Citation. Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 1979 U.S. App. LEXIS 16631 (5th Cir. La. Feb. 26, 1979)
Brief Fact Summary. Appellant’s attorneys were disqualified by the lower court
Synopsis of Rule of Law. Successive conflicts under Model Rule 1.9 and the lawyer’s duty of confidentiality.
Attorney Edward Wegmann was retained as general counsel for the Brennan family’s New Orleans restaurant chain and assisted them in obtaining a federally registered trademark. When a management dispute forced the corporation to split into two separate businesses, Wegmann was kept on by the Defendants to defend their right to use the trademark against the Plaintiffs’ challenges. Wegmann retained the services of Arnold Sprung, a New York trademark attorney, to assist him in the case, and the Plaintiffs challenged Wegmann’s (and, by imputation, Sprung’s) participation in the case on the grounds that his representation of Defendants was at odds with his former representation of Plaintiffs. The District Court agreed, and granted the motion to disqualify, which Defendants now challenge. Issue.
Should attorney Wegmann have been disqualified from this suit due to his prior joint representation of Plaintiffs and Defendants?
Should attorney Sprung have been disqualified from this suit due to his association with Mr. Wegmann?
Held. The lawyer’s ethical duty of confidentiality is stronger and broader than the attorney-client privilege.
Yes, attorney Wegmann was properly disqualified from this suit. As a former attorney for joint clients who are now opposing parties, he will not be able to properly fulfill his ethical obligation of confidentiality.
No, attorney Sprung should not have been disqualified. He was never counsel for Plaintiffs, and it was plain error for the court to disqualify him by imputation, as the appearance of impropriety was not enough here.
Discussion. This holding is one of the strongest applications of the lawyer’s ethical duty of confidentiality.