Yes, the law firm has to be kicked off the case. The first judge got it wrong. Bigbee's old job for Gulf is very closely connected to this new lawsuit. In their old job, they almost certainly learned secrets about how much uranium Gulf had. That information could be used to hurt Gulf in this case, which is all about whether companies were hiding their uranium supply. Gulf's old promise to let the law firm represent UNC doesn't work as an excuse, because you can't agree in advance to let your own lawyer use your secrets against you later.

The Bigbee law firm shouldn't work for United Nuclear in the lawsuit because the things they did for Gulf Oil before are too similar to what the case is about now. The secret information about how much uranium Gulf had and how good it was could be important in showing they were part of the price-fixing plan. The first judge was wrong to say it wasn't related enough. Also, even though Gulf said it was okay for Bigbee to work for United before, they didn't say Bigbee could use Gulf's secrets against them in court. The court doesn't need to know if Bigbee actually used the secrets, it's enough that they could have learned them while working for Gulf.

Finally, it must be determined whether that information is relevant to the issues raised in the litigation pending against the former client.

—"where an attorney represents a party in a matter in which the adverse party is that attorney's former client, the attorney will be disqualified if the subject matter of the two representations are `substantially related.'"

—"... consent to the mere representation of a client with adverse interests does not amount to either consent to breach of confidential disclosure or to the use of that information against the consenting party in litigation."

"The determination of whether there is a substantial relationship turns on the possibility, or appearance thereof, that confidential information might have been given to the attorney in relation to the subsequent matter in which disqualification is sought."

If the "substantial relationship" test applies, however, "it is not appropriate for the court to inquire into whether actual confidences were disclosed,"

—has held that the passage was carefully constructed so that the consent clause only applies to the portion of the sentence dealing with the lawyer's personal use of confidential information. "The omission of this phrase from the first half of the sentence leads to the conclusion that a client's consent will not justify the use of confidential information against the client."

In addition to the foregoing, there must be a substantial relationship between the matters in that the information must be relevant to the pending litigation.

Rather, the court need only ask " `whether it could reasonably be said that during the former representation [that] attorney might have acquired information related to the subject matter of the subsequent representation.'"

A] n agreement to restrict the production of uranium unquestionably is a price fixing arrangement.... In fact, all serious attempts to establish a supracompetitive price must necessarily include an agreement to restrict output

Yes. A law firm must be disqualified where its current representation is substantially related to its prior representation of an adverse party, and a former client's general consent to future adverse representation does not waive the right to disqualify where confidential information might be used against them. The district court erred in its application of the substantial relationship test. The test requires determining the scope of the prior representation, inferring whether confidences were shared, and assessing the relevance of that information to the present litigation. Given Bigbee's work patenting Gulf's mining claims, it is reasonable to infer they received confidential information about the quantity and quality of Gulf's uranium reserves. This information is highly relevant to the antitrust suit, as proof that Gulf restricted its output from known reserves would be powerful circumstantial evidence of a price-fixing conspiracy. The district court mistakenly believed proof of price-fixing was limited to direct evidence of meetings and communications, ignoring that restricting output is a form of price-fixing. Furthermore, Gulf's purported waiver is legally insufficient. Ethical rules do not permit a client to consent to an attorney using their confidential information against them in litigation. A vague, prospective consent to representation of an adverse party does not constitute consent to the breach of confidentiality.

The Bigbee firm should be disqualified from representing UNC in the Westinghouse litigation because there is a substantial relationship between the matters handled for Gulf and the current litigation. The information regarding the quantity and quality of uranium reserves is relevant to the allegations of price-fixing. The district court erred in its application of the substantial relationship test and in assessing the relevance of the information to the litigation. Gulf's general consent to representation does not amount to consent for the use of confidential information against it in litigation. The court need not inquire into whether actual confidences were disclosed; the possibility or appearance that confidential information might have been given is sufficient for disqualification.

Westinghouse Elec. Corp. v. Gulf Oil Corp.

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