Altova GmbH et al. v. Syncro Soft SRL (17-cv-11642).

In a rarely-seen determination, Judge Saris granted Syncro Soft’s motion to disqualify Altova’s counsel, Sunstein Kann Murphy & Timbers. Sunstein had previously represented Syncro Soft in a copyright and trade dress dispute with Altova concerning Syncro Soft’s OXYGEN XML Editor software, during which Syncro Soft had provided details on the operation of the software to a Sunstein attorney. That matter resolved without litigation, but Sunstein continued to represent Syncro Soft on other matters through 2014. In 2011, Sunstein began to represent Altova on matters which were not adverse to Syncro Soft, and Sunstein represented both companies through 2017. Altova approached Sunstein about the patent dispute that is the center of this case in June 2017, at which point Sunstein terminated its relationship with Syncro Soft. Sunstein did not note to Syncro Soft the nature of the conflict, and did not seek Syncro Soft’s consent to allow Sunstein to represent Altova in litigation against Syncro Soft. While Sunstein erected an ethical wall blocking three attorneys from accessing Syncro Soft information, one of the three had previously worked closely with Syncro Soft. Judge Saris found that Sunstein’s action, in dropping Syncro Soft so that it could then sue the former client, was a violation of Rule 1.7 of the Massachusetts Rules of Professional Conduct, with which attorneys practicing in this District must comply pursuant to Local Rule 83.6.1(a). The representation of Altova was directly adverse to Syncro Soft, and arose at a time Syncro Soft was still a Sunstein client. Moreover, Sunstein could not fulfill its ethical duties owed Syncro Soft by informing them that Altova was preparing to sue the company without violating the ethical duties it owed Altova. Judge Saris further found that the potential for a conflict arose at least as early as November 2016, when Altova’s patent issued in an area of business in which the parties competed. Sunstein should have at that time sought written consent from both parties to continue the representation or withdrawn from representing both parties on the matter. Judge Saris determined that Sunstein “cannot simply choose the more profitable client and drop the other.”

Syncro Soft is presently represented by Craig Smith and Eric Carnevale of my firm.

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