5th Circuit decides disqualification case involving departing-lawyer rule

Is there a rebuttable or irrebuttable presumption that an attorney had the confidences of all of a firm's clients when he left that firm? According to the 5th U.S. Circuit Court of Appeals, it's  rebuttable. Several legal ethics experts have said that a ruling to the contrary would have been a disaster for the legal profession in Texas and for any lawyer who has left one firm to go to work for another. Kirk A. Kennedy and Mark A. D'Andrea v. Mindprint Inc. involved a case in which former Jackson Walker senior counsel Kirk Kennedy was disqualified by a U.S. Bankruptcy Court judge from representing a client in a case in which Jackson Walker represented an adverse party. A U.S. District Court affirmed the bankruptcy judge. Kennedy, now general counsel for Gulf Coast Cancer Center, appealed the decision and argued before the 5th Circuit this month that he did no work on behalf of Jackson Walker’s client Mindprint while at the firm. In fact, he didn’t even know that Mindprint was Jackson Walker’s client while he worked at the firm. But Jackson Walker argued there was an irrebuttable presumption that Kennedy had client confidences. In its decision, the 5th Circuit agreed with Kennedy that there is a rebuttable presumption for lawyers in his position and reversed the U.S. District Court's ruling disqualifying Kennedy. “Under both the Texas Rules and the ABA Model Rules, Kennedy should have had the opportunity to demonstrate that he did not obtain confidential information regarding Mindprint during his time at Jackson Walker. Kennedy presented uncontradicted evidence that he was unaware of Mindprint’s existence . . . during his affiliation with Jackson Walker. In light of this evidence, Kennedy successfully showed that his imputed disqualification ended when he left Jackson Walker; therefore, his representation of [Kennedy's client] D’Andrea did not present a conflict of interest requiring his disqualification,” wrote 5th Circuit Judge Carolyn Dineen King who was joined by Judges Eugene Davis and Fortunato “Pete” Benavides.

-- John Council