Judge Marie S. Weiner, San Mateo County Superior Court
Judge Marie S. Weiner, San Mateo County Superior Court (Christine Jegan / The Recorder)

SAN FRANCISCO — Lawyers for McDermott Will & Emery have the right to contest the 2012 disqualification order that led to the firm getting sued by its former client, a state court judge ruled this week.

McDermott, which is fighting malpractice and breach-of-duty claims, wants to challenge a federal judge’s conclusion that it improperly represented clients with adverse interests. But MotionPoint Corp., the former client, was hoping for a court order barring McDermott from relitigating old issues.

San Mateo Superior Court Judge Marie Weiner sided with McDermott, denying MotionPoint’s motion for summary judgment.

“Jurisprudence bristles at the concept that this California court should bind McDermott to the disqualification findings in the federal action, when it is not ‘final’ under federal law, there is no ability of the attorney to appeal the decision, and even if McDermott could persuade the clients to contest it on appeal, the time to file an appeal has not yet run,” Weiner wrote.

McDermott represented Florida web translation firm MotionPoint in a patent dispute for two years before U.S. Magistrate Judge Joseph Spero granted a motion to disqualify. MotionPoint replaced the McDermott team with lawyers from Quinn Emanuel Urquhart & Sullivan, and wants McDermott to cover the expenses of bringing its new counsel up to speed. Mary Pat Statler, an associate with West Virginia’s Bailey & Glasser, argued in court last month that McDermott cannot ask for a do-over of the disqualification.

She did not return phone messages seeking comment.

To bar a case from relitigation, Weiner ruled, federal law mandates there must first be a final decision in the original case. The decision in MotionPoint’s original patent infringement case, which it lost, is not final, as posttrial motions are pending, Weiner wrote.

Furthermore, the parties in the original case and the new case aren’t the same, a requirement to trigger collateral estoppel, Weiner wrote.

“The parties are not ‘identical’ as McDermott was not a party to the federal lawsuit, but rather the attorney for a party,” her order states.

Duane Morris represents McDermott in the professional liability case. Partner Allison Lane Cooper argued it would be unfair to prevent McDermott from challenging the disqualification order. Under federal law, only the client can appeal a disqualification order, not the attorney being disqualified. MotionPoint withdrew its appeal to the disqualification, so McDermott never had a chance to fight back, Cooper argued.

Cooper declined comment on the summary judgment ruling.

Weiner’s order suggested she sympathized with McDermott.

“MotionPoint ordered McDermott to withdraw the petition for writ contesting the federal disqualification order,” she wrote, “and then turned around and sued McDermott on the basis of that federal disqualification order.”

Contact the reporter at mkendall@alm.com.