DISCQUALIFICATION BECAUSE NO SUBSTANTIAL RELATIONSHIP WITH PRIOR REPRESENTATION

Commonwealth Scientific & Industrial Research Organisation, v. Toshiba America Information Systems, Inc., [2008-1108, -1116] (October 23, 2008) [STEARNS, Linn, Dyk] The Federal Circuit affirmed the denial of a motion to intervene.
DISCUSSION: The district court denied the motion to disqualify on the merits, and therefore denied the motion to intervene. The Federal Circuit found no error in the denial of the motion to disqualify, and therefore affirmed. The Federal Circuit said that ABA Model Rule 1.9 governing conflicts involving the representation of former clients applies to the motion to disqualify. Under the “substantial relationship” test, the movant must prove: (1) an actual attorney-client relationship existed between the moving party and the opposing counsel; (2) the present litigation involves a matter that is ‘substantially related’ to the subject of the movant’s prior representation; and (3) the interests of the opposing counsel’s present client are materially adverse to the movant.” In applying the test, courts consider three relevant factors: (1) the factual similarities between the current and former representations, (2) the similarities between the legal questions posed, and (3) the nature and extent of the attorney’s involvement with the former representation. The Federal Circuit agreed that Marvell failed to meet its burden of showing a substantial relationship.