Samsung Moves to Disqualify Apple’s Lawyers in Patent Battle

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Samsung’s patent infringement battle with Apple has taken an interesting turn now that the chip maker has asked the Judge overseeing the case to disqualify Apple’s legal team over allegations of conflict of interest. At least part of Apple’s battalion of attorneys previously worked for a different law firm that represented Samsung, and the company thinks those lawyers could potentially pass on trade secrets, according to Foss Patents.

Apple v Samsung, still just as uglySamsung wants to toss out Apple’s lawyers

The lawyers in question worked for the law firm of Kirkland & Ellis before joining Bridges & Mavrakakis, which is one of the three law firms representing Apple in its patent battle against Samsung. Kirkland & Ellis, while the lawyers in question worked there, previously represented Samsung in a different patent infringement case.

Because of that tie, Samsung claimed the lawyer’s presence “taints all attorneys at Bridges & Mavrakakis through imputation.”

Samsung also alleged that because of the interaction between the three law firms representing Apple in their patent battle, that all are potentially tainted and should be removed from the case unless they can satisfactorily prove otherwise.

Apple and Samsung are currently locked in a legal battle over allegations that they are infringing on each other’s mobile device and wireless technology patents.

Apple hasn’t commented on Samsung’s latest allegations, although the company will no doubt work to keep its legal team from being forced off of the case.

Comments

Nemo

While those attorneys may know Samsung’s trade secrets, they are charged by their oath and the ethical rules governing their practice of law not to divulge any such trade secrets to Apple, and I think that the Judge will, absent evidence to the contrary, rely on those attorneys honoring their duty and not disqualify them for that alone, unless those trade secrets are relevant to the instant disputes between Samsung and Apple.  The standard for determining whether a lawyer is conflicted-out of a representation is:  Whether in the course of representing his former client, here Samsung, he is now representing his new client in a dispute on those same issues, or whether he, in the course of representing his former client, acquired information that could be used to prejudice or disadvantage of his former client in favor of his new client; if either of those situations obtain, the lawyer is conflicted-out of his new representation, because the privileged position of his former attorney-client relationship gave him information that he would not otherwise have that could be used to prejudice of his former client. 

Can Samsung show that to Judge Koh?  And Judge Koh will want to know why Samsung took so long to raise this issue, waiting until the even of her decision of Apple’s Motion for a preliminary injunctions against Samsung.  Samsung should have raised this issue at the beginning of the case, and I don’t see any reason why it couldn’t have raised this conflict of interest issue earlier, much earlier.  I will have to read the Samsung’s Motion and Apple’s response to see whether Samsung’s Motion has merit or whether Samsung is just delaying.  But one thing is certain, except for their future relations as competitors, Samsung is unlikely to be a future supplier of parts for Apple.

daemon

While those attorneys may know Samsung?s trade secrets, they are charged by their oath and the ethical rules governing their practice of law not to divulge any such trade secrets to Apple,

As a child of a lawyer I know that even the appearance of improprities is enough to damage a case. These attorneys should have known better.

John Molloy

Oh, I don’t know, but if Samsung are starting to rule stuff out on a technical issue then perhaps the phrase “clutching at straws” comes to mind.

Haven’t Samsung just lost their boss in the mobile division - perhaps the people that run Samsung’s umbrella company are getting fed up with the mobile division forcing them to lose their biggest customer in the component division.

Nemo

The appearance of impropriety standard relates particularly to judges and other officers of the court, such as lawyers, as it relates to the integrity of the court’s administration of justice and reputation of the court for fair dealing.  Since Apple has a right to picks its lawyers and lawyers should not be preclude from future representation, unless there is a genuine conflict of interest, Judge Koh should be guided by whether Apple lawyers in fact are privy to any knowledge from their former representation of Samsung that could prejudice Samsung its instant dispute with Apple.  If there is no such conflict, it was Samsung who created the false appearance of impropriety, not Apple’s current lawyers.

In modern practice, it is not uncommon, and some would say that it is common, for major law firms to represent parties against former clients on unrelated matters.  The duties of a lawyer to decline a representation because of a conflict are invoked only where a lawyer acquired knowledge from the former representation that could work to prejudice of his former client in the later dispute with his new client.  Where that does not occur, there is neither the fact or appearance of impropriety. 

However, Judge Koh will give the benefit of any reasonable doubt to Samsung, and Samsung, as a former client, is entitled to that.  And if the circumstances of the lawyers’ former representation of Samsung give rise to such doubts, Apple’s current lawyers should have discovered that in their conflict check and should have, thus, declined to represent Apple.

daemon

Nemo…. you did pass the bar, didn’t you?

Rule 1.9

Nemo

Dear Daemon:  If you read Rule 1.9, in addition to just citing it, you will see that my comments, supra, restate Rule 1.9 without any material deviation or omission from it.  To wit:  Rule 1.9 states:

“A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;

unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.”

While saving our lay audience the technical detail of the Rule, I said that:  “Whether in the course of representing his former client, here Samsung, he is now representing his new client in a dispute on those same issues, or whether he, in the course of representing his former client, acquired information that could be used to prejudice or disadvantage of his former client in favor of his new client; if either of those situations obtain, the lawyer is conflicted-out of his new representation, because the privileged position of his former attorney-client relationship gave him information that he would not otherwise have that could be used to prejudice of his former client.”  In other words, as Rule 1.9 states: a lawyer can’t represent a new client on the same issues that he represented his former client, nor can he represent his current client, where he is privy to information that he received while representing his former client, where that could prejudice his former client in a current dispute between his former and current client.

That’s a pretty good restatement of Rule 1.9.  The only thing that I would change is that I should have said that a lawyer can’t represent his new client on the same or substantially the same issues that he represented his former client.

daemon

That?s a pretty good restatement of Rule 1.9.

I agree you did. I mustn’t have read your entire post…

Nemo

Dear Daemon:  You did catch me well out on one point.  On the first days of law school in torts class, our professor warned us that no matter how good our memories, we should never rely on our memories to state the law.  I observe that rule in handling matters for clients, but here, I sometimes wing it from memory.  I should have reviewed Rule 1.9 rather than relying on my memory, even when I am commenting here.

Tiger

We all know arguing law on the Internet is fraught with danger. This is the place for accusations, innuendo, and anarchy!!!!

(oh wait, that’s the court room)

PSMacintosh

Dear Daemon:  You did catch me well out on one point. ......., but here, I sometimes wing it from memory.  I should have reviewed Rule 1.9 rather than relying on my memory, even when I am commenting here.

Nevertheless, I always welcome and enjoy your viewpoints,background, and additional commentary.
So don’t be “chilled”.

cuz84d

While those attorneys may know Samsung?s trade secrets, they are charged by their oath and the ethical rules governing their practice of law not to divulge any such trade secrets to Apple, and I think that the Judge will, absent evidence to the contrary, rely on those attorneys honoring their duty and not disqualify them for that alone, unless those trade secrets are relevant to the instant disputes between Samsung and Apple.  The standard for determining whether a lawyer is conflicted-out of a representation is:  Whether in the course of representing his former client, here Samsung, he is now representing his new client in a dispute on those same issues, or whether he, in the course of representing his former client, acquired information that could be used to prejudice or disadvantage of his former client in favor of his new client; if either of those situations obtain, the lawyer is conflicted-out of his new representation, because the privileged position of his former attorney-client relationship gave him information that he would not otherwise have that could be used to prejudice of his former client.

Can Samsung show that to Judge Koh?  And Judge Koh will want to know why Samsung took so long to raise this issue, waiting until the even of her decision of Apple?s Motion for a preliminary injunctions against Samsung.  Samsung should have raised this issue at the beginning of the case, and I don?t see any reason why it couldn?t have raised this conflict of interest issue earlier, much earlier.  I will have to read the Samsung?s Motion and Apple?s response to see whether Samsung?s Motion has merit or whether Samsung is just delaying.  But one thing is certain, except for their future relations as competitors, Samsung is unlikely to be a future supplier of parts for Apple.

Imputation is guilty by switching sides.. too much knowledge like a jury case.  They can no longer be consider reliable.  Apple might even be coping Samsung and claiming first!

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