Monday, April 26, 2010

Defense Counsel's Prior Representation of Plaintiff Warranted Disqualification Despite Ethical Wall

The court disqualified defendants' counsel because "other attorneys associated with their firm [previously] represented plaintiff," in connection with oppositions to foreign patent applications involving the patented technology. In doing so, the court rejected defendants' position that, under a recent California appellate court decision, an ethical wall was sufficient to avoid disqualification. "[Kirk v. First American Title Insurance Company, No. B218956, 2010 WL 1346403 (Cal. App. 2 Dist. Apr. 17, 2010),] arguably broke new ground among California courts for unambiguously approving for the first time the notion that an 'ethical wall' may be sufficient to prevent imputed disqualification of a firm when it hires an attorney 'tainted' by prior representation of a party adverse to a firm client. This Court would have to break far more new ground, however, to disregard its conclusion that there is a substantial relationship between [defense counsel's prior representation of plaintiff in opposing two patent applications] and this action, and not disqualify [defense counsel] under the facts here. . . . [T]his is not a situation where [defense counsel] hired, but immediately walled-off, a 'tainted' attorney. . . . Nor was the ethical wall erected at all until after [plaintiff] complained. Additionally, although it appears that the attorneys who would be shouldering the primary load during this litigation are geographically isolated from the [defense] attorneys who represented [plaintiff], [defendants'] local counsel of record is not, and the local office is relatively small."

Openwave Systems, Inc. v. 724 Solutions (US) Inc. et al., 5-09-cv-03511 (CAND, Apil 22, 2010, Order) (Seeborg, J.)

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