ASBCA Rebuffs Government’s Attempt to Disqualify Contractor’s Counsel; Appeal of Asahi General Trading & Cont. Co. W.L.L., ASBCA No. 62445

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Government’s motion to disqualify contractor’s counsel is denied. The contractor asserted claims against the Defense Logistics Agency. The contractor’s counsel had worked as general counsel for DLA for ten years. The government alleged that this created a conflict and that the contractor’s counsel had to be disqualified. The board, however, found that the knowledge counsel had gained in his years at DLA would not be helpful in this case. To be sure, the counsel had general knowledge of DLA’s practices and policies, but this kind of general knowledge is not enough to warrant disqualification. The government argued that while at DLA, the contractor’s counsel had reviewed the performance evaluations of the contracting officer’s counsel and could use this information to advantage at trial. But the board found that knowledge of the contracting officer’s counsel’s evaluations was over a decade old and would not be useful.

The Defense Logistics Agency awarded Asahi General Trading & Contracting two contracts. One was for the removal of scrap metal in Kuwait. The other was for removal of scrap metal in Qatar. Asahi submitted a claim to DLA seeking $1.3 million due under the Qatar contract. But the parties settled the claim. They agreed that Asahi would drop the Qatar claim in exchange for an extension of the Kuwait contract.

But a year later, Asahi submitted another claim related to the Kuwait contract. Asahi alleged that the government had not provided the volume of scrap needed under the Kuwait contract to cover the costs incurred under the Qatar contract. Asahi contended the settlement was void and sought to recover the $1.3 million for the Qatar contract. The contractor officer denied the claim. Asahi appealed to the ASBCA.

On appeal, the government moved to disqualify Asahi’s counsel, Fred Pribble. Pribble had worked as general counsel for DLA from 2006 to 2016. He had advised the DLA director on the agency’s activities and had participated in confidential agency discussions involving the agency’s operations in Qatar and Kuwait. Pribble had knowledge of DLA contracting processes. He also had access DLA performance evaluations between 2008 and 2010. Given this, DLA argued that Pribble was ethically barred from representing Asahi.

The board noted that it was reluctant to disqualify counsel because it is such a drastic act; it separates a client form their counsel of choice. The government bears a heavy burden in seeking to disqualify. Applying the Model Rule of Professional Conduct, the board reasoned that the question was whether the information Pribble had access to in his prior work for DLA would be used in this matter.

The government first argued that Pribble should be disqualified because he possessed information about DLA’s contracting activities and its litigation practices. But the board reasoned that this kind of general knowledge of policies and practices is not disqualifying. A former government attorney will almost always have knowledge of an agency’s practices. If this kind of knowledge disqualified former government attorneys, it would amount to a blanket bar.

The government also argued that Pribble had knowledge about Qatar customs matters that he learned while at DLA and that knowledge related to Asahi’s claim under the Qatar contract. But the board reasoned that even if Pribble possessed this knowledge it was not relevant to the appeal. Asahi had only appealed the denial of its claim related to the Kuwait contract, not the Qatar contract. What’s more, all of the events related to the Kuwait contract occurred after Pribble had left DLA.

The government finally argued that Pribble should be disqualified because he had knowledge of the contracting officer’s counsel. Asahi’s complaint mentioned that the contracting officer’s counsel had introduced bias into settlement negotiations. DLA claimed Pribble had previously reviewed this counsel’s past performance evaluations while he worked at DLA, and that he would use this information as evidence of other occasions where counsel had displayed bias.

The board, however, found that the bias comment in Asahi’s complain was an incidental remark. Moreover, the possibility that Pribble’s knowledge of counsels’ performance reviews from a decade ago would somehow assist him in trial seemed too remote, especially given the tenuous nature of the allegation in question.

Asahi is represented by Fred T. Pribble. The government is represented by Daniel K. Poling, Robin E. Walters, and Michael J. Kerrigan of the Defense Logistics Agency.

ASBCA - Asahi General Trading & Cont. Co.