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Law firm DLA Piper should not be disqualified from representing the defendant in a trademark infringement suit even though one of its attorneys had represented the plaintiff in the past, a federal judge ruled after finding that the January retirement of the attorney removed any remaining risk of a conflict of interest.
The plaintiff, California Association of Realtors, argued that disqualification was required because DLA Piper had represented it in the past and had not taken steps to close its “general advice” account until after the law firm became aware of the potential conflict with the defendant, website operator PDFfiller.
But U.S. District Court Judge Indira Talwani concluded that the retirement of Jeffrey Shohet, the lawyer who handled the plaintiff’s account, in addition to ethical screens put in place to protect the plaintiff’s confidential information, warranted permitting DLA Piper’s continued representation of an opposing party in a matter unrelated to the firm’s prior work for the former client.
The judge wrote that “no attorney remaining at DLA Piper has confidential information material to the matter. For these reasons, as to future litigation, Shohet’s retirement removes the bar against DLA Piper attorneys’ representation here.”
The nine-page decision is California Association of Realtors, Inc. v. PDFfiller, Inc., et al., Lawyers Weekly No. 02-116-17. The full text of the ruling can be found here.
Conflict risk
DLA Piper attorney Bruce E. Falby of Boston argued against disqualification on behalf of the defendant. He declined to comment.
Daniel J. Pasquarello represented the plaintiff on its motion to disqualify. The Boston attorney did not respond to a request for comment prior to deadline.
But the professional ethics experts who spoke with Lawyers Weekly agreed with Talwani’s ruling.
“DLA Piper did things correctly,” said Boston attorney Thomas E. Peisch. “It looked into the conflict situation, erected the appropriate (ethical] screens, and took a principled stand in the face of the disqualification motion.”
Peisch added that it would have been a “close question” whether, absent the retirement of Shohet, the existence of the plaintiff’s open general advice account would have necessitated DLA Piper’s disqualification. In that sense, he said, the case points out the “ethical danger” posed by leaving general client accounts open after business has trailed off.
Thomas W. Kirchofer said...