A few weeks ago reports surfaced about a motion seeking to compel Norton Rose Fulbright to withdraw from representation of its client Duke University in a case brought against the university by the estate of John Wayne, which wants the right to market alcoholic beverages branded with Wayne’s “Duke” nickname—a textbook trademark dispute.
The Wayne estate sought to disqualify Norton Rose Fulbright on the straightforward grounds of a conflict, namely that legacy Fulbright & Jaworski had long represented Duke University and Norton Rose Fulbright Canada was a longstanding advisor to a minority shareholder of the distillery producing what would be Duke whiskey.
The response of Norton Rose Fulbright US LLP to the purported conflict? I’m afraid I must quote from coverage of the dustup in some detail:
In the course of the dispute, the firm said that the June 2013 tie-up has been “mischaracterised” as a merger – a claim that is likely to prompt questions over the level of integration at Norton Rose Fulbright and other Swiss verein firms. […] The motion, which cites press releases issued by Norton Rose Fulbright at the time of the go-live date of the tie-up, said: “The Fulbright firm promised it would provide ‘seamless’ legal services flowing from each of their member firms to the others.
“In a later release, the managing partner of Norton Rose Fulbright Canada stated, ‘[…] Our Canadian clients now have new north/south access to the Americas seamlessly with lawyers who are based in each country’s key markets’.”
It said Fulbright seemed to want “all the benefits of combining its member firms” and to market itself as a legal services “behemoth”, but is “unwilling to accept the accompanying burdens of the merger”.
However, Fulbright argues that the estate’s claim shows a misunderstanding of how Swiss verein arrangements function, pointing out that the firms operate as separate legal entities that do not share confidential information with each other. […] The filing continued: “In short, while Mr. Woodbridge may be a client of [Norton Rose Fulbright Canada], he is not a client of Fulbright & Jaworski and never has been.” […] It adds that the estate’s case “improperly relies on hearsay ‘news accounts’ mischaracterising the combination as a ‘merger’”.
A Norton Rose Fulbright spokesperson said the union between the firms has “always been seen and referred to as a ‘combination'”, adding that “any misrepresentation has probably been made by the media”.
And from coverage in Law360 (metered paywall), we have this:
“Despite plaintiff’s bald assertions to the contrary, Fulbright & Jaworski LLP did not merge with [Norton Rose Fulbright Canada LLP] or any other firm when it became a part of the verein,” the motion to deny DQ said. “Importantly, member firms do not share privileged information with other member firms unless they are retained by and working together for a client on the same matter.” […] The structure of the Norton Rose Fulbright verein and the ethical rules that bind the attorneys at issue assure that there will be no disclosure of confidential information to Duke’s counsel,” the defense motion argued.
Now, the law of conflicts is not my thing. But this does set one thinking.