denial of our motion to disqualify locke lord as counsel for being f in this case it's clear that there was a concurrent representation where b n f it been a longstanding client of lock representation where lockwood was representing victoria knox in this litigation and was also representing b n f with respect to certain trademark matters in issuing its opinion below the court basically supposed to consider only in the instance in which you don't have a concurrent representation but you have a firm that is seeking to undertake representation against the former client my guess at g s i set forth the standard and years i don't think so i don't think so you're i think it well certainly they attempted and did terminate the relationship and twenty fifteen but i think that you can't avoid the consequences of a concurrent representation by merely kicking one client to the curb and saying now we're going to represent the other client and i realize it's a district court but just a court case but the market case which was decided in the southern district deals with the specific issue because the fact is there's a lesser if you're trying to disqualify them and concurrent representation so that the merck decision discusses that very issue and says well you can't avail yourself of the lesser standard just by kicking the client that you currently have to the curb you're finding that i don't think i don't think that that i think that that that's that's more of an amputee ation issue your honor and i think that it's not really relevant to the inquiry of when you deal with a situation where everything i of one existing client in a matter adverse to another existing quite clearly existed here the court noted that below concurrent representation is prima fashion improper it is incumbent upon the attorney to show at the very least that there will be no actual or apparent conflict in loyalties or diminution in big in the vigor of his representation we have noted that this is a burden so heavy that it will rarely be met well let's talk about an apparent conflict of loyalties clearly the court in its decision refers to an apparent conflict of loyalties it notes it on on page six and said basically mr gordon the attorney who had represented be enough for a long period of time acknowledged that there was an apparent c process if that isn't an actual actual conflict in loyalties i am really not sure what is returning to my colleague's question at the start that's happened already this was it might have been a reason at the beginning to say be doing this concurrent representation and willingly went on is it now a reason for disqualification if there's no exchange if there's a finding by the district court looking at the axiom that standard there was no confidential information exchange this team that is currently litigating this is where private information well we don't know that obviously because we weren't granted full disclosure full disclosure discovery on that issue there was some testimony at a hearing and brief in our brief but actually not in the intervenors brief and it and it's present and it says with respect to revealing confidential information says a court should not at that's in the in the context of representing former client but i think the rationale still was a court should not require proof an attorney actually had access to or privileged information such a requirement would put the former client to the hobson's choice of either having to disclose the prevailing privileged information or disqualify his former attorney or having to retain from that disqualify disqualification motion altogether so what you're what you're putting you're putting in a situation of saying well now i'm going to have to approve this i'm going to have to go and reveal what these client confidence there any taint and where would you look for well it's actually it should rick should raise it in again the g s i case it says disqualification is only warrant is warranted only if an attorney's conduct tends to taint the underlying truck trial one establish ground for disqualification is concurrent representation so concurrent representation meets the standard of think if that's the applicable standard even in a concurrent representation situation that's what the g s i decision tells us also what pressures on tells us is one recognized form of taint arises when an attorney places himself in a position where he could use a client's privilege information against that client well here you have a firm that has been handling trademark matters for years and years and years over the dallas office and mr hard and the well i don't know i think that the basis of it has been i think this is why i think the court the court said that they that they took certain steps to prevent that from happening and there was nothing in the record to i because just if you look at the lower court decision involved attorneys we had one set of attorneys handling the litigation involving the current subsidiary of the current client and they had no knowledge or information about anything that had gone on with respect to the other aspects of the representation and the court it didn't even consider that as a factor quite frankly and that's what's what's most surprising about about the trial court's failure to even discuss the g s r decision is issue that decision it was affirmed by this court it's directly on point you have to concur representation you had facts where the attorneys we had different attorneys involved if you read the trial court opinion with respect to the various matters that they were involved in actually just like takes it one step further it's it's a it's a conflict now with the actual client but a subsidiary of the quite so this is this is very serious stuff and it shouldn't be taken lightly and i think that the court quite frankly it honestly did that its opinion and ignored it ignored the equities the situation also it found first that they had represented ortiz in a litigation who who  representation without getting approval from the client in advance in violation of new york many new york professional rules of conduct he performed the conflicts check that it knew was it was was not complete it basically had it while it had it said we're going to only check conflicts for clients who have provided us with one hundred thousand dollars in business in the prior to years and that's i mean they had to have  noted and their witnesses admitted on the stand at the hearing that yes they knew they were going to be doing a complete check because they said they needed to complete it expeditiously so the the merger could take place is that why this conflict was not because i think that i think that's correct it's of their own being n consecutive representation is the the issue that you have to look into is whether or not the scope of the work was substantially different i think that's one of the key elements and what's troubling about judge cause finding is he examines that and latches on to that says that's one of the reasons here that i'm finding that there's no disqualification he's actually kind of if he's giving paying lip service to what the actual standard is but at the same time incorporating elements of to start with an important point law court acknowledges that it has an ethical obligation to conduct a search for conflicts of interest and start with that basic premise it does not dispute that its pre merger conflict check was less than perfect law court heard loud and clear well judge rakoff have to say both at the hearing where it produced witnesses and in his decision but an imperfect conflict check because there were other other avenues of of discipline in the state system and that is correct and what we are here to do today to determine whether of law firm should continue to represent a client in an active matter this is not a disciplinary proceeding you know the law you know in hempstead and all the cape court's prior decisions make that point explicitly clear in every case of disqualification in this circuit whether it be one arising from a concurrent representation of former representation a corporate affiliation or as this court most recently considered a nonparty representation it boils down to one important question is there a substantial risk that a client's confidential information will be used by an attorney in a manner that's harmful to that client that's the issue if there's no substantial risk the court has consistently declined to disqualify that is the theme that runs throughout all the circuits cases at the hearing below law courts submitted uncontroverted evidence that there was no substantial risk a lot lord had access to the appellants confidential information at a point in time when it was meaningful that's important throughout these cases the courts have always considered what is the timing of the alleged access relative to a determination on the merits undisputed in this case that by the time the edward wildman firm merged with locke lord on january twelfth two thousand and fifteen its motion for summary judgment on behalf of victoria knox had already been submitted for decision the evidence supporting that motion was developed by edward wildman well before the merger further timeline of events shows after carefully considering the evidence judge rakoff issued his bottom line decision ordering summary judgment ten months before this merger made before any decision had been reached on the merits of whether baby center had breached its e commerce agreement with g s i at the beginning of the case in that case it was argued by g s  that babysitter had waived the conflict of interest and the terms of the engagement agreement there wasn't any submission of evidence with regard to access n g s on court and discuss that issue case is not relevant here this court disagreed that there was a clear waiver in the g s i case and affirm the lower court's decision in doing so i found and this is the point at g s i had quote failed to do  any evidence to rebut the presumption of trial taint there are no set of facts in this circuit that mandate an order of disqualification each case is considered based on to fly here the presumption the presumption the question is whether the presumptions are rebuttable or not the presumption applies here i think that judge rakoff applied the presumption but he also was open to considering evidence to rebut that presumption and that's what occurred here the court took an evidence had a hearing and determined that the rebut the presumption had been properly re it's not not since hempstead video has been the law in this circuit that a presumption of confidence sharing is your rebuttable that's the law in the circuit we didn't hear once during the opponent's presentation hempstead video case rejected in fact the same sort of per se disqualification well it's now being urged by the appellant and decided instead to adopt the rebuttable presumption procedure that we just talked about what what what would it would be a new standard in this circuit if we were to say because of an it an egregious error in a conflict check we are going to now automatically disqualify a law a look at judge roy harden's testimony which the court below found credible he explained himself he did draft that letter to be enough and he said in his mind it wasn't clear to him whether there was a conflict and he offered a good good reason for that judge recall found otherwise and there's a reason for it he said that under texas conflict rules there is a circumstance where there can be a concurren on what we called it below the texas rule rule one point six and but he tried to explain that mr harden state of mind was informed by that rule the man was a lawyer in texas for forty years and he wasn't sure whether that was a conflict he also said interestingly that shortly after he sent his letter which didn't say that or i'm suggesting is that mr hardin had a particular set of rules in mind when he decided to send that letter he said very candidly before a judge or a cough if i had a chance to do it again i'm paraphrasing him but if i had a chance to do it again i might have said more and i don't i don't i think that that was credible he would have said more but the question here is should lot lord be disqualified that's really where we are  you know if a if a disciplinary body should you know take a look at those other things to talk about perhaps but here question is really whether victoria knox you know should continue to be represented by a law firm and a group of lawyers that have no access no ability to even get access to information concerning the be enough in fact it's kind of ironic that the appellant points to the the very vigor in which the arguments were presented implemented after the merger and after discovering that that the firm was representing b n f they did the proper thing by saying well it was like what was was directed at to the to the average woman team say none of their none of the b n f legacy files most of which the paper files had ready been shipped back to the client i had stood that division was  sector specific not clients pacific that the new york firm as it was would have a division with the dallas from as he was noted to outside but then there's a finding that there was no communication the two did not know that the other represented you know the other client there is there were there was there that moment there were a period of time where there was no knowledge what was the when was the electronic mall implemented so it was after the merger i believe it was february eighteenth two thousand and fifteen right after conflict  to connect the document management systems of the two firms remain separate there's no evidence that anyone talked to each other the declarations make affirmative statements that they did not talk to each other for most of the period of time that we're talking about the two did not even know that they were representing clients that were adverse to each other might be able to clear some of this up having lived through it first i just want to indicate that i don't think the integrity of the adversarial process is going to has been affected or compromised by anything has been done in this case we we've  d we lived through a merger we had separate i t systems we were in separate offices literally in new york we were in separate offices from lock lord offices for a year it was no way we could be revealed communicating on that basis our systems could not get into any other systems unlock lord they couldn't get into ours once it occurred that there was a inability to do that which is much later it's probably in early late late last year we needed access codes to get in and we didn't want them we didn't have them and also on this on this screen it went up it went up right after i counsel's office that we had been that this motion had been had been had been made so that we could meet we put up a screen as i had no clue up until the day before the motion was filed that we even had a conflict and i received a call from communications no confidential privilege nothing has ever transpired and in terms of the screen i think the screen went both ways mr hartman could not the people who were can be in if couldn't get into the door knocks documents either so it worked can both ways in terms of  suffered on unmoored injury and cost if they're disqualified victorian arts wants to continue with and does not want to lose its outside ip council who've represented them for over twenty years and that we had we were totally separate in every way and it's an unfortunate circumstance but we merged and that's where we are thank you  about well first i'd like to address mr tweet use comments about the letter that mr harden sent to his former client when he was turning the relationship would be an f the court found that letter to be misleading on its face but also because of the apparent conflict so you know here here your honor mr mr ratting talked about the equities involved in this case let's talk about those a little bit here we have a firm that by its own admission conducts an insufficient conflicts check puts in procedures to protect against what who knows what's going on because i think when mr reddy was doormats on the equities he was saying that his client has a big interest in the outcome of this this is not just a collision of of ethical positions and and love for his client has invested in in a very substantial representation of or a long period of time and wonders why that would be severed or interrupted based upon something which nobody can prove any real harm that's of their own making your honor i mean they they clearly were were how did that affect you know well again again you're i think we get to the maybe it's a man text but i think the g s i opinion opinion tells you what's the current representation that's a prima fashion existence of taint of taint and the lawyer who would sue his own client asserting in justification the lack of substantial relationship between the litigation and the work he has undertaken to perform for that client is leaning on a slender reed indeed here here we have is a situation we really directly on point which discusses this issue but i want to just address the equities on that last point if the court affirms the lower court's decision basically what it's telling what it's telling what it was telling firms is that you can engag concurrent representation of two clients without disclosing it and getting prior approval to conduct a woefully inadequate conflicts check and then three basically mislead your client as to the  for which you're terminating the relationship and on top of that all those circumstances exist and guess what you know what you are required to pay the attorney's fees of the firm that's making all these allegations against you and engaged in this reprehensible conduct which is really what it is i mean it was it was the court discussed it is as negligent or even grossly negligent below so basically you'd be sanctioning a situation where they do nothing right and on top of that they're entitled to recover