- “A recent ruling allowing Paul, Weiss, Rifkind, Wharton & Garrison to continue representing Google in antitrust litigation, despite not seeking a waiver from former client Yelp, shows it takes more than alleging an inherent client conflict to get a large firm kicked off a case.”
- “Nonparties Yelp and News/Media Alliance had filed a motion to disqualify the Am Law 50 firm, with Yelp arguing that it retained Paul Weiss in 2016 to provide legal counsel on several antitrust matters. That representation, Yelp argued, included communications between counsel and federal antitrust enforcement officials regarding Google’s business practices and how that alleged conduct impacted Yelp’s business decisions, according to the opinion filed Oct. 16 in the U.S. District Court for the Eastern District of Virginia. “
- “Paul Weiss never sought a conflict waiver from Yelp or NMA for the present litigation, which the U.S. and eight states commenced in January, seeking substantial damages on behalf of federal agency advertisers, equitable relief and divestiture of Google’s digital advertising business, the opinion said.”
- “However, in ultimately rejecting Yelp’s motion, Judge Leonie M. Brinkema first considered whether Paul Weiss violated Virginia’s Rules of Professional Conduct pertained to former clients and representing a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm.”
- “‘Here, Paul Weiss represented Yelp and NMA three years ago, primarily to communicate with federal antitrust officials regarding Google’s purported anticompetitive conduct in the Internet search industry,”’ Brinkema wrote in her opinion. ‘That representation was led by lawyers who are no longer at the firm—with one exception, Daniel Crane, who is no longer participating in the Ad Tech litigation… As such, Yelp and NMA have failed to provide ‘patently clear’ evidence demonstrating how specific confidential information Paul Weiss may have obtained during the previous representation is substantially related to the dispute in the instant litigation.'”
- “However, as an apparent precautionary measure, Brinkema ordered Paul Weiss to screen its attorneys and support staff to see if any of them participated in the previous representation of Yelp or NMA in relation to Google’s alleged anticompetitive conduct. If so, Paul Weiss is ordered to prohibit those members from participating in the present action, the judge ordered.”
- “Still, Brinkema said that a violation of the rules ‘does not automatically yield disqualification of counsel.’ In Google’s case, disqualification of Paul Weiss ‘this late stage in a complex, and fast-moving case would impose unnecessary expense, risk a delay in the trial and waste both plaintiffs’ and Google’s resources,’ she wrote.”
- “The ruling in the Google case is the latest example of a judge deciding a large law firm had taken adequate steps to avoid a conflict. The ruling in Google’s case is the latest example of a judge taking mitigating steps around an issue, rather than completely disqualifying Paul Weiss.”
- “In another case, the U.S. Court of Appeals for the Third Circuit ruled in September 2022, that White & Case was not conflicted out of a bankruptcy case after hiring a partner from opposing counsel Sidley Austin who previously worked on the matter.”
- “When Jessica Boelter, who had participated in the initial pitch by Sidley to represent YPF and billed 300 hours on the representation, moved to White & Case, she went through a standard conflict-screening process. On Boelter’s first day, White & Case implemented an ethical wall, obtained Boelter’s agreement to comply with that wall and periodically certified that compliance, according to the opinion.”
- “But YPF ‘never thought any screen could be good enough’ and moved to disqualify White & Case, according to Judge David J. Porter, who wrote the opinion for the Third Circuit. The bankruptcy court denied YPF’s motion after applying a multifactored test, finding no exceptional circumstances existed to impute Boelter’s conflict to the entire firm despite a screen, according to the opinion.”
- “More recently, over this past summer, a federal judge denied Coca-Cola Co.’s motion to disqualify its longtime outside counsel Paul Hastings from representing a startup that filed a $100 million lawsuit against Coke. U.S. Magistrate Judge Robert Norway of the Middle District of Florida found that Paul Hastings’ representation of the startup was a conflict, but that Coke signed an enforceable conflict waiver in 2021.”
- “There’s a laundry list of potential conflicts law firms must watch out for, from attorneys having their own financial interest from a separate business to lawyers needing to serve as witnesses.”
- “But University of Arizona James E. Rogers College of Law Professor Keith Swisher found that nearly half of federal motions filed for disqualifications tracked in civil cases between 2003 and 2013 were related to a former client, he wrote in ”The Practice and Theory of Lawyer Disqualification,” which was published in the Georgetown Journal of Legal Ethics in 2014.”
- “For that same decade, nearly 74% of civil disqualification motions were denied, Swisher’s research showed.”
And more on the aforementioned research (curious how the last decade compares to the 2003-2013 data presented in here): “The Practice and Theory of Lawyer Disqualification” —
- “Lawyer disqualification is commonly feared as a ‘strategic,’ ‘tactical,’ and ‘harassing’ ‘potent weapon’ depriving clients of their trusted counsel of choice. Although disqualification comes with costs, fundamental misunderstandings fuel this common fear.”
- “This Article finds that disqualification is a uniquely effective remedy for lawyer misconduct and makes the following contributions to the law and practice of lawyer disqualification:
- (1) an exhaustive study surveying disqualification cases and refuting the common misconception that disqualification motions are uncontrollably on the rise and uncontrollably bad;
- (2) an accessible analysis of lawyer disqualification doctrine that permits lawyers and judges to begin assessing common disqualification questions efficiently and comprehensively; and
- (3) specific suggestions for practical improvements, including cost-shifting, legal presumptions, and better procedures in disqualification proceedings.”