UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, DC 20436
`Before the Honorable Delbert R. Terrill
`Administrative Law Judge
`
`CERTAIN NETWORK INTERFACE
`CARDS AND ACCESS POINTS FOR USE
`IN DIRECT SEQUENCE SPREAD
`SPECTRUM WIRELESS LOCAL AREA
`NETWORKS AND PRODUCTS
`CONTAINING SAME
`
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`Investigation No. 337-TA-&
`
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`COMPLAINANT PROXIM, INC.’S RESPONSE TO MOTION OF PROPOSED
`INTERVENOR SYMBOL TECHNOLOGIES, INC. TO DISQUALIFY COUNSEL FOR
`COMPLAINANT PROXIM, INC.
`
`I.
`
`INTRODUCTION
`
`Proxim, Inc. (“‘Proxim’’) opposes the motion of Symbol Technologies, Inc. (“Symbol”) to
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`disqualify counsel for Proxim, Burns Doane Swecker & Mathis, LLP (“Burns Doane”). Symbol
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`has failed to aver facts to show that Rule 1.7(a) of the American Bar Association Model Rules
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`applies to disqualify Bums Doane since, in this proceeding, Proxim is not “directly adverse” to
`Symbol. In its Reply brief, Symbol concedes through silence that Burns Doane’s representation
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`of Proxim in this investigation does not present a threat to Symbol’s confidences and secrets and
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`Symbol continues to utilize the legal services of Bums Doane for its optical scanning work.
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`Thus, neither the ethical principle of loyalty to a client nor of client confidentiality is at risk and
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`disqualification is neither warranted nor justified.
`
`In support of Proxim’s opposition to Symbol’s motion to disqualify and in addition to the
`
`arguments made below, Proxim incorporates by reference the entirety of its Response to the
`
`
`WASHINGTON, DC 20436
`Before the Honorable Delbert R. Terrill
`Administrative Law Judge
`
`CERTAIN NETWORK INTERFACE
`CARDS AND ACCESS POINTS FOR USE
`IN DIRECT SEQUENCE SPREAD
`SPECTRUM WIRELESS LOCAL AREA
`NETWORKS AND PRODUCTS
`CONTAINING SAME
`
`I
`1
`)
`1
`)
`1
`
`Investigation No. 337-TA-&
`
`E l
`m
`
`~
`
`T V ~
`’ ? r l
`-7 z-
`2cx
`-<
`
`COMPLAINANT PROXIM, INC.’S RESPONSE TO MOTION OF PROPOSED
`INTERVENOR SYMBOL TECHNOLOGIES, INC. TO DISQUALIFY COUNSEL FOR
`COMPLAINANT PROXIM, INC.
`
`I.
`
`INTRODUCTION
`
`Proxim, Inc. (“‘Proxim’’) opposes the motion of Symbol Technologies, Inc. (“Symbol”) to
`
`disqualify counsel for Proxim, Burns Doane Swecker & Mathis, LLP (“Burns Doane”). Symbol
`
`has failed to aver facts to show that Rule 1.7(a) of the American Bar Association Model Rules
`
`applies to disqualify Bums Doane since, in this proceeding, Proxim is not “directly adverse” to
`Symbol. In its Reply brief, Symbol concedes through silence that Burns Doane’s representation
`
`of Proxim in this investigation does not present a threat to Symbol’s confidences and secrets and
`
`Symbol continues to utilize the legal services of Bums Doane for its optical scanning work.
`
`Thus, neither the ethical principle of loyalty to a client nor of client confidentiality is at risk and
`
`disqualification is neither warranted nor justified.
`
`In support of Proxim’s opposition to Symbol’s motion to disqualify and in addition to the
`
`arguments made below, Proxim incorporates by reference the entirety of its Response to the
`
`
`
`Motion of Symbol for Leave to Intervene to Seek to Disqualify Counsel for Complainant Proxim,
`
`Inc. (“Response”), which was filed with the Commission and served on June 27,2001.
`
`11.
`
`ARGUMENT
`
`A.
`
`Rule 1.7 Is Inapplicable to Disqualify Burns Doane Because
`Proxim Is Not “Against Symbol” Within the Meaning of the
`Rule in the ITC Investigation
`
`Rule 1.7(a) does not apply to disqualify Bums Doane because in this proceeding, Proxim
`
`is not “against” Symbol. Symbol erroneously asserts that “Proxim strenuously argues that Bums
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`Dome may represent it against Symbol.” See Symbol Reply to Proxim’s Response to Motion of
`
`Symbol Technologies, Inc. for Leave to Intervene to Seek to DisqualifL Counsel for Complainant
`
`Proxim, Inc. (“Reply”), p.3. Under the facts of this case, this is simply incorrect.
`
`Quoting out of context fiom Proxim’s Response to Symbol’s Motion for Leave to
`
`Intervene, Symbol states on page 6 of its Reply that “Proxim concedes that Rule 1.7(a)
`
`‘establishes aper se rule of disqualification absent informed consent.”’ What Symbol fails to
`
`quote and note, as Proxim points out on page 12 in its Response to Symbol’s motion, is that if
`there no direct adversity, consent is not required and Rule 1.7(a) has no application.” See
`
`Sumitornu, 200 U.S. Dist. LEXIS 1252, at “10. Indeed, Comment 3 to Rule 1.7 highlights the
`limited application of this per se disqualification rule: “[A] lawyer . . . may not act as advocate
`against a [party] the lawyer represents in some other matter.” (Emphasis added.)
`
`Although Symbol views Bums Doane as acting “adversely to Symbol” (see Symbol’s
`Reply, p, 5, fh. 4.), Rule 1.7 is not triggered. “An impermissible conflict is not created when the
`simultaneous representation concerns an unrelated matter involving clients whose interests . . .
`are only generally adverse.” ANN, MODEL RULES OF PROF’L CONDUCT R. 1.7 cmt. p.98.
`Burns Doane’s representation of Proxim before the ITC concerning wireless
`
`technology does not create an impermissible conflict with its simultaneous representation of
`
`2
`
`
`
`Symbol in obtaining patents for optical scanning technology. These are undisputedly and
`
`irrefutably unrelated matters. Symbol’s motion should be denied on these grounds.
`
`B. Symbol concedes through silence that Burns Doane’s
`representation in the ITC proceeding does not present a threat
`to Symbol’s confidences and secrets
`
`A law firm may be disqualified if it is in a position to use confidential information
`
`obtained in a separate representation of another client. Board of Education of the City of New
`
`York v. Nyquist, 590 F.2d 1241 (2d Cir. 1979) However, this rule is objectively inapplicable to
`
`the present facts.
`
`Symbol has boldly alleged that its attorneys and executives met with Burns Doane
`
`attorneys “at Symbol’s headquarters in New York to discuss patent strategy and have discussed a
`
`wide range of Symbol technologies.” Symbol’s Motion to Disqualify at p.5. However, Symbol’s
`
`representation by Burns Doane is, and has always been, limited solely to obtaining patents for
`
`optical scanning technology. Exhibit 9 to Proxim’s Response to Motion of Symbol
`
`Technologies, Inc. for Leave to Intervene to Seek to Disqualify Counsel for Complainant Proxim,
`
`Inc. (“Exhibit 9), Declaration of Samuel C. Miller, III, 75. Symbol has long known that Burns
`
`Doane represented both Ericsson and Proxim in various fields of wireless technology, including
`
`cellular phones and wireless network technology, respectively. Symbol was also advised on a
`
`number of occasions that Burns Doane was not ‘‘free to accept Symbol work relating to wireless
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`network technology.” Exhibit 9, Declaration of Samuel C. Miller, Ill, 89. Burns Doane’s
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`relationship with Proxim was never a secret to Symbol and never objected to by Symbol.
`
`Communications between Burns Doane attorneys and Symbol always and only “pertained
`
`to the rendering of legal services and the sharing of confidential and trade secret information
`
`3
`
`
`
`related to Symbol’s bar code scanner technology and the legal services Bums, Doane was
`
`providing to Symbol in regard thereto.” Exhibit 9, Declaration of Samuel C. Miller, III, 79.
`
`These facts, cited in Proxim’s Response, categorically refute Symbol’s allegation of the potential
`
`for misuse of confidences. Symbol’s failure to present argument or evidence to the contrary in its
`
`proposed Reply brief conclusively resolves this matter in Bums Doane’s favor.
`
`“[Rlather than indiscriminately gutting the right to counsel of one’s choice, [courts] have
`
`held that disqualification is unjustified without at least a reasonable possibility that some
`
`identifiable impropriety actually occurred.” FDIC v. United States Fire Ins. Co., 50 F.3d 1304,
`
`1316 (5th Cir. 1995)(emphasis added) (citing Woods v. Covington County Bank, 537 F.2d 804
`
`(5th Cir. 1976)). Because no identifiable impropriety has been shown, Symbol’s motion should
`
`be denied.
`
`4
`
`
`
`CONCLUSION
`
`For the foregoing reasons, Proxim opposes Symbol’s motion to disqualifL Proxim’s
`
`counsel, Bums Doane. Accordingly, Symbol’s motion should be denied.
`
`Respectfully submitted,
`
`Cgcilia H. Gonzdez, Esq.
`Joseph P. Lavelle, Esq.
`Mark L. Whitaker, Esq.
`HOWREY SIMON ARNOLD & WHITE, LLP
`1299 Pennsylvania Avenue, NW
`Washington, DC 20004
`(202) 783-0800
`
`Frederick G. Michaud, Jr., Esq.
`Alan L. Whitehwst, Esq.
`BURNS DOANE SWECKER & MATHIS, L.L.P.
`1737 King Street, Suite 500
`Alexandria, VA 223 14
`(703) 838-6674
`
`David Ross Rosenfeld
`David Ross Rosenfeld, P.C.
`11 8 South Royal Street
`Alexandria, Virginia 223 14
`Telephone: (703) 548-2600
`Telecopier: (703) 549-8664
`
`Counsel for Complainant
`Proxim, Inc.
`
`Dated: July 16.2001
`
`5
`
`
`
`CERTIFICATE OF SERVICE
`
`I, Erika Weinstein, hereby certify that copies of COMPLAINANT PROXIM, INC. 'S
`RESPONSE TO MOTION OF PROPOSED INTERVENOR SYMBOL TECHNOLOGIES, INC.
`TO DISQUALIFY COUNSEL FOP. COMPLAINANT PROXIM, INC. were served this 1 6th day
`of July 2001, as follows:
`
`Original plus six copies by Hand
`
`Two Copies by Hand
`
`One Copy by Hand
`
`One Copy by Hand
`
`Honorable Donna R. Koehnke
`Secretary
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`Hon. Delbert R. Terrill, Jr.
`Administrative Law Judge
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E. Street, SW, Suite 317
`Washingtm, DC 20436
`
`Benjamin D.M. Wood
`Office of Unfair Import Investigations
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E. Street, SW, Suite 401
`Washington, DC 20436
`
`On Behalf of Respondents D-Link Systems,
`Inc., D-Link Corporation, AmbiCom Inc. and
`The Linksys Group and On Behalf of
`Intervenor Intersil Corporation:
`
`Geoffiey Mason
`FWNEGAN, HENDERSON, FARABOW, GARRETT
`& DUNNER, LLP
`1300 I Street, NW
`Washington, DC 20005
`
`On Behalf of Respondents Acer America
`Corporation, Cabletron Systems, h., Entersys
`Networks, Inc., Melco, Inc., Buffalo
`Technology (USA), Inc., and Techworks, Inc.
`and On Behalf of Intervenor Agere Systems,
`Inc.:
`
`
`
`CERTIFICATE OF SERVICE (CONT.)
`
`George F. Pappas
`Gary M. Hnath
`Paul Daebeler
`Eric Nasnrow
`VENABLE, BAETJER, HOWARD & CIVILETTI, LLP
`1201 New York Avenue, NW
`Suite 1000
`Washington, DC 20005
`
`On Behalf of Respondent Addtron Technology
`Company, Ltd.:
`
`Alan D. Smith
`FISH & RICHARDSON PC
`225 Franklin Street
`Boston, MA 021 10
`
`Ralph A. Mittelberger
`FISH & RICHARDSON PC
`601 Thirteenth Street, NW
`Washington, DC 20005
`
`One Copy by Hand
`
`One Copy by Facsimile
`One Copy by First Class Mail
`
`One Copy by Hand
`
`On Behalf of Respondent Acer Ne Web
`Corporation:
`
`Kevin M. O’Brien
`BAKER & MCKENZIE
`8 15 Connecticut Avenue, NW
`Washington, DC 20006
`
`On Behalf of Respondents The Linksys Group,
`Inc. and AmbiCom, Inc.:
`
`Jeffrey C.P. Wang
`THE LAW OFFICES OF JEFFREY C.P. WANG
`1201 Dove Street, Suite 370
`Newport Beach, CA 92660
`
`One Copy by Hand
`
`One Copy by Facsimile
`One Copy by First Class Mail
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