Conflict of interest can be a big problem in a case, and usually that is because someone is being deliberate about it. It is usually not an accident.
In the case where Lanard Toys Limited almost lost its counsel in a motion to disqualify, it was an accident. The company is being represented in a patent infringement lawsuit by the firm Gordon Rees, with the suit being filed against Toys R Us.
While the details for the suit aren’t known, what is known is that there was an inherent flaw with how Gordon Rees entered some information into conflict of interest software when the firm did some legal work for Toys R Us in a case that had absolutely nothing to do with the patent infringement lawsuit. The cases were also in different states – the infringement lawsuit was in Florida, and the second case, a class-action suit, was in California. The firm Gordon Rees was also the primary counsel to Lanard Toys, but was only the secondary counsel to Toys R Us in the class-action suit.
However, once the counsel representing Toys R Us in the infringement suit was aware of the conflict of interest, they filed a motion to have Gordon Rees disqualified from representing Lanard Toys Limited. While the motion was unsuccessful, it is something that would have hurt the case for Lanard Toys Limited – time and money would have had to be allocated to find new primary counsel for the case instead of having the firm Gordon Rees continuing to represent it. More time would also have had to be allocated for new counsel to get caught up with the case in order to provide adequate representation of Lanard Toys Limited. Luckily for Lanard Toys Limited, this did not pan out and it was able to keep retaining the law firm Gordon Rees.
While this may sound extreme, disqualifying counsel – or filing a motion to disqualify counsel – during a case is something that is used as a tactic during legal matters, be they civil litigation or other matters such as criminal law.
“It can put a lot of pressure on opposing counsel,” said Eric Caligiuri, a lawyer from California who recently wrote about the motion to disqualify the counsel for Lanard Toys Limited.
A key flaw in the conflict of interest involved the software Gordon Rees uses to screen out conflicts of interest, specifically what appears to be a case of human error involved in entering data for the second case (the class-action suit) into that software. While there is nothing wrong with the software itself, there is some theory on what the mistake was.
“I think there was a clerical error when inputting the parties into the conflict software,” said Caligiuri.
The issues regarding the conflict of interest can be viewed as a precedent for future cases so a mistake like this won’t happen again.
“You need to be careful with these conflict checks to make sure there’s no problems down the line,” said Caligiuri.