Nemours Foundation v. Gilbane

Brief Fact Summary.

Nemours (Plaintiff) moved to have both the attorney and the law firm currently employing him disqualified from further representation in this case because one of the attorneys working for defense counsel had been employed in the past by a law firm representing a co-party of Nemours Foundation (Plaintiff)

Synopsis of Rule of Law.

An attorney may not represent a client whose interests are materially adverse to that of a former client where the attorney, during the prior representation, might have acquired substantially related material

Facts.

Bradley, an attorney with Biggs & Battaglia, counsel for Pierce (Defendant), was a prior employee of Berg & Associates.  In a lawsuit against Pierce (Defendant), Berg represented Furlow (Plaintiff), a co-party of Nemours Foundation (Nemours) (Plaintiff), and was also co-counsel for Nemours (Plaintiff).  Nemours (Plaintiff) was the architectural firm on the project that generated the underlying lawsuit.  Furlow (Plaintiff) the mechanical engineer, Gilbane (Defendant) the general contractor, and Pierce (Defendant) a subcontractor.  Neither Bradley nor Biggs knew of the other’s involvement in this litigation.  When it became known, Bradley and his superiors at Biggs took immediate steps to screen him from any contact with the Pierce (Defendant) litigation.  Nemours (Plaintiff) moved to have both Bradley and Biggs disqualified as counsel for Pierce (Defendant) because of Bradley’s former association with Berg.

Issue.

May an attorney represent a client whose interests are materially adverse to that of a former client where the attorney, during the prior representation, might have acquired substantially related material?

Held.

(Farnan, J.)  No.  An attorney may not represent a client whose interests are materially adverse to that of a former client where the attorney, during the prior representation, might have acquired substantially related material.  In this case, Bradley is disqualified because while representing Furlow (Plaintiff), he reviewed confidential documents of Nemours (Plaintiff) that must be protected since Nemours (Plaintiff) must be considered Bradley’s “client.â€Â  Although there was no express attorney-client relationship, a fiduciary obligation existed nevertheless.  However, nowhere in presenting its argument did Nemours (Plaintiff) allege the slightest disadvantage or harm resulting from Biggs’s continued representation of Pierce (Defendant).  In addition, Defendant would be considerably prejudiced by the disqualification of Biggs shortly before trial is scheduled to begin.  Therefore, the motion to disqualify Biggs is denied.

 

Discussion.

The courts usually rule out an “appearance of impropriety†as the only basis for disqualification.  However, certain objective circumstances, including the timing and physical characteristics of the screening, will in many cases require disqualification of an entire firm.  The size of the firm is an important consideration, as well as the nature of the prior involvement of the attorney in question and the extensiveness of the screening.