ARC's Information Cannot Serve as Basis for Conflict of Interest Claim, ARC's Former Counsel Argues

A company's information shared with counsel jointly representing another firm is not treated as confidential and "cannot serve as a basis for a conflict claim," counsel for defendant-intervenor Coalition of Freight Coupler Producers argued in an Oct. 26 reply brief at the Court of International Trade. Plaintiffs, led by Amsted Rail Co. (ARC) cannot claim that the coalition's counsel -- led by Daniel Pickard of Buchanan Ingersoll -- violated the D.C. Bar's rules of ethics, Pickard said (Amsted Rail Co. v. ITC, CIT #22-00307).

The case concerns a past ITC injury investigation on freight rail couplers and parts thereof from China and a present injury investigation on the same goods from China and Mexico. ARC is a U.S. producer and importer of freight rail couplers, and is affiliated with a maquiladora factory, ASF-K de Mexico -- the only Mexican manufacturer of the subject goods. ARC originally employed Wiley, including Pickard at the time, to represent it. Pickard filed an antidumping and countervailing duty petition on behalf of ARC and McConway & Torley (M&T) foundry to start the prior injury investigation. ARC then withdrew from the petition, leaving Pickard to continue the case with M&T and a labor union that replaced ARC. The ITC issued an administrative protective order (APO).

In that investigation, the ITC unanimously voted that the U.S. industry was not materially harmed. During the inquiry, Pickard moved from Wiley to Buchanan. The injury determination was issued in June, when the APO covered only Pickard and two non-attorneys at Wiley. After the determination, in July, Buchanan filed an amendment to the APO adding seven attorneys and two non-attorney personnel from Buchanan.

Days later, Buchanan filed a petition to start another injury investigation on the freight rail couplers, this time including Mexican imports as well as Chinese ones, with M&T and the union standing as the two petitioners. Pickard, who represented ARC, included Mexican imports in the petition knowing that the only Mexican imports came from ARC's affiliate. Describing this as a "betrayal," ARC originally took to the ITC to argue that Pickard and Buchanan should be disqualified from the proceeding and dismissed from the APO (see 2210120062). The company filed suit at CIT to argue that the ITC's decision to give BPI access to Buchanan violated the APA and its 5th Amendment rights (see 2210170084).

The trade court granted a temporary restraining order preventing the ITC from disclosing the plaintiffs' BPI (see 2210180042). The Coalition of Freight Coupler Producers filed a highly redacted reply urging the court to reverse the ITC decision. Counsel for the defendant-intervenor said that when it jointly represented ARC and M&T it had an "equal duty of loyalty to both clients, requiring it to inform each member of any information counsel obtained from another member that might affect the coalition's interests." Since M&T is still a coalition member in the current petition, any information taken from ARC was already accessible to the coalition. As such, the joint representation of M&T and ARC requires the finding that information was not used to create a conflict of interest in the current investigation, Pickard said.

Pickard cited D.C. Bar Rule 1.7, Comment 15, to back this claim, which says that "the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications." Given this, the information taken from ARC "cannot serve as a basis for the conflict claim," the brief said.