Monday, August 6, 2018

Defense Counsel’s Past Representation of Party to Confidential Settlement Agreement Does Not Justify Disqualification

The court denied plaintiff's motion to disqualify defense counsel who represented a third party as a defendant in another case involving the same patent-in-suit that resulted in a confidential settlement agreement. "⁠[B]ecause [counsel] did not represent [plaintiff] in that prior matter, there is no way that he could have had access to relevant privileged information belonging to [plaintiff], which is the third requirement of the test. The only claim is that he is now aware of the information contained in the confidential settlement agreement entered into in that case. There is no claim that [counsel] violated his duty of loyalty to his former client, and no claim that he has 'divulge[d] confidential communications' that he learned from his former client. Nor has there been any claim that he accepted representation of a person whose interests are adverse to those of his former client. . . . [P]laintiff provides no authority for this novel proposition that this set of circumstances demands disqualification of the adversary’s attorney."

Tour Technology Software, Inc. v. RTV, Inc., 1-17-cv-05817 (NYED August 2, 2018, Order) (Pollak, MJ)

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