Firm Disqualified From Representing Party on Appeal Where Partner Served As Opponent's Expert at Trial
Outside the Box Innovations, LLC v. Travel Caddy, Inc. (Fed. Cir. Feb. 1, 2010) (nonprecedential)
In this case, a partner for King & Spalding had served as an expert witness in support of plaintiff's motion for attorneys fees at trial. Defendant opposed this motion for attorneys fees and challenged the strength of and analysis in the expert's declaration. The district court denied the request for attorneys fees. After the district court proceedings concluded, defendant selected three attorneys from King & Spalding to represent it on appeal. Plaintiff then filed a motion with the Federal Circuit, asking the Court to disqualify King & Spalding from representing defendant under the principle of imputed disqualification.
The Federal Circuit, in a nonprecedential opinion by Judge Dyk, granted the motion for disqualification, relying on Rule 1.7 of the Georgian Rules of Professional Conduct. The Court noted that "[t]he question whether King & Spalding should challenge the expert opinion of one of King & Spalding's partners in our view would materially and adversely affect the firm's representation of [defendant] on appeal" as "to properly represent the interests of [defendant], the lawyers from King & Spalding would need to consider whether to challenge the sufficiency of [the] expert opinion in this appeal. Members of the firm may not be able to provide adequate representation on that issue without challenging [the] opinion."