By David Majchrzak and Edward McIntyre
Issue:
Should the court disqualify a lawyer and the lawyer’s firm based on the lawyer’s previous engagement as an adversary’s executive and playbook knowledge.
Analysis:
Unless the lawyer had confidential information material to the engagement, no. O’Gara Coach employed Richie as general manager for a location, Director of Sales Operations for the company, and then President and Chief Operating Officer. In the latter role, Richie was involved with various human resource issues and was the primary contact person with outside counsel. When he left the company, Richie signed a contract in which he promised not to sue O’Gara Coach or to assist others in bringing claims against it.
The following year, a lawyer at Richie Litigation filed a suit against O’Gara Coach and several of its senior management employees for discrimination, wrongful termination, defamation, harassment, and related claims. O’Gara Coach answered the complaint and then moved to disqualify the firm, arguing that Richie is a key percipient witness whose testimony would be adverse to the interests of his client and because he had been privy to confidential and privileged documents and information during his employment at O’Gara Coach that were directly related to the issues in the lawsuit.
Richie had never acted as a lawyer for O’Gara Coach. So, the regular conflict analysis for successive representation did not apply. So, the court considered cases in which disqualification had been based on the acquisition of an adversary’s privileged communication by means other than a prior attorney-client relationship.
Richie possessed presumptively privileged information regarding O’Gara Coach’s development, implementation, and enforcement of its workplace polices, as well as knowledge of other confidential information regarding the company, its operations and its general litigation strategies. But no evidence suggested that Richie was involved in any way in investigating these particular complaints of a hostile work environment or had any discussions with O’Gara Coach’s outside counsel regarding these claims. In short, the confidential information upon which disqualification was sought was simply “playbook” information. Confidential information protected by the substantial relationship test does not include playbook information. So, disqualification was not proper.
Additionally, although it was likely that Richie would be called as a percipient witness at trial, disqualification was not required because the client provided informed written consent, thereby precluding any potential conflict. And O’Gara Coach had no standing to object since it was not a former client.
David Majchrzak and Edward McIntyre are co-editors of Ethics Quarterly.