## Facts

- Rohm & Haas entered into a signed cash-out merger agreement obligating Dow to acquire Rohm & Haas for roughly $15+ billion.
- After market disruption and related financing issues, Dow delayed closing and Rohm & Haas sued in the Delaware Court of Chancery seeking specific performance.
- Wachtell previously represented Dow in 2007–2008 on executive termination matters and responding to a rumored hostile takeover; it sent a final bill in June 2008 and performed no further work for Dow afterward.
- In mid-2008, Wachtell represented Rohm & Haas opposite Dow in negotiating a confidentiality agreement and the merger agreement; Dow used different counsel and did not object during the deal process.
- Once merger-enforcement litigation began, Dow moved to disqualify Wachtell from representing Rohm & Haas in discovery and depositions, alleging conflicts under the Delaware Lawyers’ Rules of Professional Conduct (DLRPC).
- Dow argued (i) it remained Wachtell’s current client, creating a concurrent-representation conflict, and (ii) even as a former client, Wachtell’s prior matters were substantially related and gave it access to sensitive information that could be used against Dow.
- Wachtell asserted the Dow representation had ended, the matters were distinct, and no confidential information would materially prejudice Dow in the merger litigation.

## Issues

1. Whether Dow was a current client of Wachtell at the time of Wachtell’s adverse representation of Rohm & Haas, triggering DLRPC 1.7 absent consent.
2. Whether Wachtell’s prior representation of Dow was substantially related to the merger enforcement action, requiring disqualification under DLRPC 1.9 absent consent.
3. Whether any confidential information obtained from Dow would materially advance Rohm & Haas’s position such that disqualification was warranted despite prejudice to Rohm & Haas from losing chosen counsel.

## Decision

- The Court of Chancery denied Dow’s motion to disqualify Wachtell.
- The court found Dow was not a current Wachtell client when the merger litigation commenced.
- Treating Dow as a former client, the court found the earlier matters were not substantially related to the merger enforcement action.
- The court found any confidential information from the earlier engagement would not materially advance Rohm & Haas in the litigation, and the balance of interests weighed against disqualification.

## Legal Principles

- Current-client status for conflict analysis turns on objective indicia of an ongoing attorney-client relationship and the reasonableness of a client’s belief that the relationship continues.
- Under DLRPC 1.9, disqualification for former-client conflicts requires that the new adverse matter be the same as, or substantially related to, the prior representation.
- Disqualification is not automatic upon a prior representation; courts assess whether any confidential information from the prior matter would materially affect the later litigation.
- Courts weigh the former client’s interest in protecting confidences against the hardship and case prejudice imposed by depriving a party of chosen counsel, and they are cautious about disqualification motions used for tactical advantage.

## Conclusion

The Court of Chancery held that Wachtell could continue representing Rohm & Haas in merger-enforcement litigation because Dow was not a current client, the prior engagements were not substantially related to the dispute over closing the merger, and any confidential information from the earlier work would not materially aid Rohm & Haas enough to justify the prejudice of disqualification.


Rohm & Haas Co. v. Dow Chem. Co., C.A. No. 4309-CC (Del. Ch. Feb. 12, 2009)