Prof. Keith Swisher

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This disqualification case of the week arose in bankruptcy court, in which some of the most daunting conflict of interest and disqualification issues arise.  Bankruptcy practice is frequently difficult and complex in this regard in part because the Bankruptcy Code and Rules can complicate the common law disqualification framework and because the status of creditors varies significantly (as does the approach that firms and courts take to conflicts between debtors and creditors and between creditors and creditors).  As it turns out, however, this case was uncharacteristically simple.  An associate represented the debtor-in-possession in a Chapter 11 bankruptcy, and essentially two
Continue Reading DQ Case of the Week: Negotiating to Work for the Opposing Firm

Two interesting DQ opinions were issued last week and illustrate offensive and defensive disqualification (among other issues).
The first case involves a somewhat common scenario: the same firm represents two (or more) parties, but those parties have potentially or actually conflicting positions, claims, or defenses.  Seeing this apparent conflict, the attorney on the other side often wonders whether the firm has secured informed consent from its joint clients, whether the conflict is waivable in any event, and if not, whether the attorney has standing to challenge the opposing firm’s conflicted representation.  Here, the firm represented codefendants (i.e., a property management
Continue Reading DQ Cases of the Week: Offensive and Defensive Disqualification

The disqualification case of the week involves conflicts in the representation of small businesses and divorcing spouses (particularly in community-property states).  As the California Court of Appeal intriguingly put the issue:

It’s a wonder we don’t see more of this kind of case. A spouse whose businesses have, over the years, been represented by a given attorney wants to have that same attorney represent him or her in divorce proceedings against a spouse who claims a community property interest in those businesses. Is the business attorney disqualified from representing what family lawyers call the “in-spouse”? Yes, at least where there
Continue Reading DQ Case of the Week: Representing the “In-Spouse” and the Family Business

The case of the week involves the Sixth Amendment right to counsel of choice (at least for those who can afford to pay for counsel of choice).  The federal district court initially denied the defendant’s choice of counsel but then reconsidered in light of the Sixth Amendment, as explained below.
Mr. Archie was charged with several criminal tax violations.  For his defense, he retained out-of-state counsel, who sought and obtained pro hac vice admission in the district court.  As the court put it:

Once counsel is admitted to practice pro hac vice, “the standards and procedures” for disqualifying counsel cannot
Continue Reading DQ Case of the Week: The Sixth Amendment Strikes Back

Five new and notable disqualification opinions were issued in the last two weeks.  In order, they cover: (1) lawyers receiving and returning inadvertently disclosed confidential information (and then being disqualified notwithstanding the information’s return); (2) lawyers as qui tam relators; (3) lawyers representing third-party witnesses to limit the other side’s ability to interview those witnesses; (4) lawyers obtaining advance, but imprecise, waivers; and (5) federal defense lawyers representing capital defendants in state court and state agencies attempting to disqualify those lawyers for alleged misuse of federal funds.
(1) Inadvertent Disclosure.  The first case involves the receipt of privileged documents and
Continue Reading DQ Digest: Inadvertent Disclosure, Qui Tam Relators, Witness Representation, Advance Waivers, and Federal Preemption

Two potentially interesting and certainly unusual disqualification decisions were issued late last week.  The first case involves a lawyer whose firm regularly represents the University of Pittsburgh Medical Center (UPMC), which boasts more than twenty locations and 60,000 employees.  In defending a medical malpractice suit against UPMC, the lawyer contacted the plaintiff’s treating physician without the plaintiff’s consent.  This violated Pennsylvania’s Rules of Civil Procedure, which state in part that “[i]nformation may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter.”  (The lawyer
Continue Reading DQ Case of the Week: A Disqualifying Violation of the Rules of Civil Procedure

When a court orders disqualification, the court obviously has authority to enjoin the attorney or law firm from appearing before the court on behalf of a party.  It is also fairly uncontroversial that the court’s authority extends to so-called ancillary proceedings, such as depositions, in the same matter (even if the judge is not physically present).  But does this disqualification authority extend to bar the lawyer from, for example, counseling (but not appearing for) the client?  And can it bar the lawyer from appearing for the client in a related matter before a different tribunal?  These questions can be difficult
Continue Reading The Long (or Short) Arm of Disqualification Jurisdiction

Two interesting cases came down last week from the California appellate courts.
The first case involved a plaintiff who moved to disqualify the defense attorney because the attorney was also a named defendant.  The court rejected the motion on standing grounds: “Before a complaining party can bring a motion to disqualify an attorney, the complaining party must have or have had an attorney-client relationship with that attorney, or some sort of confidential or fiduciary relationship must exist or have existed, and there is a threat of disclosure of the complaining party’s confidential information.” The court begrudgingly conceded that a litigant
Continue Reading DQ Case(s) of the Week: Standing and Joint Representation

These two disqualification decisions come from the same federal district judge in the same week applying the same test — but with different outcomes.
The first case involves a dispute over “who owns the rights to Cat Story, a free mobile application (‘app’) in which players build a virtual village for cats shipwrecked on an island and send the cats on various quests and adventures.”  The lawyer previously represented the gaming company, Game Garden, “in a 2013 dispute among Game Garden’s four then-owners involving the same intellectual property [then called PussyVille instead of Cat Story] and . . . in
Continue Reading DQ Case of the Week: A Tale of Two Substantial Relationships

The disqualification case of the week involves a specific type of former client conflict of interest: when a lawyer is asked to criticize or attack the lawyer’s own previous advice or work product. Perhaps not surprisingly, this conduct is generally forbidden: “even in the absence of any confidences, an attorney owes a duty of loyalty to a former client that prevents that attorney from attacking, or interpreting, work she performed, or supervised, for the former client.”[1]
The law firm at issue previously provided “general counsel” services to ASI, a resort amenities business. When contacting resorts potentially interested in ASI’s
Continue Reading DQ Case of the Week: When Lawyers Attack Their Prior Work