I. II.

III.

IV. V.

Brennans Inc v. Brennans Restaurants, Inc Facts: a. Brennans Inc (Plaintiff) owns and operates Brennas Restaurant b. Brennans Restaurants, Inc own and operate other restaurants in three states c. Prior to 1974 all of the members of the Brennan family were stockholders and directors of Brennans Inc and some of them were stockholders and directors of Brennans Restaurants, Inc d. Wegmann attempted to trademark Brennans Breakfast at Brennans and A distinctive rooster sign i. He was initially denied but then after collecting data to support that the marks had acquired a secondary meaning they were trademarked 1. Issued in plaintiffs name e. 1974 the parties resolved the dispute and divided the corporations stock between the two familes i. Brennans Inc became 100% owned by one group ii. Brennas Restaurants became 100% owned by the second group composed of individual defendants f. Wegmann decided to continue to represent the defendants and severed ties with the plaintiffs and its shareholders g. At no time during the negotiations did it come up regarding who was going to have the right to use the registered trademarks h. Plaintiff filed this suit for trademark infringement and unfair competition and defendants argued that they were registered in plaintiffs name only for convenience and they were really issued for the benefit and ownership of all of the Brennans family Procedural History a. After filing the suit Wegmann retained Arnold Sprungs services to help him in the defense of the case b. District Court found that the subject matter of the suit was substantially related to matters in which Wegmann represented plaintiff and to allow him to represent an interest adverse to his former client creates the appearance of impropriety i. Also found that the close working relationship of Wegmann and Sprung created a significant likelihood that Sprung would have had access to or been informed of confidential disclosures made to Wegmann by the plaintiffs Analysis: 1) Wegmann a. Defendants argument: While representing the plaintiff, Wegmann also represented the defendants and since no confidences can arise between joint clients Wegmann violated no ethical duty in his representation of the defendant in this case b. Rule: A former client who seeks to disqualify an attorney who appears on behalf of his adversary, only needs to show that the matters embraced within the suit are substantially related to the matters or cause of action wherein the attorney previously represented him. i. The rule rests upon the presumption that confidences potentially damaging to the client have been disclosed to the attorney during the former period of representation c. Attorney Client Privilege is different than an Attorneys ethical duty i. The ethical duty exists without regard to the nature or source of the information or the fact that others share the knowledge 1. A Lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client 1

VI.

a. Stresses the use of the word information rather than secret or confidence d. In this case the conflict of interest is apparent and the balance weighs in favor of disqualification 2) Sprung a. 1) The result of the issue may turn on whether Wegmann represented plaintiff and defendants jointly or represented only the plaintiff in regards to the trademark issue i. A) If the court finds that Wegmann previously represented plaintiff and defendants jointly, no reason that Sprung should be disqualified 1. Between joint clients there can be no confidences or secrets unless one client manifests a contrary intent a. B) Sprung could not have learned anything from Wegmann that defendants did not already know or have right to know 2. The only remaining ground for disqualification would be an appearance of impropriety a. There is an appearance when an attorney represents an interest adverse to that of a former client in a matter substantially related to the subject of the prior representation i. Sprung was never plaintiffs counsel ii. B) If the court finds that Wegmann did not previously represent the parties jointly, it does not mean that Sprung is automatically disqualified 1. In the absence of an attorney-client relationship between Sprung and Plaintiff, a presumption of disclosure of confidences is inappropriate a. Sprung should not be disqualified unless he had learned from Wegmann information the plaintiff had intended not to be disclosed to the defendants b.