CAFC: Law Firm Disqualified On Appeal

Posted on | February 3, 2010 | No Comments

2009-1171, -1558 Outside the Box v. Travel Caddy

The Federal Circuit has granted Outside the Box Innovations’ (aka Union Rich) Motion to Disqualify King & Spalding from representing Travel Caddy on appeal.  Travel Caddy hired lawyers from King & Spalding to represent it on this appeal–however, another King & Spalding lawyer acted as an expert witness for Outside the Box at the trial court (on the issue of the reasonableness of attorneys’ fees).  Outside the Box and Travel Caddy are adverse in the case.

The Federal Circuit described the issue as:

whether, under the Georgia Rules of Professional Conduct (GRPC), a law firm is disqualified from accepting representation of a client on appeal because one of the firm’s attorneys was an expert witness in the same matter on behalf of another party with adverse interests.

Opinion, p. 3.

Cutting to the chase, the answer is yes, the law firm is disqualified.  Interestingly, the reason for disqualification is that the Federal Circuit found that King & Spalding might not adequately represent the interests of its new client Travel Caddy (who opposed the motion to disqualify).

Thus, to properly represent the interests of Travel Caddy, the lawyers from King & Spalding would need to consider whether to challenge the sufficiency of Askew’s expert opinion in this appeal. Members of the firm may not be able to provide adequate representation on that issue without challenging Askew’s opinion. We note that prior counsel for Travel Caddy did specifically challenge the sufficiency of Askew’s expert opinion before the district court. The question whether King & Spalding should challenge the expert opinion of one of King & Spalding’s partners in our view would materially and adversely affect the firm’s representation of Travel Caddy on appeal.

Opinion, p. 4.  Disqualification was done to protect the new client’s interests, not those of the old “client.”

09-1171no Order on Motion

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