In the Seventh Circuit, a motion for disqualification of
counsel is considered a drastic measure that interferes with an
existing attorney-client relationship. Freeman v. Chicago
Musical Instrument Co., 689 F.2d 715
, 721-22 (7th Cir. 1982).
Courts are directed to view these motions with "extreme caution."
Id. at 722. The moving party bears the burden of proving the
facts necessary for disqualification. Guillen v. City of
Chicago, 956 F.Supp. 1416, 1421 (N.D. Ill. 1997). Thus, Wilhelm
has the burden of showing that disqualification is required. In Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263
(7th Cir. 1983), the Seventh Circuit stated:
For rather obvious reasons a lawyer is prohibited
from using confidential information that he has
obtained from a client against that client on behalf
of another one. But this prohibition has not seemed
enough by itself to make clients feel secure about
reposing confidences in lawyers, so a further
prohibition has evolved: a lawyer may not represent
an adversary of his former client if the subject
matter of the two representations is "substantially
related," which means: if the lawyer could have
obtained confidential information in the first
representation that would have been relevant in the
second. It is irrelevant whether he actually obtained
such information and used it against his former
client, or whether if the lawyer is a firm rather
than an individual practitioner different people in
the firm handled the two matters and scrupulously
avoided discussing them.
To determine whether the subject matter of the two
representations is substantially related, the Court engages in a
three-level inquiry. First, the Court makes a "factual
reconstruction of the scope of the prior legal representation."
LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252
, 255 (7th
Cir. 1983). Next, the Court must determine "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." Id. at 255-56. This determination does not
depend upon actual evidence showing that confidential information
was shared receipt of such information may be presumed.
Analytica, Inc., 708 F.2d at 1266; LaSalle Nat'l Bank,
703 F.2d at 256; Safe-T-Products, Inc. v. Learning Res., Inc., No.
01 C 9498, 2002 WL 31386473, at *4 (N.D. Ill. Oct. 23, 2002).
Finally, the Court must determine "whether that information is
relevant to the issues raised in the litigation pending against
the former client." LaSalle Nat'l Bank, 703 F.2d at 256. If the
Court finds that a substantial relationship exists, we are
entitled to presume that the attorney received confidential
information during her prior representation. Id. The presumption of shared confidences can be rebutted by
"demonstrating that `specific institutional mechanisms' (e.g.,
`Chinese Walls') had been implemented to effectively insulate
against any flow of confidential information from the `infected'
attorney to any other member of his present firm." Schiessle v.
Stephens, 717 F.2d 417
, 421 (7th Cir. 1983). See also LaSalle
Nat'l Bank, 703 F.2d at 256; Novo Terapeutisk Lab. A/S v.
Baxter Travenol Labs., Inc., 607 F.2d 186
, 197 (7th Cir. 1979).
Doubts as to the existence of a conflict of interest should be
resolved in favor of disqualification. Novo Terapeutisk Lab.
A/S, 607 F.2d at 189-90.