Tuesday, December 28, 2010

Concurrent Representation of Plaintiff in Patent Suit and Defendant in Reexamination Involving Different Patents Warrants Disqualification

Defendant's motion to disqualify plaintiff's counsel was granted where counsel represented plaintiff in the current dispute and was subsequently retained by defendant in connection with a reexamination proceeding involving different patents and an unrelated indemnity dispute. "Once [plaintiff's counsel] accepted [defendant] as a client, the firm owed [defendant] a duty of loyalty. [Plaintiff's counsel] breached that duty . . . by assisting [plaintiff] in advancing patent infringement claims against [defendant]. Although the consequence of that breach -- per se disqualification -- does negatively impact [plaintiff's counsel's] first client, [plaintiff], allowing [it] to avoid that consequence by simply withdrawing as counsel for [defendant], a secondly acquired but nonetheless fully engaged client, is not the best way to restore confidence in the legal profession. . . . Once a client engages a lawyer, that client must be able to expect undivided loyalty. Even though disqualification is a harsh penalty, allowing a law firm to resolve voluntarily created conflicting loyalties by simply dropping the less favored client undermines this expectation."

Fujitsu Limited v. Belkin International, Inc., et. al., 5-10-cv-03972 (CAND December 22, 2010, Order) (Koh, J.)

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