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Like a teacher scolding misbehaving children, a senior federal judge took several far younger, big-firm lawyers to task Thursday for filing two poorly argued motions to disqualify the other side’s counsel. Senior U.S. District Judge William Schwarzer roundly rejected both motions and wouldn’t entertain the attorneys’ other requests in court either. “Because a motion to disqualify is often tactically motivated and can be disruptive to the litigation process,” Schwarzer said in court Thursday, “disqualification is a drastic measure that is generally disfavored and should only be imposed when absolutely necessary.” Friskit, based in San Francisco, has accused the much larger RealNetworks, based in Seattle, of infringing on patents related to organizing and playing video and audio files. Foley & Lardner represents Friskit, while Howrey represents RealNetworks. The plaintiff alleged in a May 25 motion that Howrey should be cut out of the case because Friskit had preliminary discussions with the firm about the case earlier this year. Friskit argued that Howrey was further compromised because it had hired former RealNetworks deputy general counsel David Stewart, and had assigned him to the case. After shuffling up to the bench and tapping the microphone to make sure it was on, the judge quickly refused a request by Foley & Lardner partner Victor De Gyarfas to close the courtroom. “This is not a matter of national security,” Schwarzer told De Gyarfas. “I will not close this courtroom.”
‘The duty of loyalty runs to the first client and precludes disqualification at the instance of the later-acquired client.’

Judge William Schwarzer


The judge then refused to let the attorneys present their arguments to him verbally, saying he had read their motions. He proceeded to read the text of his orders. Friskit’s earlier consultations with Howrey did not make it a de facto client of the firm, the judge said, adding that the firm’s pledge to establish an “ethical screen” between the Howrey attorneys who met with Friskit and those litigating the case was sufficient. Schwarzer wrote ( .pdf) that if the courts were to accept Friskit’s argument, it would mean “any firm risks disqualification if it enters into discussions about the possible representation of a potential client.” Such an argument “seems to me to defy common sense,” he added. In explaining his second order ( .pdf), Schwarzer said RealNetworks had claimed in its sealed June 19 filing that Foley should stop representing Friskit because RealNetworks’ chief executive, Rob Glaser, had hired the firm in an unrelated matter. Glaser argued that Foley owed him a “duty of loyalty,” according to the judge’s order. But Glaser hired the firm after Friskit had, and “the duty of loyalty runs to the first client and precludes disqualification at the instance of the later-acquired client,” Schwarzer said. “To enforce that duty by disqualifying the attorney from representing his existing client would turn the duty of loyalty on its head,” he said. All of the attorneys present declined to comment after the judge issued his orders. Foley’s De Gyarfas and partner Kenneth Klein were present at the hearing for Friskit, and RealNetworks was represented by Quinn Emanuel Urquhart Oliver & Hedges partners Charles Verhoeven and David Perlson, along with Howrey partner Dale Giali.

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