Conflict Lateral Hire Didn’t Recall Disqualifies Alston & Bird

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By Samson Habte

Alston & Bird LLP can’t defend a doctor accused of breaching a non-compete agreement with a nanomedicine company, because a lateral partner may have previously advised the company on the non-compete but couldn’t completely recall his involvement, the U.S. District Court for the District of Maryland ruled Jan. 5 ( CytImmune Scis., Inc. v. Paciotti , 2017 BL 2356, D. Md., No. PWG-16-1010, 1/5/17 ).

The conflicted lawyer, Jonathan Rose, joined Alston & Bird after a four-year stint at Katten Munchin Rosenman LLP, which served as plaintiff CytImmune Sciences Inc.'s outside counsel for several years.

Judge Paul W. Grimm said Rose’s work on a CytImmune matter while working at Katten meant he had to be disqualified from this case—and that Rose’s conflict was imputable to all of his colleagues at Alston & Bird.

Grimm reached that conclusion even though Rose claimed to have no “recollection whatsoever of ever working with [CytImmune] while at Katten” and wasn’t even “aware of the existence of a company called CytImmune.”

The case shows that even limited—and unmemorable—involvement on a client’s matter can lead to an attorney’s disqualification down the road.

Grimm said “the admitted gaps in Rose’s recollection” made it difficult to credit his “adamant denial” of having pitched in on a CytImmune employment matter while working for Katten.

That prior matter involved a termination agreement CytImmune wanted to enter into with another employee. CytImmune said Rose was one of several Katten lawyers copied on an e-mail that discussed the termination contract and included a copy of CytImmune’s non-compete agreement.

Rose said in a declaration that the e-mail showed his role “was limited solely to chiming in on the work of other Katten attorneys who were providing general advice” to CytImmune about that termination matter.

Those other lawyers handled corporate law matters for CytImmune, and Rose—who said he was roped in because he focused on employment and labor issues—asserted that he had “no involvement” in drafting CytImmune’s non-compete agreement and was never asked “to provide a general (or specific) opinion on whether [the] agreement was enforceable as drafted.”

Accordingly, Rose said he didn’t acquire any confidential information that would preclude him from representing the defendant in this case, who was sued for allegedly violating a virtually identical non-compete contract.

The court disagreed.

Judge Grimm acknowledged that “the documents supporting CytImmune’s [disqualification] motion present at best an incomplete picture of Rose’s involvement in any advice that Katten offered CytImmune concerning the [non-compete’s] enforceability.”

Grimm said that lack of clarity “on the degree (if any) to which Rose gave legal advice to CytImmune concerning its non-compete agreement” made it difficult to say that Rose’s involvement in this case violated Maryland Lawyers’ Rule of Professional Conduct 1.9, which prohibits a lawyer from representing a client in a matter that is “substantially related” to one the lawyer handled for a former client.

But the judge said there was a “compelling case” for disqualification under Rule 1.7(a)(2), which prohibits a lawyer from representing a client when the representation could be “materially limited” by the lawyer’s personal interests or responsibilities to another client or former client.

Pulling Punches

The court said “Rose’s incomplete recollection of his prior work for CytImmune creates a significant risk of a materially limited defense of Dr. [Giulio] Paciotti,” the defendant in this case.

“Unable to discount the possibility that he did render an opinion on the legality of the [non-compete agreement], Rose has triangulated his defense of Dr. Paciotti so as to avoid making a facial challenge to the [agreement] and to instead pursue other strategies to advance Dr. Paciotti’s interests, arguing that the [agreement] is invalid as applied to Dr. Paciotti,” Grimm said.

The judge said that although he didn’t like “second-guessing Rose’s and his co-counsel’s litigation tactics,” he was “troubled” by the defense team’s “decision to refrain from making a facial challenge” to what the court has already “ruled was a sweepingly broad non-compete agreement.”

Odysseus Navigating Treacherous Waters

“I am left with the impression that Rose’s inability to recall the precise details of his prior work for CytImmune placed him squarely between the Scylla of [Rule] 1.9 and the Charybdis of [Rule] 1.7,” Grimm said. “And if Odysseus could not navigate such treacherous waters, then, respectfully, neither can Rose.”

“While the scope of Rose’s prior representation of CytImmune is disputed, Rose’s very uncertainty about the parameters of his prior representation materially limits his ability to represent Dr. Paciotti,” Grimm wrote.

"[Rule] 1.7 exists for the very purpose of ensuring that a litigant’s claims or defenses are not refracted through the multifaceted prism of an attorney’s conflicts,” the judge added. “Dr. Paciotti is entitled to a lawyer whose ability to develop a theory of the case is unencumbered by his own uncertainty concerning his representation of a former client.”

Accordingly, the court held that Rose had a disqualifying conflict—and that his conflict was imputable to all of the lawyers at Alston & Bird under Rule 1.10, necessitating the firm’s disqualification as well.

Rose and Richard Siegel, of Alston & Bird LLP, Washington, D.C., represented Paciotti. Eric J. Janson and Adam J. Vergne, of Seyfarth Shaw LLP, Washington, D.C., represented CytImmune Sciences Inc.

To contact the reporter on this story: Samson Habte in Washington, D.C. at shabte@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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