I can’t find it on line, but it’s Milwaukee Electric Tool Corp. v. Hilti, 2015 WL 1898393 (E.D. Wis. Apr. 27, 2015). DLA Piper was representing Snap-on Tools. Another client asked it to sue several potential infringers, one of which was Snap-on. The firm appeared in all of the cases — all of which involved the same patent — against every defendant except Snap-on.
Snap-on moved to disqualify DLA Piper. It contended that, by representing the patentee against the non-clients, it was adverse to Snap-on. Basically, the argument that has been made (in this circumstance in several patent cases, and in other contexts) is that a lawyer should not be a part of building a case against his own client.
The court discussed the three other patent cases on this issue, and some of the other cases, but denied the motion to disqualify. It found that DLA Piper was not adverse to Snap-on, but it noted that it was a very close question.
Here’s my question: obviously, DLA Piper cannot coordinate with those lawyers who are adverse to Snap-on. (I can’t do out of court what I couldn’t do in it.) How can a law firm competently represent a patentee in an infringement suit without coordinating arguments (claim construction, etc.) with other counsel? For a discussion of those issues, see Arrowpac Inc. v. Sea Star Line, LLC, 2013 Wl 5460027 (M.D. Fl. Apr. 30, 2013).
This case is somewhat like the Akin Gump case, discussed below, which resulted in a $500,000 judgment against that firm.
I think that alone it may be competent if it “takes the lead” as well as if it learns and applies second hand what the other firms do.
But this is just a form of “semantics” as any such lead and any such action must necessarily be seen as equally applicable to the firm that does happen to go against its client.
This is NOT a close question to me – at all.
By ruling as it has – and to me worse, by saying that this is close, the court is INVITING the type of “scrivining” and gamesmanship that it will turn around tomorrow and criticize.
The better path here – the clear and unequivocal path here – is that a firm cannot create work product that is so clearly usable against its own client.
Shame on the court.
Shame on the firm.
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