Duane Morris was recently reminded of the importance of erecting screens in a timely fashion. From 2008 to 2012, lawyers in Duane Morris’s Philadelphia office represented MDVIP, reportedly the largest medical concierge membership program. In particular, Duane Morris defended MDVIP against another “group medical practice for misappropriation of trade secrets and tortious interference with contractual relationships that allegedly arose from discussions between MDVIP and . . . one of the medical group’s physicians, by which MDVIP allegedly wrongfully received patient information for 246 of the medical group’s patients — patients who were possible candidates for the concierge medicine practice.” Then last year, Duane Morris, on behalf of another medical concierge service, brought suit against “MDVIP for antitrust violations contending MDVIP has abused its dominance in the relevant markets by utilizing anti-competitive tactics and entering into anti-competitive agreements intended to unlawfully maintain and expand MDVIP’s monopolies and to preclude . . . others from competing against it.” The court found that these two matters were “substantially related” (see, e.g., MR 1.9) because “both the prior and current lawsuits focus on MDVIP’s practices of recruiting and engaging physicians in its concierge medicine membership program.”
Having recognized the former client conflict, the court then examined “whether the implementation of an ethical screen would be sufficient to protect and preserve MDVIP’s confidences disclosed in the former representation.” The court was able to duck the ultimate question (namely, whether to bless the practice of screening as sufficient to avoid disqualification) because the firm had failed the “timeliness element in implementing an ethical screen, i.e., the requirement that an ethical screen be implemented before undertaking the challenged representation.” The court concluded that the firm had instead implemented the screen “two days after the [Duane] Morris firm was retained by” its current client. Although the court acknowledged that a two-day lapse was “very short,” the court nevertheless disqualified the firm. The court’s order is available here: Signature MD, Inc. v. MDVIP, Inc. (C.D. Cal. Jan. 20, 2015).