Very few cases concerning disqualification of counsel actually make it to the federal appellate level, which makes the Sixth Circuit’s decision in Bowers v. The Ophthalmology Group both unusual and noteworthy.  The case involved a question of disqualification of counsel based on prior representation and whether that prior representation was “substantially related” to the present representation.  A divided Sixth Circuit, finding that it was, determined that defense counsel had to be disqualified and the case remanded to the trial court for proceedings without the disqualified counsel.

The underlying lawsuit involved a Title VII employment suit brought by a doctor who was a partner in an ophthalmology group.  The district court had granted summary judgment in favor of the defendant and had denied the disqualification motion as moot.  The disqualification motion was premised on the fact that defense counsel’s law firm had previously represented the plaintiff when she attempted to establish an additional ophthalmology practice a few years earlier.  The law firm resisted the motion, submitting documentation to support its argument that there was no conflict from the prior attorney-client relationship.

The case accordingly turned on whether the prior representation was substantially related, and the Sixth Circuit noted that “we have not explored previously the contours of what constitutes substantially related, so we take this opportunity now to do so.”  Given the dearth of authority on this issue, the Sixth Circuit turned to a district court decision from Kansas and a law review article to help determine the appropriate standard.  The majority held:  “the court must look to the general type of information that the potentially conflicted lawyer would have been exposed to in a normal or typical representation of the type that occurred with the now adverse client.”  Based on this approach, the Court determined that the law firm likely would have obtained confidential information concerning the plaintiff’s relationship with her partners, which yielded a substantial risk that confidential information could be used against her in this proceeding.  Because of the need for disqualification, the Court also vacated the summary judgment grant and directed that further proceedings take place without disqualified counsel participating.

Judge Griffin dissented, emphasizing that motions for disqualification are generally disfavored.  The heart of his criticism of the majority’s approach is that he believes that the majority largely relied on speculation rather than evidence as the justification for disqualification (thereby effectively making it much easier to secure disqualification).   Therefore, he would have concluded that the prior representation was not substantially related and did not warrant disqualification.

Given the lack of authority at the circuit level, this case could certainly have a significant impact in the area of disqualification of counsel and the meaning of substantially related.  Since model rules use similar language, we can expect to see this case cited as authority in multiple jurisdictions.  It goes without saying that anyone considering a disqualification motion (or counsel analyzing whether they may be subject to a disqualification motion) should take a careful read of this opinion.