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A Devilishly Daring Gambit: A Partial Roadmap Through the Federal Common Law of Disqualification in a Newly Modeled World

Amir Shachmurove[1]*

“Hitherto I have been but the witness, little more; and I should hardly think now to take another tone, that of your coadjutor, for the time, did I not perceive in you,—at the crisis too—a troubled hesitancy, proceeding, I doubt not, from the clash of military duty with moral scruple—scruple vitalized by compassion.”[2]


The very idea elicits jitters from lawyers and misgivings from judges. In the eyes of all but the most nakedly partisan, to move for another lawyer’s disqualification and force a court to deprive a party of a chosen counselor amounts to so aggressive a request and so radical a tonic as to be justified only by the most irresistible reasons. The ethical lapse threatened, some seemingly imply, must strike a reasonable observer as sufficiently grotesque and fateful as to induce a blush from even jaded barristers before a lawyer should even entertain the launching of such a portentous attack. The authority to do so may be “incidental to all [c]ourts,” as Chief Justice John Marshall opined in 1824,[3] and a chosen lawyer’s ejection may be a “prophylactic device for protecting the attorney-client relationship,” as Judge John Louis Coffey discoursed in 1982.[4] But, in zealously opinionated hands, an adversarial posture once treasured by the profession’s foremost guardians[5] yet excoriated by the more recent versions of the Federal Rules of Civil Procedure,[6] an entreaty for another’s disqualification is but a baneful and baleful effort, poorly-camouflaged as a moral imperative, to delay proceedings or remove otherwise competent counsel. Merely by its broaching the odds of a trial’s delay surge within an already besieged system,[7] as the conduct of the parties forfeits its status as every participant’s singular concern, and the alleged actions and biases of the actors themselves become the most pressing subject of litigation. With any litigant’s cause ejected from its original limelight, all now turn to parsing past connections and possible exposures and drawing reasonable extrapolations—a court duty-bound to ascertain the existence of a “compelling” justification[8] or a lawyer’s galling deployment of one of the law’s more nefarious “technique[s] of harassment.”[9]

Riven by such discordant filaments and reliant on federal common law, the Model Rules produced and published by the American Bar Association (“ABA”), and more than fifty jurisdictions’ idiosyncratic iterations, the federal courts’ disqualification jurisprudence exhibits a bewildering opacity. This is especially true as to one of the most frequently asserted—and, as a logical consequence, most readily abused and deflected—grounds: conflict of interest between a lawyer’s former client and his or her current one, an increasingly common occurrence due to the legal world’s recent hyper-lateral flurry.[10] Indeed, between 1969 and 1989, the professional standards governing conflicts of interest have only grown “longer,” “more restrictive,” and “more complex.”[11] In spite of the resulting cacophony, however, guidelines can still be derived, a foundation for analyzing cases thereby laid, and a bit of advice dispensed for the brave few tempted to wander through this booby-trapped landscape.

Twice-Told Tales: Disqualification Edition

A Laborious Struggle[12]

After graduating from law school, Vere Rolland Forester (“VRF”) joined the law firm of Sindri & Víkngr (“S&V”) as a labor and employment associate. After years of impressive billing totals and a handful of courtroom victories, VRF cemented his position as the firm’s most experienced employment litigator, winning partnership within a decade. In 2001, the firm’s management committee naturally assigned VRF to monitor the work of a team of lawyers and paralegals (“Team One”). As requested, VRF attended many, but not all, of the weekly meetings during which this coterie’s attorneys spoke about their ongoing projects. During this period, one associate, soon joined by other S&V attorneys, embarked upon a compliance audit and employment law review for a local home improvement company (“Company”) and its affiliates, including a troubled gutter fabrication and installation business (“Affiliate”). In ensuing conferences, she divulged details about her multiday interviews with officers and managers at the Company’s facilities. Apparently, neither this associate nor Team One’s nominal leader could remember whether VRF attended the few meetings focused upon the Company’s internal data and mounting travails, and VRF repeatedly affirmed his ignorance regarding S&V’s investigation and representation of its longtime client.

In 2002, VRF left S&V and set out to represent defendants and plaintiffs in his area of special expertise: labor and employment law. In January 2004, a crew chief for the Affiliate called several law firms to discuss a dispute he had with his employer about overtime pay; only VRF’s new firm showed even a modicum of interest in his case, enough to set up an initial meeting for January 27, 2008. Apparently, only once VRF visited the Affiliate’s remodeled website after this meeting’s scheduling did he discover its affiliation with the Company. Still, ascribing little import to this fact, VRF opted to arrange a lunch with a recently retired S&V partner, one with an extensive knowledge of wage and hour law, on January 26, 2008. At this prandial colloquy, these two friends debated wage and hour law and an employer’s possible defenses, including the motor carrier exemption to the Fair Labor Standards Act (“FLSA”).[13] Upon meeting the crew chief and two of his colleagues on January 27, 2008, VRF agreed to serve as their lead counsel. Within two weeks, twenty employees, through VRF, filed a putative class action against the Company.

VRF’s prior association with S&V’s large stable of lawyers, however, had not yet ended. Instead, in March 2004, VRF received a brochure advertising a June wage and hour law forum. The proposed presenters included a former colleague with whom VRF was close—and S&V’s lead counsel for the Company and Affiliate in the crew chief’s just-filed suit. For an undisclosed reason, VRF spoke to the former, allegedly without soliciting any theories, opinions, or advice.

After the plaintiffs, through VRF, filed a motion for conditional certification of the action as a collective action in which S&V’s alleged advice prominently featured, the Company and Affiliate demanded VRF’s withdrawal. When he indignantly refused, these defendants sought his disqualification. The district court honored their plea in a decision unanimously affirmed on appeal.

A Collector’s Secrets[14]

A native of Minnesota, the young attorney, commonly known as “AJ,” established himself as a defense attorney with a nationwide practice in Chicago. From February 1998 through March 2017, he defended sundry debt collection agencies, credit furnishers, banks, credit card-based independent service providers and other businesses from “countless” class actions predicated on such federal statutes as the Fair Credit Reporting Act (“FCRA”), the Fair Debt Collection Practices Act (“FDCPA”), and the Telephone Consumer Protection Act (“TCPA”). As he did so, he rose from associate to partner at his first law firm before jumping ship to another shop, one with a similar repertoire of clients and hodgepodge of cases. Unexpectedly, after a single season’s tenure, this once rising defense star switched sides and joined a plaintiffs’ law firm with a thriving consumer practice in the fall of 2017. Invigorated by this change, he soon enrolled as counsel in a putative class action against BMS, one of the nation’s newer online-only banks, for various violations of the TCPA.

As soon emerged, both of AJ’s firms had previously represented BMS in similar cases, and AJ himself had previously dealt with BMS as an unofficially aligned defendant’s lead counsel. BMS had retained AJ’s first firm on seventy (70) matters, including consumer cases, and in several states, over the prior decade. Lessening the sting of this fact, BMS’ main contract sat in another office, and it used the firm’s Chicago-based attorneys, but not AJ, on only twelve analogous cases. Even so, as a brief investigation promptly revealed, AJ had represented one of BMS’ third-party debt collectors in 2012, regularly conferring with BMS’ internal counsel and technicians so as to craft an effective defense for his client and defending a BMS employee during one acrimonious deposition at its request due to his steady exposure to such closely-held knowledge. In addition, despite its brevity, AJ’s months at the second law firm featured his representation of another one of BMS’ contractors and, due to an indemnity provision, BMS itself. Although this relationship lacked any obvious personal depth or warmth, regular emails and calls between AJ and BMS hinted at more than a perfunctory association.

Having confirmed this fact, consternation seized BMS’ general counsel—and impelled him to place a short call to his company’s long-term outside counsel. Several weeks later, in accordance with BMS’ blunt request, its attorney had prepared a rather overlong motion to disqualify. Once provided a copy, AJ exploded. By phone and email, he angrily denied any knowledge of BMS’ internal procedures or confidential data. To a befuddled judge at an unrelated hearing, he defended his integrity and emphasized his unfamiliarity with his former employers’ BMS cases. Even as AJ thusly thundered, however, manic negotiations, once resisted by the determined plaintiffs, finally commenced. Months later, with little fanfare, the parties filed an agreed stipulation of dismissal with prejudice. Probably relieved at this motion’s submission, the seized jurist signed within the hour.

State of the Law

English Beginnings

Within years of its emergence in the reign of England’s Edward I (1272-1307),[15] the medieval law of lawyering discerned a pressing need to sanction a cavalcade of conflicted counselors.[16] Over the next few centuries, two statutes—the Statute of Westminster I, Chapter 29 (1275) (“Chapter 29”),[17] and the Statute 4 Henry IV, Chapter 18 (1402) (“Chapter 18”)[18]—and an ordinance—the London Ordinance of 1280 (“1280 Ordinance”)[19]—provided the regulatory anchor for any judicial punishment of a lawyer deemed to be blithely indifferent to an apparent conflict of interest. The first fiduciary rule applicable specifically to lawyers, Chapter 29 specifically criminalized “ambidexterity,” then defined as the act of taking retainers from opposing sides in the same case,[20] as well as “deceit or collusion” of the court or a party at court.[21] A lawyer who perpetrated or consented to any such malevolence, Chapter 29 sternly promogulated, would be imprisoned for a year and a day and barred from further court appearances.[22] Adopted five years later, the 1280 Ordinance regulated admission to practice law in London’s courts and censured a variety of then-prevalent misdeeds, including ambidexterity.[23] “[P]erhaps the earliest antecedent of modern lawyer ethics codes,”[24] this detailed enactment explicitly expanded Chapter 29’s prohibition against taking money from both sides in litigation to include representations adverse to former client.[25] Although its language could also be read as authorizing punitive measures against ethically challenged lawyers, Chapter 18 chiefly focused on the admission of attorneys and on assuring their competence and integrity and never proved useful as a means of regulating conflicts of interest or other forms of lawyer misconduct.[26] Unwilling to limit themselves to these fonts of authority, royal and local courts insisted upon their intrinsic ability to discipline their own officers, including wayward counselors.[27] By Sir William Blackstone’s time, these customs and regulations had led to the propagation of binding ethical commands derived from the woeful tales of Simon of Cley and John of Mutford, of William of Wells and John of Upton.[28]

By operation of the same process execrated by a notoriously pragmatical jurist,[29] as medieval courts debated these and similar men’s misdeeds, some of their conclusions assumed the kingly guise of venerable obligations.[30] Some, like the rules regarding classic ambidexterity, quickly transformed into ironclad prohibitions whose contravention would henceforth merit swift and harsh castigation, while others endured as norms, often contractually and consensually imposed, for decades, if not centuries.[31] In time, at least a handful of the latter, such as the lawyer’s “fiduciary” relationship to a client, won first codification and then sanctification.[32] Ultimately, this haphazardly developed ethical paradigm migrated to Britain’s fledging American colonies. To this day, the influence of these old customs on the ethics of this nation’s legal establishment remains “ubiquitous,”[33] old and new schematics linked by the desire to protect clients from a lawyer’s “fraudulent and deceitful conduct.”[34] Crucially, despite these migrations and metamorphoses, one proscription traceable to Chapter 29—that on conflicts of interest—never lost its status as a most blameworthy form of misconduct within the law’s ethical canons.

Modern Law’s General Standard

Sources of Disqualification Law

Today, the authority of a federal court[35] to disqualify an attorney rests on three primary sources: (1) the rules of the particular federal district in which an attorney appears, if any; (2) the relevant jurisdiction’s ethical rules to the extent, if any, incorporated into these local codes; and (3) federal common law.[36] The first source—a district’s local rules—effectively compels courts to invoke the Model Rules,[37] which have now replaced the Canons of Professional Ethics (“Canons”).[38] Courts often consult a second source—the various states’ ethical rules—because many local rules’ explicitly assimilate state-based standards,[39] and any practicing lawyer, whether appearing in state or federal court, must be barred in the state in which he or she practices.[40] Apart from any such incorporation, two longstanding legal principles—first, “motions to disqualify are substantive motions affecting the rights of the parties”;[41] and second, “a federal court’s authority to regulate lawyer conduct in its own cases” arises “from its inherent power, not from a particular state rule”[42]—have long ensured the overall primacy of federal common law.[43] In fact, “[w]hether considered statutory or inherent in derivation,” federal courts have always possessed the broadly discretionary “power of erecting reasonable prophylactic rules to regulate perceived abuses by attorneys appearing before the[m],” including strictures as to disqualification,[44] assuming the prerequisites of due process are met.[45] In practice, since appellate courts “grant substantial deference to a district court in the interpretation and application of local district court rules,”[46] and three opinions by the Supreme Court—Firestone Tire & Rubber Co. v. Risjord;[47] Flanagan v. United States;[48] and Richardson-Merrell, Inc. v. Koller[49] (“Firestone Trilogy”)—circumscribed review of disqualification orders,[50] a trial court’s decision as to this volatile issue seldom suffers reversal, heightening the significance of its initial determination as to the necessity of a particular lawyer’s ouster to counsel and party.

For all this law’s variability, these disparate sources’ verifiable existence should not obscure two truths relevant to any disqualification motion’s appraisal. First, the extant federal standard is “informed by multiple sources, including state ethical rules.”[51] As such, although federal common law still independently supplies the regnant standard,[52] its juridical formulation almost perfectly echoes the Model Rules.[53] Tellingly, this strong correlation in elements and exposition has transformed into near perfect substantive congruence after the adoption of Model Rule 1.9 in certain jurisdictions, collapsing a once well-policed, if winding, doctrinal border.[54] Second, most states have chosen to incorporate the Model Rules into their own ethical compendiums.[55] Even where not, courts look upon the Model Rules and their drafters’ official comments as “instructive” when interpreting the relevant state’s “analogous” provisions.[56] Perhaps for these reasons, the federal judiciary still struggles with determining to what extent violations of ethical rules ought to be dispositive or even relevant in litigation,[57] still regularly frustrated at the “blurry” contours endemic within this “area of law and ethics.”[58]

Relevant Concerns

If a party-litigant desires to bring the issue of conflict of interest or breach of an ethical duty to a court’s attention, a motion to disqualify is the axiomatic and principal method.[59] Procedurally, the filing of such an explosive application triggers a two-step process in which a court considers whether (1) an ethical violation has actually occurred and (2) disqualification is the appropriate remedy.[60] Even if a movant proves a decided violation, disqualification does not automatically follow under either federal law[61] or the Model Rules.[62] Instead, loath to wade into any ethically charged morass, courts only reluctantly levy this “drastic measure”[63] and evade both “speculation”[64] and treating disqualification as merely an anodyne form of punishment or discipline.[65] Due to this diffidence, judicial disfavor tends to greet these increasingly popular motions, especially if filed after the passing of an extended period or on the eve of trial.[66]

In this analytical battlefield, equally sacred precepts duel.[67] “[D]isqualification of counsel” may occasionally be “both legitimate and necessary,” critically essential for protecting the attorney–client relationship by preventing “the potential breach of . . . confidences.”[68] For this reason, “the threat or potential threat that confidences may be disclosed” can be “enough” to justify such a decision.[69] Yet, this selfsame medicine “serves to destroy a relationship by depriving a party of representation of their own choosing” and leads to inevitable postponements,[70] while “a litigant should not be permitted to utilize a disqualification issue as part of his [or her] trial strategy.”[71] After all, “a party is presumptively entitled to the counsel of his choice.”[72] Accordingly, such motions “must be viewed with extreme caution . . . , for their use can serve tactical or harassment purposes as opposed to the more righteous goal of protecting the attorney–client relationship.”[73] In general, the balance between these conflicting ends is a delicate one: while all reasonable doubts must be resolved in favor of disqualification,[74] the party seeking disqualification bears the heavy burden to conclusively demonstrate the facts which compel that end.[75] Distilled, this body of law impels a court to resolve a motion to disqualify by weighing “the need to maintain the highest standards of the [legal] profession,” “a client’s right to freely choose his counsel,” and “the public’s interest in the scrupulous administration of justice” upon some nontangible scale.[76]

As these admonitions suggest, “[d]isqualification questions are intensely fact-specific.”[77] This cautious methodology aligns with the general axiom that, “[w]hen dealing with ethical principles, . . . [courts] cannot paint with broad strokes.”[78] Because the situations subject to these commands “do not arise in a vacuum,”[79] the law’s “ethical rules should not be blindly applied without consideration of relative hardships.”[80] With disqualification in particular, “it is essential to approach such problems with a keen sense of practicality as well as a precise picture of the underlying facts,”[81] “painstaking analysis of the facts”[82] and a “cautious scrutiny”[83] demanded. In light of these factors, any decision to disqualify “may not be rested on mere speculation that a chain of events whose occurrence theoretically could lead counsel to act counter to his [or her] client’s interests might in fact occur.”[84] Rather, “some stronger objective indicator . . . than simple judicial intuition is needed,”[85] some certain proof that “the independent professional judgment of the lawyer is likely to be affected.”[86] Standing alone, even though a “lawyer’s duty of loyalty long has precluded the representation of conflicting interests”[87] and the assessment required for ruling upon disqualification motion cannot be made with “hair-splitting nicety,”[88] neither “judicial intuition”[89] nor “surmise”[90] suffice in light of “the ever-present threat of human cupidity in all the affairs of life”[91] and the undammed flood of disqualification motions first noticed in 1975.[92]

Routes to Disqualification

Overview: Recognized Bases for an Attorney’s Removal

The August Ten

Over the last forty years, federal and state courts have recognized ten grounds for a counselor’s disqualification: (1) concurrent client conflicts of interest; (2) personal interest conflicts; (3) former client conflicts of interest; (4) receipt of confidential, privileged, or stolen information; (5) imputed misconduct, including conflicts of interest; (6) lawyers as witnesses; (7) contact with a represented party; (8) misconduct with witnesses; and (9) any unspecified misconduct deemed bothersome or troubling. The first three constitute the cynosure of conflicts jurisprudence, with both the fourth and fifth subsumed therein.[93] A tenth ground—(10) appearance of impropriety—has lost much of its efficacy in recent years, perhaps due to its absence from the Model Rules’ operative text.[94] Despite this official extirpation,[95] however, many tribunals consider themselves “entitled to consider the entire course of counsel’s conduct in applying the relevant rules of professional conduct” and thus treat “the appearance of impropriety . . . [as] an important consideration.”[96] To them, this amorphous notion remains crucial “to protecting the integrity of the judicial system,”[97] liable to reemerge in unexpected places[98] and trigger extended, if esoteric, exposition.[99] Practically speaking, none of the foregoing bases are mutually exclusive.[100] Certainly, in an evidentiary sense, the same facts can support more than one ground.[101]

The Pliability of the Law’s Favored Ground for Disqualification: “Conflicts of Interest”

In recent years, most cases in which conflicts have been found fall into two inexact categories. Generally, a cognizable conflict exists whenever “there is a significant risk that the representation . . . will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person.”[102] Cases within the first agglomeration suggest counsel’s inattentiveness or spotty due diligence, more often than not as to matters handled at the same firm long ago or work performed by laterals in the past and at other firms. This frequent inattentiveness leads to a corresponding failure to react promptly after the issue has become known. Not infrequently, this jurisprudence’s strict imputation rule[103] only exacerbates the consequences of this unhappy chain reaction.[104] The second common class encompasses cases in which courts exhibit unease, only occasionally fatal, with a single firm undertaking concurrent representation of multiple subsidiaries of a single corporate entity in separate cases. As one such court conceded, “modern business practices in this age of parent companies with worldwide subsidiaries, mergers and acquisitions” have made “this . . . issue one of great importance.”[105]

The types of conflicts confronted by courts in these cases can be placed into one of four categories: (1) positional conflicts; (2) concurrent client conflicts; (3) former client conflicts; and (4) prospective client conflicts. Rarely-deemed problematic outside of the criminal context,[106] a “positional conflict” arises whenever an attorney takes a formal position in a matter not involving a client that may nevertheless be contrary to a position deemed important to the client in other matters.[107] “Ordinarily,” however, “a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients” unless concrete and discernible harm can be shown.[108] Regnant everywhere but Texas, the rule applicable to “concurrent client conflicts” bars a lawyer from acting adversely to a current client on any matter.[109] Under the Model Rules, this prohibition is triggered whenever “there is a significant risk that the representation . . . will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person.”[110] Notably, as this doctrine derives from the duty of loyalty, its proponents[111] ascribe no relevance to whether the matters at hand are entirely unrelated to the work the lawyer is doing for the client and whether the representation involves no possible exploitation of a client’s confidence. Instead, “[e]ven though the simultaneous representations may have nothing in common, and there is no risk that confidences to which counsel is a party in the one case have any relation to the other matter, disqualification may nevertheless be required.”[112] With respect to former clients, based primarily on the duty of confidentiality and secondarily on the duty of loyalty, the prevailing rule discerns a conflict whenever a substantial relationship exists between matters or the attorney once enjoyed access to confidential information material to his or her current litigation. Prospective clients, i.e., persons who consult with an attorney about the possibility of forming a client-lawyer relationship but ultimately decide otherwise,[113] benefit from a similar, albeit more liberal, variant of this common law and regulatory decree.[114] Simply put, that attorney cannot “represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter,”[115] subject to exceptions specified in Model Rule 1.18(d).[116] To wit, “[r]ather than merely receive confidential information, as is necessary for disqualification in the former client context, . . . [a] lawyer must have received information that is ‘significantly harmful’ to . . . [a] former prospective client” to face the prospect of disqualification.[117]

Prevalent Tests

The Simple Tests

The sixth, seventh, eighth, and ninth common bases for disqualification have yielded little doctrinal controversy.[118] According to a broad consensus, the prohibition on lawyers serving as both advocates and witnesses (#6) applies only to the extent that the attorney possesses otherwise unavailable testimony as to “an essential element” or qualifies as a “necessary witness.”[119] The no-contact rule’s adjudication (#7) requires little more than confirmation of a lawyer’s attempt to reach out to the opposing party or its employees.[120] Misconduct with witnesses (#8) includes an endless expanding catalogue of horrors, including promising monetary incentives or outright bribery, rarely tricky in application. The final catch-all category (#9)—“other misconduct”—can include bribery of jurors and even judges, its flexibility preventing its reduction into a workable standard. As to conflicts between a lawyer and a former client, however, two tests and two bases dominate most disqualification disputes.

Substantial Relationship Test: Federal Common Law & Model Rule 1.9(a)


Rooted in a lawyer’s duties of loyalty and confidentiality, and derived from the venerable T.C. Theatre Corp. v. Warner Bros. Pictures,[121] the “substantial relationship test” appears in Model Rule 1.9(a),[122] having been limned by several circuits as federal common law prior to its promulgation.[123] Distilled to its quiddity, this test grew from the broad desire to avert a lawyer from “switch[ing] sides in substantially related representations”[124] but serves at least three identifiable purposes: (1) preventing disclosure of client confidences, (2) protecting a client’s interest in the loyalty of counsel, and (3) preventing the “unsavory appearance of conflict of interest that is difficult to dispel in the eyes of the lay public—or for that matter—the bench and bar.”[125] In its most commonly utilized version, the substantial relationship approach pays heed to two elements.

Naturally, a movant must first prove the existence of an attorney–client relationship. Notably, such an association may be predicated on the performance of sundry types of legal work, including “the representation of a client in court proceedings, advice to a client, and any action on a client’s behalf that is connected with the law.”[126] With no formal contract required, “[t]he attorney–client relationship can be express or implied through formal or informal consent.”[127] In particular, a party establishes an implied attorney–client relationship if it shows that (1) it submitted confidential information to a lawyer and (2) that it did so with the reasonable belief that the lawyer was acting as the party’s attorney; the client’s belief is key.[128] Of course, a court can find an implied relationship after considering any number of other factors, such as the nature of the work performed, the circumstances in which confidential information was exchanged, and the attorney’s pattern of conduct.[129] By custom, no requirement for mutual consent yet exists.[130]

Next, the movant must show that the lawyer could have obtained confidential information in the first that would have been relevant in the second.[131] For purposes of this second factor, “[r]elevance must be gauged by the violations alleged in the complaint and an assessment of the evidence useful in establishing those allegations.”[132] In such cases, a court simply looks to whether “the potential avenues of proof,” rather than “the expected” ones, intersect for purposes of establishing any past communication’s instant relevance.[133] Thusly viewed, the rule “does not necessarily involve any inquiry into the imponderables involved in the degree of relationship between the two matters but instead involves a realistic appraisal of the possibility that confidences had been disclosed in the one matter which will be harmful to the client in the other.”[134] Logically and realistically, evidence establishing the likelihood that confidential information was once communicated satisfies both prerequisites of the substantial-relationship test.

Breadth: Rebuttable Presumption

Upon proving the foregoing elements, “a presumption arises that the lawyer received confidential information during his or her prior representation” in most circuits.[135] In fact, “[i]mplicit in a finding of substantial relationship is a presumption that particular individuals in a law firm freely share their client’s confidences with one another.”[136] Irrebuttable in certain circuits and per certain state codes,[137] this presumption may be negated in others if “the lawyer whose change of employment created the disqualification issue was not actually privy to any of the confidential information that his or her prior law firm received from the party now seeking disqualification of his or her present firm.”[138] As such, uncontroverted affidavits stating that other lawyers in the former firm entirely handled the firm’s representation or “clearly and effectively show[ing] that . . . [the relevant attorney] had no knowledge of the confidences and secrets of the client” will defeat the presumption.[139] In evaluating rebuttal evidence, courts commonly consider the size of the lawyer’s firm, his or her area of specialization and position within the firm, and the demeanor and credibility of witnesses at any evidentiary hearing held.[140] Assuming this test’s threshold is passed, “it is unnecessary for the movant to prove that the attorney in question actually received during the course of his former employment confidential information relevant to matters involved in the subsequent representation.”[141] A genuine threat, not even an actual materialized disclosure, satisfies its requirements.[142]

Confidential Information: Federal Common Law & Model Rule 1.9(c)


“[E]stablishing a substantial relationship between the attorney’s former and current representations is not the only way a former client can disqualify his former attorney.”[143] Instead, under Model Rule 1.9(c),[144] disqualification may be warranted if the former attorney actually possesses relevant confidential information, a scenario which threatens to undercut a lawyer’s equally sacred duty to protect client confidences.[145] Stated somewhat differently, “a lawyer representing a client in a matter may not use confidential client information if doing so will adversely affect a material interest of the former client, even though that matter is not substantially related to a former representation.”[146]

Convergence with and Divergence from Substantial Relationship Test

In these kinds of cases, this test both echoes and diverges from the substantial-relationship one. Unlike the latter, no rebuttable presupposition attaches, and the accused can only satisfy this touchstone by conclusively pointing to specific confidences related during the prior representation and how they could be used to the disadvantage of the accused in the subsequent representation.[147] Proof of “secrets gained in prior employment,” no more and no less, will be enough.[148] Arguably, in those circuits in which the mere possibility of confidential information’s transfer is insufficient to justify disqualification, the two tests have been merged into one.[149] Conversely, as with the substantial relationship test, a lawyer’s disqualification upon demonstration of actual confidences’ exchange leads to his or her current law firm’s ouster, one’s stigma sufficient to taint a firm in toto.[150]

Overarching Concepts: Shared Problems and Principles

Perhaps due to this issue’s fact-intensive focus, even cases ostensibly addressing one type of conflicts evidence similar defects. Seemingly, two reasons explain these weaknesses’ perpetration. First, ambiguity stubbornly clings to certain terms, inducing repeated denotational confusion and potentially explaining many inconsistencies. Second, how a court chooses to define a prior matter or honor corporate distinctions between subsidiaries can often be the product of happenstance than clear rules. Regardless of the test employed, the same four issues must be mastered by court and counsel whenever the possibility of disqualifications rears its ghoulish head.

Undefined Relationships: The Conundrum Posed by Related Corporations

Perhaps unsurprisingly, the question of whether representation of an entity amounts to representation of another of its parts (or vice versa) has occasionally proven wholly determinative. A “lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter,” the Model Rules proclaim, “unless the circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer and the organizational client that the lawyer will avoid representation adverse to the client’s affiliates, or the lawyer’s obligations to either the organizational client or the new client are likely to limit materially the lawyer’s representation of the other client.”[151] With no other detail appended, the Model Rules effectively proffer only “limited guidance regarding when an attorney or firm that undisputedly has an attorney–client relationship with one entity . . . also has an attorney–client relationship with an affiliate of that” artificial person.[152] Conversely, one of the more comprehensive elaborations of this standard offered by a state bar enumerates several specific factors, but does so in an eminently equivocal fashion.[153] As a result, the factors stressed within the few cases bedeviled by this issue frequently vary, though the at least six—(1) whether the subsidiaries were “inextricably intertwined” with its parent company; (2) whether the parent controlled the legal affairs of the subsidiary; (3) whether the subsidiaries have similar management; (4) whether they share headquarters, corporate principals and business philosophy; (5) whether they have the same legal department; and (6) whether senior officers have the same titles in the different subsidiaries—reappear in case after case.[154] At present, “whether a lawyer represents a corporate affiliate of his client, for purposes of [Model] Rule 1.7, depends not upon any clear-cut per se rule but rather upon the particular circumstances” to which a court accords significance,[155] their hesitance amplified by today’s world of “national or multi-national public corporations owning or partially owning subsidiaries which may also be national or multi-national.”[156]

Undefined Term: “Confidential Information”

Problematically, no single definition of “confidential information,” a standard relevant to both tests, exists.[157] Certainly, the term is not coterminous with the more loaded phrase “privileged information,”[158] even if the former clearly subsumes the latter.[159] The Restatement, for one, broadly defines it to include “information relating to representation of a client, other than information that is generally known.”[160] It thus does not include data previously made available to the general public, such as information contained in court filings, documents previously produced in discovery in prior litigation, or readily available from corporate shareholder reports or websites.[161] At the same time, client information communicated from a client to an attorney is always “confidential” within the meaning of Model Rule 1.9(c) even “if otherwise disseminated or already in the public domain.”[162] To a limited extent, the definition utilized in the leading expert disqualification cases[163] can help in this lexicographical exercise.[164]

Shared Presumption Under Federal Law: Law Firm Unity

The assumption “that particular individuals in a law firm freely share their client’s confidences with one another” governs regardless of the test at issue.[165] This hoary presumption makes it “unnecessary . . . to prove that the attorney in question actually received during the course of his former employment confidential information relevant to matters involved in the subsequent representation.”[166] Instead, disqualification must follow if screening devices were not fully or timely employed;[167] at that point, only a truly insurmountable barrier to the passage of information, one whose erection predates the lawyer’s involvement, can save the law firm from this presumption’s operation.[168] In the absence of such institutional mechanisms, attorneys whose former law firms once represented their current opponents must be removed.[169]

Shared Factor: “Fiduciary Relationship”

“Disqualification does not necessarily require counsel to have previously represented the same entity.”[170] Instead, so long as a party submitted confidential information to a lawyer and did so with the reasonable belief that this attorney was acting on its behalf or to advance its interests in the course of a relationship marked by indicia of high trust, the requisite bond arose.[171] In these cases, “the deciding factor” is not what a contract said or a lawyer thought, then or now, but “what the prospective client [or party] thought when he[, she, or it] made the disclosure.”[172] A clear record that demonstrates “a longstanding series of interactions” between one or more attorneys and one or more former firms’ clients “which have more likely than not coalesced to create a basic understanding of [the objecting party’s] modus operandi, patterns of operations, decision-making process, and the like” will be enough to establish the kind of “fiduciary relationship” required for either test’s utilization.[173] The very existence of “a climate for the disclosure of relevant confidential information” will suffice,[174] the requisite “professional relationship . . . not dependent on the payment of fees nor . . . the execution of a formal contract.”[175]

Guidelines for Application: Counsel Cheat Sheet

Relevant Factors

Whatever the test employed, courts habitually pore over the same factors. Most will first analyze the movant’s: (1) standing to challenge the lawyer’s conduct; (2) diligence in bringing the motion; (3) knowledge of the circumstances; (4) fault or misconduct; (5) motive in bringing the motion; and (6) potential prejudice if the motion is denied.[176] They will then turn to the relevant lawyer’s: (1) knowledge about the conflict of interest or other misconduct; (2) motives; (3) ethical violation or appearance of impropriety; (4) violation’s severity; and (5) occasionally, potential prejudice (flowing to the lawyer or lawyer’s firm) should the court grant the disqualification motion.[177] In contrast to this panoply, the elements centering on a lawyer’s client, the very person who faces the loss of their chosen attorney, number two: the client’s (1) knowledge; and (2) even more critically, potential prejudice should the court grant the disqualification motion.[178] Despite their paucity, courts treat these two factors as decisive.[179] Finally, in many disqualification cases, courts examine various characteristics of the lawyer’s firm, mostly focusing on the effectiveness of the relevant firms’ screening mechanism. The features assessed in determining the necessity and/or effectiveness of any screen include both the past and present firms’ (1) size, (2) physical layout, (3) hierarchy or structure, (4) knowledge, and (5) devices themselves, including their timeliness, strength, and notice.[180]

Required Proof

Based on the foregoing, assuming an attorney–client relationship can be established,[181] an attorney striving to disqualify another per the substantial-relationship or confidential-information test faces a two-part challenge.

First, a close relationship akin to that between an attorney and a client must be established[182] by reliance on an endlessly variable menagerie.[183] In general, as noted above,[184] proof of “a climate for the disclosure of relevant confidential information” will prove enough.[185] Importantly, the finding of such “a professional relationship is not dependent on the payment of fees nor . . . the execution of a formal contract.”[186] Even adversity between the interests of current plaintiffs and a former aligned party, if represented by the same law firm, can be cited as support for the prior existence of a climate whereby relevant confidential information was probably disclosed so as to ensure plaintiffs’ effective representation.[187]

Second, the kind of representation must be precisely, yet vaguely, delineated. In general, a party seeking an attorney’s disqualification must show that the latter did not represent its current opponent “in a narrowly-defined, single-issue lawsuit or . . . simply assisted a client in settlement discussions in a small number of cases.”[188] As such, a record demonstrating “a longstanding series of interactions” between past counsel and a former client will easily satisfy either test’s predicate requirement.[189] Hence, if a former client can demonstrate that the relevant attorney’s extensive involvement in at least one case may have made him or her aware of its underlying problems or trial strategy, information that could bear on the present matter, it can satisfy its burden despite a law firm’s size, the limited exposure to internal data enjoyed by that attorney’s former office, and his or her own limited caseload.[190] This principle applies even if the attorney represented an aligned, yet separate, co-defendant[191] or obtained the information after the striking of a joint-defense agreement, whether formally or informally;[192] prior demonstrable involvement in a “joint venture” can serve.[193] In other words, the kind of relationship that yoked party and counselor, both “the nature of the work performed” and “the circumstances” which held when the relevant information was divulged, matter most,[194] its apparent depth more important than its demonstrable length.

Third, the general types of information that one or more of a client’s agents could have conveyed to that counselor or could have been discovered by the latter must be specified, e.g., tax information, financial data, corporate organizational formation, etc., and heir relevance to the pending litigation must be explained.[195] “[G]eneral knowledge of . . . [a] client’s policies and practices” will always be deemed irrelevant,[196] but not front-row access to a former client’s internal deliberation over “hot button issues,” including how it had structured its policies and procedures to comply with current (and still binding) law and minimize its liability;[197] knowledge of its private “business methods,” including “who in the company has what information;”[198] or any of “the particular practices and procedures which are the subject matter of [the pending] suit.”[199] More likely than not, possible access to the business strategies of a former client that might put the attorney in a position to acquire “knowledge casting light on the purpose of later acts and agreements” which underlie another action will be branded sufficiently confidential to trigger disqualification,[200] as would exposure to “domestic distribution strategies”[201] and even “knowledge of private matters gained in confidence” that could reasonably impart “greater insight and understanding of the significance of subsequent events in a . . . [similar] context and offer a promising source of discovery.”[202] Such evidence can prove the kind of substantial involvement essential to satisfying not just that test but also the confidential information one.[203] One need not be too specific—“the inquiry into the issues involved in the prior representation should be as specific as possible without revealing the confidential client information itself or confidential information concerning the second client”[204]—but must still adduce the general categories of data that were disseminated and explain their potential yet cognizable import.[205]


By raising the specter of disqualification in the midst of promotion practice, a lawyer unavoidably provokes drama and invites invective. In weighing the propriety of such loaded appeals, federal courts have turned to the ABA’s standards for proper conduct[206] but have also relied upon principles of trustee, fiduciary, and agency law.[207] Today’s resulting common law both pledges fealty to presumptions regarding “disclosed confidences” and “shared confidences” and pays heed to dissonant threads of ratiocination and policy. Perhaps as a result, beginning with 1953’s T.C. Theatre Corporation v. Warner Brothers Pictures,[208] confusion over the proper standard has only deepened. As large and small law firms consolidate into behemoths, lateral transfers multiply, and more lawyers enter (and depart) their government apprenticeships at a maddening clip, the resulting miasma is only more likely to confound those attempting to chart a path in accordance with this jurisprudence’s few identifiable stars. With disqualification such a potent tool for preserving a client’s hallowed confidences, no practicing lawyer can afford such ignorance, for although the power to disqualify “ought to be exercised with great caution”[209] and “restraint,”[210] disqualification is sometimes “necessary for the preservation of decorum and for the respectability of the profession” itself.[211] Else, nightmares do foretell, a poisoned stain will spread, further befouling an oft-damned profession in fact as in myth.[212]

  1. * Amir Shachmurove is an associate at the Washington, D.C., office of Troutman Sanders LLP who can be reached at As always, all the views expressed, and mistakes made herein, are the author’s own, and this article is not intended to be and should not be taken as legal advice. Conversely, the author’s beloved wife, Mrs. Lindsey D. Shachmurove, and this review’s adept editors merit credit for this Article’s every virtue, if any.
  2. . Herman Melville, Billy Budd, in Billy Budd and Other Tales 78–79 (Signet Classics 2009). These words come from Captain Vere, who, having convened a court martial, adroitly switches roles from judge to prosecutor to defense attorney to witness, the conflict lawyer par excellence. See generally Richard Weisberg, How Judges Speak: Some Lessons on Adjudication in Billy Bud, Sailor with an Application to Justice Rehnquist, 57 N.Y.U. L. Rev. 1 (1982).
  3. . Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531 (1824); see also, e.g., Chambers v. NASCO, 501 U.S. 32, 43 (1991) (citing case). That Marshall’s words still echo is no surprise. See, e.g., Amir Shachmurove, On Dicta’s Trail: Espinosa’s Messy Repercussions, Norton Bankr. L. Adviser, Jan. 2018, at 1 (quoting Marshall).
  4. . Freeman v. Chi. Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982).
  5. . See Paul C. Saunders, Whatever Happened to ‘Zealous Advocacy’?, 245 N.Y. L.J., no. 47, Mar. 11, 2011 (discussing the abandonment of this value).
  6. . Fed. R. Civ. P. 1; cf., e.g., Covington v. Sailormen, Inc., 274 F.R.D. 692, 693 (N.D. Fla. 2011) (“[B]oilerplate, shotgun-style objections are not consistent with the Federal Rules of Civil Procedures’ goal of securing ‘the just, speedy, and inexpensive determination of every action.’” (citation omitted)); Gipson v. Sw. Bell Tel. Co., No. 08-2017-EFM-DJW, 2008 U.S. Dist. LEXIS 103822, at *4 (D. Kan. Dec. 23, 2008) (“This Court’s goal, in accordance with Rule 1[,] . . . is to administer the [Rules] in a ‘just, speedy and inexpensive’ manner. To assist the Court in accomplishing this goal, the parties are encouraged to resolve discovery and other pretrial issues without the Court’s involvement.”); David J. Waxse, Cooperation—What Is It and Why Do It?, 18 Rich. J.L. & Tech. 8, 15 (2012) (“There are now numerous opinions making the same point about cooperation, yet it appears that cooperation is not being used enough as a method of obtaining the ‘just, speedy, and inexpensive determination of’ the action.”).
  7. . Cf. Amir Shachmurove, Disruptions’ Function: A Defense of (Some) Form Objections under the Federal Rules of Civil Procedure, 12 Seton Hall Cir. Rev. 161, 163–64 (2016) (discussing the discovery system’s deformation since the Rules’ adoption in 1938).
  8. . In re BellSouth Corp., 334 F.3d 941, 957 (11th Cir. 2003) (citing McCuin v. Tex. Power & Light Co., 714 F.2d 1255, 1263 (5th Cir. 1983)).
  9. . See Ga. Rules of Prof’l Conduct r. 1.7 cmt. 15 (2017).
  10. . See J. Nick Badgerow, Conflicts and Confidentiality: Duties When a Lawyer Changes Firms, J. Kan. B. Ass’n, Jan. 2010, at 21, 21 (opining as to this phenomenon).
  11. . Bruce A. Green, “Through a Glass, Darkly”: How the Court Sees Motions to Disqualify Criminal Defense Lawyers, 89 Colum. L. Rev. 1201, 1213 (1989); see also Camden v. Maryland, 910 F. Supp. 1115, 1124 (D. Md. 1996) (stressing this precedent’s “blurr[iness]”).
  12. . Edited for effect and ease, the scenario depicted in this subsection comes from a recent appellate case.
  13. . 29 U.S.C. § 213(b)(1) (2012).
  14. . The tale retold within this subsection borrows facts from several recent cases, with details added and subtracted for literary effect.
  15. . Paul A. Brand, The Origins of the English Legal Profession, 5 Law & Hist. Rev. 31, 44 (1987).
  16. . Jonathan Rose, The Ambidextrous Lawyer: Conflict of Interest and the Medieval and Early Modern Legal Profession, 7 U. Chi. L. Sch. Roundtable 137, 138 (2000) [hereinafter Rose, Ambidexterity]; cf. Jonathan Rose, The Legal Profession in Medieval England: A History of Regulation, 48 Syracuse L. Rev. 1, 3 (1998) [hereinafter Rose, Profession] (“The practice of law is, and always has been, regulated.”).
  17. . Statute of Westminster I, 1275, 3 Edw. 1 c. 29 (Eng.).
  18. . 1402, 4 Hen. 4 c. 18 (Eng.).
  19. . Rose, Profession, supra note 15, at 63–64 (quoting London Ordinance of 1280).
  20. . Lester Brickman, The Continuing Assault on the Citadel of Fiduciary Protection: Ethics 2000’s Revision of Model Rule 1.5, 2003 U. Ill. L. Rev. 1181, 1191–92.
  21. . Sande Buhai, Lawyers as Fiduciaries, 53 St. Louis U. L.J. 553, 559 (2009).
  22. . Raymond J. McKoski, The Truth Be Told: The Need for a Model Rule Defining a Lawyer’s Duty of Candor to a Client, 99 Iowa L. Rev. Bull. 73, 74 (2014).
  23. . Rose, Ambidexterity, supra note 15, at 146–47.
  24. . Id. at 146.
  25. . Buhai, supra note 20, at 559.
  26. . Rose, Ambidexterity, supra note 15, at 147–48.
  27. . Paul Brand, The Origins of the English Legal Profession 123–36, 138–41 (1992).
  28. . Rose, Ambidexterity, supra note 15, at 152–54, 160–61.
  29. . See Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897) (“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV,” from 1399 to 1413). Perhaps undercutting the latter, Holmes had described “the life of the law” as “experience,” not “logic,” sixteen years earlier. Oliver Wendell Holmes, The Common Law 1 (1881).
  30. . See generally Rose, Ambidexterity, supra note 15, at 151–80 (collecting and appraising these medieval cases).
  31. . See id. at 158–60, 167 (differentiating between medieval courts’ treatment of active deceit and disloyalty).
  32. . Buhai, supra note 20, at 560; see also, e.g., Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976) (“A lawyer’s duty to his client is that of a fiduciary or trustee.” (citing Haftner v. Farkas, 498 F.2d 587, 589 (2d Cir. 1974); Spector v. Mermelstein, 361 F. Supp. 30, 38 (S.D.N.Y. 1972), modified on other grnds., 485 F.2d 474 (2d Cir. 1973); Raymond L. Wise, Legal Ethics 256 (2d ed. 1966))).
  33. . Keith Swisher, The (Over)use of Age and Custom in Legal Ethics, 52 Val. U. L. Rev. 165, 166 (2017).
  34. . Rose, Ambidexterity, supra note 15, at 180.
  35. . In this Article, any reference to “Court,” “court,” “Courts,” or “courts” is to one or more federal courts unless otherwise noted.
  36. . See, e.g., Herrmann v. Gutterguard, Inc., 199 F. App’x 745, 752 (11th Cir. 2006); Whitehouse v. U.S. Dist. Ct. for the Dist. of R.I., 53 F.3d 1349, 1357 (1st Cir. 1995); United States v. Claros, 17 F.3d 1041, 1046–47 (7th Cir. 1994); Greer’s Refuse Serv. v. Browning-Ferris Indus., 843 F.2d 443, 446 (11th Cir. 1988). Because the power to craft such local rules arises from federal statutes and procedural rules, 28 U.S.C. §§ 1654, 2071; Fed. R. Civ. P. 83, it can be called “statutory.” Frazier v. Heebe, 482 U.S. 641, 654 (1987); Whitehouse, 53 F.3d at 1357.
  37. . See, e.g., N.D. Ill. L.R. 83.50 (“Applicable disciplinary rules are the Model Rules adopted by the American Bar Association.”); Paloian v. Greenfield (In re Rest. Dev. Grp.), 402 B.R. 282, 290 (Bankr. N.D. Ill. 2009) (acknowledging this fact).
  38. . Green, supra note 10, at 1212. The Canons were largely derived from the common law of agency. Id.
  39. . See, e.g., N.D. Ga. R. 83.1(C), which states:

    [a]ll lawyers practicing before this court shall be governed by and shall comply with the specific rules of practice adopted by this court and, unless otherwise provided, with the Georgia Rules of Professional Conduct contained in the Rules and Regulations of the State Bar of Georgia and with the decisions of this court interpreting these rules and standards;

    N.D. Ill. L.R. 83.50 (“[A] lawyer admitted to practice in Illinois is governed by the Illinois Rules of Professional Conduct” whenever the Model Rules are silent or are inconsistent with the latter code); Paul v. Judicial Watch, Inc., 571 F. Supp. 2d 17, 20 (D.D.C. 2008) (noting that “[f]ederal district courts usually adopt the Rules of Professional Conduct of the states where they are situated.” (quoting Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994))).

  40. . E.g., Galderma Labs., L.P. v. Actavis Mid Atl. LLC, 927 F. Supp. 2d 390, 394 (N.D. Tex. 2013) (applying the Texas Disciplinary Rules of Professional Conduct “because they govern attorneys practicing in Texas generally,” in federal as much as state proceedings). This incorporation explains why some courts maintain that “[m]otions to disqualify are governed by two sources of authority.” Herrmann, 199 F. App’x at 752.
  41. . Herrmann, 199 F. App’x at 752.
  42. . Silicon Graphics, Inc. v. ATI Techs., 741 F. Supp. 2d 970, 980 (W.D. Wis. 2010) (citing In re Snyder, 472 U.S. 634, 645 n.6 (1985)). However, if a district court bases its disqualification order on an allegation of an ethical violation, “the court may not simply rely on a general inherent power to admit and suspend attorneys, without any limit on such power,” at least according to some circuits. Schlumberger Techs. v. Wiley, 113 F.3d 1553, 1561 (11th Cir. 1997).
  43. . See, e.g., FDIC v. U.S. Fire Ins., 50 F.3d 1304, 1311–12 (5th Cir. 1995); Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979); Silicon Graphics, 741 F. Supp. 2d at 980.
  44. . Whitehouse v. U.S. Dist. Ct. for the Dist. of R.I., 53 F.3d 1349, 1357 (1st Cir. 1995); cf. Culebras Enters. v. Rivera-Rios, 846 F.2d 94, 97 (1st Cir. 1988) (“It is well settled in this circuit that the district court has the duty and responsibility to supervise the conduct of attorneys who appear before it . . . .”). As one court observed, the very power to disbar necessarily includes the authority to impose such lesser sanctions. Whitehouse, 53 F.3d at 1356; cf. Chambers v. NASCO, 501 U.S. 32, 45 (1991) (power to dismiss lawsuit for conduct abusing judicial process includes the “less severe sanction” of imposing attorney’s fees).
  45. . Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir. 1999) (“Due process requires that courts provide notice and opportunity to be heard before imposing any kind of sanctions.” (quoting Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 96 (2d Cir. 1997))).
  46. . United States v. Miller, 624 F.2d 1198, 1200 (3d Cir. 1980); accord Goldberg v. Danaher, 599 F.3d 181, 183 (2d Cir. 2010) (quoting In re Kandekore, 460 F.3d 276, 278 (2d Cir. 2006)); Dority v. City of Chic., 50 F. App’x 760, 764 (7th Cir. 2002) (quoting Waldridge v. Am. Hoescht Corp., 24 F.3d 918, 923 n. 4 (7th Cir. 1994)).
  47. . Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 370 (1981) (holding that “orders denying motions to disqualify counsel are not appealable final decisions under § 1291”).
  48. . Flanagan v. United States, 465 U.S. 259, 260 (1984) (holding that “a District Court’s pretrial disqualification of defense counsel in a criminal prosecution is not immediately appealable under 28 U.S.C. § 1291”).
  49. . Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440 (1985) (concluding that “orders disqualifying counsel in civil cases, like orders disqualifying counsel in criminal cases and orders denying a motion to disqualify in civil cases, are not collateral orders subject to appeal as ‘final judgments’ within the meaning of 28 U.S.C. § 1291”).
  50. . See Firestone, 449 U.S. at 378 n.13. Essentially, such review can now only take place pursuant to 28 U.S.C. § 1292(b) or via mandamus in “exceptional circumstances.” Id.
  51. . Silicon Graphics, Inc. v. ATI Techs., 741 F. Supp. 2d 970, 980 (W.D. Wis. 2010); cf. Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (“[O]ur decisions on disqualification motions often benefit from guidance offered by the American Bar Association . . . and state disciplinary rules . . . .”).
  52. . See LaSalle Nat’l Bank v. Lake Cty., 703 F.2d 252, 255 (7th Cir. 1983); Brennan v. Sun Healthcare Grp., No. IP 96-102-C-D/F, 1998 WL 1567451, at *2 (S.D. Ind. Jan. 29, 1998).
  53. . See, e.g., Watkins v. Trans Union, LLC, 869 F.3d 514, 519–20 (7th Cir. 2017); Selby v. Revlon Consumer Prods. Corp., 6 F. Supp. 2d 577, 579 (N.D. Tex. 1997) (citing In re Am. Airlines, Inc., 972 F.2d 605, 610 (5th Cir. 1992)); cf. United States v. Humpherys, 57 M.J. 83, 87 (C.A.A.F. 2002) (“In general, the federal civilian courts have adopted Rule 1.9 as the national standard governing attorneys and their disqualification.”).
  54. . See, e.g., Watkins, 869 F.3d at 520 (“Rule 1.9 clarified and narrowed the contours of an older federal common-law rule for attorney disqualification referred to as the ‘substantial relationship test.’”); RehabCare Grp. E., Inc. v. Vill. Health Care Mgmt., No. 17-cv-1181-MJR-SCW, 2018 WL 2075846, at *3 (S.D. Ill. Apr. 16, 2018) (“But as the Seventh Circuit has pointed out in Watkins, the scope of the substantial relationship test was somewhat narrowed in Indiana by the adoption of the Rules of Professional Conduct . . . .”).
  55. . See generally In re Am. Airlines, Inc., 972 F.2d at 610, 619 (finding the test for conflicts to be the “same” under the state’s code as under the Model Rules); Tucker v. George, 569 F. Supp. 2d 834, 837 (W.D. Wis. 2008) (noting that the Model Rules and Wisconsin’s ethical code are “essentially identical” (quoting Callas v. Pappas, 907 F. Supp. 1257, 1260 (E.D. Wis. 1995))); Andrew Corp. v. Beverly Mfg., 415 F. Supp. 2d 919, 923 (N.D. Ill. 2006) (observing that Rules of Professional Conduct of the United States District for the Northern District of Illinois “are patterned after the . . . Model Rules”); United States v. Hanhardt, 156 F. Supp. 2d 988, 999 (N.D. Ill. 2001) (same).
  56. . Teja v. Saran, 846 P.2d 1375, 1378 n.4 (Wash. Ct. App. 1993); see also State v. Hunsaker, 873 P.2d 540, 544–45 (Wash. Ct. App. 1994) (“[W]hile the commentary to the [Model R]ules have [sic] not been formally adopted in this state, the commentary is instructive in exploring the underlying policy of the rules.” (citing Teja, 846 P.2d at 1378 n.4)).
  57. . Compare CenTra, Inc. v. Estrin, 538 F.3d 402, 410–11 (6th Cir. 2008) (explaining that the Rules of Professional Conduct are probative, but not dispositive), and Musa v. Gillette Commc’ns of Ohio, Inc., 641 N.E.2d 233, 236 (Ohio Ct. App. 1994) (“[A] violation of the Code of Professional Responsibility alone should not result in disqualification unless disqualification is found to be absolutely necessary.” (citing Centimark Corp. v. Brown Sprinkler Serv., Inc., 620 N.E.2d 134, 137 (Ohio Ct. App. 1993))), with Lennartson v. Anoka-Hennepin Indep. Sch. Dist. No. 11, 662 N.W.2d 125, 134–35 (Minn. 2003) (turning to rule after defending it as addressing all relevant ethical concerns), and In re Cendant Corp. Sec. Litig., 124 F. Supp. 2d 235, 250 (D.N.J. 2000) (describing the state’s and district’s ethical rules as “the bedrock of professional conduct” (quoting Reardon v. Marlayne, Inc., 416 A.2d 852, 860 (N.J. 1980))).
  58. . Camden v. Maryland, 910 F. Supp. 1115, 1124 (D. Md. 1996).
  59. . Hamrick v. Union Twp., 79 F. Supp. 2d 871, 874 (S.D. Ohio 1999) (citing Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 (5th Cir. 1980)); see also Big Idea Co. v. Parent Care Res., LLC, No. 2:11-cv-1148, 2012 WL 4057216, at *2 (S.D. Ohio Sept. 14, 2012) (relying on Hamrick, 79 F. Supp. 2d at 874).
  60. . Hicks v. Bruegge (In re SLM Trans, Inc.), No. 09-cv-0993-MJR, 2010 WL 2739996, at *8 (S.D. Ill. July 12, 2010) (citing Paloian v. Greenfield (In re Rest. Dev. Grp.), 402 B.R. 282, 289 (Bankr. N.D. Ill. 2009)); Guillen v. City of Chicago, 956 F. Supp. 1416, 1421 (N.D. Ill. 1997).
  61. . United States v. Miller, 624 F.2d 1198, 1201(3d Cir. 1980); SWS Fin. Fund A v. Salomon Bros., 790 F. Supp. 1392, 1400 (N.D. Ill. 1992) (quoting Miller, 624 F.2d at 1201).
  62. . Model Rules of Prof’l Conduct pmbl. (Am. Bar. Ass’n 2017); In re Rest. Dev. Grp., 402 B.R. at 290; Myers v. Porter (In re Estate of Myers), 130 P.3d 1023, 1025 (Colo. 2006) (“Violation of an ethical rule, in itself, is neither a necessary nor a sufficient condition for disqualification.”).
  63. . Freeman v. Chi. Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982); see, e.g., Cromley v. Bd. of Educ., 17 F.3d 1059, 1066 (7th Cir. 1994) (quoting Freeman, 689 F.2d at 721); Mercury Vapor Processing Techs. v. Vill. of Riverdale, 545 F. Supp. 2d 783, 787 (N.D. Ill. 2008) (quoting Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993); Freeman, 689 F.2d at 721–22)).
  64. . Hickman v. Burlington Bio-Med. Corp., 371 F. Supp. 2d 225, 229 (E.D.N.Y. 2005) (citing Peacock Holdings, Inc. v. Mass. Mut. Life Ins., No. 94-CV-5023, 1996 WL 285435, at *8 (E.D.N.Y. 1996).
  65. . See People v. Garcia, 698 P.2d 801, 806 (Colo. 1985) (en banc); Schuff v. A.T. Klemens & Son, 16 P.3d 1002, 1012 (Mont. 2000) (“[T]he disqualification of an attorney or firm, or any other sanction, based solely on a rule violation—absent sufficient proof of prejudice—would likely exceed a district court’s jurisdiction, in that the sanction would be nothing more than a means of ‘punishing’ the attorney or firm for the violation.”).
  66. . E.g., Talecris Biotherapeutics, Inc. v. Baxter Int’l Inc., 491 F. Supp. 2d 510, 513 (D. Del. 2007); see also Gregori v. Bank of Am., 254 Cal. Rptr. 853, 859 n.6 (Ct. App. 1989) (noting the increase); Keith Swisher, The Practice and Theory of Lawyer Disqualification, 27 Geo. J. Legal Ethics 71, 75 (2014) (describing the judiciary’s penchant for “shunning” such motions over the last thirty years). Data for both sides can be found. James B. Kobak, Jr., Dealing with Conflicts and Disqualification Risks Professionally, 44 Hofstra L. Rev. 497, 497 (2015).
  67. . See Tessier v. Plastic Surgeries Specialists, Inc., 731 F. Supp. 724, 729 (E.D. Va. 1990) (“There must be a balance between the client’s free choice of counsel and the maintenance of the highest ethical and professional standards in the legal community.” (citing In re Asbestos Cases, 514 F. Supp. 914, 925 (E.D. Va. 1981)).
  68. . Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588, 591 (D. Minn. 1986).
  69. . Id. (first citing Kearns v. Fred Lavery Porsche Audi Co., 745 F.2d 600 (Fed. Cir. 1984); then citing Arkansas v. Dean Foods Prods. Co., 605 F.2d 380 (8th Cir. 1979), overruled on other grounds by In re Multi-Piece Rim Prods. Liab. Litig., 612 F.2d 377 (8th Cir. 1980); and then citing United States v. Shepard, 675 F.2d 977 (8th Cir. 1982)); see also, e.g., Grioli v. Delta Int’l Mach. Corp., 395 F. Supp. 2d 11, 14 (E.D.N.Y. 2005) (“[D]isqualification may be particularly appropriate where there is the potential that confidences may have been disclosed [by an expert or an attorney].”).
  70. . Freeman v. Chi. Musical Instrument Co., 689 F.2d 715, 721–22 (7th Cir. 1982).
  71. . Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1115 (5th Cir. 1980); cf. United States v. Kelly, 888 F.2d 732, 746 (11th Cir. 1989) (“[A] recusal issue may not be abused as an element of trial strategy.”).
  72. . In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003); see also Herrmann v. GutterGuard, Inc., 199 F. App’x 745, 752 (11th Cir. 2006) (quoting In re BellSouth Corp., 334 F.3d at 961) (citing this language).
  73. . Golson-Dunlap v. Am. Motorists Ins., No. 1:05-cv-1191-JDT-TAB, 2007 WL 925260, at *6 (S.D. Ind. Mar. 26, 2007) (citing Freeman, 689 F.2d at 721–22); see also, e.g., Tese-Milner v. Beeler (In re Hampton Hotel Inv’rs, L.P.), 289 B.R. 563, 583 (Bankr. S.D.N.Y. 2003) (“[I]n considering a motion to disqualify, a court must take into account ‘a client’s right freely to choose his counsel . . . which . . . must be balanced against the need to maintain the highest standards of the profession.’” (quoting Gov’t of India v. Cook Indust., 569 F.2d 737, 739 (2d Cir. 1978))).
  74. . Whiting Corp. v. White Mach. Corp., 567 F.2d 713, 715 (7th Cir. 1977); United States v. Goot, 894 F.2d 231, 235 (7th Cir. 1990) (quoting LaSalle Nat’l Bank v. County of Lake, 703 F.2d 252, 257 (7th Cir. 1983)).
  75. . See Guillen v. City of Chicago, 956 F. Supp. 1416, 1421 (N.D. Ill. 1997) (citing Lanigan v. Resolution Tr. Corp., No. 91 C 7216, 1992 WL 350688, at *1 (N.D. Ill. Nov. 23, 1992)); Weeks v. Samsung Heavy Indus., 909 F. Supp. 582, 583 (N.D. Ill. 1996) (citing Lanigan, 1992 WL 350688, at *1). In a strange departure, a movant labors under a slightly lighter load under federal common law than most states levy, as it need not demonstrate actual prejudice to justify any disqualification. In re Am. Airlines, Inc., 972 F.2d 605, 611 (5th Cir. 1992); see also Foster Poultry Farms v. Conagra Foods Refrigerated Foods Co., No. F 04-5810 AWI LJO, 2005 WL 2319186, at *9 n.2 (E.D. Cal. Sept. 22, 2005) (emphasizing this difference).
  76. . E.g., Hull v. Celanese Corp., 513 F.2d 568, 570 (2d Cir. 1975) (enumerating all three); Steel v. Gen. Motors Corp., 912 F. Supp. 724, 733 (D.N.J. 1995) (quoting Dewey v. R.J. Reynolds Tobacco Co., 536 A.2d 243, 244 (N.J. 1988)) (listing first two); see also, e.g., Emle Indus. v. Patentex, 478 F.2d 562, 564–65 (2d Cir. 1973) (“We approach our task as a reviewing court in this case conscious of our responsibility to preserve a balance, delicate though it may be, between an individual’s right to his own freely chosen counsel and the need to maintain the highest ethical standards of professional responsibility.”).
  77. . Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1124 (N.D. Ohio 1990) (citing Huntington v. Great W. Res., Inc., 655 F. Supp. 565, 567 (S.D.N.Y. 1987)); see also, e.g., Huntington, 655 F. Supp. at 567 (citing Samuel R. Miller & Irwin H. Warren, Conflicts of Interest and Ethical Issues for the Inside and Outside Counsel, 40 Bus. Law. 631, 633 (1985)).
  78. . United States v. Standard Oil Co., 136 F. Supp. 345, 367 (S.D.N.Y. 1955); see also, e.g., United States v. Hasarafally, 529 F.3d 125, 128 (2d Cir. 2008) (citing Standard Oil Co., 136 F. Supp. at 367).
  79. . Carlyle Towers Condo. Ass’n v. Crossland Sav., FSB, 944 F. Supp. 341, 345 (D.N.J. 1996).
  80. . Gould, 738 F. Supp. at 1124.
  81. . Id. at 1124; see also Carlyle Towers Condo. Ass’n, 944 F. Supp. at 345 (quoting Gould, 738 F. Supp. at 1124).
  82. . Satellite Fin. Planning Corp. v. First Nat’l Bank of Wilmington, 652 F. Supp. 1281, 1283 (D. Del. 1987) (quoting Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020, 1029 (5th Cir. 1981)).
  83. . Laker Airways, Ltd. v. Pan Am. World Airways, 103 F.R.D. 22, 28 (D.D.C. 1984).
  84. . Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 145 (4th Cir. 1992) (citing Aetna Cas. & Sur. Co. v. United States, 570 F.2d 1197, 1200–02 (4th Cir. 1978)); see also, e.g., United States v. Perry, 30 F. Supp. 3d 514, 535–36 (E.D. Va. 2014) (quoting Shaffer, 966 F.2d at 145); Reese v. Va. Int’l Terminals, Inc., 894 F. Supp. 2d 665, 671 (E.D. Va. 2012) (same).
  85. . Shaffer, 966 F.2d at 145–46; see also, e.g., Guillen v. City of Chic., 956 F. Supp. 1416, 1422–23 (N.D. Ill. 1997) (collecting cases similarly concluding).
  86. . Sanford v. Virginia, 687 F. Supp. 2d 591, 603 (E.D. Va. 2009).
  87. . Chauffers, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 586 (1990).
  88. . United States v. Clarkson, 567 F.2d 270, 273 n.3 (4th Cir. 1977) (citing United States v. Trafficante, 328 F.2d 117, 120 (5th Cir. 1964)); see also Aetna Cas. & Sur. Co., 570 F.2d at 1202 (suggesting that disqualification motions require more than a mechanical and didactic application of the relevant ethical rules (citing Int’l Elec. Corp. v. Flanzer, 527 F.2d 1288, 1289–90 (2d Cir. 1975))).
  89. . Shaffer, 966 F.2d at 146.
  90. . Sanford, 687 F. Supp. 2d at 603.
  91. . Shaffer, 966 F.2d at 146.
  92. . See Int’l Elec. Corp., 527 F.2d at 1289.
  93. . See infra Section III.C.1.b.
  94. . See Waters v. Kemp, 845 F.2d 260, 265 (11th Cir. 1988) (declining to invoke standard as it is not included in the Model Rules); but see TQ Delta, LLC v. 2Wire, Inc., No. 13-1835-RGA, 2016 WL 5402180, at *2 (D. Del. Sept. 26, 2016) (quoting Kabi Pharmacia AB v. Alcon Surgical, Inc., 803 F. Supp. 957, 960 (D. Del. 1992)) (invoking standard).
  95. . In re Cabe & Cato, Inc., 524 B.R. 870, 887 (Bankr. N.D. Ga. 2014); see also, e.g., Ganobsek v. Performing Arts Ctr. Auth., No. 99-6163-CIV-RYSKAMP/VITUNAC, 2000 WL 390106, at *4 n.5 (S.D. Fla. Mar. 24, 2000).
  96. . In re Cabe, 524 B.R. at 887; see also, e.g., Norman v. Elkin, No. 06-005-LPS, 2014 WL 556081, at *7 (D. Del. Feb. 10, 2014) (“Avoiding the appearance of impropriety is an important consideration for the Court, as it relates to protecting the integrity of the judicial system.”).
  97. . In re Cabe, 524 B.R. at 887.
  98. . See Armor Screen Corp. v. Storm Catcher, Inc., 709 F. Supp. 2d 1309, 1319 (S.D. Fla. 2010) (noting Florida state courts’ continued reliance on this standard despite the state’s adoption of the Model Rules).
  99. . See Armor Screen Corp., 709 F. Supp. 2d at 1318–20 (discussing the debate). Rather than resolving this tension, some courts evaded the issue. See First Impressions Design & Mgmt. v. All That Style Interiors, Inc., 122 F. Supp. 2d 1352, 1355 n.1 (S.D. Fla. 2000); Welt v. Chub Cay Club Assocs. (In re Patrick Power Corp.), Nos. 06-12423-BKC-JKO, 07-01175-BKC-JKO, 2007 WL 2883179, at *3–4 (Bankr. S.D. Fla. Sept. 26, 2007).
  100. . See W.R. Grace & Co. v. Gracecare, Inc., 152 F.R.D. 61, 65 (D. Md. 1993) (relying on at least two of these bases).
  101. . See infra Part IV.
  102. . NuStar Farms, LLC v. Zylstra, 880 N.W.2d 478, 482 (Iowa 2016) (quoting Iowa R. Prof’l Conduct 32:1.7(a)(2)).
  103. . See infra Section III.C.2.d.iii.
  104. . See j2 Global Commc’ns, Inc. v. Captaris, Inc., No. CV 09-04150 DDP (AJWx), 2012 WL 6618272, at *9–11 (C.D. Cal. Dec. 19, 2012).
  105. . McKesson Info. Sols. v. Morris, No. 2006CV121110, 2006 Ga. Super. LEXIS 127, at *5–6 (Ga. Super. Ct. Nov. 8, 2006).
  106. . See Restatement (Third) of the Law Governing Lawyers § 129(a)–(b) (Am. Law Inst. 2000); see also Scott v. State, 991 So. 2d 971, 977 (Fla. Dist. Ct. App. 2008) (applying the Restatement).
  107. . See Restatement (Third) of the Law Governing Lawyers § 128; see also Enzo Biochem, Inc. v. Applera Corp., 468 F. Supp. 2d 359, 365 (D. Conn. 2007) (citing Conn. Rules of Prof’l Conduct r. 1.7 cmt. 24 (2007) (distinguishing between positional and direct conflicts)).
  108. . Model Rules of Prof’l Conduct r. 1.7 cmt. 24 (Am. Bar Ass’n 2017) (emphasis added).
  109. . Id. at r. 1.7(a).
  110. . Nustar Farms, LLC v. Zylstra, 880 N.W.2d 478, 481 (Iowa 2016).
  111. . Flatt v. Superior Court, 885 P.2d 950, 955 (Cal. 1994) (en banc).
  112. . Id.; see also Goss Graphics Sys., Inc. v. Man Roland Druckmaschinen Aktiengesellschaft, No. C00-0035 MJM, 2000 WL 34031492, at *5 (N.D. Iowa May 25, 2000) (quoting Flatt, 885 P.2d at 955).
  113. . See Dahleh v. Mustafa, No. 17 C 8005, 2018 WL 1167675, at *2 (N.D. Ill. signed Mar. 5, 2018) (citing Model Rules of Prof’l Conduct r. 1.18(a)).
  114. . Dahleh, 2018 WL 1167675, at *2; cf. Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978) (“The fiduciary relationship existing between lawyer and client extends to preliminary consultation by a prospective client with a view to retention of the lawyer, although actual employment does not result.”).
  115. . Model Rules of Prof’l Conduct r. 1.18(c); see also Dahleh, 2018 WL 1167675, at *2 (discussing this rule).
  116. . Model Rules of Prof’l Conduct r. 1.18(d).
  117. . Dahleh, 2018 WL 1167675, at *2.
  118. . See supra Section III.C.1
  119. . United States v. Dyess, 231 F. Supp. 2d 493, 496 (S.D. W. Va. 2002) (citing Model Rules of Prof’l Conduct r. 3.7); Main Events Prods., LLC v. Lacy, 220 F. Supp. 2d 353, 355–57 (D.N.J. 2002) (citing Model Rules of Prof’l Conduct r. 3.7).
  120. . See Camden v. Maryland, 910 F. Supp. 1115, 1120 (D. Md. 1996). Though the fear that a lawyer may have unethically gained privileged or confidential information underlies this prohibition, courts often opt for lesser sanctions than disqualification. See Faison v. Thornton, 863 F. Supp. 1204, 1215 (D. Nev. 1993) (discussing these various policing methods).
  121. . 113 F. Supp. 265 (S.D.N.Y. 1953).
  122. . Model Rule 1.9(a) reads:

    [a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

    Model Rules of Prof’l Conduct r. 1.9. In essence, “Rule 1.9 is merely a codification of the T.C. Theatre test.” Exterior Sys., Inc. v. Noble Composites, Inc., 175 F. Supp. 2d 1112, 1115 (N.D. Ind. 2001). Indeed, the only notable difference between the two standards is that the Model Rule adds a requirement that the former client had not consented. See Apeldyn Corp. v. Samsung Elecs. Co., 660 F. Supp. 2d 557, 561 (D. Del. 2009). However, because courts typically look to consent as a factor, this formal difference matters not at all in practice. See Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 228 (7th Cir. 1978) (discussing Canon 4); Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 230 (2d Cir. 1977) (considering consent of the client).

  123. . See Watkins v. Trans Union, LLC, 869 F.3d 514, 519–20 (7th Cir. 2017); Griffith v. Taylor, 937 P.2d 297, 301 n.8 (Alaska 1997); In re Steveon R.A., 537 N.W.2d 142, 144 (Wis. 1995); Bergeron v. Mackler, 623 A.2d 489, 493 (Conn. 1993).
  124. . Nelson v. Green Builders, Inc., 823 F. Supp. 1439, 1446 (E.D. Wis. 1993).
  125. . Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266, 1269 (7th Cir. 1983).
  126. . Hamrick v. Union Twp., 79 F. Supp. 2d 871, 875 (S.D. Ohio 1999) (citing Landis v. Hunt, 610 N.E.2d 554, 558 (Ohio Ct. App. 1992)).
  127. . Sailsbery v. Vill. of Sauk Vill., No. 15 C 10564, 2016 WL 1402291, at *4 (N.D. Ill. Apr. 11, 2016).
  128. . Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1320 (7th Cir. 1978).
  129. . Black Rush Mining, LLC v. Black Panther Mining, 840 F. Supp. 2d 1085, 1090 (N.D. Ill. 2012).
  130. . United States v. Evans, 954 F. Supp. 165, 167 (N.D. Ill. 1997) (citing Westinghouse Elec. Corp., 580 F.2d at 1317).
  131. . See Watkins v. Trans Union, LLC, 869 F.3d 514, 519–20 (7th Cir. 2017); Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir. 1983).
  132. . Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 226 (7th Cir. 1978), cited in, e.g., Bartlett v. Bartlett, No. 16 CV 6595, 2016 WL 7374276, at *4 (N.D. Ill. Dec. 20, 2016).
  133. . Westinghouse Elec. Corp., 588 F.2d at 226. One court succinctly and correctly set out its obligation:

    [O]ur task is to concentrate on the factual contours of the transactions or matters at issue and to ask whether the lawyers would have or reasonably could have learned confidential information in their work . . . [for their previous client] that would be of significance in their representation of their present clients.

    State ex rel. Ogden Newspapers, Inc. v. Wilkes, 482 S.E.2d 204, 208 (W. Va. 1996).

  134. . Westinghouse Elec. Corp., 588 F.2d at 224 (emphasis added); see also, e.g., State ex rel. Keenan v. Hatcher, 557 S.E.2d 361, 368 (W. Va. 2001) (quoting this language).
  135. . Nelson v. Green Builders, Inc., 823 F. Supp. 1439, 1446 (E.D. Wis. 1993).
  136. . Freeman v. Chi. Musical Instrument Co., 689 F.2d 715, 722 (7th Cir. 1982); see also Edwards v. 360⁰ Commc’ns, 189 F.R.D. 433, 435 (D. Nev. 1999) (“The doctrine of imputed disqualification flows from the belief that client confidences and legal matters are often discussed by attorneys working within the confines of the same law firm.”). The doctrine stems from canons four and nine of the ABA’s Code of Professional Responsibility, the Model Rules’ predecessor. N. Am. Philips Corp. v. Am. Vending Sales, Inc., No. 93 C 3261, 1993 WL 473630, at *3 (N.D. Ill. Nov. 15, 1993) (citing In re Sharpe, 98 B.R. 337, 340 (N.D. Ill. 1989)), overruled on other grounds, 35 F.3d 1576 (7th Cir. 1994).
  137. . See, e.g., Nat’l Med. Enters. v. Godbey, 924 S.W.2d 123, 131 (Tex. 1996); Henriksen v. Great Am. Savings & Loan, 14 Cal. Rptr. 2d 184, 186 (Cal. Dist. Ct. App. 1992); see also Note, Proving Breach of Former-Client Confidentiality, 131 Harv. L. Rev. 582, 589–90 (2017).
  138. . Nelson, 823 F. Supp. at 1447 (citing Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983)); see also Freeman, 689 F.2d at 722–23 (citing Novo Terapeutisk Laboratorium v. Baxter Travenol Labs., 607 F.2d 186, 197 (7th Cir. 1979)).
  139. . Freeman, 689 F.2d at 723; see Edwards, 189 F.R.D. at 435–36.
  140. . Freeman, 689 F.2d at 723; see also, e.g., Mitchell v. Metro. Life Ins., No. 01 CIV. 2112 (WHP), 2002 WL 441194, at *10 (S.D.N.Y. Mar. 21, 2002); Decora Inc. v. DW Wallcovering, Inc., 899 F. Supp. 132, 140–41 (S.D.N.Y. 1995).
  141. . LaSalle Nat’l Bank v. Lake Cty., 703 F.2d 252, 255 (7th Cir. 1983) (citing Schloetter v. Railoc of Ind., Inc., 546 F.2d 706, 710 (7th Cir. 1976)).
  142. . Cf. Gov’t of India v. Cook Indus., 569 F.2d 737, 740 (2d Cir. 1978) (“[A] court should not require proof that an attorney actually had access to or received privileged information while representing the client in a prior case.”).
  143. . Islander E. Rental Program v. Ferguson, 917 F. Supp. 504, 510 (S.D. Tex. 1996) (discussing In re Am. Airlines, Inc., 972 F.2d 605, 615 (5th Cir. 1992)); see also Annotated Model Rules of Prof’l Conduct 146 (Am. Bar Ass’n 1999).
  144. . Per Model Rule 1.9(c):

    [a] lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

    Model Rules of Prof’l Conduct r 1.9(c) (Am. Bar Ass’n 2017).

  145. . See In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 438 F. Supp. 2d 305, 308–09 (S.D.N.Y. 2006); Islander E. Rental Program, 917 F. Supp. at 510; cf. Parker v. Rowan Cos., No. CivA. 03-545, 2003 WL 22208569, at *4 (E.D. La. Sept. 22, 2003) (“Disqualification motions based on a threat to confidential information are not viewed with any less scrutiny than substantial relationship motions.”) (suggesting this test also requires proof of an attorney–client relationship).
  146. . Restatement (Third) of the Law Governing Lawyers § 132 cmt. a (Am. Law Inst. 2000) (emphasis added); see also Clark v. Bank of New York, 801 F. Supp. 1182, 1197 (S.D.N.Y. 1992) (“Generally, an attorney may not knowingly reveal a client confidence if to do so would disadvantage that client.”); cf. Simply Fit of N. Am., Inc. v. Poyner, 579 F. Supp. 2d 371, 385 (E.D.N.Y. 2008) (“Court[s] must be mindful of the potential misuse of confidential information to a client’s detriment during subsequent representation of another.” (citing Almonte v. City of Long Beach, No. CV 04-4192 (JS) (JO), 2007 WL 951863, at *3 (E.D.N.Y. Mar. 27, 2007))).
  147. . See, e.g., Evans v. Artek Sys. Corp., 715 F.2d 788, 794 (2d Cir. 1983); see also Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist., 810 F. Supp. 2d 929, 962–63 (D. Ariz. 2011) (citing United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000)).
  148. . Twin Labs., Inc. v. Weider Health & Fitness, No. 89 CIV. 0949 (MBM), 1989 WL 49368, at *2 (S.D.N.Y. May 4, 1989), cited in, e.g., Clark, 801 F. Supp. at 1197; see also, e.g., Tradewinds Airlines, Inc. v. Soros, No. 08 Civ. 5901 (JFK), 2009 WL 1321695, at *4 (S.D.N.Y. May 12, 2009).
  149. . In City of Kalamazoo v. Mich. Disposal Serv. Corp., one court noted:

    [t]he Sixth Circuit applies a three-part test for attorney disqualification: (1) a past attorney-client relationship existed between the party seeking disqualification and the attorney it seeks to disqualify; (2) the subject matter of those relationships was substantially related; and (3) the attorney acquired confidential information from the party seeking disqualification.

    125 F. Supp. 2d 219, 222 (W.D. Mich. 2000) (citing Dana Corp. v. Blue Cross & Blue Shield of N. Ohio, 900 F.2d 882, 889 (6th Cir. 1990))); Note, supra note 136, at 591–92 (discussing this approach).

  150. . In re Am. Airlines, Inc., 972 F.2d 605, 614 n.1 (5th Cir. 1992); see also, e.g., United States v. Guadalupe, 400 F. Supp. 2d 536, 539–40 (W.D.N.Y. 2005) (“It is well settled that the knowledge of a single attorney within a firm is to be imputed to the entire firm.” (quoting Edwards v. Gould Paper Corp. Long Term Disability Plan, 352 F. Supp. 2d 376, 381 (E.D.N.Y. 2005))).
  151. . Model Rules of Prof’l Conduct r 1.7 cmt. 34 (Am. Bar. Ass’n 2017) (emphasis added); see also Commonwealth Land Title Ins. Co. v. St. Johns Bank & Trust Co., No. 4:08-CV-1433 CAS, 2009 WL 3069101, at *5 (E.D. Mo. Sept. 22, 2009) (citing comment).
  152. . Kristen Salvatore DePalma & Emily V. Burton, Engaging with the Realities of the Corporate Family, 12 Del. L. Rev. 133, 133 (2011).
  153. . See N.Y. Rules of Prof’l Conduct r. 1.7 cmts. 34A–34B (N.Y. State Bar Ass’n 2017).
  154. . Ramada Franchise Sys. v. Hotel of Gainesville Assocs., 988 F. Supp. 1460, 1462–63 (N.D. Ga. 1997) (quoting Pennwalt Corp. v. Plough, Inc., 85 F.R.D. 264, 267 (D. Del. 1980)); see also, e.g., Goodlett v. Paul Revere Life Ins., No. C97-0089, 2000 WL 34027916, at *2 (N.D. Iowa Jan. 15, 2000) (quoting Ramada, 988 F. Supp. at 1462).
  155. . Avocent Redmond Corp. v. Rose Elecs., 491 F. Supp. 2d 1000, 1006 (W.D. Wash. 2007) (quoting ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 390 (1995)).
  156. . Ramada, 988 F. Supp. at 1462; see also, e.g., Goodlett, 2000 WL 34027916, at *2 (quoting Ramada, 988 F. Supp. at 1462).
  157. . Whether confidentiality even deserves its throne is a question better left to another day. See generally Dru Stevenson, Against Confidentiality, 48 U.C. Davis. L. Rev. 337 (2014) (discussing the negatives of confidentiality).
  158. . See Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 834 (Tex. 1994) (“[V]irtually any information relating to a case should be considered confidential . . . .”).
  159. . See, e.g., Cheng v. GAF Corp., 631 F.2d 1052, 1059 (2d Cir. 1980) (citing Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979)), vacated, 450 U.S. 903 (1981).
  160. . Restatement (Third) of the Law Governing Lawyers § 59 (Am. Law Inst. 2000); see also City of El Paso v. Salas-Porras Soule, 6 F. Supp. 2d 616, 624–25 (W.D. Tex. 1998) (finding that information regarding “financial assets and dealings” that could form the basis for impeachment qualifies for the confidential tag).
  161. . See, e.g., Med. Diagnostic Imaging, PLLC v. CareCore Nat’l, LLC, 542 F. Supp. 2d 296, 315 (S.D.N.Y. 2008); see also Abney v. Wal–Mart, 984 F. Supp. 526, 530 (E.D. Tex. 1997). For this reason, the risk that an attorney may cross-examine a former client based on such information is rarely sufficient to disqualify that attorney. Med. Diagnostic Imaging, PLLC, 542 F. Supp. 2d at 315.
  162. . Twenty-First Century Rail Corp. v. N.J. Transit Corp., 17 A.3d 213, 223 (N.J. Super. Ct. App. Div. 2011) (construing state equivalent of Model Rule 1.9(c)), rev’d on other grounds, 44 A.3d 592 (N.J. 2012).
  163. . See United States ex rel. Cherry Hill Convalescent Ctr. v. Healthcare Rehab Sys., which stated that:

    [c]onfidential information, in the context of expert disqualification, includes: ‘discussion of the [retaining party’s] strategies in the litigation, the kinds of expert [the party] expected to retain, [the party’s] views of the strengths and weaknesses of each side, the role of each of the [party’s] witnesses to be hired, and anticipated defenses.’

    994 F. Supp. 244, 250 (D.N.J. 1997) (alterations in original) (quoting Koch Ref. Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178, 1182 (5th Cir. 1996)).

  164. . But see Weaver v. Mobile Diagnostech, Inc., No. 02-1719, 2009 WL 1230297, at *9 (W.D. Pa. Apr. 30, 2009) (“The standard for disqualification of an expert is much different than that applicable to disqualification of counsel, in view of their distinct roles.”).
  165. . Freeman v. Chi. Musical Instrument Co., 689 F.2d 715, 722 (7th Cir. 1982).
  166. . LaSalle Nat’l Bank v. Cty. of Lake, 703 F.2d 252, 255 (7th Cir. 1983) (citing Schloetter v. Railoc of Ind., Inc., 546 F.2d 706, 710 (7th Cir. 1976)); accord, e.g., City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193, 211 (N.D. Ohio 1977); see also, e.g., Trs. for the Flint Plumbing & Pipefitting Indus. Health Care Fund v. Premier Plumbing & Heating, Inc., No. 07-CV-14443, 2008 WL 2858475, at *1 (E.D. Mich. July 23, 2008) (observing that Michigan’s Rule of Professional Conduct 1.9(a) does not require an actual acquisition of confidential information); In re Marks & Goergens, Inc., 199 B.R. 922, 925 (E.D. Mich. 1996) (distinguishing Dana Corp. v. Blue Cross & Blue Shield Mut. of N. Ohio, 900 F.2d 882 (6th Cir. 1990), for this very reason).
  167. . Cobb Publ’g v. Hearst Corp., 907 F. Supp. 1038, 1050 & n.10 (E.D. Mich. 1995) (first citing United States v. Goot, 894 F.2d 231, 235 (7th Cir. 1990); then citing Cromley v. Bd. of Educ., 17 F.3d 1059, 1065 (7th Cir. 1994)).
  168. . See Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir. 1983); cf. Restatement (Third) of the Law Governing Lawyers § 123 (Am. Law Inst. 2000) (summarizing the standards for determining whether affiliated lawyers may avoid disqualification).
  169. . See Manning v. Waring, Cox, James, Sklar and Allen, 849 F.2d 222, 227 (6th Cir. 1988); Leathermon v. Grandview Mem’l Gardens, Inc., No. 4:07-cv-137-SEB-WGH, 2010 WL 1381893, at *9 (S.D. Ind. Mar. 31, 2010); Papanicolaou v. Chase Manhattan Bank, 720 F. Supp. 1080, 1087 (S.D.N.Y. 1989).
  170. . In re Butler, 987 S.W.2d 221, 225 (Tex. App. 1999) (construing the state equivalent of Model Rule 1.9); see also, e.g., Gen-Cor, LLC v. Buckeye Corrugated, Inc., 111 F. Supp. 2d 1049, 1055 (S.D. Ind. 2000) (“[C]ourts are likely to find a violation of [Indiana Rule of Professional Conduct] Rule 1.7 and like provisions when a firm represents a party opposing a corporate relation of one of its current clients without consent. . . .” (emphasis added)); Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1125–26 (N.D. Ohio 1990) (finding a conflict when a law firm represented an entity in a suit against an entity whose subsidiary it represented in unrelated matters).
  171. . See Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319–20 (7th Cir. 1978) (holding an implied attorney–client relationship was present); In re Gabapentin Patent Litig., 407 F. Supp. 2d 607, 614 (D.N.J. 2005) (holding an implied attorney–client relationship was present).
  172. . Westinghouse Elec. Corp., 580 F.2d at 1319 n.14 (quoting Raymond L. Wise, Legal Ethics 284 (2d ed. 1970)); see also, e.g., Landmark Am. Ins. v. Deerfield Constr., Inc., No. 15 C 1785, 2017 WL 157858, at *13 (N.D. Ill. Jan. 12, 2017) (collecting case law, albeit finding no such relationship due to the absence of any contact between lawyer and defendant); DCA Food Indus. v. Tasty Foods, Inc., 626 F. Supp. 54, 59–60 (W.D. Wis. 1985) (canvassing the Seventh Circuit’s cases).
  173. . Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588, 591 (D. Minn. 1986); see also, e.g., Koch Ref. Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178, 1182 (5th Cir. 1996) (defining a confidential relationship necessary for winning an expert’s disqualification based on a case); Rhodes v. E.I. Du Pont de Nemours & Co., 558 F. Supp. 2d 660, 666 (S.D. W. Va. 2008) (utilizing this definition in the attorney-disqualification context).
  174. . Kaselaan & D’Angelo Assocs. v. D’Angelo, 144 F.R.D. 235, 243–44 (D.N.J. 1992).
  175. . Steines v. Menrisky, 222 F. Supp. 3d 648, 652 (N.D. Ill. 2016) (citing Westinghouse Elec. Corp., 580 F.2d at 1317).
  176. . See, e.g., FMC Techs. v. Edwards, 420 F. Supp. 2d 1153, 1156–57 (W.D. Wash. 2006); Colyer v. Smith, 50 F. Supp. 2d 966, 971 (C.D. Cal. 1999) (citing In re Appeal of Infotechnology, Inc., 582 A.2d 215, 221 (Del. 1999)).
  177. . See, e.g., In re Meador, 968 S.W.2d 346, 351–52 (Tex. 1998); Ex parte AmSouth Bank, N.A., 589 So. 2d 715, 719 (Ala. 1991).
  178. . See Kala v. Aluminum Smelting & Ref. Co., 688 N.E.2d 258, 267 (Ohio 1998); Alexander v. Primerica Holdings, Inc., 822 F. Supp. 1099, 1118 (D.N.J. 1993); Zimmerman v. Duggan, 81 B.R. 296, 301 (E.D. Pa. 1987).
  179. . See, e.g., Weeks v. Samsung Heavy Indus., 909 F. Supp. 582, 585 (N.D. Ill. 1996) (stressing that disqualification would remove a lawyer “with substantial knowledge of an involvement in the case and require a substitute attorney to perform work that would most likely duplicate” that undertaken by plaintiff’s disqualified attorney); CenTra, Inc. v. Chandler Ins., 540 N.W.2d 318, 326 (Neb. 1995) (“[A] party may be substantially prejudiced because its new attorney must litigate against an opposing counsel who inarguably is more familiar and more facile with the case.”).
  180. . Cromley v. Bd. of Educ., 17 F.3d 1059, 1065 (7th Cir. 1994).
  181. . Essex Chem. Corp. v. Hartford Accident & Indem. Co., 993 F. Supp. 241, 252 (D.N.J. 1998); see also 48 Am. Jur. 2d Proof of Facts § 15 (2017) (collecting the factors that courts in a variety of jurisdictions have used to support an attorney–client relationship, including an attorney’s receipt of, or attempt to receive confidential information or records despite the absence of any formal joint defense agreement or explicit documents establishing an attorney–client relationship).
  182. . Essex Chem. Corp., 993 F. Supp. at 253.
  183. . See generally 48 Am. Jur. 2d Proof of Facts §§ 7–17 (providing various factors and considerations used in determining the existence of an attorney–client relationship).
  184. . See supra Section III.C.2.d.iv.
  185. . Kaselaan & D’Angelo Assoc. v. D’Angelo, 144 F.R.D. 235, 243–44 (D.N.J. 1992).
  186. . Steines v. Menrisky, 222 F. Supp. 3d 648, 652 (N.D. Ill. 2016) (citing Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir. 1978)).
  187. . Steel v. Gen. Motors Corp., 912 F. Supp. 724, 736–37 (D.N.J. 1995).
  188. . Mitchell v. Metro Life Ins., 2002 WL 441194, at *5 (S.D.N.Y Mar. 20, 2002); see also Matthews v. LeBoeuf, Lamb, Greene & MacRae, 902 F. Supp. 26, 31 (S.D.N.Y. 1995) (motion to disqualify denied where plaintiff’s lawyers, formerly associated with defendant law firm, did not possess confidential information about the subject matter of the lawsuit and only participated in two or three settlement discussions unrelated to the current lawsuit); Vestron, Inc. v. Nat’l Geographic Soc’y, 750 F. Supp. 586, 595 (S.D.N.Y. 1990) (motion to disqualify denied where in a prior representation plaintiff’s law firm only acquired confidences about defendant’s “general litigation posture in trademark suits,” a matter not relevant to the current breach of contract suit); Beck v. Bd. of Regents, 568 F. Supp. 1107, 1112 (D. Kan. 1983) (motion to disqualify denied where the only evidence of substantial relationship offered by the movant was type of claim asserted in two disparate actions, a prior employment discrimination action and a current medical negligence and premises liability action, and no effort was made to show the relevance to the pending action of any confidential information communicated during the prior representation).
  189. . Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588, 591 (D. Minn. 1986); see also, e.g., Koch Ref. Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178, 1182 (5th Cir. 1996) (citing Marvin Lumber, 113 F.R.D. at 591; and then citing Mayer v. Dell, 139 F.R.D 1, 3 (D.D.C. 1991)) (defining a confidential relationship necessary for winning an expert’s disqualification based on a case); Rhodes v. E.I. Du Pont de Nemours & Co., 558 F. Supp. 2d 660, 665–66 (S.D. W. Va. 2008) (utilizing this definition in the attorney-disqualification context).
  190. . See Carreno v. City of Newark, 834 F. Supp. 2d 217, 228 (D.N.J. 2011) (finding attorney’s access to former client’s confidential litigation strategies and processes, settlement processes and procedures, and receipt and review of internal investigations and files more than enough to establish the actual, not to mention, presumptive receipt of confidential information); United States v. Aleman, No. CRIM.EP-04-CR-1509 K, 2004 WL 1834602, at *3 (W.D. Tex. Aug. 12, 2004) (“[C]onfidential information includes ‘unprivileged client information,’ defined as ‘all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.’” (citing Tex. Disciplinary Rules of Prof’l Conduct r. 1.05(a))); Cordy v. Sherwin-Williams Co., 156 F.R.D. 575, 584 (D.N.J. 1994) (disqualification may be merited if trial expert was “privy to [Plaintiff’s] trial strategy”); cf. CQS ABS Master Fund Ltd. v. MBIA Inc., No. 12 Civ. 6840 (RJS), WL 3270322, at *13 (S.D.N.Y. June 24, 2013) (stressing that such facts weaken the presumption of shared confidences but finding the presumption unrebutted because counsel “offer[ed] no evidence of specific screening procedures”). Certainly, a multitude of cases in which Vlahakis participated would bolster any such argument, but Ally “need not prove that ‘an attorney actually had access to or received privileged information while representing the client in a prior case,’ because to do so it would have to disclose the very privileged information it seeks to protect.” Panebianco v. First Unum Life Ins., No. 04 Civ. 9331 (JSR), 2005 WL 975835, at *3 n.4 (S.D.N.Y. Apr. 27, 2005) (quoting Gov’t of India v. Cook Indus., 569 F.2d 737, 740 (2d Cir. 1978)).
  191. . See GTE N., Inc. v. Apache Prods. Co., 914 F. Supp. 1575, 1579 (N.D. Ill. 1996) (“When information is exchanged between co-defendants and their attorneys,” no attorney may make use of that information “even though that co-defendant is not the one which he represented in the criminal case.” (quoting Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978))).
  192. . See Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist., 810 F. Supp. 2d 929, 961–63 (D. Ariz. 2011) (summarizing cases holding that attorney owes a duty of confidentiality to the former co-defendant as a consequence of a joint defense agreement, whether implicit or explicit); Kaskie v. Celotex Corp., 618 F. Supp. 696, 699 (N.D. Ill. 1985) (treating the exchange of confidential information among counsel for co-defendants under joint defense agreement as creating implied attorney–client relationship).
  193. . City of Kalamazoo v. Mich. Disposal Serv. Corp., 125 F. Supp. 2d 219, 237 (W.D. Mich. 2000).
  194. . Westinghouse Elec. Corp., 580 F.2d at 1320; see also, e.g., Black Rush Mining, LLC v. Black Panther Mining, 840 F. Supp. 2d 1085, 1090 (N.D. Ill. 2012) (citing Westinghouse Elec. Corp. and other cases for the proposition that the sharing of confidential information can establish an implied attorney–client relationship).
  195. . See Islander E. Rental Program v. Ferguson, 917 F. Supp. 504, 510 (S.D. Tex. 1996); cf. Twin Labs., Inc. v. Weider Health & Fitness, No. 89 Civ. 0949 (MBM), 1989 WL 49368, at *3 (S.D.N.Y. May 4, 1989) (noting the ethical concerns raised when “[a] lawyer who is exposed to the business methods of a firm during the course of a government investigation takes away with him a great deal of information useful in subsequent litigation, such as who in the company has what information”).
  196. . Watkins v. Trans Union, LLC, 869 F.3d 514, 520 (7th Cir. 2017).
  197. . Watkins v. Trans Union LLC, No. 2:14-cv-135-WTL-DKL, 2016 WL 4919999, at *5 (S.D. Ind. Sept. 15, 2016) (stating as much, though opting not to disqualify an attorney due to the passage of over eleven years), aff’d, 869 F.3d 514.
  198. . See Carreno v. City of Newark, 834 F. Supp. 2d 217, 228 (D.N.J. 2011); see also, e.g., Foster Poultry Farms v. Conagra Foods Refrigerated Foods Co., No. CV F 04-5810 AWI LJO, 2005 WL 2319186, at *7 (E.D. Cal. Sept. 22, 2005) (finding a sufficiently substantial relationship when the attorney had confidential information about the client’s “business strategy” and “information about the former client’s response in a suit on almost identical issues”).
  199. . Lavender v. Protective Life Corp., No. 2:15-cv-02275-AKK, 2017 WL 432461, at *6 (N.D. Ala. Jan. 31, 2017) (quoting Hermann v. GutterGuard, Inc., 199 Fed. App’x 745, 753 (11th Cir. 2006)); see also, e.g., SHFL Entm’t, Inc. v. DigiDeal Corp., No. 2:12-cv-01782-GMN-VCF, 2013 WL 178130, at *12 (D. Nev. Jan. 16, 2013) (finding lawyer to have been privy, based on a series of emails, to “confidential information relating to . . . [adverse party’s] policies, procedures, and strategies that were only provided to him due to his confidential relationship with the company”) (quoting Coles v. Arizona Charlie’s, 973 F. Supp 971, 974 (D. Nev. 1997)).
  200. . Chugach Elec. Ass’n v. U.S. Dist. Ct., 370 F.2d 441, 443–44 (9th Cir. 1966).
  201. . Haagen-Dazs Co. v. Perche No! Gelato Inc., 639 F. Supp. 282, 286 (N.D. Cal. 1986).
  202. . Chugach Elec. Ass’n, 370 F.2d at 443; see also Dye v. Brown (In re AFI Holding, Inc.), 355 B.R. 139, 154 (9th Cir. B.A.P. 2006) (citing Chugach Elec. Ass’n, 370 F.2d at 443); State ex rel. Ogden Newspapers, Inc. v. Wilkes, 566 S.E.2d 560, 566 (W. Va. 2002) (emphasizing Chugach’s limitations but finding “the nature of . . . [a] research project, as described in a confidential memorandum, [to] clearly support[] the presumption that . . . [attorney] gained some insight into the corporate policies of . . . [adverse party] and its affiliates” (quoting State ex rel. Ogden Newspapers, Inc., 482 S.E.2d 204, 209 (W. Va. 1996)).
  203. . See United States v. Smith, 995 F.2d 662, 675–76 (7th Cir. 1993) (affirming the disqualification of a supervisor of an attorney who conducted a “parallel investigation”); Castillo v. St. Paul Fire & Marine Ins., 938 F.2d 776, 781 (7th Cir. 1991) (Cudahy, J., concurring) (noting that counsel’s “several conversations” regarding a matter “indirectly related to the subject of the present suit” is sufficient to trigger a hearing on disqualification); Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir. 1983) (finding the presumption to be unrebutted when an attorney represented his current opponent as a partner and discussed the lawsuit on at least four occasions during his time at his former law firm).
  204. . Restatement (Third) of the Law Governing Lawyers § 132A(d)(iii) (Am. Law Inst. 2000).
  205. . See W.R. Grace & Co. v. Gracecare, Inc., 152 F.R.D. 61, 65 (D. Md. 1993) (observing that, when a plaintiff seeks out an attorney to serve as an expert, it is “reasonable to assume that that contact took on a confidential character because of . . . [lawyer’s] profession and proposed role alone” even if “[t]he duration of that relationship may have been minimal,” “[n]o confidences regarding a substantially related matter may have passed,” “[n]o confidences at all may have passed,” and “[t]he contact may have been nothing more than a job interview”); Stitz v. Bethlehem Steel Corp., 650 F. Supp. 914, 917 (D. Md. 1987) (finding disqualification merited when attorney’s prior work made him familiar with defendant’s personnel policies and procedures and that familiarity could be used to defendant’s disadvantage in a current suit); cf. Ross v. Am. Red Cross, No. 2:09-cv-905, 2012 WL 2090511, at *2 (S.D. Ohio Jan. 11, 2012) (determining that the possibility that expert’s testimony may involve “client confidences to which he was exposed during his years as” deputy general counsel more than sufficient to disqualify him).
  206. . See Kevlik v. Goldstein, 724 F.2d 844, 846–47, 851 n.4 (1st Cir. 1984); IBM Corp. v. Levin, 579 F.2d 271, 279 n.2 (3d Cir. 1978); Cent. Milk Prod. Co-op. v. Sentry Foods Stores, Inc., 573 F.2d 988, 992–93 (8th Cir. 1978); NCK Org. v. Bregman, 542 F.2d 128, 136 n.2 (2d Cir. 1976) (citing Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976); and then citing Hull v. Celanese Corp., 513 F.2d 568, 572 n.12 (2d Cir. 1975)).
  207. . See Fund of Funds, Ltd. v. Arthur Anderson & Co., 567 F.2d 225, 233-34, 237 n.16 (2d Cir. 1977); see also Cinema 5, Ltd., 528 F.2d at 1386 (regarding an attorney as a client’s trustee or fiduciary); Brinkley v. Farmers Elevator Mut. Ins., 485 F.2d 1283, 1286 (10th Cir. 1973) (arguing an attorney functions as an agent).
  208. . 113 F. Supp. 265, 268 (S.D.N.Y. 1953) (birthing the substantial relationship test).
  209. . Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531 (1824).
  210. . Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).
  211. . Ex parte Burr, 22 U.S. (9 Wheat.) at 531; see also, e.g., Saldana v. Kmart Corp., 260 F.3d 228, 237–38 (3d Cir. 2001) (quoting Ex parte Burr, 22 U.S. (9 Wheat.) at 531); cf. Link v. Wabash R.R., 370 U.S. 626, 629–30 (1962) (observing that “[t]he authority of a federal trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute . . . is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts”).
  212. . Cf. W. Wolfgang Holdheim, The Ways of Mephistopheles, 1 Cardozo Stud. L. & Literature 211, 214 (1989) (reviewing Michael Kilian, Jurisprudenz zwischen Techne und Kunst: Von Hippokrates bis Heine: Philosophisches und Literarisches zum Verhältnis Kunst und Recht (1987)) (“It is not that the devil is a lawyer. . . . [I]t is rather that his characteristics strikingly resemble those that are (and have long been) attributed to the breed.”).