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In this era of ever-increasing partner and practice group defections, law firm mergers and dissolutions, the rules governing conflicts of interest and disqualification of opposing counsel have gained heightened significance. When an attorney moves his or her practice to a new firm, that firm can find itself opposing a motion for disqualification if it represents a client that is adverse to a client of the new attorney’s former law firm. Indeed, the motion to disqualify an opposing party’s entire law firm in these circumstances can be a powerful, and easily abused, litigation weapon. In October 2001, after Panther v. Grosse concluded, Schreiner became associated with the Mazzarella firm as an independent contractor, where he was paid a certain percentage of what he originated, billed and collected. The court described the following procedures that the Mazzarella firm implemented to isolate Schreiner from the current Panther matter: 1. Schreiner used his own computer and printer, was not networked into the Mazzarella computer system and did not use its system. 2. Schreiner was no longer involved in any litigation involving Panther, and his files relating to Panther v. Grosse were in storage and not kept at the Mazzarella firm. 3. Schreiner was told not to discuss any aspect of the Panther litigation with anyone at the Mazzarella firm. 4. The Mazzarella firm had multiple meetings with partners, associates and staff instructing them not to discuss the Panther litigation with Schreiner and sent an e-mail to reinforce the message. 5. The Mazzarella firm had procedures for handling mail to prevent any mail related to the Panther litigation to be routed to Schreiner. 6. Panther was instructed not to talk to Schreiner if Panther saw Schreiner in the office. In November 2001, in a related bankruptcy proceeding, Park learned that Schreiner had moved to the Mazzarella firm. FAMF, CanAm and Park moved to disqualify Micheli and the Mazzarella firm from representing Panther in the current Panther v. Park litigation. The trial court granted the motion, concluding that confidential information had been exchanged between FAMF, CanAm, Park, Grosse and Schreiner during the Panther v. Grosse litigation, and that the information was substantially related to Panther v. Park. The Panther court acknowledged the presumption of shared confidences and resulting vicarious disqualification. The court even acknowledged that California courts had found the presumption irrebuttable in most circumstances. However, the California Supreme Court had recently refused to address whether an “ethical wall” was effective to rebut the presumption requiring vicarious disqualification — but this issue was not before the court because the disqualified firm had not implemented any screening procedures. ( People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1152-1153.) The Panther court interpreted this refusal to address whether an ethical wall could rebut the presumption of vicarious disqualification as an implied endorsement. The court vacated the order disqualifying the Mazzarella firm, holding that a law firm can avoid vicarious disqualification by demonstrating that effective screening procedures were implemented to prevent the disclosure of confidential information. In doing so, the court explained that automatic vicarious disqualification did not “comport with the realities of today’s legal world and the increased mobility of lawyers among firms.” Moreover, such an inflexible rule created hardships for lawyers and clients and gave rise to the potential for abusing the motion to disqualify opposing counsel as a litigation tactic. Practitioners and their clients stand to benefit from this evolution in the principles of vicarious disqualification. The approach set forth by the Panther court appears well suited to protect a client’s confidences while not unduly restricting an attorney’s ability to move between firms as he or she chooses. Whether it also reduces the opportunity for abuse as a litigation tactic remains to be seen. Stephen P. Ellingson is a partner in the San Jose office of Ropers, Majeski, Kohn & Bentley. His practice focuses on trademark, trade name, trade dress and patent infringement, trade secret misappropriation, unfair competition, breach of license agreements, contracts and other business disputes, employment discrimination, environmental pollution and litigation involving advertising injury coverage for intellectual property claims and other claims for casualty coverage.

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