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

1. Restatement (Third) of Agency § 8.01 (2006).
2. Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).
1. See, e.g., Richard E. Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases (Banks Jordan 2003);
Franklin v. Callum, 782 A.2d 884 (N.H. 2001) (both parties granted disqualification of the other side’s lawyer on
different legal theories).
2. RLGL § 6, Comment i.
3. The first case was Gauden v. Georgia, 11 Ga. 47 (1852).
4. This may be especially likely to occur in criminal cases, where judges assume special responsibility for the fairness
of the proceeding. E.g., Fed. R. Crim. P. 44(c) (federal district courts required to inquire into any proposed joint
representation); Cuyler v. Sullivan, 446 U.S. 335 (1980) (trial judge has important role in assuring fairness of trial of
joint defendants).
5. E.g., Ennis v. Ennis, 276 N.W.2d 341, 348 (Wis. App. 1979). Administrative law judges also exercise this power
in appropriate circumstances. See, e.g., Prof. Reactor Operator Socy. v. United States NRC, 939 F.2d 1047 (D.C. Cir.
1991).
6. See, e.g., Universal City Studios, Inc. v. Reimerdes, 98 F. Supp. 2d 449 (S.D.N.Y. 2000).
7. In some situations such as bankruptcy, statutory provisions impose additional conflict of interest standards. See,
e.g., In re Leslie Fay Cos., 175 B.R. 525 (Bankr. S.D.N.Y. 1994).
8. Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980), vacated on other grounds, 449 U.S. 1106 (1981); The
European Cmty. v. RJR Nabisco, Inc., 134 F. Supp. 2d 297, 303 (E.D.N.Y. 2001) (reviewing Second Circuit
decisions).
9. See, e.g., Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979); In re Infotechnology, Inc., 582 A.2d 215,
216 (Del. 1990).
10. See RLGL § 6. In fact, Pepper Hamilton settled with Maritrans for $3 million following the Pennsylvania
Supreme Court decision, an amount slightly less than its legal fees in the matter. See James L. Kelly, Lawyers Crossing
Lines: Nine Stories 79 (Carolina Academic Press 2001).
1. Woods Oviatt began representing Heidelberg in 1999, shortly after the company was formed. Heidelberg came
into existence when its parent company, Heidelberger Druckmaschinen AG (“Druckmaschinen”), acquired Kodak’s
black and white printing business. Since that time, Woods Oviatt has represented Heidelberg in a variety of matters,
including a major construction financing project, an intellectual property dispute, an environmental matter, and
employment discrimination cases.
3. On August 16, 2004, Woods Oviatt filed a motion to withdraw from further representation of Heidelberg in the
Jackson case. It has also, consistent with direction from Kodak and its own ethical obligations, continued to prosecute
the summary judgment motion and filed Reply papers as recently as November 9, 2004.
9. Woods Oviatt refers the Court to two other clients (Marie Long and Canon U.S.A.) who have or had interests
adverse to Kodak at the time of Kodak’s acquisition of Heidelberg. Woods Oviatt argues that Kodak’s position would
require the firm to “abandon” these clients as well. However, Woods Oviatt’s representation of Marie Long and Canon
pre-dated the Kodak’s acquisition of Heidelberg by a year, whereas their decision to enter an appearance as local counsel
for ECJ and Sony occurred after the Heidelberg acquisition. This important distinction brings the Long and Canon
situations closer to the facts of Gould, Inc. v. Mitsui Mining and Smelting Co., 738 F. Supp. 1121 (N.D. Ohio 1990).
In any event, any potential conflict in the Long and Canon representations is not before this Court and Kodak here has
specifically represented it will not waive the conflict with respect to Sony and ECJ cases.
1. Lawrence J. Fox & Susan R. Martyn, The Ethics of Representing Organizations: Legal Fictions for Clients 8-9
(Oxford U. Press 2009).
2. E.g., ABA Formal Op. 08-453 (law firm’s ethics counsel usually represents the organization as a whole, not
individual-firm lawyers).
3. A few jurisdictions allow lawyers and individuals to agree that the eventual entity is the only client, applying a kind
of retroactive entity theory to the initial establishment of organizations. See Jesse v. Danforth, 485 N.W.2d 63 (Wis.
1992); St. Bar of Ariz. Op. 02-06.
4. Henry Sills Bryans, Business Successors and the Transpositional Attorney-Client Relationship, 64 Bus. Law. 1039
(2009).
5. MR 1.7, Comment [34]; RLGL § 121, Comment d. See also ABA Formal Op. 95-390, a decision from which one
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