on the extent to which merely being a public record makes a document “generally known.” It is not clear what, upon remand, the trier of fact could add to that analysis.

        In re Nat’l Lloyds Ins. Co., 2016 WL 552112 (Tex. App. Feb. 10, 2016). Law Firm 1 represents InsCo in hail storm litigation. Lawyer formerly worked at Law Firm 1 during that litigation. Lawyer had nothing to do with hail storm litigation while at Firm 1 and learned nothing about InsCo or that litigation. Lawyer left Firm 1 and joined Law Firm 2, which represented claimants against InsCo in hail storm litigation. Firm 2 put Lawyer to work on those cases. InsCo moved to disqualify Lawyer and Law Firm 2 in this hail storm case. The trial court denied the motion. In this opinion the appellate court affirmed (denied mandamus).

        Erfindergemeinschaft Uripep GbR v. Eli Lilly & Co., No. 2:15-CV-1202-WCB (E.D. Tex. Feb. 26, 2016). Law Firm represented Co. A regarding a patent relating to geographic search technology (not this case). That representation ended in June 2014. In March 2015 Law Firm filed this case for Co. B against Co. A. This suit claims that Co. A infringes Co. B’s patent relating to dispensing Cialis. Co. A moved to disqualify Law Firm in this case. In this opinion the court denied the motion. The crux of the holding was that the two matters were not substantially related. Co. A made weak factual arguments that Law Firm learned things in the earlier case that would help Law Firm in this case, but the court was not persuaded.

        Radici v. ICF Merc. LLC, No. 2:14-cv-07133 (SRC)(CLW) (D.N.J. March 2, 2016). This is a business dispute between A and B, investors in Company. When A and B were starting their business relationship, A had immigration issues. Law Firm handled those issues. Law Firm also did work on the formation of A and B’s business relationship. Law Firm is opposing A in this case. A moved to disqualify Law Firm. In this “letter order” the magistrate judge denied the motion. First, the court said A failed to show how what Law Firm did on the immigration issues provided Law Firm with ammunition relating to this case. Second, the court noted a very clear advance waiver signed by A early on that permitted Law Firm to oppose A in a case such as this one.

        Fried v. Abraitis, 2016 WL 917885 (Ohio App. March 10, 2016). Decedent’s estate matter. The estate’s original administrator (“OA”) hired Lawyer to assist in the estate administration, which Lawyer did for about three years. In 2014 the court, sua sponte, removed OA and approved a successor administrator (“SA”). SA brought this action against OA for concealing estate assets. Lawyer appeared for OA. SA moved to disqualify Lawyer, alleging that the estate was a former client of Lawyer. The trial court granted the motion. In this opinion the appellate court reversed. The court held that Lawyer never represented the estate, just OA.

        Costello v. Buckley, 2016 WL 1042981 (Cal. App. March 16, 2016). In this case Leslie attempts to collect money from Peter she lent to Peter while they were in a relationship. Peter hired his brother (“Lawyer”) to represent him in this case. Lawyer had earlier represented Leslie in an easement matter. Leslie moved to disqualify Lawyer in this case. The trial court granted the motion, finding that Leslie had shared with Lawyer confidences about her relationship with Peter. In this opinion the appellate court affirmed. The court noted that Peter would defend this case on the theory that Leslie did not expect repayment of the loan because of the romantic relationship.

        In re Innovation Res. Solutions, LLC, 2016 WL 1254058 (Tex. App. March 31, 2016). In this case Owner is suing Defendant to quiet title to real estate. Defendant had claimed that a certain “Earnest Money Contract” entitled Defendant to buy the property. Lawyer appeared for Defendant in this case. Prior to bringing this action Owner had sought legal advice from Lawyer about the same property. Lawyer advised Owner to file a motion to remove an invalid lien (presumably the aforesaid contract), which led to this suit. Owner moved to disqualify Lawyer in this case. The trial court granted the motion. In this opinion the appellate court affirmed (granted mandamus), finding that the trial court could reasonably conclude that the matters were substantially related.

        McCutcheon v. 3 Princesses & AP Trust, 2016 WL 1367955 (N.Y. App. Div. April 7, 2016). 3 Princesses Trust owned certain property. John Randall and Annelie Randall (“the Randalls”) used a road over the property. 3 Princesses Trust sued the Randalls to adjudicate who could use what. The Randalls hired Lawyer to represent them. That suit resulted in  a negotiated easement. Later, 3 Princesses Trust erected a locked gate on the same road. McCutcheon had been using the road for many years and hired Lawyer, who sued the Randall Family Trust among other defendants, to obtain a prescriptive easement. John and Annelie Randall individually were not defendants. Nevertheless, the Randall Family Trust moved to disqualify Lawyer. The trial court granted the motion. In this opinion the Appellate Division affirmed. The extent to which the two litigations overlap is not clear. Also troublesome is the court’s grounding its decision on an “appearance of impropriety.”

        Parke v. Cowley County Comm’rs, 2016 WL 2609610 (D. Kan. May 6, 2016). Plaintiff, represented by Lawyer, brings this civil rights case against County, Deputy, and others because Deputy shot and killed Plaintiff’s son. In 2007 Lawyer had represented Deputy, County, and others, arising out of the arrest and strip-search of another person. The defendants in this case moved to disqualify Lawyer. In this opinion the magistrate judge granted the motion, finding the matters were substantially related. The court noted that Lawyer had prepared Deputy for his deposition in the earlier case, which made it likely Lawyer would have learned Deputy’s confidences. Moreover, both cases involved claims of negligent supervision by County.

        Gillette Co. v. Provost, 2016 WL 2610677 (Mass. Super. Ct. May 5, 2016). Lawyer was in-house patent counsel at Gillette, working on wet shaving products, until 2006. In 2012 Lawyer went to work for ShaveLogic, a competing company. ShaveLogic hired Lawyer, in part, to assist it in avoiding infringing Gillette patents. More recently, Gillette brought this action against ShaveLogic, Lawyer, and several other former Gillette employees for stealing its secrets, and the like. In this opinion the trial judge dismissed the claim against Lawyer. It found Lawyer was not violating Rule 1.9 because Lawyer was not currently “materially adverse” to Gillette and that what Lawyer did for Gillette was not “substantially related” to what Lawyer is doing for ShaveLogic. The court said it was permissible to help ShaveLogic avoid infringing Gillett patents, provided Lawyer not attack those Gillette patents that Lawyer worked on at Gillette. The judge also noted that despite ample time to amend, Gillette had not identified any of its confidences relevant to this case. revealed by Lawyer or used by ShaveLogic.

        Phila. Op. 2016-3 (June 2016). Lawyer did work for Client No. 1 from 2006 until 2009 and for several months in 2013. Now, Client No. 2 wants Lawyer to collect from No. 1 a loan of $140,000. Lawyer had nothing to do with that loan transaction. In this opinion the committee, citing Rules 1.9(b) and 1.6, said that Lawyer’s familiarity with No. 1’s assets and asset protection strategies disqualifies Lawyer from working on the new matter.

        Brice v. Hoffert, 2016 WL 3981361 (E.D. Pa. July 25, 2016). Father and Mother owned several businesses. Daughter helped run the businesses. Daughter accompanied Father and Mother to visit Lawyer about several issues regarding ownership of the businesses. Lawyer attempted to document that Father and Mother only were the clients. In this case Father and Mother, represented by Lawyer, sued Daughter over ownership of the businesses. Daughter moved to disqualify Lawyer. In this opinion the court granted the motion. First, the court held that, by virtue of all the Daughter’s contacts with Lawyer, Lawyer represented Daughter. Second, because Lawyer’s work for Daughter related to ownership issues, that work and this case are substantially related.

        Tierra Tech de Mex. SA de CV v. Purvis Equip. Corp., 2016 WL 4062070 (N.D. Tex. July 29, 2016). Law Firm represents the plaintiff, TTMX, in this breach of a distribution agreement between TTMX and the defendants Purvis and John Manley. Earlier, Law Firm had represented Manley and TTMX for the sole purpose of creating TTMUSA. The defendants moved to disqualify Law Firm in this case. In this opinion the court denied the motion because the earlier work in creating TTMUSA was not substantially related to this case, which involves a breach of the agreement with TTMX.

        Hutton v. Parker-Hannifin Corp., 2016 WL 4140736 (S.D. Tex. Aug. 4, 2016). Buyer Co. purchased “significant patent rights” from Seller Co. The sale also involved an asset purchase agreement and employment agreements for owners of Seller Co. (“Plaintiffs”). This is a suit by Plaintiffs against Buyer Co. for the latter’s violation of the employment agreement, for misrepresentation, and related causes of action. Lawyer and Law Firm represent Plaintiffs. Lawyer and Law Firm did not participate in the sales transaction. However, Lawyer had for many years done patent work for Buyer Co. Buyer Co. moved to disqualify Lawyer and Law Firm. In this opinion the court granted the motion. Given the difference between the earlier patent work and this contract action, the court found no substantial relationship. However, the court did find that, in the earlier representation, Lawyer would have gained information about the patents in question and Buyer Co.’s proclivities, thus running afoul of Texas’ version of Model Rule 1.9.

        The Marshall Tucker Band, Inc. v. MT Indus., Inc., 2016 WL 4555336 (D.S.C. Sept. 1, 2016). This is a suit for trademark infringement and related causes of action. Lawyer, who represents Plaintiff, had previously represented Defendant. Defendant moved to disqualify Lawyer. In this opinion the court denied the motion. The court first did a Rule 1.7, current-client, analysis. In a fact-intensive discussion the court concluded that Defendant could not credibly contend that the earlier representation of it had not concluded. The court moved to a Rule 1.9, former-client, analysis. The work Lawyer had done for Defendant included contracting, issuing stock certificates, handling a cease and desist matter involving pre-1984 songs, and reviewing corporate by-laws. The court found no substantial relationship between that work and the current trademark infringement case. Nor, could Defendant point to any information Lawyer might have obtained in the earlier work that would have any meaning for this case.

        473440 Alberta Ltd. v. Lenaco Homes Masterbuilder Inc., 2016 ABQB 435 (CanLII)(Ct. Q.B. Alberta Aug. 31, 2016). This is a food fight among companies and individuals in the building business. Lawyer represents Defendants. Lawyer had previously done work for Plaintiffs on two other matters. Plaintiffs moved to disqualify Lawyer in this case. In this opinion the court disqualified Lawyer. The evidence was conflicting, but, on balance, the court believed that Lawyer would have learned things about Plaintiffs in the earlier matter that would have been relevant to the tasks in this matter. In our view, this was essentially an application of the “playbook” rule, as it it known in the U.S.

        Dynamic 3D Geosolutions LLC, v. Schlumberger Ltd., 2016 WL 4729505 (Fed. Cir. Sept. 12, 2016). Patent infringement case. Lawyer worked at Defendant for seven years with wide responsibility for IP matters. While there she was involved in a project “that evaluated further patentable aspects of Petrel [Plaintiff’s oil well mapping software] and assessed the risk of lawsuits against it.” This included analysis of the ‘319 patent, which is the subject of this case. Lawyer left Defendant and went to work for Plaintiff, where she was involved in the decision to bring this case and hire Law Firm, for this case. The trial court granted Defendant’s motion to disqualify Lawyer, Plaintiff’s entire law department, and Law Firm. The court also dismissed this case without prejudice. In this opinion the Federal Circuit affirmed. The court agreed that Lawyer’s prior work at Defendant was substantially related to this case. The court said Plaintiff’s law department should be treated as a law firm under rule 1.10. The court affirmed disqualification of Law Firm because it had become privy to confidences Lawyer had brought from Defendant. As to dismissal without prejudice, this meant that Plaintiff, under different management supervision, and with new lawyers, would have to “break new ground with a fresh complaint and clean docket.”

        Regalo Int’l, LLC v. Munchkin, Inc., 2016 WL 5667624 (D. Del. Sept. 29, 2016). Regal, represented by the Panitch Firm, is suing Munchkin for patent infringement (something to do with “sleep bedrails”). Laura Genovese, a partner at the Panitch Firm, left in December 2014 to form a new firm. While at the Panitch Firm, Genovese did trademark work for Munchkin. When Genovese left, she took the Munchkin work with her. Munchkin moved to disqualify the Panitch Firm in this case. In this opinion the magistrate judge denied the motion. In a lengthy and fact-intensive analysis the judge found that the trademark work Genovese did while at the Panitch Firm was not substantially related to this patent case. The court found that the playbook doctrine simply would not work on these facts and noted that courts in the Third Circuit rarely used it.

        U.S. v. Prevezon Holdings Ltd., 2016 WL 6069181 (2d Cir. Oct. 17, 2016). For approximately nine months in 2008 & 2009, Law Firm represented Co. #1 in proceedings involving fraud in Russia. Co #1 then changed law firms. Co. #2 retained Law Firm to defend this case, which involves essentially the same fraud. Co. #1, not a party in this case, moved to disqualify Law Firm. The district court denied the motion. In this opinion the Second Circuit reversed (granted mandamus). There was a lot about jurisdiction and appellate procedure. However, the crux of the merits was that  after terminating the relationship with Co. #1, and when the government turned its guns on Co. #2, Law Firm made arguments that the fraud was really Co #1’s fault. The Second Circuit treated this as a former-client situation, and found that the representations were substantially related, and that the current representation was adverse to Co #1.

        Audio MPEG, Inc. v. Dell, Inc., 2016 WL 6246772 (E.D. Va. Oct. 25, 2016). Patent infringement case involving three patents that “facilitate the playing of music and other audio on electronic devices.” Plaintiff moved to disqualify Defendant’s law firm because that law firm had brought in a lawyer who previously represented Plaintiff in connection with two of those patents. In this opinion the court granted the motion. In a fact-intensive analysis the court found the matters substantially related. The court also noted that Virginia is not a screening state.

        Lallis v. Hagerty, 2016 WL 6436828 (Ariz. App. Nov. 1, 2016). Post-divorce-decree proceedings. H moved to disqualify W’s lawyer (“Lawyer”). The trial court granted the motion. In this opinion the appellate court affirmed. In 2008 Lawyer had represented W and H in a civil case. In 2009 Lawyer filed an application for H and W to collect proceeds from a trustee’s sale. In 2011-2012 Lawyer represented H in a negligence action. In this opinion the court said Lawyer, in the three enumerated cases, “could have obtained confidential information relevant” to this case.

        Hwlitsum First Nation v. Canada, 2016 BCSC 2104 (B.C.S. Ct. Nov. 15, 2016). The actual dispute among the parties to this action is not clear to us. Indian Nation No. 1 finds itself opposing Nation No. 2. Lawyer was Attorney General of B.C. for a time, including when the treaty in question was signed. While Lawyer was A.G., the chief of Nation 1 visited him to discuss the treaty. The chief claims he gave confidences to Lawyer. Lawyer, no longer A.G., has surfaced on behalf of Nation No. 2. Nation No. 1 moved to disqualify Lawyer. In this opinion the court denied the motion. The court found that Nation No. 1 was not a “near client,” of the type to claim a duty of confidentiality on the part of Lawyer. Lawyer’s sole duty as A.G. was to B.C. Moreover, Lawyer asserted that he never would have agreed to the meeting had Nation No. 1 requested confidential treatment of the information to be exchanged at the meeting.

        Chessler v. All Am. Semiconductor, 2016 WL 6992409 (Fla. App. Nov. 30, 2016). Plaintiff was a creditor of Company and took an assignment of Company’s claims against Company’s former CEO, the defendant in this case. Law Firm appeared for the defendant. Law Firm had previously represented Company, including on matters relating to the claims in this case. Plaintiff moved to disqualify Law Firm. The trial court granted the motion. The defendant appealed (petitioned for cert.). In this opinion the appellate court affirmed.

        Stewart v. Stewart, 2016 BCSC 2256 (S. Ct. B.C. Dec. 1, 2016). Deceased was a very successful real estate developer. He left Wife and four children. In this case the children are fighting over the disposition of Deceased’s businesses and various trusts set up for the children’s benefit. The plaintiff here is one of the children. The defendants include said businesses, the trusts in question, and the other children. Law Firm represents the plaintiff. Law Firm had, in 2003, done work on creating a tax shelter for Deceased and Wife, called a “Quebec Truffle.” The defendants in this case moved to disqualify Law Firm because of that work. In this very fact-intensive analysis the court denied the motion. At bottom the ruling was based on the lack of relationship between the Quebec Truffle and the current dispute. All the lawyers who worked on the Quebec Truffle left Law Firm years ago and all the documentation from that work is either stored off-premise or electronically unavailable. Law Firm had been brought into the Quebec Truffle work by an accounting firm, so Law Firm had relatively little contact with Deceased’s family.

        Hendricks v. Barker, 2016 WL 7235459 (Tex. App. Dec. 13, 2016). This suit involves a dispute about a “contract for deed” entered into by Buyer and Seller. Buyer, represented by Lawyer, filed the suit. Lawyer had earlier written to Seller about various aspects of the contract. Seller moved to disqualify Lawyer in this case. The trial court granted the motion. In this opinion the appellate court affirmed. While there was conflicting evidence about whether there had been a lawyer-client relationship with Seller, the opinion says the trial court’s finding of representation was reasonable. Second, the court held that the earlier work for Seller in analyzing the contract was substantially related to the issues in this case.

        Bartlett v. Bartlett, 2016 WL 7374276 (N.D. Ill. Dec. 20, 2016). Brothers, Mark and James, jointly owned cash-lending stores. They are fighting, and, in this case, Mark is suing James and James’ wife for fraud and related remedies. Law Firm is representing Mark. Because Law Firm earlier had done estate planning work for James, and had also represented some of their companies, James moved to disqualify Law Firm. In a routine substantial-relationship analysis the court, in this opinion, denied the motion. Among other things, the court reiterated that “appearance of impropriety” is no longer grounds for disqualification.

        Hydrogen Master Rights, Ltd. v. Weston, 2016 WL 7411523 (D. Del. Dec. 22, 2016). Three individuals, A, B, and C, hired Law Firm to assist them in acquiring certain technology. Later A, joined by other parties, sued several parties, including B, for various business torts. Law Firm filed the case. B moved to disqualify Law Firm. In this opinion the court granted the motion under Delaware Rule 1.9(a). The first issue was whether B was ever a client of Law Firm. The court said yes primarily because the entity A, B, and C intended was never formed. The second issue was whether the original work for A, B, and C was substantially related to this case. The court said yes based upon a fact-intensive analysis (not worth hashing out here). The last issue was whether B consented to Law Firm’s conflict. The court said the consent language in the engagement letter was too open-ended. [Our note: Law Firm had sought to work around these issues with consent language in the original engagement letter. That language just did not do the trick. Any law firm anticipating that it will represent individuals only until the entity is formed might take a look at the court’s analysis.]

        CytImmune Scis., Inc. v. Paciotti, 2017 WL 57213 (D. Md. Jan. 5, 2017). Co. sued Inventor for, among other things, violation of a non-disclosure agreement (“NDA”). Lawyer appeared for Inventor. Co. moved to disqualify Lawyer and his new law firm (“Firm 2”). In a confusing juxtaposition of Rules 1.9 and 1.7, in this opinion, the court granted the motion and disqualified Lawyer and Firm 2. The evidence was pretty clear that Lawyer’s prior firm (“Firm 1”) represented Co. on a variety of things, including on formulating its NDA. There was some evidence that Lawyer did some of the work on the NDA. Thus, the application of Rule 1.9 is not confusing. The application of Rule 1.7(a)(2) as it relates to Lawyer’s “limited” ability to represent Inventor is unclear. There was no evidence as to whether Inventor consented to any of this. The court noted only that Co. was not consenting. Most confusing was the court’s partial reliance on Rule 3.7 (lawyer as witness). [Our note: We have always thought that in a “pure” Rule 1.7(a)(2) situation the only consent needed was that of the client.]

        Scotia Mortgage Corp. v. Furlong, 2917 CanLII 4833 (NL SCTD) (S. Ct. Newf. Lab. Feb. 3, 2017). Law Firm represented Borrower and Lender in a mortgage transaction. Law Firm brought this action on behalf of Lender against Borrower to enforce the mortgage because of a claimed default. Borrower moved to disqualify Law Firm. In this opinion the court granted the motion. First, the court held that both representations were “related," thus requiring disqualification. The court was emphatic that the duty of “loyalty” to a former client transcends notions of confidentiality. Second, the court held that under the circumstances of this case, Lender was not entitled to recover Law Firm’s fees from Borrower for the period in which Law Firm was acting in the conflict of interest.

        Velazquez-Velez v. Molina-Rodriguez, 2017 WL 395105 (D.P.R. Jan. 30, 2017). Political discrimination case against City. Plaintiffs’ law firm (“Law Firm”) for a period of years, until 2013, handled a wide variety of matters for City, including discrimination cases. City moved to disqualify Law Firm “near the start of discovery.” Noting that the First Circuit can be more “lenient” on timing, the court held that the motion was timely. As to the substantial relationship test, in a fact-intensive analysis of what Law Firm had done for City, and what it would have learned in the process, the court found a violation of Rule 1.9(a).

        Pa. Op. 2017-001 (Jan. 7, 2017). This opinion does not appear to be online. Everything we know about it appeared in the February 22, 2017 online edition of the Current Report of the ABA/BNA Lawyers’ Manual on Professional Conduct. The opinion holds that a lawyer who represented H and W in the purchase of real property could later represent H in a divorce proceeding. It holds that, under Rule 1.9(a), the purchase was not substantially related to the divorce. Further, under Rule 1.9(c), any information that the lawyer might have learned from W earlier would have been known to H, in any event.

        N.M.F. v. S.C., 54 Misc. 3d 1219(A) (N.Y. Sup. Ct. Feb. 21, 2017). Divorce case. W moved to disqualify H’s lawyer (“Lawyer”) because two years ago, before the marriage, Lawyer represented W in her purchase of a house. Because the judge could not see what confidences W would have given Lawyer, the judge denied the motion. [Our note: The judge managed to opine on, and dispose of, this former client matter without once mentioning Rule 1.9 or “substantial relationship.”]

        McCarthy v. Labonte, 2017 ONSC 4 (CanLII) (Ont. Super. Ct. Jan. 3, 2017). Marital dispute between H and W. H moved to disqualify W’s lawyer (“Lawyer”) because Lawyer had earlier jointly represented H and W in preparing wills and transferring ownership in certain real estate. In this fact-intensive opinion the court granted the motion. Among other things, the court noted that Lawyer did not provide an affidavit saying he received no confidences from H.

        Freeman Equip., Inc. v. Caterpillar, Inc., 2017 WL 959022 (N.D. Ill. March 13, 2017). Patent infringement case. Plaintiff’s lawyer had, some years ago, acted as local counsel for Caterpillar in a different infringement case. Caterpillar moved to disqualify Plaintiff’s lawyer in this case. In this opinion the court denied the motion. The court held the “substantially related” test requires more than “mere speculation” about what local counsel would have learned about Caterpillar’s procedures and methods in patent cases. The court also held that six months was too long a delay to bring the motion to disqualify.

        Prince v. Chatman, 2017 NLTD(G) (CanLII) (S. Ct. Newf. & Lab. March 2, 2017). Suit by Prince to quiet title. Chatman hired Law Firm to defend him. Prince moved to disqualify Law Firm. In this opinion the court denied the motion. The evidence was that in 1975 a senior partner in Law Firm had briefly represented Prince’s husband in an attempt to get several family members to agree on a division of the property in question. Both the husband and the senior partner have since passed away. In a fact intensive analysis the court held that the senior partner in 1975 would not have received “confidential information” from the husband that would be “relevant” to this proceeding or that a current member of Law Firm will use such information to the prejudice of Prince.

        Santander Sec. LLC v. Gamache, 2017 WL 1208066 (E.D. Pa. April 3, 2017). Gamache worked at Santander as a financial advisor until 2016. He then went to work for Citizens Securities. In this case Santander is suing Gamache for taking Santander customer lists and related wrongs. Citizens has not been sued. Law Firm is representing Santander. Because Law Firm had earlier represented Citizens in similar types of cases, Gamache moved to disqualify Law Firm in this case. First, after a thorough discussion of cases on standing, the court felt “inclined” to deny Gamache’s motion on that basis. However, because “the law in this area is less than clear,” the court moved on to whether Rule 1.9(a) was implicated. In part because Law Firm had ended work for Citizens before Gamache joined Citizens, the court held Law Firm’s work for Citizens on similar cases was not substantially related to this case. This was more or less a rejection of the “playbook” theory.

        Salager v. Dye & Durham Corp., 2017 BCSC 470 (CanLII) (S. Ct. B.C. March 23, 2017). This is a suit, filed in December 2014, for defamation and breach of a settlement agreement. Law Firm represents Plaintiff. The original defendant in this case was Co. A., Plaintiff’s former employer. Co. A purchased all of Co. B in March 2016. Cos. A & B amalgamated in July 2016. The problem is that Law Firm did sporadic HR work for Co. B from 2005 until September 2015. There was no written retainer agreement and no express termination by Law Firm until October 2016. The amalgamated defendants moved to disqualify Law Firm in this case. In this opinion the court denied the motion. Given the looseness of the relationship between Law Firm and Co. B, the court seems to have shifted the analysis from a current-client one to a former-client one. Among other things, the court found that Law Firm would have not learned any relevant confidential information from Co. B. The court discussed the concept of loyalty to former clients and said it should be applied narrowly — that is to situations where a lawyer might attack his or her earlier work for the former client. This was not such a case.

        Boyle v. Evolve Bank & Trust, No. 16-02171 (W.D. Tenn. April 20, 2017). Boyle sued Bank for wrongful termination and related claims. Law Firm represents Bank.  Boyle and Kuehn are in business together competing with Bank. Kuehn is not a party in this case but evidently fears Bank may sue him. Bank wants Kuehn’s deposition in this case. Kuehn has moved to disqualify Law Firm in this case, primarily because Law Firm had done estate planning for his family, including setting up a conservatorship for Kuehn’s child. In this opinion the court denied the motion to disqualify. In a fact-intensive analysis the court found no substantial relationship between Law Firm’s earlier work for Kuehn’s family and the employment issues in this case or the issues likely to be raised if Bank were to sue Kuehn. There was also a lengthy discussion of Rules 1.9 and 1.10, particularly relating to the fact that the estate-planning lawyer has left Law Firm. There was also a discussion about when and how Law Firm’s relationship with Kuehn had terminated and how the remaining files might relate (not) to this case.

        McCleary v. City of Des Moines Zoning Bd., 2017 WL 1400870 (Ia. App. April 19, 2017). This case involves Plaintiff’s challenge of City Zoning Board rulings. The lawyer for City (“Lawyer”) had, in 2011, briefly participated in the preparation of a letter of intent for Plaintiff involving the purchase of a business. Plaintiff moved to disqualify Lawyer in this case. The trial judge denied the motion. In this opinion the appellate court affirmed, finding no substantial relationship.

        The Prudential Ins. Co. of Am. v. Chelchowski, 2017 WL 1549466 (D.N.J. April 28, 2017). Decedent died with a life insurance policy from InsCo. Decedent’s girlfriend (“GF”) and several of decedent’s survivors are claiming the insurance proceeds. InsCo filed this interpleader action against all concerned. The estate administrator and the relatives hired Law Firm to defend them jointly. GF’s lawyer objected to this “conflict.” Shortly thereafter, the administrator hired a different lawyer. GF moved to disqualify Law Firm from representing the relatives. In this opinion the court denied the motion. First, the court noted that Rule 1.7 did not apply because Law Firm no longer represented the administrator. The court moved to Rule 1.9. First, the court held that the positions taken by the relatives were not “materially adverse” under Rule 1.9(a). Second, the court noted that the relatives had signed very clear written waivers of any conflict of Law Firm.

        Selenberg v. Bates, 2017 WL 1822310 (5th Cir. May 8, 2017). Lawyer failed to file, on time, a suit for Client. Lawyer had no insurance and was in financial difficulty. So, Lawyer gave Client a note for $275,000. Lawyer later filed bankruptcy. The bankruptcy judge and the district judge held that the debt was non-dischargeable. In this opinion the Fifth Circuit affirmed. The court held that giving the note in violation of Louisiana’s version of MR 1.8(h) - that is, not advising Client in writing to get another lawyer’s advice - constituted a “false representation” within the meaning of Bankruptcy Act § 523(a)(2)(A).

        Imputation; Screening (posted May 10, 2017) Bleacher v. Bose, 2017 WL 1854794 (Del. Super. Ct. May 3, 2017). Medical malpractice case against Doctor. Lawyers A and B were, at all times, partners in Law Firm. Lawyer A earlier defended Doctor in a different malpractice case, through trial. Lawyer B represents Plaintiff in this case. Doctor moved to disqualify Law Firm. A and B filed affidavits saying B is screened from the earlier case. In this opinion the trial judge granted the motion under Rule 1.10(a). The court said the screening exception under Rule 1.10(c) was not available because this case did not involve a “migrating” lawyer.

        New Horizon Kids Quest III, Inc. v. Eighth Jud. Dist. Ct., No. 69920 (Nev. April 6, 2017). Lawyer worked at Firm 1 for a time, including when Firm 1 represented New Horizon. Lawyer moved to Firm 2, which is adverse to New Horizon in this case. Lawyer was put to work on this case. New Horizon moved to disqualify Firm 2. The trial court denied the motion. In this opinion the supreme court affirmed (denied mandamus). The submissions established that Lawyer did nothing for New Horizon at Firm 1 and learned nothing about New Horizon while at Firm 1.

        Stone v. Bowen, 2017 WL 3017709 (S.D. Fla. July 14, 2017). This case is a dispute over the meaning of a pre-marital agreement between H and W. W is the plaintiff. H is deceased. The defendants are trustees of a trust created by H. Law Firm, representing W in this case, had done considerable estate planning work, much of it related to the issues in this case, for H before he died. The defendants moved to disqualify Law Firm. In this opinion the magistrate judge granted the motion. H had been trustee of the trust, which is the subject of this case. The defendants are successor trustees. Thus, the court held that the defendants are former clients of Law Firm, within the meaning of Rule 1.9. On this point the court cited only Daniel Ebner, Does the Duty to Not Act Materially Adverse to the Interests of a Former Trusts & Estates Client in a Substantially Related Matter Survive the Client's Death?, ABA Section of Real Property & Estate Law eReport (June 2011). 

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Former Client - Part I