Peter Smythe, P.C.

In the case sty­led Ken­nedy v. Mind­Print, the Fifth Cir­cuit gave a bone to law­yers who leave their big firm dreams and find them­sel­ves repre­sen­ting a client with inte­rests adverse to a big firm client.

Kirk Ken­nedy was an asso­ciate in Jack­son Walker’s ban­kruptcy sec­tion for a rela­ti­vely short period of time, but during that time one of the firm’s part­ners repre­sen­ted a client named Mind­Print in ban­kruptcy court. Though Ken­nedy wor­ked with this part­ner, he never became aware of the firm’s repre­sen­ta­tion of Mind­Print and was never privy to any of MindPrint’s con­fi­den­tial information.

He sub­se­quently left the firm and found him­self repre­sen­ting a phy­si­cian who was invol­ved in an adver­sary pro­cee­ding in the Mind­Print ban­kruptcy case. Jack­son Wal­ker moved to dis­qua­lify him from repre­sen­ting the good doc­tor, arguing that there was an irre­but­ta­ble that he had lear­ned MindPrint’s con­fi­den­tial infor­ma­tion while at the firm. The dis­trict court gran­ted the motion.

Ken­nedy appea­led and the Fifth Cir­cuit had to decide whether he was dis­qua­li­fied from repre­sen­ting his new client because of Jack­son Walker’s repre­sen­ta­tion of Mind­Print. After exa­mi­ning the Texas Dis­ci­pli­nary Code of Pro­fes­sio­nal Con­duct, the Model Rules of Pro­fes­sio­nal Con­duct, and some fancy law review artic­les, the Fifth Cir­cuit deci­ded that an irre­but­ta­ble pre­sump­tion was “both unwor­ka­ble and unwor­ka­ble.” It held, ins­tead, that a migra­ting law­yer like Ken­nedy should have the oppor­tu­nity to demons­trate that he didn’t obtain con­fi­den­tial infor­ma­tion of his for­mer firm’s client while wor­king at the big firm (the court pas­sed on the ques­tion of whether the firm or the migra­ting law­yer bears the bur­den of proof).

A copy of the opi­nion is here: Mind­Print Case.

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