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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.2d 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 Inc., 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. Yukon, 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., Inc., 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.

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Former Client - Part I