Appearance Of Impropriety: An Outmoded Standard

The North Carolina Supreme Court reversed and remanded an order disqualifying counsel

In this case we consider whether the trial court properly disqualified defendants’ counsel under North Carolina Rule of Professional Conduct 1.9(a). This rule balances an attorney’s ethical duties of confidentiality and loyalty to a former client with a party’s right to its chosen counsel. The rule permits disqualification of an attorney from representing a new client if there is a substantial risk that the attorney could use confidential information shared by the client in the former matter against that same client in the current matter. This analysis requires the trial court to determine whether confidential information that would normally have been shared in the former matter is also material to the current matter. To do so, the trial court must objectively assess the scope of the representation and whether the matters are substantially related. Rather than applying an objective test, here the trial court disqualified defendants’ counsel based on the former client’s subjective perception of the past representation as well as the now replaced “appearance of impropriety” test. As a result, we reverse the trial court’s decision and remand this matter to that court for application of the appropriate legal standard.

The initial litigation

The factual background leading to the instant litigation involves three other disputes, all relating to plaintiff Joseph W. Forbes’s former employer Consert, Inc. (Consert): a patent dispute between Forbes and Consert (the patent dispute), Forbes’s 220 shareholder inspection rights action against Consert (the 220 action), and a contract dispute between Itron, Inc. (Itron) and Consert (the Itron litigation).

Plaintiff Forbes is one of thirteen named plaintiffs in the present action, all former shareholders of Consert. Beginning in 2008, Forbes was a shareholder and member of the Board of Directors of Consert and served as Chief Operating Officer. In the fall of 2011, Forbes was removed as an officer and director but remained a significant shareholder. Soon after his removal, Forbes and Consert disagreed about Forbes’s unpaid compensation and ownership of certain patents (the patent dispute), but the dispute never resulted in direct litigation even though Forbes was represented by counsel.

The role of challenged counsel

In October 2013, counsel from Winston & Strawn, LLP, who represented Forbes at the time, communicated with Joe Bush of Kilpatrick (Bush),  counsel to Consert, about Forbes’s deposition. Bush disclosed to Forbes’s counsel that, in addition to his primary representation of Consert, he also represented former employees and shareholders of Consert in the Itron litigation. Bush later offered limited representation to Forbes at Consert’s expense as long as Forbes agreed to the proposed engagement terms. Forbes eventually agreed that Bush would represent him in the Itron litigation regarding his role as a former Officer and Director of Consert.

On 23 January 2014, Forbes signed an engagement letter that outlined the terms of Bush’s limited representation of Forbes (the engagement letter), which began by stating, “As you are aware, this firm is outside litigation counsel to [Consert] in connection with the [Itron litigation].” The engagement letter then explained that the representation of Forbes would “be limited to legal services associated with discovery efforts (such as depositions, witness statements, factual development, and document analysis), [Forbes’s] potential testimony at trial, and specifically in connection with [Forbes’s] former role as Chief Operating Officer of Consert.” Forbes agreed that he would be “willing to permit Kilpatrick Townsend to disclose to Consert, to any related entities, and to the employees of these entities, any of the information it learns in its communications with [him] if, in [counsel’s] discretion, it becomes necessary or appropriate to the defense of this lawsuit.” Forbes also agreed that he would “not object to Kilpatrick Townsend continuing to represent Consert and its related entities in this lawsuit” should a conflict of interest arise. Winston & Strawn negotiated the terms of the limited representation on behalf of Forbes.

Forbes’s counsel from Winston & Strawn initially prepared him for his deposition and communicated with Forbes via teleconference two to three times for approximately an hour on each occasion. In final preparation, Forbes met with Bush once for approximately two to three hours the night before the deposition. Forbes’s privately retained counsel from Winston & Strawn attended approximately an hour of that meeting.

During the deposition the next day, Itron’s counsel asked Forbes about his relationship with Consert, the 220 action, the Consert–Toshiba merger, and primarily the patent dispute. Twice during the deposition, Forbes requested a break and spoke with his privately retained counsel from Winston & Strawn, even though Bush was present at the deposition. When asked about the Consert–Toshiba merger, Forbes stated, “I have not read the agreement of the merger between [Toshiba] and Consert. That might come as a surprise to you, but I have not read it.” The Itron litigation settled on 1 February 2015.

At some point on or before 5 February 2015, Forbes and counsel at Winston & Strawn recognized Forbes’s potential claims at issue in the present action. As a result, on 5 February 2015, Winston & Strawn sent a litigation hold letter to Bush, based on his representation of Toshiba affiliates, informing him that Forbes and other former Consert shareholders were considering filing the present action. On 9 November 2015, Forbes and other former Consert shareholders filed the present action against Toshiba (as the parent company of Consert) and former officers, directors, and shareholders of Consert, some of whom were jointly represented by Bush in the Itron litigation. Defendants retained Bush to represent them against plaintiffs...

Before the trial court, plaintiffs moved to disqualify Bush from the present action based on his past representation of Forbes during the Itron litigation. In support of the motion, Forbes filed a declaration stating his views of the prior relationship and outlining his communications with Bush. Defendants responded that the communications between Forbes and Bush were not confidential because the engagement letter expressly limited the nature of Bush’s representation of Forbes and specifically authorized Bush to disclose, in his discretion, “any of the information” he learned in his communications with Forbes to “Consert,” “any related entities,” and their “employees” during the Itron litigation.

The court discusses the applicable (i.e. current Rule 1.9) ethical standards at some length and concludes

the trial court applied the incorrect standard under Rule 1.9(a) in disqualifying defendants’ counsel. In making its determination upon remand, the trial court must objectively assess the facts surrounding the motion to disqualify counsel without relying on the former client’s subjective perception of his prior representation. The trial court should avoid the outmoded “appearance of impropriety” test. We reverse the trial court’s decision and remand this case to that court for application of the correct legal test.

(Mike Frisch)