Within the past two weeks or so, four interesting and concise articles on lawyer and law firm disqualification have been published:

(1) J. Randolph Evans, Shari L. Klevens & Lino S. Lipinsky, Four Things to Know About Motions to Disqualify, 44 Colo. Law. 59 (April 2015) (discussing substantially related matters, playbook knowledge, and avoiding and responding to disqualification motions).[1]

(2) J. Randolph Evans & Shari L. Klevens, Who Should Represent a Law Firm Against a Motion to Disqualify?, Daily Bus. Rev., April 2, 2015 (noting several advantages to retaining outside counsel to represent the targeted firm).

(3) Michael Anthony Cattone, Note, When Should eDiscovery Vendors Be Disqualified?, previously published at 15 Transactions: Tenn. J. Bus. L. 441 (2014) (discussing the Gordon v. Kaleida Health decision and arguing that the standards for attorney conflicts of interest and disqualification should generally be applied to e-discovery vendors working for both sides).

(4) Andrew Strickler, Rising Lateral Conflict Risk Exposed in Sidley DQ Bid, Law360, April 1, 2015 (discussing a DQ motion against Sidley Austin and noting that firms generally are facing similar motions; “[e]xperts point to competition for new business as a factor, with firms’ desire to land laterals with moveable books of business leading them to overlook potential conflicts” and “[i]ndividual partners in a fluid lateral market also carry some blame, as they aren’t always diligent about disclosing every previous client or potential conflict”).  For a recent and interesting case in this lateral-hiring mold, see Garland v. Ford Motor Co., No. CV-2:12-00121, 2015 WL 1401030 (M.D. Tenn. March 26, 2015).[2]

[1]           Many thanks to Mark Harrison for alerting me to this piece.

[2]        In Garland v. Ford, the firm hired laterals who had been suing Ford in Tennessee, even though the firm had long represented Ford in ongoing litigation in Mississippi.  The court acknowledged the concurrent conflict of interest, acknowledged that the firm had then attempted to drop Ford like a hot potato, but refused to disqualify the firm.  In short, the court balanced the possible prejudice flowing from granting or denying disqualification and concluded that the firm’s other client would suffer more prejudice from disqualification (in the form of finding another lawyer and paying that lawyer to get up to speed in the case that had been pending for over two years) than Ford had suffered from the firm’s disloyalty.  The court’s final line implicitly acknowledges its controversial conclusion: “Although it goes without saying that every holding is cabined by the facts presented, it bears emphasizing that the result in this case is particularly fact driven, and that in most cases concurrent representation in violation of Rule 1.7 will result in disqualification.”