In a non-precedential decision, the U.S. Court of Appeals for the Federal Circuit disqualified the law firm King & Spalding from representing defendant in an appeal where one of its attorneys testified in the trial below as an expert for the other party. Outside the Box Innovations, LLC v. Travel Caddy, Case Nos. 09-1171, -1558 (Fed. Cir., Feb. 1, 2010 ) (Dyk, J.).

The conduct that gave rise to charges of inequitable conduct began when Anthony B. Askew, a partner at King & Spalding, submitted a declaration as an expert witness in support of a motion for attorneys’ fees filed by Outside the Box (doing business as Union Rich USA). K&S opined that Union Rich’s requested attorneys’ fees were reasonable, based on his experience. Travel Caddy opposed the motion, challenging the strength of Askew’s assertion. The district court ruled against Union Rich, denying the request for attorneys’ fees and finding that the parties should be held responsible for their own fees.

After the district court proceedings concluded, Travel Caddy selected three attorneys from K&S to represent it in the appeal. Union Rich objected, arguing that Travel Caddy and Union Rich’s interests were “materially diverse” and that K&S attorneys should be disqualified under the principle of “implied disqualification” for “switching sides” without knowledge and consent of the parties.

Union Rich’s motion for disqualification brought before the Federal Circuit the issue of whether a law firm is disqualified from accepting representation of a client on appeal because one of the firm’s attorneys was an expert witness in the same matter on behalf of a party having an adverse interest. Judge Dyk, focusing on Georgia Rule of Professional Conduct (GRPC) 1.7, which states that “a lawyer shall not represent a client if there is significant risk that the lawyer’s own interests or duties to another client or a former client will materially and adversely affect the representation of the client,” noted that under this rule, an attorney may represent a client, notwithstanding these potential material and adverse affects, only if the client consents.

Judge Dyk agreed with Union Rich that K&S would find itself in precisely the predicament barred by GRCP 1.7 if it continued to represent Travel Caddy since in the course of that representation the new K&S lawyers would have to challenge the sufficiency of Askew’s expert testimony. If they did not challenge his opinion, it would be tantamount to inadequate representation. The Court noted that no proof existed that Travel Caddy had waived the conflict, thus removing the only potential grounds for the K&S to avoid disqualification.

Practice Note: This ruling serves as a reminder of the ethical rules that govern attorney conduct and the ramifications of failing to ensure that one client’s interests are not materially adverse to another.