Klein v. Meta Platforms, Inc.

Background

Facebook moved to disqualify Keller Lenkner LLC, which had been appointed to Plaintiffs’ Executive Committee for the consumer class. The motion was based on Keller Lenkner’s employment of Albert Pak, who had previously worked at Kellogg, Hansen, Todd, Figel & Frederick and represented Facebook in antitrust investigations by the Federal Trade Commission and several state Attorneys General.

Pak worked on those investigations for about six months, billed 824.5 hours—approximately three-quarters of his billed time during that period—and performed tasks including reviewing and drafting legal memoranda, assisting with a witness interview, helping respond to an agency demand for information, working with experts, reviewing Facebook documents, attending meetings, participating in calls with Facebook’s in-house counsel, and receiving case-related emails. Some emails included Facebook’s legal and trial strategy.

Pak joined Keller Lenkner on June 29, 2020, and reported his prior Facebook work to a Keller Lenkner partner on June 30. Keller Lenkner imposed a formal firm-wide screen on November 11, 2020. The firm notified Facebook of Pak’s prior representation on March 19, 2021, after Facebook raised the conflict issue at a hearing the previous day. Pak did not work on or access the current case, and the opinion states that he did not discuss its substance with anyone at Keller Lenkner.

Legal standard

The court applied California law because attorneys practicing in the district must follow the professional-conduct standards required of California lawyers. The court explained that disqualification is generally disfavored and requires strict scrutiny, but that protecting public trust in the legal system and the integrity of the legal profession can outweigh a client’s choice of counsel.

The court stated that two requirements had to be met: Keller Lenkner must have violated the California Rules of Professional Conduct, and disqualification must be an appropriate remedy.

Conflict and professional-conduct rules

California Rule of Professional Conduct 1.9(a) generally bars a lawyer from representing a new client against a former client in the same or a substantially related matter when the clients’ interests are materially adverse, unless the former client gives informed written consent. The court found that the government investigations and the current case were substantially related, that Plaintiffs’ interests were materially adverse to Facebook’s, and that Facebook had not given informed written consent. The court therefore concluded that Rule 1.9 prohibited Pak from representing Plaintiffs.

Rule 1.10(a) generally extends that conflict to the lawyer’s firm. Rule 1.10(a)(2) provides an exception when the lawyer did not substantially participate in the prior matter, was timely screened and received no part of the fee, and the former client received prompt written notice describing the screen and the firm’s agreement to respond to inquiries or objections.

The court found that none of the three disputed requirements was satisfied:

1. Substantial participation. Although Pak had a lower level of responsibility than the supervising partner and did not advise Facebook directly, he worked on the investigations for six months, billed more than 800 hours, regularly communicated with Facebook’s in-house counsel, and received confidential information likely to be relevant because the matters were related. The court concluded that Pak substantially participated.

2. Timely screening. The court held that screening should begin when the conflict first arises and before the firm undertakes the representation or hires the lawyer. Because Keller Lenkner did not impose its formal screen until more than four months after Pak joined the firm and reported his prior Facebook work, the court concluded that the screen was not timely.

3. Prompt notice. Keller Lenkner notified Facebook more than three months after filing the initial complaint and only after Facebook raised the conflict issue. The court concluded that the notice was not prompt.

Because the exception did not apply, the court concluded that Keller Lenkner violated the California Rules of Professional Conduct.

Why disqualification was appropriate

The court found disqualification appropriate because Pak had billed more than 800 hours on the related Facebook investigations and had been exposed to confidential information, including legal and trial strategy. The court also relied on Keller Lenkner’s failure to timely screen Pak and provide prompt notice. It noted that Plaintiffs were unlikely to suffer significant prejudice because Keller Lenkner was one of four firms representing consumers in the case.

Disposition

The court granted Facebook’s motion to disqualify Keller Lenkner LLC. The order addressed the attorney-disqualification issue and did not decide the underlying antitrust claims.