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.
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.
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.
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.
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.
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.
issues regarding the conflict of interest can be viewed as a precedent for
future cases so a mistake like this won’t happen again.
need to be careful with these conflict checks to make sure there’s no problems
down the line,” said Caligiuri.