Very interesting district court decisions in the patent litigation context reaching opposite conclusions on teh question of whether a firm representing Client A in unrelated matters can represent a patent owner against party B where the patent owner, with other counsel, sues Client A. Rembrandt Technologies, LP v. Comcast Corp., 2007 U.S. Dist. LEXIS 9027 (E.D. Tex. Feb. 8, 2007).
This is a really sticky one, and the ability of firms to identify these conflicts, let alone avoid them, is one that I've spoken on. On the one hand, arguably the firm is helping to "make a case" against its own client by, for instance, avoiding prior art or achieving a broad claim interpretation that would implicate infringement by its own client. On the other hand, that sure sounds pretty attenuated to constitute direct adversity: where does that logic end? E.g., what if a firm is prosecuting a patent that justifies claims that will cover another client's products in an area the firm doesn't represent that other client in. Adverse? Why not?
In any event, if the case is correct, the patent owner plaintiff needs to be advised of the material limitations that could arise if a firm is in this box -- the firm may be unable to advocate for claim interpretations that may implicate infringement by another client, for instance.
I don't think we've heard the last word on this one.