1 Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1122 (N.D. Ohio 1990).
2 Id. at 1122.
3 Id. at 1123.
4 Id.
5 Ronald D. Rotunda, Conflicts Problems When Representing Members of Corporate Families, 72 Notre Dame L. Rev. 655, 662 (1997) (explaining that attorneys are clients’ agents and owe fiduciary duties including loyalty).
6 See Nora Pasman, The Conflict of “Conflict of Interest”: The Michigan Example, 1995 Det. C. L. Rev. 133, 133 (1995); see also Gould, 738 F. Supp. at 1123.
7 E.g., Pasman, supra note 6, at 133 (describing loyalty as the basis of the attorney-client relationship).
8 See Lara E. Romansic, Conflict of Interest: Stand by Your Client?: Opinion 95–390 and Conflicts of Interest in Corporate Families, 11 Geo. J. Legal Ethics 307, 315 (1998).
9 See ABA Comm. on Prof’l Ethics and Prof’l Responsibility, Formal Op. 390 (1995) [hereinafter Formal Op. 390] (Fox, dissenting) (arguing “[t]he last thing our profession needs is another black eye caused by jettisoned client loyalty in the name of economic expediency”); Pasman, supra note 6, at 159, (quoting G.A.C. Commercial Corp. v. Mahoney Typographers, Inc., 238 N.W.2d 575, 577–78 (Mich. Ct. App. 1975)) (noting that if attorney’s conduct appears unethical, regardless of actual ethical violation, that respect and trust in profession is weakened such that ethical questions should be resolved on side of caution).
10 Michael Sacksteder, Formal Opinion 95–390 of the ABA’s Ethics Committee: Corporate Clients, Conflicts of Interest, and Keeping the Lid on Pandora’s Box, 91 Nw. U. L. Rev. 741, 748–49 (1997).
11 See Rotunda, supra note 5, at 661–62.
12 Id. (noting that representation is generally prohibited even if unrelated); see also Thomas D. Morgan, Suing a Current Client, 1 J. Inst. Stud. Legal Ethics 87, 97 (1996) (quoting Grievance Comm. v. Rottner, 203 A.2d 82, 184 (Conn. 1964)) (arguing if a client is sued and loses something valuable, like his home, all feeling of loyalty is destroyed regardless of whether the representations are related).
13 See Morgan, supra note 12, at 88; Rotunda, supra note 5, at 687–88.
14 See, e.g., Andrew Drucker, Explanations, Suggestions, and Solutions to Conflict Tracking and Prevention in Response to the Growth and Expansion of the Larger Law Firm, 24 Del. J. Corp. L. 529, 530–31 (1999) (noting law firm growth increases number of conflict situations and Model Rules are increasingly incapable of dealing with new and unique conflicts in the modern legal world); Morgan, supra note 12, at 88 (noting that law firms have specialized, and grown and clients hire many different firms such that ignoring new structure of law firms may place too many restrictions on the activities of both clients and lawyers). But see Pasman, supra note 6, at 166 (criticizing courts for increasingly allowing representations that they previously would have prevented and weakening enforcement of conflict rules despite voicing strict messages condemning such representation).
15 See Romansic, supra note 7, at 307 (noting that corporate families often change through mergers and acquisitions and that as this happens the potential for current conflicts increases).
16 See, e.g., Colorpix Sys. of Am. v. Broan Mfg. Co., 131 F. Supp. 2d 331 (D. Conn. 2001).
17 Rotunda, supra note 5, at 662–63.
18 See id. at 676.
19 Restatement (Third) of the Law Governing Lawyers: Conflicts of Interest � 121 Reporter’s Note cmt. d (2000) [hereinafter Restatement].
20 See, e.g., Pasman, supra note 6, at 134.
21 See Model Rules of Prof’l Conduct R. 1.7 (1999); Model Code of Prof’l Responsibility DR 5–105 (1983); Sacksteder, supra note 9, at 745–48.
22 See Rotunda, supra note 5, at 665–66 (noting that discrepancies between district courts is now “standard operating procedure” because of a 1981 Supreme Court case, Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), that rejected appeals to denials of disqualification motions and the ensuing development of this holding by federal and state courts).
23 See infra notes 29–326 and accompanying text.
24 See infra notes 29–326 and accompanying text.
25 See infra notes 29–84 and accompanying text.
26 See infra notes 86–161 and accompanying text.
27 See infra notes 162–278 and accompanying text.
28 See infra notes 279–326 and accompanying text.
29 See Model Rules of Prof’l Conduct R. 1.7 (1999); Model Code of Prof’l Responsibility DR 5–105 (1983).
30 Professional Responsibility Standards, Rules & Statutes 2 (John S. Dzienkowski ed., abr. ed. 2000–2001) [hereinafter Prof’l Responsibility Standards].
31 Id. at 145 (noting that, in 2000, 39 states had replaced ethics codes based on Model Code with that from Model Rules and every one of these states has in some way modified the Model Rules provisions).
32 See, e.g., Ex parte AmSouth Bank, N.A., 589 So. 2d 715, 717 (Ala. 1991) (applying the Alabama Rules of Professional Conduct).
33 See Prof’l Responsibility Standards, supra note 26, at 6.
34 Id. at 388.
35 Id. at 389.
36 Id.
37 Model Code of Prof’l Responsibility Canon 4, 5, 9, DR 5–105.
38 Id. Canon 1. Canon 1, for example, is entitled “A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession.” Id. Furthermore, the Preamble places the role of the attorney in the lofty context of “lawyers as guardians of the law [playing] a vital role in the preservation of society.” Id. at Preamble.
39 Id. Canon 4.
40 Id. Canon 5.
41 Id. EC 5–1.
42 Model Code of Prof’l Responsibility DR 5–105.
43 Id.
44 See, e.g., Morgan, supra note 12, at 93, 94 (agreeing that obtaining consent is “good client relations” but that a problem “typically arises because the client threatened with suit refuses to grant consent, often solely out of a desire to make life difficult for the opponent”).
45 Model Rules of Prof’l Conduct R. 1.9 cmt. 5; Model Code of Prof’l Responsibility Canon 9; see, e.g., Pasman, supra note 6, at 158–59 (quoting G.A.C. Commercial Corp. v. Mahoney Typographers, Inc., 238 N.W.2d 575 (Mich. Ct. App. 1975)) (noting that appearance of impropriety standard is used to disqualify even though no ethical canons are actually violated to maintain highest standards of professional conduct and public respect). But see Rotunda, supra note 5, at 668 (noting that vague rule where lawyers are reluctant to soil their reputations by risking disqualification motion favors “less ethical” lawyers who are willing to “play the lower court lottery”).
46 See Model Rules of Prof’l Conduct R. 1.9 cmt. 5. But see Drucker, supra note 14, at 540–41 (noting that “broad language” of Model Rules still prohibits representations that do not threaten loyalty and instead limit development of the legal profession).
47 Model Rules of Prof’l Conduct R. 1.7.
48 Id.
49 Id.
50 Id. R. 1.7 cmt. 3.
51 Id.
52 See Model Rules of Prof’l Conduct R. 1.7(a), R. 1.7 cmt. 3. Unfortunately, the Model Rules do not define what is meant by “direct” or “indirect,” leading to subsequent attempts to define the terms. See Rotunda, supra note 5, at 677.
53 See Model Rules of Prof’l Conduct R. 1.9 cmt.
54 Id. R. 1.9 cmt. 5.
55 Id. R. 1.9.
56 See id. R. 1.7, R. 1.7 cmt. 3, R. 1.9.
57 See id. R. 1.9; Drucker, supra note 14, at 542.
58 See Drucker, supra note 14, at 542, 543 (describing the substantial relationship test as essentially consistent in result but that there are different approaches).
59 Id. at 542–43 (noting that Rule 1.9 not only prevents further representation when confidences have been compromised but also does so when the attorney has been placed in a position where confidences could be compromised); see Model Rules of Prof’l Conduct R. 1.9; Dan S. Boyd, Current Trends in Conflict of Interest Law, 53 Baylor L. Rev. 1, 3 (2001) (explaining that “virtually all of the litigation involving attempted disqualifications under . . . [the former client] doctrine in Texas and elsewhere in the United States involve analysis solely or mainly of the substantial relationship test”).
60 See Model Rules of Prof’l Conduct R. 1.13.
61 Id. R. 1.13(a).
62 Id. R. 1.13 cmt. 2.
63 See id. R. 1.7; Model Code of Prof’l Responsibility DR 5–105 (1983).
64See Model Rules of Prof’l Conduct R. 1.7; Model Code of Prof’l Responsibility DR 5–105.
65 See Restatement, supra note 19, � 132 cmt. j.
66 See id. � 121 cmt. b.
67 Id. � 128(2).
68 Id. � 121 cmt. b.
69 Id.
70 Restatement, supra note 19, � 121 cmt. b.
71 Compare id. � 121 cmt. c(i), with Model Rules of Prof’l Conduct R. 1.7.
72 Restatement, supra note 19, � 121 cmt c(i).
73 Id. � 121 cmt. c(iii).
74 See id. � 121 cmt. d.
75 See id. � 121 cmt. d, illus. 6. A lawyer cannot undertake representation adverse to wholly owned subsidiary of client if it would have substantial material impact felt by client. Id. If, however, the representation is adverse to a corporation that is less than wholly owned subsidiary of client that representation may be able to continue. Id. � 121 cmt. d, illus. 7.
76 Id. � 121 cmt. d, illus. 8 (showing this would be the case if attorney relied heavily on one client for business).
77 See Restatement, supra note 19, � 121 cmt. d, illus. 9 (explaining that if an affiliate elects a majority the directors of its family member, approves its key officers, regularly supervises decisions or regularly advises it on decisions that there is significant control).
78 Id. � 121 cmt. d., cmt. d, illus. 10.
79 See id. � 121 Reporter’s Note cmt. d.
80 Compare Model Rules of Prof’l Conduct R. 1.7, and Model Code of Prof’l Responsibility DR 5–105, with Restatement, supra note 19, � 121 cmt. e(v) (citing Restatement, supra note 19, � 132 cmt. j).
81 See Restatement, supra note 19, � 132 cmt. j.
82 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering � 1.16:302 (2d ed. supp. 1998).
83 See Rotunda, supra note 5, at 663–64 (noting that because there is a duty of loyalty limiting representation to current but not to former clients, lawyers seek to avoid the ethical problem by converting the least lucrative client into a former client).
84 See Hazard, supra note 82, � 1.16:302.
85 See Charles Wolfram, Legal Ethics: Corporate-Family Conflicts, 2 J. Inst. Stud. Legal Ethics 295, 362–63 (1999).
86 See 756 F. Supp. 789, 792 (S.D.N.Y. 1991); Restatement, supra note 19, � 121 Reporter’s Note cmt. d; Rotunda, supra note 5, at 658–59.
87 Stratagem, 756 F. Supp. at 790–91.
88 Id. at 789–90.
89 Id. at 790.
90 Id. at 791.
91 Id. at 792 (citing 528 F.2d 1384, 1386 (2d Cir. 1976)).
92 Stratagem, 756 F. Supp. at 793 (citing Glueck v. Jonathan Logan, Inc., 512 F. Supp. 223, 227 (S.D.N.Y. 1981), aff’d 653 F.2d 746 (2d Cir. 1981)).
93 Id. at 792. But see Rotunda, supra note 5, at 660 (criticizing Stratagem test as having “enormous implications” because “[a] law firm could have trouble suing a corporation (such as General Motors) if any one of the law firm’s clients owned any stock in General Motors because the liabilities (and even the potential liabilities) of General Motors affect its bottom line”).
94 Stratagem, 756 F. Supp. at 793.
95 See Cincinnati Bell, Inc. v. Anixter Bros., No. C-1–93–0871, 1994 U.S. Dist. LEXIS 21012, at *9 (S.D. Ohio Jun. 24, 1994).
96 Id. at *4–5.
97 Id. at *7–8.
98 Id. at *8.
99 Id.
100 Cincinnati Bell, 1994 U.S. Dist. LEXIS 21012, at *8.
101 See id. at *7.
102 See id. at *8.
103 Compare id., with Gould, Inc. v. Mitsui Mining Co., 738 F. Supp. 1121, 1127 (N.D. Ohio 1990) (noting that the conflict was created by a client acquisition of another corporation after the law suit had begun).
104 Cincinnati Bell, 1994 U.S. Dist. LEXIS 21012, at *9.
105 See id.
106 See id.
107 Id. at *9–10 (quoting Pennwalt Corp. v. Plough Inc., 85 F.R.D. 264, 271 (D. Del. 1980)).
108 See, e.g., Restatement, supra note 19, at � 121 Reporter’s Note cmt. d (commenting that most cases and Restatement reject per se rule and look at direct impact of the adversity on representation); Sacksteder, supra note 9, at 749 (noting that per se rule prohibiting representation against the corporate affiliate of a client has followers but majority approach is more flexible one that looks at the facts and circumstances); see also Rotunda, supra note 5, at 669 (criticizing the Stratagem line of cases).
109 See, e.g., Colorpix Sys. of Am. v. Broan Mfg. Co., 131 F. Supp. 2d 331, 336 (D. Conn. 2001).
110 See Rotunda, supra note 5, at 667.
111 Formal Op. 390, supra note 8.
112 Id.
113 Id.
114 See id.
115 Id.
116 Formal Op. 390, supra note 8.
117 See id.
118 Id.; see Model Rules of Prof’l Conduct R. 1.7(b).
119 Formal Op. 390, supra note 8.
120 Model Rules of Prof’l Conduct R. 1.7(b).
121 Formal Op. 390, supra note 8.
122 See id. An agreement could be in the form of an explicit letter of engagement, or could come about as a result of reasonable expectations on the part of the client and the subsequent actions of the lawyer in failing to dispel or disagree with such expectations. Id. The committee relies heavily on a tentative draft of the Restatement (Third) of the Law Governing Lawyers, which provides that a lawyer-client relationship is created when a person indicates that they require legal services and the lawyer somehow indicates consent to provide those services or fails to indicate lack of consent when he knows or should know that the prospective client reasonably expects such services. See id.
123 Id.
124 Id. (citing Pennwalt Corp. v. Plough, Inc., 85 F.R.D. 264, 266 (D. Del. 1980)).
125 See id.
126 See Formal Op. 390, supra note 8.
127 See id.
128 Id.
129 Id.
130 Id. Note that this formulation of the alter-ego analysis is often broader than that used in corporate law. See Wolfram, supra note 85, at 347–48.
131 Formal Op. 390, supra note 8.
132 Id.
133 Id.
134 Id.
135 Id.
136 Formal Op. 390, supra note 8.
137 See id. (Amster, dissenting). But see Romansic, supra note 7, at 311 (claiming that corporations have no choice but to bargain for firms to recognize their affiliates as clients and firms can respond with higher fees representing lost opportunities).
138 Formal Op. 390, supra note 8 (Fox, dissenting).
139 Id. (Amster, dissenting). The dissents feel that distinguishing subsidiaries, particularly wholly owned subsidiaries, from divisions, for example, ignores the legal and other requirements that may force such a distinction. Id. They feel that the majority puts the responsibility of protection on the client, sacrificing smaller business that may not be as savvy as Fortune 500 companies that can clearly negotiate the scope of every representation. Id.
140 Colorpix Sys. v. Broan Mfg. Co., 131 F. Supp. 2d 331, 336 (D. Conn. 2001).
141 Id. at 333.
142 Id. at 336 n.1. Interestingly, the court analyzes the conflict of interest question under the more lenient former client standard even though R&C represented Nortek while at the same time suing Broan in the Colorpix case. See id. The court concludes that the former client standard is warranted, perhaps because R&C did not impermissibly drop a client like a “hot potato” but because the Nortek representation ended naturally when the opposing party withdrew its complaint. See id.
143 Id. at 337.
144 Id.
145 See Colorpix, 131 F. Supp. 2d at 336.
146 Id.
147 See id.
148 Id.
149 Id. at 336–38. Colorpix relies heavily on Ramada Franchise Sys., Inc. v. Hotel of Gainesville Assoc. See id. at 336, 337, 338. The court in Ramada recognized differing approaches as to whether an affiliated entity is protected, but looked to a pragmatic line of cases that focused not on “labels” but instead on the “facts and circumstances” involved. 988 F. Supp. 1460, 1464 (N.D.Ga. 1991). The court found that because the three companies involved, all had “substantially similar management” personnel, shared the same headquarters, and had the same corporate philosophies and shared a single legal department, there was sufficient “identity of interest” among them to consider there to be a conflict of interest. Id. at 1465.
150 Colorpix, 131 F. Supp.2d at 337.
151 Id. (noting Broan and Nortek shared the same vice president, secretary and general counsel).
152 721 F. Supp. 534, 538 (S.D.N.Y. 1989).
153 Id. at 539–40.
154 Hartford Accident & Indem., 721 F. Supp. at 539–40.
155 Id.
156 Id. at 540–41.
157 Id. The client, R.J. Reynolds Tobacco Company (Reynolds) left the firm of Murphy & Mitchell, P.C. for LeBoeuf when attorney Donald J. Wood changed firms. Hartford Accident & Indemnity, 721 F. Supp. at 536. When Wood left LeBoeuf Reynolds also left. Id. at 541.
158 Id. at 541–42.
159 See supra notes 108–158 and accompanying text.
160 See supra notes 108–158 and accompanying text.
161 See supra notes 108–158 and accompanying text.
162 See infra notes 168–278 and accompanying text.
163 See infra notes 168–278 and accompanying text.
164 See infra notes 168–278 and accompanying text.
165 See infra notes 168–192 and accompanying text.
166 See infra notes 193–267 and accompanying text.
167 See infra notes 268–278 and accompanying text.
168 See Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1125 (N.D. Ohio 1990).
169 See id.
170 See Restatement, supra note 19, � 132 Reporter’s Note cmt. j; Hazard, supra note 82, � 1.7:207.
171 Gould, 738 F. Supp. at 1127.
172 Id.
173 See generally id. at 1128.
174 Id. at 1122.
175 Id. at 1123–24.
176 Gould, 738 F. Supp. at 1122–23.
177 Id.
178 Id. at 1123.
179 Id. at 1123–24.
180 Id.
181 Gould, 738 F. Supp. at 1124–25.
182 Id.
183 Id. at 1125.
184 Id. at 1126.
185 Id. at 1127.
186 Gould, 738 F. Supp. at 1124–25.
187 Id.
188 Id. at 1126–27.
189 Id.
190 See infra notes 193–267 and accompanying text.
191 See infra notes 193–267 and accompanying text.
192 See supra notes 108–158 and accompanying text.
193 See, e.g., Teradyne, Inc. v. Hewlett-Packard Co., No. C-91–0344 MHP ENE, 1991 U.S. Dist. LEXIS 8363, *10, 15 (Jun. 6, 1991); Hartford Accident & Indem. Co. v. RJR Nabisco, Inc., 721 F. Supp. 534, 538 (S.D.N.Y. 1989); Pennwalt Corp. v. Plough, 85 F.R.D. 264, 272(D. Del. 1980); Brooklyn Navy Yard Cogeneration Partners v. Superior Court, 60 Cal. App. 4th 248, 253 (1997).
194 See, e.g., Gould, 738 F. Supp. at 1127.
195 See id. at 1126–27.
196 Pennwalt, 85 F.R.D. at 269.
197 See id. at 269, 272.
198 Id. at 264.
199 Id. at 266.
200 Id. at 265.
201 Pennwalt, 85 F.R.D. at 265.
202 Id.
203 Id. at 266.
204 Id. Note once Dechert was aware of the conflict it failed to inform its clients. Id.
205 Id. at 267.
206 Pennwalt, 85 F.R.D. at 268.
207 Id.
208 Id.
209 Id.
210 Id. at 268–69.
211 Pennwalt, 85 F.R.D. at 269.
212 Id. at 271–72.
213 Id.
214 Id.
215 See id. at 272.
216 Pennwalt, 85 F.R.D. at 272.
217 Id. at 272–73.
218 See id. at 272.
219 See id.
220 See, e.g., Hartford Accident & Indem., 721 F. Supp. at 538.
221 See id.
222 See id. at 539.
223 See, e.g., id. at 540; Pennwalt, 85 F.R.D. at 272.
224 See, e.g., Univ. of Rochester v. G.D. Searle & Co., 00-CV-6161L(B), 2000 U.S. Dist. LEXIS 19030, *26–27 (W.D.N.Y. Dec. 11, 2000).
225 See, e.g., Gould, 738 F. Supp. at 1127; Pennwalt, 85 F.R.D. at 272.
226 See, e.g., Gould, 738 F. Supp. at 1127; Pennwalt, 85 F.R.D. at 272.
227 See 2000 U.S. Dist. LEXIS 19030, at *22, 25.
228 Id. at *9, 10.
229 See id. at *21–30.
230 Id. at *27.
231 Id. at *21–30.
232 Univ. of Rochester, 2000 U.S. Dist. LEXIS 19030, at *29.
233 152 B.R. 861, 862 (Bankr. S.D.N.Y. 1993).
234 Id. at 862.
235 Id. at 862–63.
236 Id.
237 Id. at 863–64.
238 In re Wingspread, 152 B.R. at 864.
239 Id.
240 Id. at 865.
241 Id. at 864.
242 Id. at 865.
243 Teradyne, 1991 U.S. Dist LEXIS 8363, *10–11.
244 See supra notes 193–267 and accompanying text.
245 Teradyne, 1991 U.S. Dist. LEXIS 8363, at *14–16.
246 Id. at *10–12.
247 See id. at *14–15. But see Wolfram, supra note 85, at 346 (criticizing alter-ego formula because in “[w]renching the alter ego notion out of the fraud-prevention context for purposes of determining whether a client-lawyer conflict exists risks serious distortion”).
248 Ex parte AmSouth Bank, N.A., 589 So. 2d 715, 719 (Ala. 1991).
249 Id. at 716
250 Id.
251 Id.
252 Id. at 716–17.
253 AmSouth Bank, 589 So. 2d at 717.
254 Id.
255 See id. at 718.
256 See id. at 719.
257 Id.
258 See AmSouth Bank, 589 So. 2d at 719–20.
259 Id. at 719.
260 See supra notes 193–267 and accompanying text.
261 See Rotunda, supra note 5, at 685–86 (noting that in Gould, although the law firm acted inappropriately in failing to either obtain consent or notify its clients of the conflict, disqualification was not warranted because of the balance of time and money and lack of fault).
262 See Wolfram, supra note 85, at 358.
263 See Rotunda, supra note 5, at 685 (noting that if “the same people act for both [entities] in retaining and actively supervising the outside lawyer” it is “an important factor to consider in determining” whether corporate formalities should be ignored).
264 See id. at 684–85 (suggesting “it may be appropriate to pierce the corporate veil” in an ethics issue “when the parent corporation has an integrated legal department with similar personnel”); Wolfram, supra note 85, at 358–59 (emphasizing the operational issues involved when there is shared management but questioning the importance of shared legal departments).
265 See Rotunda, supra note 5, at 686.
266 See id.
267 See Gould, 738 F. Supp at 1126.
268 Compare Gould, 738 F. Supp at 1127, and Univ. of Rochester, 2000 U.S. Dist. LEXIS 19030, at *27–30, with Restatement, supra note 19, � 132 cmt. j.
269 See Restatement, supra note 19, � 121 cmt. d.
270 See id. � 121 cmt. d, illus. 6.
271 Id. � 121 cmt. d, illus. 8.
272 Id. � 121 cmt. d, illus. 9.
273 Id.
274 Compare Restatement, supra note 19, � 121 cmt. d, with Gould, 738 F. Supp. at 1127–28, and Pennwalt, 85 F.R.D. at 271–72.
275 See Restatement, supra note 19, � 121 cmt. d.
276 Id. � 132 cmt. j.
277 Univ. of Rochester, 2000 U.S. Dist. LEXIS 19030, at *29–30.
278 Id.
279 See Sacksteder, supra note 9, at 764 (arguing that per se rule inappropriately uses too broad a view of loyalty for the modern legal profession because it incorporates “more thorough-going loyalty as a person” versus “loyalty in the performance of a role”).
280 See supra notes 168–267 and accompanying text.
281 See supra notes 284–290 and accompanying text.
282 See infra notes 291–301 and accompanying text.
283 See infra notes 302–326 and accompanying text.
284 Rotunda, supra note 5, at 655–56 (noting that under corporate law each member of a corporate family is treated separately except in the extremely rare case of veil piercing but this is opposite conflict of interest rules which routinely ignore corporate formalities). But see Wolfram, supra note 85, at 348–49 (asking why business decisions about corporate form having nothing to do with the retention of lawyers should control the scope of loyalty).
285 Rotunda, supra note 5, at 670 (criticizing rule which allows large corporations to create separate subsidiaries when it suits their purposes as well as to retain the benefits of being a single entity for disqualifying opposing counsel).
286 See id.
287 Id. (noting “for every purpose (except, apparently, for purposes of the law of conflicts) the law treats parents, subsidiaries, and sister corporations as separate and distinct legal entities”).
288 See id.
289 See id. at 672.
290 See Rotunda, supra note 5, at 672–73. But see Wolfram, supra note 85, at 349–50 (criticizing rule that relies on agreements to protect clients because it may shift responsibility for addressing conflicts from the attorney to the client).
291 See Boyd, supra note 59, at 23.
292 See, e.g., Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1576–77 (Fed. Cir. 1984) (noting over disqualification encourages “vexatious tactics and increased cynicism by the public”).
293 See Univ. of Rochester v. G.D. Searle & Co., 2000 U.S. Dist. LEXIS 19030, at *15 (W.D.N.Y Dec. 11, 2000) (noting that disqualification is disfavored because it harms a client by separating him from his chosen counsel); Pasman, supra note 6, at 173 (noting that each attorney-client relationship is unique and that the “bond of trust that develops between them should not be severed lightly”); Wolfram, supra note 85, at 327 (commenting on the importance of “long-standing counsel who know . . . [the clients] affairs expertly and who can quickly and efficiently focus on the client’s particular legal needs”).
294 See Wolfram, supra note 85, at 363 (praising exception to the hot potato rule because of burden of changing counsel after the representation had begun and the importance of attorney choice).
295 Id.
296 See Susan Shapiro, Symposium Case Studies in Legal Ethics: Everests of the Mundane: Conflicts of Interest in Real-World Legal Practice, 69 Fordham L. Rev. 1139, 1143 (2000) (noting that long-standing clients may see the refusal to take on representation as breach of loyalty).
297 See Drucker, supra note 14, at 535.
298 See Rotunda, supra note 5, at 683–84.
299 See Drucker, supra note 14, at 557–58.
300 See, e.g., Formal Op. 390, supra note 8 (Fox, dissenting); Romansic, supra note 7, at 315.
301 See, e.g., Panduit, 744 F.2d at 1576–77.
302 See Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1126 (N.D. Ohio 1990) (arguing increased merger activity and resulting increase in conflicts requires courts to take “less mechanical approach” to disqualification).
303 See id. at 1127.
304 See supra notes 162–278.
305 See Gould, 738 F. Supp. at 1126–27.
306 See id.
307 See supra notes 108–158.
308 See Gould, 738 F. Supp. at 1127; see also supra notes 325–326.
309 See Gould, 738 F. Supp. at 1127.
310 See id. (noting that because there was a conflict of interest that representation of one of the clients must be discontinued).
311 See Rotunda, supra note 5, at 664.
312 See id.
313 See supra notes 237–238.
314 See Univ. of Rochester, 2000 U.S. Dist LEXIS 19030, at *27–30.
315 See id.
316 See Restatement, supra note 19, � 132 cmt. j.
317 See id. � 121 cmt. d.
318 See id.
319 See id. � 132 cmt. j.
320 See id.
321 Univ. of Rochester, 2000 U.S. Dist LEXIS 19030, at *29–30 (noting that courts have adopted the no-fault factor as one factor to be considered in balancing facts and circumstances, not as a “cure” as in the Restatement).
322 See id.
323 See id.
324 See id.
325 See id.; Gould, 738 F. Supp. at 1127 (noting that the law firm was unethically slow in responding to the conflict and that this is a serious breach of ethics).
326 See Univ. of Rochester, 2000 U.S. Dist. LEXIS 19030, at *29–30.