Risk Update

DQ Roundup — Disqualifications (and Attempts) in the News

Posted Dan Bressler

A few weeks ago a lawyer working on a conflicts presentation asked me if it felt like there were more disqualifications in the air these days versus “back then.” I said my sense was that the flow is pretty constant, at least over the past decade. There was a time where firms may have opted to forgo a motion, but today conventional wisdom is that disqualification pursuits for reasons including tactical disruption of opponent efforts are common.

But I wonder what the true picture looks like. Sounds like an opportunity for any enterprising data analysts or scientists out there to dig in. (If you’re out there reading, let’s chat.)

Meanwhile, here are a host of interesting DQ activities I’ve noted in my propriety risk story queue, starting with: “In Huawei Case, Prosecutors Ask Judge to Remove Lead Lawyer” —

  • “Federal prosecutors want to disqualify the former deputy attorney general who is defending the Chinese telecommunications giant Huawei Technologies in a bank fraud case because the government believes his previous work for it poses a conflict of interest.”
  • “…prosecutors said the attorney, James M. Cole, should not be permitted to represent Huawei because he had been briefed on an undisclosed investigation while serving as a top prosecutor in the Obama administration.”
  • “The filing is redacted, making it difficult to ascertain the exact nature of the investigation. But Mr. Cole’s tenure at the Department of Justice — from the end of 2010 to the beginning of 2015 — may have overlapped with the period when federal authorities were gathering information on Huawei and its business dealings.”
  • “Mr. Cole is now co-head of the white-collar and investigations practice at the Sidley Austin law firm… The 26-page redacted motion said that Mr. Cole had refused a request to recuse himself, and that his representation of Huawei ‘poses real and irresolvable conflicts of interest.'”

“Four Lewis Brisbois Lawyers Excluded From Bias Case” —

  • “Four attorneys with Lewis Brisbois Bisgaard & Smith LLP retained to take over a sex discrimination investigation from the director of human resources at Newman University are barred from defending the school against her whistleblower claims.”
  • “The attorneys are disqualified because they possess evidence material to the determination of the claims and defenses in the case brought by the Wichita-based university’s former HR director, Mandy Greenfield, the U.S. District Court for the District of Kansas said May 24.”
  • “Newman asserts that the reasons for her firing were discovered during the independent investigation by the law firm, making the lawyers Newman’s only witnesses.”
  • Note: Only the lawyers, not the firm were disqualified.

“Pierce Bainbridge DQ’d From Manilow Films Copyright Suit” —

  • “A California federal judge on Tuesday disqualified Pierce Bainbridge Beck Price & Hecht LLP from representing a production company suing a management company for Barry Manilow over the copyrights of two films featuring the singer performing, finding the firm has a conflict of interest involving the parties.”
  • “U.S. District Judge Dale S. Fischer granted the disqualification bid by intervenor Garry Kief, as Pierce Bainbridge cannot represent the production company, Stiletto Television Inc., in the copyright case while also representing two owners of the company in separate litigation initiated by Kief, according to Tuesday’s order.”
  • “Kief argued in his disqualification bid last month that because a California state court has disqualified Pierce Bainbridge from representing Stiletto Television in the separate litigation because the company’s interests are conflicted with that of Grove and Queen, the firm may not represent the production company in this case, according to court documents.”

And, stretching the above reference of a certain musician to conjure an admonition not forget about an influential music producer, here is the latest from Mr. Freivogel, who is always in my reading queue:

  • “Chingee v. Canada, 2019 FC 532 (CanLII) (Fed. Ct. Canada May 1, 2019). Lawyer No. 1 did work for Indian Band in the 1980s on a title claim, and in the 1990s on an election dispute regarding interpretation of Indian Band’s election law. Lawyer No. 1 brought this action on behalf of Plaintiff against Indian Band seeking a declaration that Plaintiff is a “Headman” under a certain treaty. Lawyer No. 2 substituted for No. 1 under a notice of change of solicitor. Indian Band moved to disqualify No. 1 and No. 2. In this opinion the court denied the motion. In a fact-intensive analysis the court found that No. 1 did not learn anything confidential and relevant to this case in his earlier representations of Indian Band. It would appear that whatever information possibly relevant to this case held by Indian Band had been public for many years. Thus, No. 1 was not in a position to relay to No. 2 any confidential Indian Band information relevant to this case.”
  • “Encore Energy, Inc. v. Morris Ky. Wells, LLC, No. 1:18-CV-00180-GNS-HBB (W.D. Ky. May 7, 2019). In this case Encore seeks a declaration that it is a “financial institution” within the meaning of 15 U.S.C. § 6801. Law Firm appeared for Morris. About seven years ago Law Firm represented Encore regarding enforcement of a covenant not to compete in an employment contract. Encore moved to disqualify Law Firm in this case. In this opinion the court granted the motion. The court said that in the earlier case Law Firm would have to show the nature of Encore’s business in order to establish the scope of the covenant not to compete. Thus, the matters are substantially related.”