Risk Update

Conflicts Response — King & Spalding Answer WhatsApp Side-switching Accusations

Posted Dan Bressler

“King & Spalding Resists WhatsApp’s ‘Drastic’ Disqualification Bid in Cyber Case” —

  • “A team from King & Spalding, including former partner and now FBI Director Christopher Wray, provided legal services to WhatsApp in a sealed matter four years ago. WhatsApp’s counsel at Cooley says the firm acquired confidential information relevant to a pending case where King & Spalding represents a WhatsApp adversary.”
  • “WhatsApp’s lawyers contend King & Spalding’s work for the company in a sealed matter four years ago has given the firm an unfair advantage in the pending case in Oakland’s federal trial court. The Cooley lawyers argued in their disqualification papers that the lawsuit against NSO is substantially related to the earlier sealed matter and that King & Spalding acquired confidential information material to the pending litigation.”
  • “On Friday, King & Spalding’s lawyers at Long & Levit disputed that the two cases are related, and they argued that three of the four King & Spalding lawyers who worked on the earlier sealed matter are no longer at the law firm. One of those attorneys, Christopher Wray, a former white-collar partner, was confirmed in 2017 as the FBI director.”
  • “‘Disqualification is a drastic, disfavored and disruptive remedy that is unwarranted here,’ San Francisco lawyer Jessica MacGregor of Long & Levit said in the new court filing. MacGregor argued that ‘depriving NSO of highly skilled counsel of its choice will impose significant hardship and prejudice.'”
  • “Cooley lawyers representing WhatsApp assert that King & Spalding acquired information about confidential aspects of the messaging service’s platforms when the firm provided legal advice to the company in 2015 and 2016. The current case ‘involves the very technology that WhatsApp previously hired King & Spalding to analyze and protect,’ the Cooley lawyers said.”
  • “‘King & Spalding is violating a bedrock requirement of attorney loyalty: the duty to avoid switching sides and opposing a client that it once represented,’ Cooley partner Michael Rhodes said in a filing in April.”
  • “Rhodes said in the filing: ‘Put simply, no client would ever expect to reveal the proprietary and nonpublic details of its product to its lawyers, only to find those lawyers acting adversely to it a few years later on a case involving the same technology and on behalf of a client that marketed and sold the ability to attack and exploit its network.'”