[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Inc. (“Tate & Lyle”). . . .
Plaintiffs, represented by the legacy law firm of Squire Sanders & Dempsey, LLP
(“Squire Sanders”), filed the instant lawsuit on April 22, 2011, [asserting] one cause of
action for false advertising under the Lanham Act, alleging that Defendants misled
consumers by use of the term “corn sugar.” . . .
On June 1, 2014, the law firms of Patton Boggs LLP (“Patton Boggs”) and Squire
Sanders combined to form Squire Patton Boggs (“SPB”). SPB remains the Sugar Plaintiffs’
counsel of record. [Tate & Lyle filed a motion] to disqualify SPB from representing the
Sugar Plaintiffs in this action because SPB is now adverse to . . . Tate & Lyle — [a] longstanding
[client] of the legacy firm Patton Boggs. . . .
Tate & Lyle has relied on multiple lawyers at Patton Boggs for legal advice on a wide
range of matters since 1998 and through the merger in June 2014. . . .
[When it learned of this pending lawsuit, Tate & Lyle’s counsel brought the conflict to
SPB’s attention. SPB lawyers told their client that SPB failed to identify the conflict
because a paralegal had inexplicably omitted it from the list.] During that call, they asked
Tate & Lyle for a conflict waiver. They explained that, as a practical matter, a de facto
ethical wall was in place because the two firms’ computer systems had not been integrated
and documents were in different offices. . . .
[One week later], Tate & Lyle’s counsel . . . informed SPB . . . that because the instant
litigation was not “ordinary commercial litigation, but rather a contentious battle between
two competing industries,” Tate & Lyle would not waive the conflict. [Tate & Lyle]
requested that SPB withdraw from its representation of the Sugar Plaintiffs.
[One week after this communication], SPB’s counsel sent a letter to Tate & Lyle’s
counsel, enclosing a copy of the 1998 Engagement Letter. . . . [that included what SPB
called an “advanced consent”]. In the letter, SPB proposed to carry forward the
simultaneous representations of the Sugar Plaintiffs and Tate & Lyle on other matters with
two distinct teams of lawyers and an ethical wall.
[Several days later], SPB sent a letter to Tate & Lyle’s counsel terminating its
relationship with Tate & Lyle. Dan Waltz and other lawyers at SPB were actively providing
services to Tate & Lyle up until SPB’s termination. . .
Tate & Lyle [moves] to disqualify SPB from representing the Sugar Plaintiffs in this
action, contending that the merger resulted in SPB simultaneously representing adverse
clients. . . .
Motions to disqualify generally arise in one of two contexts: (1) in cases of successive
representation, where an attorney seeks to represent a client with interests that are
potentially adverse to a former client; and (2) in cases of simultaneous representation,
where an attorney seeks to represent in a single action multiple parties with potentially
adverse interests. The primary fiduciary duty at stake in each of these contexts differs, and
the applicable disqualification standards vary accordingly. . . .
Attorneys owe current clients a duty of undivided loyalty to avoid undermining public
confidence in the legal profession and the judicial process. When a law firm simultaneously
represents clients who have conflicting interests, with few exceptions, “disqualification
285