Roger Clemens v. Brian McNamee — Standing to Assert Conflict on the Part of Opposing Counsel

In Roger Clemens’ defamation action against his former trainer, Brian McNamee, Clemens v. McNamee, 2008 U.S. Dist. LEXIS 36916 (S.D. Tex. May 6, 2008), McNamee moved to disqualify Clemens’ lawyer, Rusty Hardin, on the theory that Hardin's prior joint representation of both Clemens and Andy Pettitte created a conflict of interest requiring the disqualification of Hardin. The Court observed that: “[Pettitte’s] public testimony regarding Clemens' use of performance enhancing drugs ... is likely to be central to this lawsuit. Pettitte has neither consented nor objected to Hardin or RH&A [the Hardin law firm] representing Clemens, although McNamee's attorney has submitted a sworn declaration stating that, according to Pettitte's current attorney, Pettitte will not waive any attorney-client privilege that attaches to his communications with Hardin.” Held, McNamee lacks standing to assert the conflict. The opinion addresses conflicting (no pun intended) Fifth Circuit case law on this point. It is not necessarily intuitive that McNamee would have no standing, given the potentially critical importance of Pettitte’s testimony to McNamee’s defense. Hence, the split of Fifth Circuit authority on the issue.

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