Tuesday, June 4, 2013

Alston & Bird Disqualified as Trial Counsel

I know this blog is typically about copyright issues, but this one is really just a general litigation issue which could, theoretically, apply even in copyright cases. This post is about a lawyer's duty of loyalty to former clients.

The law firm of Alston & Bird originally represented Malico, Inc. in some patent prosecution matters that ended about 2010. At about the same time, Malico had brought suit against Cooler Master USA, Inc. for patent infringement. The patent-in-suit was not one that Alston & Bird had worked on. Cooler Master was represented first by a different firm. But after a couple of firm changes, Cooler Master ultimately hired Alston & Bird to represent it in the suit that was brought by Malico.

Malico objected that Alston & Bird could not represent Cooler Master against Malico because Alston & Bird had an ongoing duty of loyalty to Malico. Malico moved to disqualify Alston & Bird, and Cooler Master naturally objected. Cooler Master argued that Alston & Bird's representation of Malico was long over and it didn't really have access to any confidential information of Malico. Besides, the lawyer who represented Malico was in North Carolina, not California where the law suit was pending.

Judge Seeborg disagreed.

Finding Malico's argument persuasive, Judge Seeborg concluded that because the patents that Alston & Bird had worked on for Malico in the past were substantially similar to the patent-in-suit, Alston & Bird was required to have obtained a written conflict waiver from Malico, which it did not. Accordingly, Judge Seeborg disqualified Alston & Bird from representing Cooler Master against Malico.

I point this out to illustrate the serious issues that can arise from failing to respect the ongoing duty of loyalty to former clients. All too often, a lawyer's desire to bring in that new, big client clouds his judgment and causes him to do things that he shouldn't. But sometimes, the left hand just doesn't know what the right hand is doing. I think this case is more like the latter, but the result is the same.