A judge in New York City has disqualified Epstein Becker & Green from representing the plaintiff in a case alleging the defendant had raided some of the plaintiff's employees. The judge claimed the firm exhibited a "fundamental lack of appreciation for the obligations imposed" by the disciplinary rules. That's a bit unfair, although the judge's decision looks right to me.
This is a complicated successive-relationship case, involving previous representation by Epstein Becker not of the defendant in the raiding lawsuit but of an investment bank conducting due diligence as part of the defendant's IPO. In the course of the due diligence process, Epstein Becker had access to confidential information on the defendant's competitive strategies, its need to recruit and retain senior employees, and its thoughts about defending raiding actions. It is well established that even without a formal attorney-client relationship, a firm can acquire implied professional obligations to a party that shared confidential information with the firm. If these confidences may be used to the advantage of a new client in a subsequent case, the representation of the new client is deemed "substantially related" to the previous matter. The judge also reacted harshly to Epstein Becker's attempt to screen off the lawyers involved in the IPO from those handling the raiding litigation. Unfortunately for the firm, courts that have accepted screening to cure imputed conflicts have done so almost exclusively in the context of laterally hired, "migratory" lawyers.
From the story in the New York Law Journal, it appears that this is the right decision, but rather than suggesting that the firm was disrespectful of the law governing lawyers, let's just admit that the law in this area is highly specialized. Implied professional obligations and screening create complications in the analysis of successive representation conflicts.
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