Between Scylla And Charybdis

The United States District Court for the District of Maryland Southern Division (Judge Paul Grimm) disqualified an attorney and his firm for both a former client conflict and a material limitation in the representation of the current client.

Attorney Jonathan Rose represented CytImmune with respect to employee non-compete agreements and other matters while at Katten Muchin. Now at Alston & Bird, he undertook to represent a former employee in litigation adverse CytImmune.

In March 2016, CytImmune filed its complaint against Dr. Paciotti in the Circuit Court for Montgomery County. Dr. Paciotti’s out-of-state attorney retained Rose as local counsel to handle the case. Shortly thereafter, CytImmune notified Rose of its belief that he had a conflict of interest in the case. Rose consulted his firm’s general counsel, who concluded that no conflict existed. 

Dr. Paciotti then removed the case to this Court, Notice of Removal, where CytImmune filed the instant Motion to Disqualify. (record cites deleted)

The court

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 MLRPC 1.9 and the Charybdis of MLRPC 1.7. And if Odysseus could not navigate such treacherous waters, then, respectfully, neither can Rose. And the Rules forbid any such attempt. In light of the apparent constraints that I have observed Defense counsel struggle with, I am persuaded that Rose cannot continue to represent Dr. Paciotti without a significant risk of a materially limited defense. Accordingly, I find that Rose has a conflict of interest in representing Dr. Paciotti. Additionally, MLRPC 1.10(a) imputes Rose’s conflict to all of the attorneys at Alston. Waiver of the conflict is possible, but only with the informed consent of “each affected client.” MLRPC 1.7(b); see also MLPRC 1.10(d) (allowing waiver of imputed conflicts according to the requirements enumerated at MLRPC 1.7(b)). CytImmune has made clear that it will not consent to Rose’s representation of Dr. Paciotti. Pl.’s Mem. Supp. Mot. Disqualify 17. Accordingly, both Rose and Alston are disqualified from representing Dr. Paciotti in the remainder of this litigation.

The court did not reach the Rule 3.7 (lawyer as witness) issue

Given the significant divergence between Rose’s recollection of the legal advice he provided concerning CytImmune’s NDA and Marder’s, I cannot discount the possibility that Rose will be called as a fact witness should the case proceed to trial. The Defense does not appear to disagree but argues that Rose need not be disqualified at this juncture because the conflict contemplated by the Rule is only triggered “at trial,” which has not yet been scheduled. Def.’s Opp’n Mot. Disqualify 18–20. The Defense cites no case law in support of its position. In any event, because I find Rose disqualified under MLRPC 1.7, I do not find it necessary to resolve the issue.

Bottom line

MLRPC 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. 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. I am persuaded based on how this case has evolved that Rose and the other lawyers at Alston are unable to provide such unfettered counsel.

CytImmune’s Motion to Disqualify is GRANTED.

(Mike Frisch)