Ethics

In Flying J Inc v. TA Operating Corp., 2008 WL 648545 (D. Utah March 10, 2008), the court refused to disqualify Gibson Dunn.  It's a fascinating case, where Gibson Dunn tried to get a consent to avoid the "we may develop evidence that can be used against you" disqualification now becoming a real issue, but the client refused, and it involved the striking of an affidavit from ethics expert Thomas D. Morgan. 

The court rejected the argument that the conflict had been "thrust upon" Gibson Dunn and so fell within the "thrust upon exception to the hot potato doctrine", emphasizing that the firm had pursued developing claims against its own current client.  Despite that, however, it rejected applying a per se rule of disqualification, and instead adopted a "functional analysis" to a current client disqualification and denied the motion to disqualify, weighing the harm to the movant as well as the harm to the other client. It's an interesting read.