Thursday, October 27, 2016

Attorney's Former Representation of Plaintiff Justifies Disqualification of Defense Counsel​

The court granted plaintiffs' motion to disqualify defense counsel because of the appearance of impropriety. "The current configuration of counsel presents an inescapable appearance of impropriety. . . . The attorney in question worked for 186.7 hours on [plaintiffs'] patent infringement claims and in representing it before the patent office. . . . For over seventeen months during the pendency of this proceeding, the attorney's biographic pages on [defense counsel's] website listed his representation of [plaintiffs] . . . as one of the major accomplishments of his career. How could the plaintiff or an impartial and objective outside observer ignore such a patent appearance of impropriety? . . . [T]he Court finds there is no evidence to suggest that there has been an improper exchange of privileged information. However, such a factual finding does not outweigh the appearance of impropriety. . . . The growth of multi-jurisdictional practice by law firms coupled with the increased mobility of practicing attorneys places added pressure upon law firms to deal with the issues raised in these Motions. However, the traditional and well founded concept of the appearance of impropriety cannot yield to the added expense and inconvenience inherent in the enforcement of longstanding ethical concepts. Judges themselves must not only avoid the appearance of impropriety but also instruct juries to do the same. No less should be expected of the attorneys who practice before the bar of this Court. "

Audio MPEG, Inc. et al v. Dell, Inc., et al, 2-15-cv-00073 (VAED October 25, 2016, Order) (Morgan, SJ)

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