The disqualification case of the week involves a specific type of former client conflict of interest: when a lawyer is asked to criticize or attack the lawyer’s own previous advice or work product. Perhaps not surprisingly, this conduct is generally forbidden: “even in the absence of any confidences, an attorney owes a duty of loyalty to a former client that prevents that attorney from attacking, or interpreting, work she performed, or supervised, for the former client.”[1]

The law firm at issue previously provided “general counsel” services to ASI, a resort amenities business. When contacting resorts potentially interested in ASI’s services, ASI would use a non-disclosure agreement (NDA) to protect its proprietary information and trade secrets. The law firm assisted ASI with this NDA. In particular, the firm “supported ASI’s efforts to enforce the . . . NDA, writing demand letters on ASI’s behalf to apparent violators. The letters expressed the firm’s opinion that the NDA was ‘valid and binding,’ an opinion that stemmed from [the law firm]’s own review, approval, and advice to ASI about validity and enforceability of the NDA. And it advised ASI to pursue those that violate the NDA.” ASI and the law firm eventually parted ways approximately ten years ago and have not worked with each other since.

ASI continued to use the NDA to negotiate with other resorts, including Royal Beach and Golf Resorts (the “Resort”). Although “[t]he parties’ negotiations ultimately came to nothing, . . . ASI later learned that the Resort was operating a ‘Royal Amenity Program’ that ASI considered extremely similar to its own earlier-disclosed amenities program.” ASI then filed suit against the Resort alleging a breach of the NDA. When the law firm reappeared after ten years as counsel for the Resort, ASI moved to disqualify the firm. The trial court denied the motion primarily “because more than ten years had passed since the counsel had represented ASI in other NDA-related matters,” among other reasons.

On appeal, the appellate court first pointed out that the “key question is whether [the law firm]’s representation of the parties involved the same or ‘substantially related’ matters.” Here the law firm’s “representation of the parties didn’t involve ‘the same’ matters; the Resort wasn’t involved in the disputes in which the firm had earlier advised ASI.” The court noted, however, that matters can be “considered ‘substantially related’ under [Rule 1.9] if the current litigation ‘would involve the lawyer attacking work that the lawyer performed for the former client.'” In the prior representation, the law firm opined that the same NDA was “valid and binding,” and “the Resort’s pleadings in this case indicate that it is defending itself on the basis that the NDA is not valid and enforceable and that its terms are vague and ambiguous.” The law firm therefore “would be taking a position exactly contrary to the professional opinion and advice it gave earlier on ASI’s behalf.” The appellate court then remanded the case back to the trial court with an order to grant the disqualification motion. Although the appellate court likely reached the correct conclusion in this type of case, the court dubiously asserted in reaching this conclusion that “nothing in the rule or caselaw suggests that questions regarding conflicting representations turn on the passage of time.”[2]

The full opinion is available here: ASI Holding Co. v. Royal Beach & Golf Resorts, LLC, No. 1D14-4928, __ So. 3d __, 2015 WL 1928615 (Fla. Dist. Ct. App. Apr. 29, 2015).

[1]           Sullivan Cnty. Reg’l Refuse Disposal Dist. v. Town of Acworth, 141 N.H. 479, 484, 686 A.2d 755, 758 (1996).  For additional authority on this point, see for example Keith Swisher, Prosecutorial Conflicts of Interest in Post-Conviction Practice, 41 Hofstra L. Rev. 181, 184-85 nn.12-14 (2012), citing the following cases (among others): Exterior Sys., Inc. v. Noble Composites, Inc., 175 F. Supp. 2d 1112, 1117 (N.D. Ind. 2001) (“In simple terms, Attorney Gillard’s current client is suing the successor to her former client on a contract she created on behalf of her former client. This conflict, separate from any other potential conflicts, is sufficient to warrant disqualification of Gillard.”); Franklin v. Callum, 782 A.2d 884, 887 (N.H. 2001) (“[T]he defendants contend that Fulton is disqualified under Rules 1.9 and 1.10 because Gardner, as the Project’s former counsel, drafted agreements forming the Project and because the claims of her current client, the plaintiff, require the application and interpretation of those agreements in litigation against the Project. We agree.”); In re Taylor, 67 S.W.3d 530, 533 (Tex. Ct. App. 2002) (“Filer – the lawyer with the Naman firm who did the estate planning work, prepared the agreement, and acknowledged that the firm represented Barbara – is disqualified from representing any of the multiple parties to the agreement . . . in a dispute among those clients in regard to that matter.”); Restatement (Third) of the Law Governing Lawyers §132(1) & cmt. d(ii) (2000) (prohibiting attorneys from attacking their own prior work even if no confidential information would be compromised in doing so).

[2]           But see, e.g., Model Rules of Prof’l Conduct R. 1.9 cmt. 3 (“Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related.”); Hickman v. Burlington Bio-Med. Corp., 371 F. Supp. 2d 225, 231 (E.D.N.Y. 2005) (noting that substantial relationship and appearance of impropriety arguments were “particularly weak” in part because ten years had passed since the former representation).