Risk Update

Disqualification Discussion — Facebook Faces Off Firm, Canadian Lawyer-Expert Witness Survives DQ

Facebook Seeks to DQ Antitrust Plaintiffs’ Firm Over New Hire” —

  • “Facebook Inc. is seeking to disqualify one of the law firms leading a case over its alleged scheme to squash rival startups, arguing in California federal court that Keller Lenkner LLC should step aside after hiring an attorney who spent six months preparing the tech giant’s antitrust defense.”
  • “‘Notwithstanding the obvious conflict of interest created by an attorney switching sides,’ Keller Lenkner didn’t screen its new hire until four months after he started, the company says. ‘Facebook can never know which of the firm’s actions are tainted by that ethical violation.'”
  • “The lawsuit, consolidated in the U.S. District Court for the Northern District of California, involves claims by consumers and advertisers that have accused the tech giant of monopolizing social media by exploiting its troves of user data to identify potential competitors to buy, copy, or kill.”
  • “Facebook says the firm waited too long before honoring its ethical duty to put up a wall between the case and a former Facebook attorney it hired from Kellogg, Hansen, Todd, Figel & Frederick PLLC. The lawyer came over from Kellogg Hansen in June 2020—after six months of ‘deeply involved’ work on Facebook’s defense against the government antitrust probes—but Keller Lenkner didn’t put up a screen until November, the disqualification motion says.”
  • “The firm then ‘overstated’ the screen, including in court, according to Facebook, which claims its concerns were “exacerbated” because Keller Lenkner was removed from a case involving Uber Technologies Inc. for playing ‘fast and loose with this same ethics rule.'”
  • “‘This was not an insignificant or incidental representation’ but an attorney who worked closely with Facebook and ‘was frequently entrusted with’ its ‘confidential and privileged information,’ the motion says.”

For more detail on the screening argument and beyond, see the complete disqualification motion.

Ontario court rejects motion to disqualify counsel in proceedings arising from medical care action” —

  • “The Ontario Superior Court of Justice recently considered whether a firm could act for a defendant when one of its lawyers generally discussed his potential retention as an expert witness for the plaintiff relating to a previous civil trial.”
  • “The plaintiffs sought to disqualify Adair Goldblatt Bieber LLP (AGB) from representing the defendants in the present action. The plaintiffs argued that AGB possessed confidential information attributable to the solicitor-client relationship between the plaintiffs and the plaintiffs’ counsel, Falconeri Rumble Harrison LLP (FRH), following a discussion participated in by Mr. Adair, Mr. Falconeri and Mr. Rumble.”
  • “In April 2019, Adair was at the offices of FRH to discuss an unrelated legal matter in which Adair was retained to provide an expert opinion in a legal malpractice action involving FRH. Adair was asked whether the fact that Mr. Bieber, Adair’s partner at AGB, was acting on behalf of LawPro would interfere with Adair’s ability to provide opinions for FRH in legal malpractice actions, to which Adair replied that it would not.”
  • “Falconeri then began to discuss a case in his office relating to a possible legal malpractice claim against a lawyer based on the lawyer’s involvement in a medical malpractice action. Adair indicated that he would be open to offering an opinion in the future if he was asked and provided with enough information.”
  • “The Superior Court of Justice of Ontario dismissed the motion to prevent AGB from representing the defendants in the present action, finding that this was not a proper case that justified granting the extreme remedy of disqualifying counsel. The court noted that it could only interfere with the litigant’s right to choose counsel