## Facts

- Numerous public entities sued opioid manufacturers and distributors in a multidistrict litigation alleging damages and seeking abatement related to the opioid epidemic.
- Cuyahoga County and the City of Cleveland were plaintiffs scheduled for early bellwether (“Track One”) proceedings.
- While serving as U.S. Attorney for the Northern District of Ohio, Carole S. Rendon chaired a regional opioid task force that included participation by officials from Cuyahoga County and Cleveland.
- After leaving government service, Rendon joined BakerHostetler and represented Endo Health Solutions, Inc., an opioid manufacturer defendant; BakerHostetler also served as liaison counsel for manufacturer defendants.
- Cleveland moved to disqualify Rendon and BakerHostetler, asserting Rendon had received nonpublic, confidential information from County and City officials during task-force work that could be used adversely in the MDL.
- To avoid forcing plaintiffs to disclose the disputed confidential information through discovery to opposing counsel, the court requested the U.S. Department of Justice to conduct a neutral inquiry and report its findings.
- DOJ reported that local officials believed they shared information with Rendon in confidence, including internal “staffing and funding deficiencies” and resource constraints that could adversely affect their ability to prove damages or implement abatement remedies.

## Issues

1. Whether Rendon’s representation of Endo in the opioid MDL created a disqualifying conflict based on her prior government role and receipt of confidential information from Cuyahoga County and Cleveland relevant to the MDL.
2. If Rendon was conflicted, whether that conflict must be imputed to BakerHostetler, requiring the firm’s disqualification as Endo’s counsel in the MDL.

## Decision

- The court granted the motion to disqualify.
- Rendon was disqualified from representing Endo in the MDL.
- BakerHostetler was also disqualified as Endo’s counsel in the MDL (including the Track One cases).
- Endo was required to obtain new counsel for the affected MDL proceedings.

## Legal Principles

- Federal courts have inherent authority to supervise attorneys appearing before them and to disqualify counsel to protect the integrity and perceived fairness of judicial proceedings.
- A lawyer who has obtained confidential, nonpublic information from a party (or in a relationship functionally involving confidential governmental communications) may be disqualified from later representing an adverse party in substantially related litigation where the information is materially relevant.
- Disqualification may be warranted based on substantial risk of misuse of confidential information and the appearance of impropriety, particularly when the lawyer previously held a public-trust position.
- A lawyer’s conflict is generally imputed to the lawyer’s firm; disqualification of the firm may be required when screening or other measures cannot reliably prevent the litigation team’s strategies from being informed by the tainted lawyer’s knowledge.
- When adjudicating disqualification motions, courts may employ protective procedures to avoid compelling disclosure of the very confidential information asserted as the basis for disqualification.

## Conclusion

The court concluded that Rendon likely received confidential municipal information during her tenure as U.S. Attorney that was materially relevant to the plaintiffs’ damages and abatement claims, and that her subsequent defense of an opioid manufacturer against those municipalities created an unacceptable risk and appearance of unfairness; the conflict was imputed to her firm, requiring disqualification of both counsel and firm from representing Endo in the MDL.


In re Nat’l Prescription Opiate Litig., No. 1:17-md-02804, 2019 WL 1274555 (N.D. Ohio Mar. 21, 2019)