it against a client, or “if the lawyer is a firm rather than an individual practitioner—different
people in the firm scrupulously avoided discussing them.” Id. “It is not appropriate for the court
to inquire into whether actual confidences were disclosed”, but rather, could they have been’

disclosed. Id, (citing Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 224 (7th Cir.

1978)).

The Seventh Circuit employs a three-step test to determine whether two matters are
substantially related under Rule 1.9:

Initially, the trial judge must make a factual determination of the scope of the prior

Tepresentation. Second, it must be determined whether it is reasonable to infer that the

confidential information allegedly given would have been given to a lawyer representing

a client in those matters. Finally, it must be determined whether that information is

relevant to the issues raised in the litigation pending against the former client.
Westinghouse Electric Corp., 588 F.2d at 225. The Court will address these factors in turn.

In analyzing the concurrent conflict of interest, the Court has already addressed the scope
of the prior representation—Baker has been engaged by Altiris primarily to handle international
corporate transactions, work principally performed by Baker's international lawyers, with some
recent work performed by Baker attorneys in San Francisco. Because Baker and Altiris have had
an ongoing attorney-client relationship for two years, it is reasonable to assume that confidential
information has been exchanged between them. However, as discussed when analyzing the
concurrent representation conflict in Section I.A.2 of this opinion, Baker’s representation of
Altiris is not substantially related to its representation of Installshield in this present cause of
action. Baker’s representation of Altiris largely involved international laws and research on

abstract legal principles-nothing that would remotely affect the disposition of this case. This

includes the work Baker performed related to Altiris’ acquisition of Wise. Again, that legal work

-13-


associated with this litigation, will directly impact the financial results of Altiris, there is an
inherent conflict of interest that cannot be cured by a waiver. Additionally, Altiris/Wise notes
that the President of Wise is now Craig Christensen, Altiris’ General Counsel and Baker’s
primary contact. Since December 2, 2003, Mr. Christensen has overseen every aspect of the
litigation between Wise and Installshield. Further, Altiris contends that Baker has performed
legal work related to Altiris’ acquisition of Wise, and contends that this work is substantially
related to the legal work performed for Installshield in its suit against Wise. Therefore, Altiris
contends, even if Baker withdraws from its representation of Altiris, it cannot represent
Installshield, due to Model Rule 1.9. (Rule 1.9 prevents a law firm from representing a current
client’s interests that are adverse to those of a former client in matters substantially related to the
law firm’s representation of the former client without informed consent). Therefore, Altiris
argues, Baker cannot represent both Altiris and Installshield without breaching its duty of loyalty
to each client, and must withdraw in order to preserve client confidences.

Instalishield, through special counsel, vigorously opposes the motion to withdraw.
Installshield argues that it would be prejudiced if Baker is permitted to withdraw, due to the
significant time and legal fees already invested into this litigation. Installshield contends that if
Baker is permitted to withdraw, it would have to repeat all of its litigation efforts with new
counsel, which would unduly delay proceedings in this Court. Additionally, Plaintiff contends

that the legal work performed by Baker on behalf Altiris is wholly unrelated to Installshield’s suit

-4-


Ili, CONCLUSION

For the foregoing reasons, Baker & McKenzie’s motion to withdraw from its representation of

Installshield is DENIED.

En

David H. Coar
United States District Judge

Dated: March 2, 2004

-17-


not related to the current pending litigation. The legal work performed by Baker involved due
diligence of the law of another country, which is not remotely related to the Installshield/Wise
litigation, because the current litigation involves domestic federal and state intellectual property
law. There is no evidence whatsoever that Baker has received information related to Wise’s
litigation strategies or confidential business information because of the work performed in
Amsterdam involving Wise’s acquisition.

There are other transactions that Altiris/Wise submitted to the Court for in camera review
during the evidentiary hearing on this matter that it contends are related to Installshield’s current
Suit against Wise. However, after reviewing Altiris/Wise's in camera submissions, the Court
determines that those transactions are not related to the current pending litigation. Although
Baker has performed “intellectual property” work for Altiris, it is unrelated to the pending
litigation. It defies both logic and the letter of the conflict of interest rules to assert that al}
intellectual property work performed for Altiris is “related” to Instalishield’s suit against Wise,
although there is absolutely no overlap of facts, circumstances or legal issues.

Altiris’ argument that these transactions provided Baker with information about Wise that
relates to this litigation fails. Baker has not worked on any legal matter for Wise Solutions, nor
has it worked on any matter for Altiris related to this litigation. Information that Baker possesses
about Altiris’ acquisition of Wise is publicly available through the Securities and Exchange
Commission’s (“SEC”) online service, EDGAR. Further, “familiarity with a company’s

corporate structure and personality is not enough to warrant disqualification.” International

Paper Co. v. Lloyd Mfg. Co, Inc,, 555 F.Supp. 125, 136 (N.D. Hl. 1982). There is no relation

-9-


(2) there is a significant risk that the representation of one of more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer,

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a),

a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Courts considering motions for disqualification must balance the competing
considerations of a party’s prerogative to proceed with counsel of its choice and the privacy of
the attorney-client relationship. Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983).
Generally, if an attorney or law firm is involved in a concurrent representation conflict and
cannot obtain a waiver of the conflict by both clients, there is a stringent standard of review. The
court must consider “the duty of undivided loyalty which an attorney owes to each of his clients.”
Whiting Corp v. White Machinery Corp., 567 F.2d 713, 716 (7th Cir. 1977) (quoting Cinema 5,
Ltd. v. Cinerama, Inc,, 528 F.2d 1384, 1386 (2nd Cir. 1976)). “The attorney must be prepared to
show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution
in the vigor of his [or her] representation.” Cinema 5, 528 F.2d at 1387.

2. The Merger Exception

The conflict before the Court is novel in that it arose through the activity of one of

Baker’s clients-namely Altiris’ acquisition of Wise~and not by any action of Baker. As mergers

and acquisitions have created a unique genre of conflicts. ‘As a result, courts have had to decide

how to analyze these cases under the traditional conflict of interest rules.

6-


against Wise, thereby foreclosing Altiris’ argument that this conflict is incurable without Altiris’
informed consent.’

Based on the Parties’ submission and the evidentiary hearing, the Court determines that
there are three issues that must be addressed in order to determine the proper resolution of this
conflict of interest: (1) Does the concurrent conflict of interest standard under Rule 1.7
automatically preclude Baker from representing Installshield in its litigation against Wise (this
assumes that either Altiris consents to the concurrent representation, or Baker withdraws from its
representation of Altiris); If the answer to (1) is no, (2) Does the former client conflict of
interest standard under Rule 1.9 preclude Baker from representing Installshield in the present
cause of action without Altiris’ informed consent; and (3) In light of the conflict of interest rules,
should Baker be permitted to withdraw from its representation of Installshield? Each of these
issues will be addressed in turn.

A. Does the Concurrent Conflict terest Standard Preclude Baker’s Representation

of Installshield in its Suit Against Wise?

1. Legal Standard for Concurrent Representation Conflicts of Interest
Baker is involved in a concurrent representation conflict, which is governed by Model
Rule 1.7, which states:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest

exists if:
(1) the representation of one client will be directly adverse to another client; or

? In post-evidentiary hearing submissions to the Court, Baker also contends that it has
not worked on any matters for Altiris substantially related to the claims in Installshield’s
current litigation against Wise.

5-


the circumstances in this action.’ Each of the Gould factors will be addressed in order to
determine whether Baker must be disqualified from representing Installshield because of its
concurrent representation of Altiris.

a iris/Wise Been Prejudiced b current Representati

Altiris/Wise argues that confidential information related to the litigation between
Installshield and Wise has been provided to Baker, thereby compromising its ability to represent
the Plaintiff in the underlying action. The Court does not dispute that Baker received
confidential information in the course of its representation of Altiris. However, based on the
February 17, 2004 evidentiary hearing and the Parties’ briefs, the Court concludes that none of
this confidential information is related to Installshield’s suit against Wise.

Altiris/Wise argues that Baker engaged in transactions for Altiris that are related to
Baker’s representation of Installshield in the underlying action.‘ One transaction involved work
performed by Baker's Amsterdam office, involving Altiris’ acquisition of Wise. Altiris argues
that this legal work is related to the Installshield/Wise litigation. However, based on the

evidentiary hearing and the Parties’ submissions, the Court determines that those transactions are

3 Other District Courts within the Seventh Circuit have used the Gould factors for
cases involving similar circumstances. In Gen-Cor. LLC v. Buckeye Corrugated, Inc., 111 F.
Supp.2d 1049 (S.D. Ind. 2000), the defendant sought to disqualify plaintiff's counsel, because
plaintiff's counsel also represented a newly-acquired subsidiary of the defendants in various
matters. Id. at 1050. The court focused on Gould’s analysis of whether confidences had been
revealed to the law firm due to the conflicting representations, and the costs of disqualification
to the non-moving party. Gen-Cor, 111 F. Supp.2d at 1055,1057.

* Significant information regarding these transactions was submitted to the Court for in
camera review, in order to respect the Parties’ attorney-client privileges. In the interest of
maintaining those attorney-client privileges, most of the facts and details of these transactions
are omitted in this public document.

-8-


ste Order Form (06/97)

United States District Court, Northern District of Illinois

N f Assigned Jud; i Sitting Judge if Oth
vor Magistrate Judge David H. Coar than Arigned Judge
CASE NUMBER 03 C 4502 DATE 3/2/2004
CASE Installation Technologies, Inc. d/b/a Installshield Software Corporation vs.
TITLE Wise Solutions, Inc.
[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
LOTION: of the motion being presented.]

Counsel’s Motion to Withdraw, or For Other Appropriate Relief [Doc. No. 49]

OCKET ENTRY:

Oo

Filed motion of [ use listing in “Motion” box above.]

Brief in support of motion due

Answer brief to motion due. . Reply to answer brief due, .

Ruling/Hearing on set for at

Status hearing[held/continued to] [set for/re-set for] on set for at

)
)
)
)
)
)

Pretrial conference[held/continued to] [set for/re-set for] on set for at

)
)
’

Trial[set for/re-set for] on at

{Bench/Jury trial] [Hearing] held/continued to at

opoagdooao|a

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (Local Rule 41.1 OFRCP41(aX1) OO FRCP41(a)(2).

)

[Other docket entry]

For the reasons set forth in the attached memorandum opinion and order,

Counsel Baker & McKenzie’s Motion to Withdraw [Doc. 49] is DENIED. Plaintiff's Motions for Leave
to File First Amended Complaint [Doc. No. 44] and [Doc. 45] are GRANTED, New Rule 16(b)

Scheduling Conference is set for Thursday, March 18, "Oe | |

| [For further detail see order on the reverse side of the original minute order.]

)

No notices required, advised in open court:
No notices required.

Notices mailed by judge’s staff,

Notified counsel by telephone. date docked

Docketing to mail notices. ae Milare

“so docketing \S initials

Mail AO 450 form.
Copy to judge/magistrate judge.

- oe dave mailed notice
courtroom >

deputy’s
initials

sif (cy

Date/time received in

central Clerk’s Office, ailing deputy iitale



d,_ The Origin of the Conflict

The final Gould factor has the court identify the party who created the conflict. Gould,
738 F.Supp. at 1127. In explaining why this should be a factor, the court stated, “While not the
situation in this case, it is clear that courts would not permit one party in a case to create a
conflict which forces the disqualification or withdrawal of opposing counsel by buying up
companies which opposing counsel represents.” Id. The conflict of interest in this cause of
action was initiated by Altiris’ acquisition by Wise, not by any action of Installshield or Baker.
As with Gould, there is no accusation or indication that Altiris created the conflict to impair
Baker’s ability to represent Installshield. Nonetheless, the Court must ensure that neither party
receives an advantage because of this acquisition. In ensuring that no advantage is gained
because of this conflict, the Court must make certain that no ethical rules are violated. However,
the Court must also ensure that this “conflict by acquisition”, particularly since it arose mid-
litigation, does not become a means for Altiris to strategically disadvantage Installshield.

The Court determines that a balance of all of the Gould factors leads to the conclusion
that Baker should not be disqualified from representing Installshield due to the concurrent
conflict of interest. Altiris would not be prejudiced by Baker’s continued representation of
Installshield, as there is no evidence that work performed for Altiris is related to the current
litigation between Installshield and Wise. Further, the costs of disqualification to Installshield
would be high, due to the significant financial expenses, time and effort spent with counsel that
would have to be repeated if Installshield had to obtain new counsel. Additionally, the time and
financial expenditures already exhausted in this case’s early stages leads to the reasonable

conclusion that this litigation will require a substantial devotion of time from any newly acquired

-l-


between the legal work performed by Baker for Altiris and the work performed for Installshield.
Therefore, Altiris is not prejudiced by the concurrent representation.
b. Costs of Disqualification to Installshield

The second factor that the Gould court considered when ruling on a motion to disqualify
is the costs of disqualification to the non-moving party, including the financial expenses and
those costs related to obtaining new counsel due to the complexity of the case. Gould, 738 F.
Supp. at 1126-27, Baker has billed Installshield over $292,000 in this litigation, with accrued
charges of an additional $40,000. Although this case is still in its early stages, this is a
significant expenditure. Additionally, if Baker is disqualified from representing Installshield, it
will have to obtain new counsel. While this court does not doubt that equally competent counsel
can be obtained, the hours, legal skills and strategies devoted to the early stages of this case leads
the Court to the conclusion that the costs of obtaining and educating new counsel, both in terms
of financial expenditures and time, would be high to Installshield,

¢. Complexity of the Litigation

Altiris argues that this is not extremely complex litigation, as all counts in Plaintiff's
Complaint derive from the same common nucleus of fact. The Court hesitates to make a
determination at this relatively early stage of the litigation concerning the complexity of this
matter, However, the Court notes that the expenditures that Installshield has already made for
this case lead to the reasonable conclusion that any newly acquired counsel will need to spend a

significant amount of time and energy becoming familiar with and litigating this case.


In Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F.Supp. 1121 (N.D. Ohio 1990), a

conflict arose when the law firm Jones, Day, Reavis & Pogue (“Jones Day”) represented the
plaintiff Gould in an action against, among others, Pechiney and Trefimetaux. Id. at 1122. The
defendants moved to disqualify Jones Day’s representation of the plaintiff. The defendants
argued that the representation involved a conflict of interest for two independent reasons. Id. at
1123. Jones Day represented Pechiney in patent matters, which meant Jones Day was suing a
current client on behalf of another client. Secondly, Jones Day represented IGT, a subsidiary of
Pechiney, in various matters. Id. at 1124. In addressing the second conflict situation, the court

in Gould stated,

The explosion of merger activity by corporations during the past fifteen years, and the
corresponding increase in the possibility that attorney conflicts of interest may arise
unexpectedly, make it appropriate for a court to adopt a perspective about the
disqualification of counsel in ongoing litigation that conforms to the problem. This
means taking a less mechanical approach to the problem, balancing the various interests.
The result is that the courts are less likely to order disqualification and more likely to use
other, more tailored measures to protect the interests of the public and the parties.

‘

Id. at 1126. The Gould court balanced various factors, including; (1) the resulting prejudice, if
any, to the party moving for disqualification because the concurrent representation (i.e., whether
confidential information has been exchanged and whether that confidential information is related
to the present case); (2) the costs of disqualification to the non-moving party (financial expenses
and the costs of retaining new counsel); (3) the complexity of the case; and (4) the origin of the
conflict (i.e., whether it arose through an affirmative act of the party opposing disqualification).

Id. at 1126-27. This Court determines that the standards the Gould court used are appropriate for

7-



acquisition.' Clearly, Altiris’ acquisition of Wise created a conflict of interest for Baker due to
the current litigation between Altiris and Wise.

Baker approached Installshield and Altiris to waive the concurrent conflict of interest.
On December 5, 2003, Installshield waived the conflict. On December 16, 2003, Altiris
determined that it would not waive the conflict, and has taken the position that Baker must
withdraw from its representation of Installshield in the underlying cause of action. On January 9,
2004, Baker filed its motion to withdraw, or for other relief that this Court deems appropriate.
On February 17, 2004, this Court held an evidentiary hearing in order clarify the extent of

Baker’s representation of Altiris.

IJ. DISCUSSION

As stated, Baker filed a motion to withdraw, or for other appropriate relief, based upon
the concurrent conflict of interest. In its motion to withdraw, Baker states that it does not wish to
prejudice Altiris or Wise. Baker filed its motion because of the representation dispute between
two of its clients that cannot be resolved by agreement, and is requesting relief that the Court
deems appropriate due to the conflict. Each client filed a memorandum regarding the conflict of
interest.

Installshield and Altiris/Wise take divergent positions on whether the Court should grant
Baker’s motion to withdraw. Altiris/Wise argues that Baker must withdraw from this cause of

action. Altiris contends that because Wise’s financial results, including any losses or expenses

' Baker's office in San Francisco had knowledge of merger discussions prior to this
date.

-3-


involved research on international laws and abstract legal principles. Installshield’s suit against
Wise involves domestic federal and state intellectual property law, and there is no factual
overlap. Therefore, the legal work performed for Altiris and Installshield is not substantially
related.

Altiris contends that because Installshield is seeking injunctive relief which would affect
Altiris’ financial performance, sales prospects, and general market strengths, the work performed
by Baker on behalf of Installshield and Altiris is “substantially related.” This argument lacks
merit. While Installshield’s decision to seek injunctive relief may have factored into Altiris’
decision to refuse to waive the conflict, it does not deem the legal work “‘substantially related.”
Altiris/Wise has failed to show how Baker’s possession of this general knowledge about Altiris’
business structure is in any way related to Installshield’s suit against Wise. Further, this general
business structure information is public knowledge, readily accessible through the SEC.
Therefore, the Court finds that Baker’s representation of Installshield in the current pending
litigation is not substantially related to its representation of Wise. Even under a former client
conflict of interest analysis, Baker would not need to obtain Altiris’ consent in order to represent

Installshield in the current pending litigation.’

5 Altiris/Wise contends that Baker may not drop Altiris as a client to cure its present
conflict (a court should “not allow a firm to drop a client ‘like a hot potato’ in order to shift
resolution of the conflict question” from a concurrent representation conflict to a former client
conflict). See Law. Man. Prof. Conduct § 51:201, 218; International Longshoreman’s Ass'n,
Local Union 1332 v. International Longshoreman’s Ass’n, 909 F.Supp. 287, 293 (E.D. Pa.
1995) (applying ‘hot potato’ rule to reject counsel’s offer to withdraw from plaintiff/client’s
related cases to represent the defendant/client in pending litigation because such behavior
violates attorney’s duty of loyalty). However, contrary to Altiris’ assertion, courts do allow
withdrawal in order to cure a concurrent conflict when that conflict is not caused by any action
of the law firm, but by an action of one of its clients-in this instance, Altiris’ acquisition of

Wise. See Hawthorne Partners v. AT&T Technologies, 1993 U.S. Dist. LEXIS 2575, at *4-5
-14-



both parties will be prejudiced if Baker is required to withdraw from its representation.
However, most significant to the present cause of action, Installshield has already committed
over $330,000 in legal fees to this case, and because of this significant financial expenditure,
would be significantly burdened if it must retain new counsel. Installshield would also have to
inform new counsel of all prior proceedings in this case, as well as the procedures that led to
Baker’s litigation strategies. Although this litigation has not progressed very far, and even
assuming that Altiris’ position that this case is not very complex is correct, the fact that there has
been significant time, energy and financial resources poured into this case, deems it necessary to
determine that Installshield will be more prejudiced than Altiris if Baker is permitted to
withdraw. Further, while the Court does not doubt that Installshield will be able to find equally
competent counsel if Baker is permitted to withdraw, the fact that Installshield would have to
engage new counsel undoubtedly means that this case would be unduly delayed. Therefore,
balancing all of the equitable factors, the Court determines that Baker should not be permitted to
withdraw from its representation of Installshield in its suit against Wise.

Based on the Court’s ruling, if Altiris remains steadfast in its decision not consent to the
concurrent conflict of interest by written waiver, Baker will need to take the appropriate
measures to cure the conflict, which will mean withdrawal of its representation of Altiris.
However, it is Baker’s responsibility to take the appropriate measures with its clients to ensure

that it is not in violation of any of the Rules of Professional Conduct.

-16-


I. PROCEDURAL HISTORY

On June 27, 2003, Installshield filed suit against Wise, seeking equitable and legal relief.
Plaintiff presents four counts in its Complaint. In Count I, Installshield alleges unfair
competitive practices under the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201 et seq.
Plaintiff alleges that Wise circumvented Installshield’s technological measures to control access
to its protected works. (See Complaint, { 64). Count II alleges a violation of the Computer
Fraud and Abuse Act, 18 U.S.C. §§ 1030 et seg. Installshield alleges that Wise intentionally and
systematically obtained access to Installshield’s ftp server without authorization and downloaded
files containing confidential and proprietary information. (See Complaint, 4 70). Count II
alleges a violation of the Copyright Act of 1976, 17 U.S.C. §§ 301 et seq., due to Wise’s alleged
copyright infringement. (See Complaint, { 76). Finally, Count IV of Installshield’s Complaint
alleges violations of the Illinois Trade Secrets Act, 765 ILCS 1065/1 et seq. Installshield alleges
that Wise willfully and maliciously misappropriated and attempted to misappropriate
Installshield trade secrets. (See Complaint, J 88). Baker represents Installshield in its suit
against Wise, and has represented the Plaintiff in various matters since 1997.

Altiris is also a client of Baker. Altiris has been a client of Baker for the past two years,
and is Altiris’ primary counsel in Europe and Australia, Baker attorneys in Amsterdam, London,
Brussels, Paris, Frankfurt, Stockholm, Sydney, Hong Kong, and Toronto advise Altiris on
international corporate, securities, tax, and employment law matters. On December 2, 2003,

Altiris acquired Wise as a wholly-owned subsidiary, and on that same day, notified Baker of its


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
INSTALLATION SOFTWARE )
TECHNOLOGIES, ) No. 03 C 4502
INC. d/b/a )
INSTALLSHIELD ) HONORABLE DAVID H. COAR
SOFTWARE )
CORPORATION, )
Plaintiff, )
)
v. )
) '
WISE SOLUTIONS, INC., ) eT Ree
, a
Defendant. ) MAR ~ § 2004
M OPINI

Before this Court is Baker & McKenzie’s (“Baker”) motion to withdraw, or for other
appropriate relief, due to a concurrent representation conflict under American Bar Association
Model Rule of Professional Conduct 1.7 (“ Model Rule 1.7"). This conflict is based upon
Baker’s representation of Installation Technologies, Inc., d/b/a Installshield (“Installshield” or
“Plaintiff’) in litigation before this Court, and its continuing representation of Altiris, Inc.
(“Altiris”), who is now the parent company of Wise Solutions, Inc. (“Wise” or “Defendant”).
For the reasons set forth below, Baker’s motion to withdraw from its representation of

Installshield is DENIED.


counsel, which would significantly delay proceedings in the case. Finally, the conflict was
initiated by Altiris, and was not the result of any action or inaction on the part of Installshield or
Baker. Therefore, the concurrent conflict of interest standard under Model Rule 1.7 does not
disqualify Baker from representing Installshield in its action against Wise.

B.Is There A Former Client Conflict of Interest 2

If Baker continues its representation of Installshield, and Altiris does not consent to the
concurrent representation, Baker must withdraw from its representation of Altiris, due to the
concurrent conflict of interest that cannot be waived, as both clients did not consent to that
waiver. See Model Rule 1.7. This would cause Altiris to become a former client; therefore, the
Court must analyze the conflict under the former client conflict of interest standard--Model Rule
1,9. See Carlyle Towers Condo. Ass’n v. Crossland Sav., FSB, 944 F.Supp. 341, 349 (D.N.J.
1996) (“Having thus determined that Rule 1.7 was not violated, the next question to address is
whether [the law firm] must be disqualified from representing Plaintiffs because of a violation of
RPC 1.9"). In relevant part, Model Rule 1.9 states:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter

represent another person in the same or a substantially related matter in which that

person’s interests are materially adverse to the interests of the former client unless the
former client gives informed consent, confirmed in writing.

Therefore, a lawyer may not represent an adversary of his former client in matters
substantially related to that prior representation. This means, “if a lawyer could have obtained
confidential information in the first representation that would have been relevant in the second.”

, Analytica Incorporated v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir. 1983). The court

does not inquire into whether the lawyer actually obtained that confidential information and used

-12-


C._ Baker's Motion to Withdraw
Because this Court has determined that Baker need not be disqualified from its
representation of Installshield, the Court must now determine if Baker should be permitted to
withdraw from its representation of Installshield in the present litigation.
The decision to grant or deny counsel’s motion to withdraw is committed to the discretion

of the trial court. Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081, 1087 (7th Cir. 1982).
When ruling on a motion to withdraw, a court may consider the disruptive impact that the
withdrawal will have on the prosecution of the case. Whitting v. Lacara, 187 F.3d 317, 320 (2nd
Cir. 1999).

Some courts have used various guidelines in determining whether to grant or deny a
motion to withdraw, including: (1) the reasons why withdrawal is sought; (2) the prejudice
withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the
administration of justice; and (4) the degree to which withdrawal will delay the resolution of the
case, See Rusinow v. Kamara, 920 F.Supp. 69, 71 (D.N.J. 1996); Haines v. Liggett Group, Inc.,
814 F.Supp. 414, 423 (D.N.J. 1993); Byrd v. District of Columbia, 271 F.Supp. 2d 174, 176
(D.D.C. 2003); Taylor v. Stewart, 20 F.Supp.2d 882, 883 (E.D.Pa. 1998). The reason why
withdrawal is sought is clear—-due to the concurrent conflict of interest representation. The Court
will analyze each of the other factors in order to determine whether Baker should be permitted to
withdraw.

Altiris has relied heavily upon Installshield for the past two years in its international

litigation, Additionally, Baker has performed legal work for Installshield since 1997, Therefore,

(ND. Il. 1993) (citing Gould, 738 F.Supp. at 1127).
-15-