Writing a brief at the moment, so in lieu of something more interesting, here’s an excerpt of my current project:
The Bishop firm’s motion for disqualification fails to meet the standard of conduct dictated by MRPC 1.10(b), as the very language of the statute predicates the conduct of the firm upon a specific, time-based conditional modifier. The plain language purports that the firm shall not “knowingly represent a person” when “a lawyer becomes associated with [that] firm.” id. Even a cursory reading would place the time frame for “knowing representation” at that when “a lawyer becomes associated with a firm,” or the time at which Mr. Bluth began the process of formerly accepting, through procedural forms and the like, employment at the Loblaw firm. Further, “knowingly” is defined by the Rules as “actual knowledge of the fact in question,” and as Mr. Bluth told no one at the firm of his prior experience with the Bishop firm until reporting to Mr. Lang on September 9, there is no supportive proof whatsoever for any contention that the Loblaw firm had knowledge acquired through Mr. Bluth which would meet that standard.
Furthermore, “associated” is left undefined. A too strict interpretation would result in an absurdity: it cannot be that an “association” would consist of preparatory conversations or interviews with potential employees. To read the statute as such would be to severely limit the range of representation available to litigants, as firms would be routinely disqualified for what is a normal and regular part of business unrelated in any direct, significant way to litigation. The conversations the Loblaw firm had with Mr. Bluth in October and November of 2010, focused as they were on the minutiae of potential employment and lacking any legal substance, cannot be considered “associations” as intended by the writers of the code. The Loblaw firm’s imposition of a screening mechanism within the early days of Mr. Bluth’s employment was perfectly within the limits of the standard.