ITC Should Disqualify Buchanan From Injury Proceeding Based on Partner's 'Betrayal,' Importer Argues

The International Trade Commission should disqualify Daniel Pickard, chair of Buchanan Ingersoll's International Trade & National Security Practice Group, from participating as counsel for the petitioner to an International Trade Commission injury investigation given his ethical violations, counsel for Amstead Rail Co. said in an Oct. 11 letter.

The petitioner, Coalition of Freight Coupler Producers, argued that Pickard, along with an accountant employed by Buchanan, Milton Koch, committed the violations when he used his position as Amstead's previous attorney at Wiley Rein before moving to a different firm, then adding attorneys at his new firm to the administrative protective order in a previous injury investigation. By doing this, Pickard gave the attorneys access to Amstead's information, then filed another injury investigation against Amstead knowing its affiliate was the only producer of the subject merchandise from one of the countries named in the petition, amounting to an act of "betrayal."

The case concerns a past ITC injury investigation into freight rail couplers and parts thereof from China and a present injury investigation into the same goods from China and Mexico. Amstead is a U.S. producer and importer of the subject merchandise, and is affiliated with a maquiladora factory, ASF-K de Mexico -- the only Mexican manufacturer of the freight rail coupler systems. To start the previous investigation, Amstead originally employed Wiley Rein, where Pickard worked as a partner, to represent them. At the time, Pickard filed an antidumping and countervailing duty petition on behalf of Amstead and McConway and Torley (M&T), another U.S. freight rail couplers maker, to start the prior injury investigation.

Amstead, however, then withdrew from the petition, leaving Pickard to crack on with M&T and a new arrival: the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. An APO in this investigation was then issued. Until its withdrawal, Amstead disclosed confidential information to Pickard with the hope that he would "preserve it inviolate within the confines of the attorney-client relationship."

In the prior injury investigation, the ITC ruled, in a five to nothing vote, that the U.S. industry was not materially harmed by imports of the subject merchandise from China. During the investigation, though, Pickard moved from Wiley Rein to Buchanan, and Koch went with him. The ITC issued its injury determination in June, when the APO only covered Pickard and Koch. After the determination, in July 2022, Buchanan then filed an amendment to the APO adding seven attorneys and two non-attorney personnel. In September, the firm then said it destroyed materials covered by the APO.

Days later, Buchanan filed a petition to start an injury investigation into the freight rail couplers, this time adding Mexico to the scope, concurrently filing an APO application covering the same Buchanan lawyers and staff made partial to the previous APO. M&T and the union stand as the two petitioners. These Buchanan lawyers, including Pickard who represented Amstead, included Mexican imports to the scope knowing that the only Mexican imports came from Amstead's affiliate.

Learning of Pickard's "betrayal," Amstead said that its new counsel, Faegre Drinker, sent a letter to Pickard detailing his violation of Rule 1.9(a) of the District of Columbia Rules of Professional Conduct, the company said. Amstead then took to the ITC to argue that Pickard's ethical violations -- representing an importer then allegedly using its information to go and represent a petitioner with adverse interests -- justifies disqualifying Buchanan and excluding it from the current APO.

"This is not a close case," the letter said. "It is obvious that Mr. Pickard has violated and, with each passing day, continues to violate his ethical duties under Rule 1.9(a)." This rule requires disqualification if four criteria are met: the moving party and opposing counsel had a prior attorney-client relationship, the interests of opposing counsel's current client are adverse to the movant, the matters in the current lawsuit are substantially related to the matters for which the opposing counsel previously represented the moving party, and the moving party does not consent. Amstead argued that Pickard's conduct has cleared all four and qualifies Buchanan for disqualification.

"In short, Mr. Pickard and Mr. Koch are operating under a disabling conflict of interest," the letter said. Pickard did not respond to request for comment.