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Legal Memorandum: Disqualification of an Attorney in VI

Issue: Under the laws of the U.S. Virgin Islands, should an attorney always be disqualified on a showing of a conflict of interest?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Disqualification of an attorney; Conflict of interest; Former representation
Jurisdiction: Virgin Islands
Cited Cases: 211 W. Va. 423
Cited Statutes: None
Date: 11/01/2007

The seriousness of the disqualification process was driven home in Talecris Biotherapeutics, Inc. v. Baxter Int’l, 491 F. Supp. 2d 510 (D. Del. 2007), where the court was being asked to disqualify counsel in a patent infringement case.   The court reminded the moving party that motions to disqualify are generally disfavored.  The party seeking disqualification must clearly demonstrate that “continued representation would be impermissible.”  Id. at 513 (citations omitted).  Furthermore, “‘[a]lthough disqualification is ordinarily the result of a finding that an ethical rule has been violated, disqualification is never automatic.'” Id. at 513-14 (emphasis added) (citations omitted). 

The court presented the analysis that it was required to complete to determine whether disqualification was merited.

Disqualification under Rule 1.9 requires an analysis of whether the matter is—substantially related—to the matter involved in the former representation.  Courts have routinely considered three factors when performing the substantial relationship analysis: 1) the nature and scope of the prior representation; 2) the nature and scope of the current representation; and, 3) during the prior representation, the possibility that the client disclosed confidences to his attorney which could be relevant to the current action and detrimental to the former client in the course of the current litigation.

Id. at 514.  In Talecris, plaintiff’s counsel had previously represented the defendant’s parent company in an infringement matter.  The trial court refused to disqualify counsel.  Applying the earlier standard to the case before it, the court agreed that there was no substantial […]

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