This unpublished federal decision raises two fascinating issues. First, although styled as a motion to withdraw, it more accurately involved a firm’s motion to disqualify itself. When the firm (Bryan Cave) discovered that two offices of the firm were simultaneously representing and suing the same client — a concurrent client conflict of interest — and when the client would not give its consent to the firm’s continued adverse representation, the firm correctly moved to withdraw. The attorney and the firm were both based in California, and in California a concurrent client conflict of interest arguably results in a “per se” disqualification.
But here is where the choice-of-law issue comes into play. The litigation was taking place in federal court in Pennsylvania, and the ethical rules have a built-in choice-of-law provision. See Model Rule 8.5. The provision specifies that, when the matter involves a proceeding before a tribunal (here, the Pennsylvania district court), the ethical rules in the tribunal’s jurisdiction apply. Thus, the Pennsylvania Rules of Professional Conduct applied to the conduct, and the Pennsylvania rules, and courts applying them, generally called for a balancing to determine whether disqualification was warranted (even in concurrent client conflicts cases) as opposed to requiring disqualification “per se.” The court then weighed the various factors and held that disqualification was not required. The case presents an interesting example of when an attorney’s own motion for disqualification (for a concurrent client conflict of interest no less) might be denied and when the choice of ethical rules might be consequential. The case is Alzheimer’s Inst. of Am., Inc. v. Avid Radiopharmaceuticals, No. CIV.A. 10-6908, 2011 WL 6088625 (E.D. Pa. Dec. 7, 2011).
N.B. Some federal courts do not always apply state ethical rules but instead apply the “national” standard of the Model Rules. See, e.g., Galderma Labs v. Actavis Mid Atlantic LLC, 927 F. Supp. 2d 390 (N.D. Tex. 2013) (applying the more restrictive Model Rules over Texas’s more liberal rules governing concurrent client conflicts of interest).