Nemours Foundation v. Gilbane

Brief Fact Summary. Plaintiff requests disqualification of Defendant’s firm due to an alleged conflict of interest arising from one of the associates assigned to the litigation.

Synopsis of Rule of Law. Attorneys may be disqualified from representation of a client if such representation would be “materially adverse” to a former client, but the firm with which the attorney is associated may avoid disqualification if it ensures that the disqualified attorney

Facts. Plaintiff requests disqualification of Defendant Gilbane’s law firm, Biggs and Battaglia due to attorney Paul Bradley’s participation in a previous action in which he represented a co-defendant of Plaintiff’s. This request was made near the end of a very long and complicated case involving a dispute over the construction of a new addition to a hospital.

Issue. Two questions are presented here:
Should attorney Bradley be disqualified from participation in this case?

If so, should the entire law firm be disqualified by imputation?

Held. Bradley is disqualified, but Biggs is not.
Bradley: Attorney Bradley is disqualified due to his previous work on behalf of a co-defendant of Plaintiff’s. His continued representation of Defendant would be “materially adverse” to his former client.

Biggs: While an attorney’s disqualification is usually imputed to the other attorneys in his firm, the court found that the Rule’s new exception to this standard applies here. As long as the disqualified lawyer is screened from any participation in the matter and receives no share of the fee from it, the firm may continue its representation.

Discussion. The court’s broad application of this exception (originally intended for attorneys in the public sector) suggests a far more pragmatic and situational approach to disqualification by imputation than had been previously used. This approach not only allows for freer migration of attorneys between firms, but also provides a client with more flexibility to use the counsel of his choice.