A subplot has surfaced in Google’s landmark antitrust trial with the feds – and one of the search giant’s white-shoe law firms is caught in the middle of it.
A federal judge will decide in the coming weeks whether one of Google’s leading legal advisors – New York-based law firm Paul, Weiss, Rifkind, Wharton & Garrison – will get thrown off the case for ethics violations, according to legal filings.
At issue: Paul Weiss is defending Google against the Justice Department’s charges it has stifled competition after representing several of the search giant’s key accusers on the issue just a few years ago – among them Yelp, Spotify, and News Corp, the owner of The New York Post.
Yelp and Spotify retained Paul Weiss until 2020 and News Corp retained the firm until 2022. At the time, a key counsel at the firm to the Google antagonists was none other than Jonathan Kanter – the prosecutor who is now leading the DOJ’s case against Google.
Kanter left “due to a complicated legal conflict,” the firm said at the time. More specifically, according to reports, Paul Weiss had just hired well-connected attorney Karen Dunn, whose Big Tech clients at the time included Apple and Amazon, according to reports.
With Paul Weiss having since been hired by Google, Yelp has filed a legal motion to get the firm removed from the case, despite the fact Yelp isn’t involved. In a Sept. 22 filing, Yelp complained that it never granted a waiver to the law firm to switch its allegiances.
The American Bar Association’s rules for professional conduct state that lawyers can’t switch sides unless given “informed consent” in writing by the previous client.
In its Sept. 22 filing with the News Media Alliance – a group representing more than 2,000 news organizations – Yelp said Paul Weiss accordingly should be “disqualified when it previously provided counsel for an adverse party in a substantially related matter.”
A spokesperson for Paul Weiss said, “Our firm’s representation of Google is appropriate in all respects. The characterizations being raised are factually baseless, legally irrelevant and transparently tactical.”
Yelp and News Corp declined to comment. Spotify did not respond to a request for comment.
Some anti-tech critics like Matt Stoller, Director of Research at the American Economic Liberties Project, say it’s possible the judge could throw Paul Weiss off the case.
“Most legal elites have a tenuous grasp on the rule of law,” Stoller said of the law firms’ seeming disregard for ABA guidelines. “They don’t believe in the rule of law and they don’t think it applies to clients.”
Jeff Hauser, founder of nonprofit watchdog the Revolving Door Project, notes that Paul Weiss’ client changes may “show disloyalty,” but in the end put the firm in a unique position to offer “extra ammunition” for Google in its legal battle.
“You know the other side’s strengths and weaknesses and information you’re literally not supposed to know,” Hauser said. “They have had privileged insight into clients fighting against Google’s monopoly and now have that information on behalf of Google.”
Indeed, Paul Weiss partner Dunn didn’t just bring a lengthy roster of clients when she joined the firm – she also brought deep political ties.
Not only is her husband Brian Netter at the DOJ, where he heads the Federal Programs Branch, she is close with US Attorney General Merrick Garland and even prepared him ahead of his confirmation hearings in 2021.
“What’s unique is how close Karen Dunn is to so many people at the DOJ — they’re paying for access,” a source who spoke on the condition of anonymity speculated about why Dunn was so critical to the case.
Meanwhile, according to Hauser, DOJ antitrust chief Kanter “will need support within the DOJ building because his approach to reining in corporations is anomalous within the DOJ.”
Stoller agreed that antitrust hawkishness has weakened at the DOJ under Biden, noting that “prosecutions of corporate crimes are much lower today than under Trump.”