## Facts

- Galderma Laboratories, L.P. retained Vinson & Elkins LLP (V&E) in 2003 for employment and benefits matters.
- Galderma’s general counsel signed an engagement letter containing an advance waiver permitting V&E to represent other clients adverse to Galderma in unrelated matters, while excluding substantially related matters or uses of Galderma confidential information.
- Galderma was a sophisticated corporate client with in-house counsel and extensive experience retaining outside firms nationwide; its general counsel had substantial legal experience and had signed similar waivers.
- V&E represented Actavis Mid Atlantic LLC for years in intellectual property matters.
- While V&E continued advising Galderma on employment issues, Galderma (represented by other firms) sued Actavis for patent infringement in federal court.
- V&E appeared for Actavis in the patent case; Galderma demanded withdrawal, and V&E instead ended its relationship with Galderma and continued representing Actavis.
- Galderma moved to disqualify V&E, arguing the advance waiver was not “informed consent” and that V&E impermissibly represented a client directly adverse to Galderma.

## Issues

1. Whether Galderma’s 2003 advance conflict waiver constituted informed consent permitting V&E to represent Actavis against Galderma in an unrelated matter.
2. Whether the patent infringement suit was “substantially related” to V&E’s prior work for Galderma such that the waiver would not apply and disqualification would be required.

## Decision

- The court denied Galderma’s motion to disqualify V&E.
- The court held that Galderma gave informed consent, through the engagement letter waiver, to V&E’s adverse representation in matters not substantially related to V&E’s work for Galderma.
- The court found the patent case was not substantially related to V&E’s employment/benefits work for Galderma and there was no showing that Galderma confidential information would be used against it.

## Legal Principles

- Disqualification is an exceptional remedy; courts treat such motions with caution due to potential tactical misuse.
- A lawyer may undertake adverse representation if the matter is not the same as, or substantially related to, the firm’s work for the affected client and the affected client gives informed consent confirmed in writing.
- The sufficiency of an advance waiver depends on context, including the client’s sophistication and experience with legal services; sophisticated clients may give informed consent through a general advance waiver.
- An advance waiver is more likely effective when it clearly contemplates future adversity, preserves protections for substantially related matters, and guards against misuse of confidential information.

## Conclusion

The court refused to disqualify V&E because Galderma’s sophisticated-client status and the engagement letter’s advance waiver supplied informed written consent to adverse representation in unrelated matters, and the patent dispute was not substantially related to V&E’s employment work for Galderma.


Galderma Labs., L.P. v. Actavis Mid Atl. LLC, 927 F. Supp. 2d 390 (N.D. Tex. 2013)