First NBC Bank v. Murex, LLC (259 F. Supp. 3d 38, 2017)

OPINION & ORDER

Paul A. Engelmayer, United States District Judge

This decision resolves a motion to disqualify counsel. Defendant Murex, LLC (“Murex”) moves to disqualify the law firm Holland & Knight LLP (“H & K”), which, on behalf, of plaintiff First NBC Bank (“FNBC”) brought this 13-count lawsuit, claiming that Murex sold FNBC bogus receivables, and accusing Murex of, inter alia, breach of contract, .breach of fiduciary duty, fraud, tortious interference-with contract, and racketeering,

Murex’s motion to disqualify is based on the fact that Murex was an H & K client: At the time that -H & K’s litigators in Atlanta were readying to sue it, Murex alleges, its Washington, D.C„ office was separately representing Murex in regulatory work. H & K’s representation of Mu-rex began as a lobbying representation, but, Murex contends, it grew to include legal services, triggering an attorney-client relationship and the canons of professional responsibility. Most notably, Murex contends, H & K helped Murex defend itself against an enforcement action that the Environmental Protection Agency (“EPA”) had threatened. When eventually notified that H & K also represented FNBC and wished to sue Murex on FNBC’s behalf, Murex refused to consent. Murex thus argues that H & K engaged in an unconsent-ed-to concurrent representation of a client (Murex) and a party with interests adverse to it (FNBC), prvrria fade improper under professional canons. Murex argues that allowing H & K to represent FNBC in this lawsuit would give rise'to an actual'and apparent conflict of loyalties and taint this lawsuit. H & K, backed by FNBC, opposes the disqualification motion.

For the reasons that follow, the Court grants the motion to disqualify.

I. Background

Murex’s motion to disqualify implicates two of H & K’s client representations.

The first, of Murex, extended from late January 2016 through April 2016. The Mu-rex representation was originally contemplated to consist of lobbying services only and was subject to an engagement agreement that permitted H & K to represent clients adverse to Murex, Murex contends that, in fact, H & K’s representation of it broadened beyond lobbying work, including helping Murex defend itself against .a threatened EPA enforcement action, and briefly counseling Murex on a pending lawsuit in which Murex was represented by a different law firm.

H & K’s second representation, of FNBC, a Louisiana bank, extended from December 2015 to the present. It entailed readying — and, in September 2016, filing— this lawsuit, which accuses Murex of participating in a scheme to defraud FNBC by knowingly selling it receivables owed by Abengoa Bioenergy Company LLC (“ABC”). that, allegedly were fraudulent, because they were based on sales of ethanol that FNBC claims never took place.

Because the parties’ arguments on the disqualification motion turn on the specifics of H & K’s representations, the Court reviews them in detail.

A. H & K’s Representation of Murex

1. Background to H & K’s Engagement

Murex markets and provides distribution services for ethanol and other gasoline blendstocks. Am. Compl. ¶ 13.

Since approximately' 2007, Murex has marketed and sold Renewable Identification Numbers (“RINs”). Bartel Decl. ¶ 3. RINs are 38-digit serial numbers assigned to a batch of renewable fuel, such as ethanol, for the purpose of tracking its production, use, and trading, as required by the EPA’s Renewable Fuel Standards (“RFS”) program. RINs are generated by renewable fuel producers, not by .traders in such fuels such as Murex. McAdams Deck ¶¶ 11-12, Under federal regulations, obligated parties (e.g., refiners,.importers, and certain blenders of gasoline) must hold enough RINs to meet regulatory “renewable volume” obligations; a market participant who does not hold a sufficient-number of RINS must pay a civil penalty. Id. ¶ 12 (citations omitted). Companies such as Mu-rex purchase, aggregate, and resell RINs for a profit. Id.

In or about 2010, it became clear that some biofuel producers had begun selling fraudulent RINs into the marketplace for RINs. Although FNBC initially implied otherwise in this lawsuit, see Compl. ¶ 62, the parties now agree that Murex was solely a victim of such fraud; it purchased fraudulently-created RINs from some producers, and resold these RINs in good faith to market participants. The producers from whom Murex bought fraudulent RINs include GRC Fuels, Inc. (“GRC”), Southern Resources and Commodities (“SRAC”), and Gen-X Energy Group (“Gen-X”). McAdams Deck ¶ 13; Bartel Decl. ¶ 5; LeRow Decl. ¶ 6.

In August 2015, Murex’s chief financial officer, Rick Bartel, and director of compliance, Jennifer LeRow, sought to hire counsel to deliver a demand letter to GRC seeking compensation for damages suffered as a result of GRC’s RIN fraud. Bartel Deck ¶ 5. In connection with this proposed representation, LeRow sought a recommendation of counsel from Michael McAdams, a senior policy analyst in H & K’s Washington, D.C. office. McAdams was known to Murex in his capacity as president of the Advanced Biofuels Association (“ABFA”), a trade association of approximately 30 advanced biofuels and feedstock companies, of which Murex, since 2011, has been a member. LeRow Deck ¶ 4; McAdams Decl. ¶¶ 6, 8. Although a law school graduate, McAdams is not a licensed attorney. McAdams Decl. ¶ 3. McAdams referred Murex to H & K partner Bonni Kaufman and associate Andrew Emerson, both also based in Washington, D.C. After preliminary communications and/or emails among LeRow, McAdams, Kaufman, and Emerson, H & K determined that a business conflict prevented H & K from taking on the GRC representation. Bartel Deck ¶ 6; LeRow Decl. ¶ 7; McAdams Decl. ¶ 10; Emerson Decl. ¶¶ 3-6; Kaufman Decl. ¶¶ 3-8 & Exs. 1-2. Murex later retained the firm of Kane Russell Coleman & Logan PC (“KRCL”) to represent it in connection with its claims against GRC relating to fraudulent RINs. Later in 2015, through KRCL, Murex sued GRC regarding its alleged creation and transfer of such RINs. That lawsuit is pending in United States District Court for the Northern District of Texas. Coleman Decl. ¶ 3.

2. Murex’s Retention of H & K for Lobbying

On January 20, 2016, Murex retained H & K to provide, over the three-month period beginning February 1, 2016, lobbying services in connection with RINs. LeRow Decl. ¶ 8; McAdams Decl. ¶ 15 & Ex. 2. Of particular concern to Murex was securing a cap on the replacement obligations of entities like Murex who had purchased fraudulently-created RINs in good faith. For the years 2014 through 2016, the EPA had capped such parties’ replacement obligations so as to require them to replace only 2% of the fraudulently created RINs that they resold. However, for 2013 and all preceding years, the EPA left the obligated party ostensibly required to replace 100% of the fraudulently-created RINs that it resold. Many RINs resold by Mu-rex that had been deemed fraudulent had been generated before 2014. Murex notified McAdams of its concern that it might be obliged to make good on all pre-2014 fraudulent RINs, potentially costing Mu-rex many .millions of dollars. McAdams’s lobbying effort was to focus on convincing the EPA to apply the 2% replacement cap to all fraudulently-created RINs that were resold, not just those created during 2014-2016. McAdams Decl. ¶ 14; see also LeR-ow Decl. ¶ 8 (H & K was retained “to advise Murex on EPA regulatory issues” arid “to effect policy changes within the EPA beneficial not only to Murex but to other RIN buyers”); Tr. 27 (lobbying goal was to “move the two percent cap forward in time so it would cover years 2011 through 2013”).

Before opening the Murex matter, Mc-Adams ran a conflict check. It disclosed conflicts searches regarding Murex by two H & K lawyers, including Atlanta-based H & K partner J. Allen Maines. McAdams did not contact either partner about the “potential conflict,” “based on my understanding that the nature of my work, non-lawyer lobbying, would not present an attorney-client conflict.” McAdams Decl. ¶ 16.

The engagement letter between H & K and Murex, signed by McAdams and by Murex’s president, Robert Wright, provides, in pertinent part:

Thank you for engaging Holland & Knight to provide EPA regulatory consulting services' to Murex LLC. We look forward to serving your needs in this matter and developing a mutually satisfactory relationship.

Under the scope of this engagement H & K will provide Murex with the following: an overview of current EPA regulations and the impacts' to Murex operations to date; secure meetings with key decision and policy makers at EPA regarding the implications of current regulations to your company and the RIN market in general; and H & K will seek support-from the relevant congressional staff to reinforce your position with EPA if appropriate.

This agreement is effective as of February 1st for three months unless extended at the option of the client. As agreed, Holland & Knight LLP’s fee in this matter will be $10,000 [per month plus any reimbursable expenses....

In addition, please be aware that the services for which you have engaged Holland & Knight are “law-related services” and not “legal services.” In other words, the firm will not be acting as your lawyers in this matter but rather in a lobbying capacity utilizing nonlawyer personnel. As such, the protections which accompany an attorney-client relationship do not apply. For example, while the firm will keep your information confidential, the specific rules governing lawyers and client confidential information do not apply. Further, the firm’s lawyers would not be prohibited from providing legal- services to clients in unrelated legal matters that are adverse to you. While conflicts of interest rules applicable to lawyers would not apply, we, of course, would not undertake lobbying services for another client adverse to the matter on which you have engaged our services.

McAdams Decl. ¶ 17 & Ex. 2. McAdams notified LeRow that H & K “could also provide other services to Murex, including legal services,” but, McAdams attests, he-did not commit H & K to undertaking such work. Id. ¶ 18.

3.. The EPA’s Notice to Murex of Potential Enforcement Action

On January 29, 2016, three days before H & K’s lobbying engagement was to commence, Murex received a notice from the EPA. Nee Bartel Decl. ¶ 9 & Ex. B (“EPA Notice”). The EPA Notice was entitled: “ACTION REQUIRED — Affirmative Defense Notice for Potentially Invalid RINs.” It notified Murex that it “may own, have transferred, or used potentially invalid renewable identification numbers (RINs) to comply with your Renewable Fuel Standard (RFS) Renewable Volume Obligation (RVO) for one or more compliance years.” The EPA Notice stated that the majority of these RINs had been verified as “A-RINs” — a species of RIN — during the period.between February 21, 2013 and December 31, 2014. It stated that the fraudulent RINs had been generated.by Gen-X or SRC, and were believed invalid based on a federal court plea agreement in the case of United States v. Scott Carl Johnson,, “and associated court filings.” Id.

The EPA Notice then recapped the law pertinent to such conduct. It notified Mu-rex that under federal regulations, parties are generally prohibited from either transferring invalid RINs or using invalid RINs to meet their RVOs. Id. (citing 40 C.F.R. § 80.1460(b)(2) & (c)(1)). But, the EPA Notice stated, a company which had done so “may assert an affirmative defense to these actions.” Id. (citing 40 C.F.R. § 80.1473(a) & (c)). The EPÁ Notice then reviewed the criteria for this defense to the transfer, or use of invalid RINs to apply. Id. If Mujrex could satisfy these criteria, the EPA Notice stated, “it will NOT have to replace these potentially invalid A-RINs, resubmit any prior compliance reports .,., or be subject to any civil penalties for such, conduct.” Id. The EPA Notice stated that it was being sent to parties whom the EPA had concluded “may own, have transferred, or used potentially invalid A-RINs as described above.” Id. It added that the EPA would separately contact parties whom it determined may have owned, transferred, or used Q-RINs (a different type of RIN). Id.

The EPA Notice concluded by giving Murex 30 days to provide the EPA a written report asserting the elements of an affirmative defense. The EPA Notice recapped these as including that (1) the RINs in question had been “verified 'through a quality assurance audit” consistent with 40 C.F.R. § 80.1472; (2) Murex “did not know of have reason to know that the RINs were invalidly generated prior to being verified” by an independent third-party auditor; the notice directed Murex to have its “Responsible Corporate Officer” provide a signed statement confirming this; (3) Murex “did not cause the invalidity”; (4) Murex “did not have a financial interest in the company that generated the invalid RINs”; and (5) “[a]ll other supporting documentation” for an affirmative defense were provided. Id. (“[a]ny supporting information or documentation must be specific enough to allow the EPA to evaluate that each of the above criteria have been met”). If Murex did not submit a timely written report, or if the EPA found the elements of an affirmative defense not satisfied, the EPA Notice stated, “the EPA may require your company to replace potentially invalid A-RINs, resubmit any compliance reports involving use of potentially invalid A-RINs, and pay a civil penalty.” Id.

4. H & K’s Interactions With Murex Involving the EPA After Receiving the EPA Notice

The relevant personnel at Murex and H & K have submitted declarations chronicling the — or significant aspects of the— interactions between Murex, H & K, and the EPA that followed the EPA Notice. As discussed more fully below, H & K contends that its ensuing services to and communications with Murex consisted exclusively of lobbying, within the scope of the parties’ January 20, 2016 engagement letter. See, e.g., McAdams Decl. ¶ 20 (his work for Murex “was directed to the EPA in its agency or administrative capacity” and was “within the scope of what is commonly done by nonlawyer lobbyists”). Mu-rex contends that, although the parties never modified their engagement letter, H & K’s work regarding the EPA expanded beyond the bounds set by the letter, including guiding Murex in the defense of the enforcement action threatened by the EPA Notice. See, e.g., LeRow Decl. ¶ 9 (“During the . course of H & K’s engagement, McAdams routinely provided detailed legal analysis and opinions regarding the application of various regulations and statutes to Murex’s business operations.”) The Court reviews the communications among Murex and H & K in detail, to elucidate H & K’s work for Murex.

Murex received the EPA Notice on at 2:56 p.m. on Friday, January 29, 2016. At 3:10 p.m., Murex’s LeRow forwarded the notice by email, with a summary, to Mc-Adams, copying Murex’s president, Wright, and its CFO, Bartel. Bartel attests that he directed LeRow to contact Mc-Adams because Bartel “had significant concerns about the financial ramifications of an EPA enforcement action against Mu-rex,” in that, “[if] Murex failed to prove its affirmative defenses, the EPA may have required Murex to: (1) replace potentially invalid RINs, causing Murex damages; (2) submit to the EPA certain compliance reports detailing the use of potentially invalid RINs; and (3) pay a potentially sizable civil penalty.” Bartel Decl. ¶11. Mindful that Murex had “just 30 days to prepare affirmative defenses to the EPA’s allegations that Murex may have unknowingly transferred fraudulent Gen-X and SRAC RINs,”. Bartel asked LeRow “to contact McAdams to request his participation in preparing the response and corresponding with the EPA.” Id. ¶¶ 11-12.

Over the ensuing weeks,. McAdams exchanged numerous emails with Murex executives regarding its response to the EPA Notice. Murex’s Wright, Bartel and LeR-ow, and a fourth Murex official, Luke Parkhurst, its director of ethanol and RIN trading, were parties to these emails. LeR-ow’s emails to McAdams attached voluminous materials. Bartel explains that he asked LeRow “to provide McAdams with a tremendous amount" of information about Murex’s RIN diligence policies, transactions, disputes, EPA interaction, and claims and causes of actions against other parties for RIN fraud and related issues, so that McAdams would be adequately informed when advising Murex on how to respond to the EPA.” Id. ¶ 13 (stating that “[t]he vast majority of that information is highly confidential”). Bartel summarizes McAdams’s ensuing work vis-a-vis the EPA Notice as follows:

McAdams, armed with Murex’s confidential information, helped Murex craft its response to the EPA Notice and a later assertion of additional affirmative defenses. He provided advice on formatting, legal substance, how to address certain regulatory compliance concerns, and how to avoid potentially adverse legal issues associated with Murex’s RIN- diligence explanations and the EPA in general.

Id. ¶ 14.

The emails exchanged between Mc-Adams and Murex personnel during this period reflect, in order, the following communications.

On Saturday, January 30, 2016, Mc-Adams emailed LeRow: “I see you called.' Looking over this letter it certainly looks helpful in many respects. Clearly they are comfortable with 13 [2013] and beyond as far as affirmative defense.” Bartel Deck, Ex. C.

On Sunday, January 31, 2016, Wright emailed McAdams:

Mike,

I would like to know your opinion of what this communication from the EPA might mean to Murex. Is it likely we have an off ramp for all RINS generated by Gen-x and Srac? Do you think this might apply to other invalid RIN generators? How about historical D5 invalid RINS that we have previously settled with customers.... any potential help in your opinion. Please call me this weekend or Monday if you have a moment. Thanks for your help!

Bob

Id.

On Tuesday, February 2, 2016, Bartel emailed McAdams attaching Murex’s “draft Affirmative Defense Letter for Gen-X and SRAC.” He added: “We would do a related letter for all other advanced biofuel RINS purchased and sold by Mu-rex. Please give me your, comments and suggestions.” The attached draft letter took the form of a certification by Bartel. It addressed each element of an affirmative defense as identified by the EPA. Id.

Later that day, McAdams responded. After thanking Bartel for the draft, Mc-Adams added that he would include a “fo[u]rth bullet” point in Murex’s letter to the EPA, the text of which McAdams, then proposed. That bullet point addressed, inter alia, the means by which the RINs in question had been verified, citing the pertinent CFR subsection. McAdams reminded Bartel that “[o]f course we need to get this out the door in 30 days. We should make sure we beat that date and that the document is sent by a document dated carrier.” Id.

On Wednesday, February 3,2016, Bartel sent an email entitled, “Assertion of Affirmative Defense” to McAdams and the other Murex officials. The body of Bartel’s email contained the revised text of the draft affirmative defense letter. That letter was addressed to an EPA official. It contained, as its first substantive point, the language that McAdams had proposed to Bartel, verbatim. Attached to Bartel’s email were schedules of A-RINs, generated by Gen-^ or SRC, and various documents and reports, that Bartel proposed be sent to the EPA with the letter. The email identified materials that Bartel proposed not to include in Murex’s EPA submission. The email explained that certain contracts and other documents contained particular notations regarding RINs whereas others did not. Id.

Later the same day, McAdams replied to Bartel:

“Rick: Excellent, you gave it back to him in exactly the form he asked for it. As I like to say[,] idiot proof, if you know what I mean. All the best,”

Id.

On February 5, 2016, Murex submitted its initial EPA Notice response letter to the EPA. Bartel Decl. ¶ 16; see also LeR-ow Deck ¶ 10 (“I provided McAdams a final draft of the Affirmative Defense Letter and all supporting documents, asked for his final review, and obtained his approval before submitting it to the EPA”). The letter and its many attachments were contained in a series of 16 emails that LeRow sent the EPA, each entitled “Assertion of Affirmative Defense — MUREX.” Murex’s letter tracked Bartel’s prior draft. LeRow’s emails to the EPA cce’d — in addition to her Murex colleagues — McAdams, who was identified at his H & K email address at “hklaw.com.” LeRow Deck, Ex. A; id. ¶ 11.(“1 provided H & K with ... attachments detailing, among other things: (1) Murex’s correspondence and agreements with Gen-X and SRAC; (ii) Gen-X and SRAC engineering reviews; (iii) Gen-X and SRAC attestation reports; (iv) Mu-rex’s due diligence on Gex-X and SRAC RINs; (v) Gen-X and SRAC RIN reports; (vi) master service agreements with third-party due diligence providers, also known as EPA approved Quality Assurance Plan providers (“QAP Providers”); and (vii) numerous QAP certificates validating RINs purchased by Murex from Gen-X and SRAC”).

The same day, McAdams responded, stating, with respect to the attachments, that he would “print them all and review over the weekend.” Id. ¶ 12 & Ex. B. LeR-ow responded:

:)

It’s SOOO much information amassed over the years. You probably won’t be able to go through it all. I was just trying to give them a good picture of just how much effort went into vetting these guys. I hope it works well for them to be able to make the right decision. Do you think this might encourage them to get back in touch about the meeting? I am truly hoping it will.

Id.

In the period after the EPA letter was submitted, Bartel attests:

“EPA representatives engaged in direct correspondence with Murex regarding its affirmative defenses. McAdams was heavily involved at all times during these exchanges, and advised Murex how to respond in each interaction. McAdams, counseled Murex on how to address each of the EPA’s regulatory compliance concerns, and how to assert Murex’s affirmative defenses to liability.”

Bartel Decl. ¶ 16.

The emails exchanged between Mc-Adams and Murex personnel during the period after Murex’s first EPA submission reflect, in order, the following communications.

On Tuesday, February 9, 2016, Bartel emailed McAdams and the other Murex officials. He attached a new draft letter that he proposed Murex send to the EPA “covering the remainder of Gex-X and SRAC RINs.” Bartel’s draft letter noted that Murex had already responded to the EPA Notice “regarding potentially invalid Gen-X and SRAC RINs” for 2013 and 2014. The new letter addressed treatment of such RINs for the periods before 2013 and after 2014. Bartel’s draft letter explained why each element of an affirmative defense applied to those RINs. Bartel Deck, Ex. E.

To the draft letter, Bartel attached a document, “Schedule A,” which Bartel proposed as an' exhibit to the second letter to the EPA. Schedule A consisted of an extended narrative- regarding Murex. It contained: (1) four paragraphs recounting the evolution of Murex’s quality assurance program (QAP), including how Murex became exposed to fraudulent RINs, the steps Mu-rex took to vet the issues and its sources of supply, how Murex' modified its anti-fraud due diligence practices, and the third-party auditors and consultants Murex utilized for these purposes; (2) a discussion of Mu-rex’s marketing agreements; (3) a discussion of the timetable for implementing Mu-rex’s QAP programs; and (4) a statement about Murex’s future. Schedule A also described Murex’s QAP program in detail and explained why, in Murex’s view, it satisfied the EPA’s standards.. Bartel also attached a proposed Schedule B, which reproduced the due diligence provisions of Murex’s purchase and sale agreements regarding RINS. Id., Ex. E. Bartel’s email asked MeAdams for his “comments and changes.” Bartel’s email also raised strategy questions about Murex’s approach to the EPA, including whether yet a third letter was warranted “for the remaining RINs, including GRC?” Id.

On Thursday, February 11, 2016, LeR-ow reminded McAdams that Murex was awaiting his comments before sending a new letter to the EPA. Id.

On February 12, 2016, Murex received an email from the EPA. Murex Mem., Ex. D. McAdams advised LeRow, Bartel and Wright that he had “asked two of my compliance folks to check the paperwork.” Id., Ex. E. Later that day, McAdams' wrote LeRow:

Also, I know you and Rick have cleaned up the slide show. I want to sit with my white Collar crime guy and run him through the slides. Could you send me the latest document.

Id.

Later that day, after LeRow sent him the slides (“Latest copy attached, Mikel Thanks!”), id., McAdams wrote a long email — consisting of .five single-spaced paragraphs — to LeRow, Wright, and Bar-tel, entitled “draft response the EPA email.” Id., Decl. D. At the top, McAdams wrote: “Take a look at this and . tell me what you think, I believe we need to put something in front of them.” Id. The balance of the email consisted of the text of an extended memo that McAdams proposed that Murex send to five EPA officials regarding the agency’s potential enforcement action. McAdams’s proposed communiqué from Murex to the EPA began:

“Thank you for your email this morning. We certainly appreciate the gravity and sensitivity of the matter which you are currently managing. Murex has a couple of basic points we wanted to communicate to the agency during your deliberations on a path forward concerning the notified RIN noncompliance issue which we recently received from EPA.”

Id.

McAdams’s draft message to the EPA went on to amplify, in some detail, on aspects of Murex’s affirmative defenses. Id. It concluded by noting that Murex was sending with it “a slide presentation we developed in the event we were able to meet with you directly,” and offering to answer the agency’s questions. Id.

The EPA did not, however, ultimately meet with Murex. McAdams Decl. ¶ 19.

On March 2, 2016, LeRow sought feedback again from McAdams on whether “to move forward with a proactive submission [to the EPA] on an affirmative defense on the remainder of the volume.” She attached Bartel’s earlier draft letters and Schedules A and B. Id.

Although the materials submitted on this motion do not reflect the EPA’s decision, at argument, counsel represented that, at an unspecified later date, the EPA decided not to take enforcement action against Murex, provided,that Murex, as it had proposed when proffering its affirmative defenses, made a limited repurchase of certain sham RINs. See, e.g., Tr. 12, 34.

5. Murex’s Consultation of H & K Regarding the GRC Lawsuit

In -addition to McAdams’s work for Mu-rex in connection with the EPA, Murex directed KRCL, its outside counsel in the GRC litigation, to contact McAdams “to obtain advice on RIN fraud litigation matters.” Bartel Decl. ¶ 17. On February 12, 2016, McAdams and two KR^L’s lawyers (Joseph Coleman and Robert N. LeMay) spoke about such matters. Id. The purpose of the call, which Coleman described as “rather extensive,” was “to consult with Mr. McAdams on RIN-related matters affecting the GRC Mitigation on behalf of Murex.” Coleman Decl. ¶ 5. McAdams, whom Coleman understood was a lawyer in H & K’s Washington, D.C., office, «stated that he was representing Murex in matters involving RINs and the EPA. Id. ¶¶4-5.

During the call, the KRCL lawyers and McAdams discussed “litigation and settlement strategy relating to RUSfs and other issues affecting the GRC litigation.” Id. ¶ 6. Coleman attests that:

“[C]ase strategy was developed during the telephone conference. Mr. McAdams provided in depth factual information and strategy insight with respect to RIN matters in general, including RIN-related information affecting the GRC [l]iti-gation. Mr. McAdams also discussed the strategy he was utilizing on Murex’s behalf before the EPA related to RINs purchased by Murex. During our conversation, Mr. McAdams offered legal opinions on matters related to the GRC Mitigation.”

Id. ¶ 6. McAdams acknowledges sharing information on the call “about RIN transactions and the fraud perpetrated on Mu-rex and others by parties that may have included GRC.” McAdams Deck ¶ 34. But, he attests, “I shared this information in the manner' that any willing fact witness would share information with counsel for a party” and “never stated or implied to these lawyers that I was a lawyer for Murex” or “that I was licensed to practice law anywhere.” Id.

6. Murex’s Proposal to Expand H & . K’s Engagement, and H & K’s Request That Murex Sign a Conflict Waiver

In mid-March 2016, Murex, “generally satisfied” with H & K’s work, sought to expand H & K’s engagement “beyond what H & K could reasonably provide given the $10,000 ¡monthly fee cap.” Bartel Decl. ¶ 18. Murex asked McAdams and H & K partner Kaufman to prepare a'legal work budget for research, analysis, and work related'to the EPA’s renewable fuel standard (the “RFS legal work”). Kaufman and Emerson prepared such a budget. Id. In connection with the potential representation, on or aboiit March 14, 2016, H & K’s McAdams, Kaufman, and Emerson spoke with a Murex representative for approximately 30 minutes “about the possibility of bringing an action against the EPA under the, Administrative Procedures Act or other action.” Kaufman Deck ¶9; McAdams Deck ¶¶ 23-24. Such work, Mc-Adams advised Murex, “would be a separate engagement that would not be included within the scope of my initial agreement for lobbying services.” McAdams Deck ¶ 23.

Around the same time, attorneys for H & K asked that Murex sign a conflict waiver that would allow H & K to concurrently représent FNBC against Murex in the claims that, ultimately, FNBC brought in this lawsuit, related to allegedly fraudulent receivables. See Bartel Decl, Ex. F (“Conflict Waiver”). Before that point, Mu-rex had been unaware that H & K was representing FNBC adverse to Murex’s interests. LeRow Decl. ¶ 14.

The draft waiver was prepared by H & K. It took the form of a letter, dated March 9, 2016, from H & K partner Maines to Murex president Wright. The draft waiver was forwarded by McAdams to LeRow on March 16, 2016. McAdams’s transmittal email wrote: “Apparently their [sic] is another unrelated law suit which are [sic] lawyers would like a waiver from. Would you all review this and sign please. Thank you[.]” Bartel Deck, Ex. G; Murex Mem., Ex. G. The draft conflict waiver read:

This is to confirm your agreement, on behalf of Murex and its affiliates (“Mu-rex”), to waive any objection to the potential conflict of interest with respect to (1) Holland & Knight’s representation of First NB[C] Bank in connection with analyzing, advising, and representing it regarding its rights and obligations under various agreements whereby it acquired through The Receivables Exchange certain receivables of certain Abengoa entities including Abengoa Bioenergy Company held by Murex, and (2) Holland & Knight’s ongoing representations of First NBC Bank and certain of its affiliates in unrelated matters. As you know, Holland & Knight was retained by Murex concerning unrelated regulatory matters related to the EPA and biofuels.

The applicable ethics rules permit us to represent clients with adverse, or potentially adverse interests, if each affected client consents to the representation having received in writing reasonable and adequate information about’ the material risks of the representation, and having been given the opportunity to consult with independent counsel.

We hereby confirm to you in writing that, under the circumstances of this matter, we have given each party the opportunity to consult with independent counsel. '•

Under these circumstances, if you agree that Holland & Knight LLP may undertake the concurrent representation of Murex and First NBC Bank and their affiliates in the matters described above, and that you are waiving any objection to the conflict with respect to such concurrent representations, having had the opportunity to consult with independent counsel prior to that time, please indicate your consent and waiver by signing below. Also, please return the executed copy to pie. as soon as possible, keeping a copy for your records.

Thank you. We look forward to working with you.

Bartel Decl., Ex. G.

On March 21, 2016, Bartel met with FNBC and discussed the transactions at issue in this lawsuit. FNBC’s arguments to Murex in that meeting, Bartel attests, “included RIN-related issues.” Id. ¶ 19; Maines Decl. ¶ 9.

Later that day, Bartel emailed Mc-Adams and declined to sign the conflict waiver. Bartel wrote to McAdams: “This is not an unrelated lawsuit and we are not able to sign the waiver at this time. We met with Ashton Ryan, Bill Burnell and Greg St. Angelo today. We discussed both Abengoa [ABC]and RINs. We hope that we may be able to sign a waiver at some time in the future.” Id., Ex. G; McAdams Decl. ¶¶ 26-27.

Later, H & K’s McAdams prepared and delivered H & K’s proposed budget, prepared by Kaufman and Emerson, for its RFS legal work for Murex. The budget anticipated legal research and analysis on issues involving the statute of limitations, the impossibility of performance defense, various aspects of EPA’s authority, and analogous environmental statute, and the preparation of an opinion letter to EPA regarding its authority to forgo requiring the replacement of RINs or imposition of civil penalties. LeRow Decl., Ex. C; Murex Mem., Ex. F; Kaufman Decl. ¶ 16; see also Emerson Decl. ¶ 9 (reporting spending 2,6 hours assisting Kaufman as to “potential expansion of McAdams’s lobbying work into legal work for Kaufman”). As LeRow recounted in an email to her colleagues, McAdams advised LeRow that, although he was “double checking,” he did not believe that this work would “resultt ] in a conflict.” LeRow Deck, Ex. C (March 23, 2016 email). Murex declined to hire H & K to do such work, on account of the “high costs”' reflected in the budget and' the “potential conflict raised by H & K.” Bartel Decl. ¶ 20.

B. FNBC’s Representation of FNBC Adverse to Murex

1. Background to H & K’s Representation of FNBC

H & K, led by Maines, began representing FNBC in spring 2016. Maines Decl. ¶ 4. In mid-December 2015, Maines spoke with FNBC’s general counsel Gregory St. Angelo about FNBC’s purchase from Mu-rex of receivables from ABC that had not been paid when due. FNBC contemplated suing Murex to repurchase the unpaid receivables in the event they were not paid by ABC or repurchased by Murex, which, in December 2015, had sent a demand letter (signed by CFO Bartel) to ABC. Id. & Ex. 1.

On December 22, 2015, William Mutryn, an H & K partner in the firm’s Tyson, Virginia, office, ran an initial conflicts check. It did not reveal any representation of Murex or conflict for H & K in representing clients adverse to Murex-. Maines notified St. Angelo that H & K was clear to represent FNBC. A second conflicts, check, conducted by Maines on January 11, 2016, also reveal no conflict preventing H & K from being adverse to Murex. Maines Decl. ¶ 6. On or about January 26, 2016, H & K, per Maines, formalized the representation, executing an engagement letter with FNBC. Id.

2. H & K’s FNBC Team Learns of the Murex Representation and Seeks a Conflict Waiver from Murex

In early March 2016, Maines attests, he learned that McAdams had opened a matter on Murex’s behalf. Id. ¶ 8. On or about March 9, 2016, Maines and McAdams spoke by telephone. Id.; McAdams Decl. ¶ 22.

Maines attests that he and McAdams “did not discuss the details of either representation beyond a statement by me to McAdams that I was representing FNBC in the investigation of possible litigation against Murex and the statement by Mc-Adams to me that he had not been retained as a lawyer by, or to perform legal services for, Murex, but that he had been retained as a lobbfyist] for a three (3) month period at a fixed fee to monitor [EPA] developments concerning biofuels-.” Maines Decl. ¶ 8. McAdams attests he learned on the call that Maines “was preparing to file an action against Murex on FNBC’s behalf [] alleging] that Murex and ABC had conspired to and did construct fraudulent financial transactions that adversely impacted FNBC.” Mc-Adams Decl. ¶22. McAdams attests that he “told Maines that I was doing non-legal work for Murex that was trying to change the federal law related to RIN replacement and that would affect the entire country.” Id.

. Neither Maines nor McAdams, repre-. sents that McAdams notified Maines of the EPA enforcement action, that the EPA had threatened, of any work H & K had done in connection with the EPA Notice, or of the February 2016 consultation between McAdams and Murex’s outside counsel in the GRC litigation with McAdams.

According to McAdams, he and Maines “determined, that no conflict existed,” because “our matters were not related and because successful advocacy for Murex in RIN replacement requirements would not affect Maines’s advocacy in FNBC’s fraudulent financial transactions action.” Id. ¶22. Nevertheless, in what both Maines and McAdams attest was “an abundance of caution,” Maines asked McAdams,' on Maines’s behalf, to ask Murex to execute a conflict Waiver. The waiver had been drafted by a member of Maines’s team. Id.; Maines Decl. ¶ 9.

As noted, on March 21, 2016, Murex declined to execute the conflict waiver. Bartel Decl., Ex. G; Maines Decl. ¶ 9.

C. FNBC’s Initial Complaint Against Murex

On September 30, 2016, five months after the end of the period covered by the firm’s. Engagement Agreement with Mu-rex, H & K; on behalf of FNBC, filed the initial Complaint against Murex in "this case. Dkt. 1 (“Compk”).

The Complaint listed five H & K attorneys as counsel: three from the firm’s Atlanta bffice (including Maines) and two from New York. It brought six claims: for breach of contract, Compk ¶¶ 46 — 51,. breach of representations and warranties, id. ¶¶ 52-69, negligence and gross negligence, id. ¶¶ 70-73, fraud and fraudulent concealment, id, ¶¶ 74-81, rescission, id. ¶¶ 82-83, and breach of fiduciary duty, id. ¶¶ 84-91.

The Complaint alleged that Murex, between 2013 and 2015, had schemed to defraud it. Id. ¶¶ 1, 5-45. It alleged that ABC was a significant customer of Murex, which markets and provides distribution services for-ethanol and other gasoline blendstocks. Id. ¶¶ 5-6; Murex’s invoices to ABC required prompt payment and Murex depended on ABC’s line of credit so that ABC could pay for the ethanol it bought from Murex. Id. ¶ 7. But, the Complaint alleged, ABC became “credit-constricted, and was perilously close to exceeding the limits of its credit facility,” threatening its ability “to purchase ethanol from Murex.” Id: ¶ 8. And ABC would not have been able to obtain additional credit or financing from FNBC. Id. ¶ 9.

The Complaint alleged that, in response, Murex and ABC conspired to circumvent the limits of ABC’s existing credit facility with FNBC and to fabricate transactions for the pm-ported sale and re-purchase of ethanol, to give ABC more working capital and to enrich Murex. Id. ¶ 11. Under the scheme, Murex would invent fictitious sales of ethanol to ABC on extended terms; for each purported sale, there was an offsetting purported re-purchase of the ethanol by Murex for cash. Id. ¶ 12. In fact, these transactions giving rise to receivables never occurred, id. ¶ 16; Murex and ABC had created this “fraudulent paper trail” to support the fiction that there had been bona fide sales and deliveries of ethanol. Id. ¶ 17.

FNBC further alleged that Murex then schemed to dupe FNBC to “unwittingly becom[ ]e ABC’s largest creditor by marketing the phantom receivables it manufactured to FNBC as an investment.” Id. ¶ 19. Murex carried off this scheme by contracting with an electronic auction platform run by an unlicensed broker-dealer, The Receivables Exchange, LLC (“TRE”). Id. ¶¶ 20-21. Using the TRE platform, Mu-rex gradually increased ABC’s indebtedness to more than $125 million, and eventually “unloaded” that debt “onto FNBC by selling FNBC the last of its receivables for the fake transactions.” Id. ¶¶ 23-25. Between July and September 2015, Murex thereby sold FNBC more than $69 million in receivables from bogus transactions, leaving FNBC with a large loss. Id. ¶¶ 29-32. To further the scheme, the Complaint alleges, Murex'made false statements to buyers of receivables through the auction platform, including FNBC, and failed to disclose the offsetting re-purchase transactions that made the receivables illusory. Id. ¶¶ 34-42.

Of note, five paragraphs in the Complaint made allegations about the EPA and RINs. The Complaint stated that Murex, by engaging in “phony transaction[s] for the purported sale of ethanol to FNBC,” of having broken “numerous state and federal laws.” These include “upon information and belief those of the Environmental Protection Agency (“EPA”), regulating and pertaining to the sales and shipment of ethanol and the reporting of Renewable Identification Numbers (RINs) connected thereto.” Id. ¶ 57. The Complaint defined RINs and summarized the EPA’s regulations regarding biofuels, including the requirement that “[ajnyone who owns RINs must register with the EPA on an annual basis and obey mandated record-keeping requirements. All RINS are required to be reported to the ÉPA after creation.” Id. ¶¶ 58-59. It alleged that, while “it is unclear” what portion of ABC and Murex’s offsetting transactions involving ethanol sales “might be subject to federally mandated record keeping and reporting requirements,” “upon information and belief Murex did not maintain any records or comply with any reporting requirements relating to the alleged underlying sale and transfer of ethanol.” Id. ¶ 60.

FNBC’s Complaint further alleged that: “Murex is involved currently with the EPA on a matter involving EPA fraud.” Id. ¶ 62. The Complaint did not elaborate on this allegation.

As relief, FNBC’s Complaint sought “actual, incidental, special and consequential damages”; an accounting; attorneys’ fees and expenses; and rescission. Id. at 16-17.

D. Murex’s Motion to Disqualify H & K

On November 29, 2016, Murex moved to disqualify H & K as FNBC’s counsel in this case, submitting a memorandum of law, Dkt. 30 (“Murex Mem.”), and factual declarations and exhibits in support. See supra, note [1].

Specifically, Murex alleged, in early 2016, when H <& K had been preparing to sue' Murex on FNBC’s behalf, H & K— largely through McAdams, • whom Murex described as an attorney in H & K’s Washington, D.C., office — had also represented Murex in defending against the threatened EPA enforcement action involving fraudulent RINs. Murex acknowledged that it had originally hired H & K to lobby splely for policy changes before the EPA, id. ¶¶ 6-7 & Ex. 3. But, Murex stated, its receipt in late January of ,the EPA Notice, giving it 30 days to prepare affirmative defenses against the claim that it had illegally engaged , in transactions. involving fraudulent RINs, changed the character of H & K’s representation. Thereafter, Mu-rex stated, McAdams had given Murex legal and strategic advice how to defend itself, and, in so doing, had become privy to confidential information of Murex’s. Id. Murex also asserted that McAdams, on February 12, 2016, had participated in a call with KRCL, Murex’s outside counsel in the .GRC litigation, in which the participants reviewed case strategy, Murex’s EPA defense, and the interplay between the GRC litigation and the EPA’s threatened action. Id. ¶¶ 12-13. Murex also asserted that it had received telephonic regulatory and enforcement advice from H & K partner Kaufman. Id. Murex noted that until March 2016, it had been unaware of H & K’s representation of FNBC, and that, when asked, it had refused to waive the conflict presented by H & K’s representation of FNBC. Id. ¶¶ 18-23.

Murex argued that disqualification was required because H & K had concurrently represented it and its litigation adversary FNBC. Murex argued that it would be prejudiced were H & K permitted to represent FNBC, in that it had provided H & K with a “tremendous amount of confidential information related in part to RIN litigation and EPA regulatory compliance litigation.” Id. ¶ 24. Murex argued that H & K had already exploited its confidential information, in that its Complaint had alleged that “Murex is involved currently with the EPA on a matter involving RIN fraud.” Before that filing, Murex stated, the EPA’s inquiry had not been a matter of public record, and Murex had disclosed it only to its attorneys. Id. ¶ 26 (citing Compl. ¶ 62). Murex stated that it was unaware of other means by which H & K or FNBC could have learned of the threatened enforcement action. Id. By revealing the EPA’s potential action against it, Mu-rex stated, H & K had betrayed its duties to — and embarrassed — Murex. Id. ¶ 46.

E. H & K’s Response to the Disqualification Motion and Murex’s Reply

On December 19, 2016, H & K — on behalf of FNBC — filed a memorandum of law opposing disqualification (“HK Mem.”), along with supporting declarations and exhibits. See supra, note 1. H & K made three arguments against disqualification.

First, it argued, Murex had solely been a lobbying client as reflected in the Engagement Agreement. HK Mem. at 1-8.. McAdams, H & K stated, is exclusively a lobbyist: While H & K’s website identifies him as a J.D. graduate of American University’s Washington College of Law, H <& K noted, McAdams is not a licensed lawyer, he and H & K have not held Mc-Adams out as such, and his title is Senior Policy Analyst. HK Mem. at 1-8;' Mc-Adams Deck ¶¶ 2, 34.

Second, H & K argued, to the extent H & K and Murex had contemplated legal work, Murex was never more than a “prospective client” of H & K. No engagement letter had been executed for legal work; thus, there had never been an attorney-client relationship between H & K and Murex. H & K Mem. at 1, 8-11.

Third, H & K argued, even if H & K had represented Murex as its attorney, this lawsuit was not tainted. ,The subjects of this lawsuit and H & K’s Murex work, H & K argued, do not overlap, in that FNBC accuses Murex of participating in fake ethanol transactions aimed at defrauding it, whereas H & K’s Murex work involved a regulatory inquiry relating to fraudulent RINSs. And, H & K stated: “It does not even appear that most, if not all, of the alleged sham, transactions [involving ABC] included RINs.” Id. at 15. H & K denied that H & K had learned that “Murex is involved currently with the EPA on a matter involving RIN fraud,” Compl. ¶ 62, from Murex. Relying on a declaration from Maines, H & K stated that it had learned this by some other means. Id. at 16-17 (citing Maines Decl. ¶ 11).

On February 6, 2017, Murex submitted a reply. Dkt. 53 (“Murex Reply”). It noted that the Engagement Agreement had predated the EPA Notice. It argued that H & K’s unexpected work defending it against enforcement action had been of a different character than the “legislative lobbying” work originally contemplated, id. ¶ 3, 15, and constituted legal work. Id. ¶ 5, 11. As to taint, Murex argued there was a risk that confidential information it had given H & K would be used against it. Id. ¶ 20. This risk was heightened, Murex argued, by the fact that McAdams and Maines had spoken about H & K’s work for Murex in early 2016, id. ¶ 22, by the allegations in the Complaint regarding RINs, and by H & K’s failure to erect an “ethics wall” between the two representations, until November 80, 2016, after Murex had moved to disqualify. Id. ¶ 9.

F. FNBC’s Amended Complaint

On January 31, 2017, H & K, on FNBC’s behalf, filed a First Amended Complaint (“FAC”). Relevant here, the FAC — while adding allegations regarding Murex’s interactions with ABC — removed all allegations regarding RINs. This, Maines attests, was not due to Murex’s disqualification motion, but to his enhanced understanding of his client’s case. See Maines Decl. ¶ 12 (“Although I did not fully understand this at the time, I now understand that contracts for the sale of biofuels (such as the allegedly “sham” contracts between ABC and Murex that are at the core of [FNBC’s claims]) may nor may not involve the transfer of RIN[ ]s,” and that “neither the presence nor the absence of RINs on any purchase and sale documents between ABC and Murex demonstrate whether ABC and Murex did or did not engage in sham transactions.”); id. ¶ 13 (attesting that, as a result of reviewing documents filed in ABC’s bankruptcy proceeding, H & K had learned that the documents relating to the alleged sham transactions at issue did not reference RINs). To the original six claims against Murex, the FAC added seven causes of action, including under the federal racketeering statute, 18 U.S.C. § 1961, and the Louisiana Unfair Trade Practices Statute, and for unjust enrichment, detrimental reliance, and misappropriation of proprietary information.

G. Argument and Post-Argument Submissions

On February 13, 2017, the Court heard argument. It focused on whether H & K had engaged in concurrent legal representations of Murex and FNBC, and, if so, whether there was a risk of trial taint. After argument, the Court notified counsel that it was likely to find a concurrent representation. The Court gave FNBC a week to notify the Court whether it continued to seek representation by H & K.

On February 21, 2017, FNBC, per H & K, sua sponte submitted a lengthy surre-ply opposing disqualification and re-arguing the issues of concurrent representation and trial taint. Dkt. 56 (“H & K Surre-ply”). The Court permitted Murex to submit its own sur-reply, which it filed on March 7, 2017. Dkt. 65.

II. Discussion

A. Background Principles Governing Disqualification Motions

“The authority of federal courts to disqualify attorneys derives from their inherent power to preserve the integrity of the adversary process.” Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (citing Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979)). In exercising this power, the Court must “attempt! ] to balance a client’s right freely to choose his counsel against the need to maintain the highest standard of the profession.” Hempstead Video, Inc., 409 F.3d at 132 (internal quotations and citations omitted).

Motions to disqualify are disfavored and subject to a high standard of proof. That is because disqualification impinges on a party's rights to employ the counsel of its choice, because a motion to disqualify has potential to be used for tactical purposes, and because, even when brought in good faith, such a motion can cause delay, impose expenses, and interfere. with the attorney-client relationship. Evans v. Artek Systems Corp., 715 F.2d 788, 791-792 (2d Cir. 1983); see also Murray v. Metropolitan Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009); Nyquist, 590 F.2d at 1246; Daudier v. E & S Medical Staffing, Inc., No. 12 Civ. 206 (PAE), 2012 WL 3642823, at *1 (S.D.N.Y. August 23, 2012).

On the other hand, the Second Circuit has held, any doubt should be resolved in favor of disqualification. Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975). In the end, after careful analysis, a motion to disqualify is “committed to the sound discretion of the district court,” Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994), and reviewed for abuse of discretion, GSI Commerce Solutions, Inc. v. BabyCenter, LLC, 618 F.3d 204, 209 (2d Cir. 2010).

In considering motions to disqualify, courts often benefit from valuable guidance offered by the American Bar Association (ABA) and state 'disciplinary rules. See, e.g., GSI Commerce Solutions, 618 F.3d at 209. However, “such rules merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification.” Hempstead Video, 409 F.3d at 132; Nyquist, 590 F.2d at 1246. Conversely, “disqualification may be justified even in the absence of a clear ethical breach ‘where necessary to preserve the integrity of the adversary process.’” Nyquist, 590 F.2d at 1246.

Where an attorney’s conduct tends to taint a trial, disqualification is warranted. GSI Commerce Solutions, 618 F.3d at 209; Hempstead Video, 409 F.3d at 132-33; see also Nyquist, 590 F.2d at 1246 (“other ethical violations can be left to federal and state disciplinary mechanisms”). The Second Circuit has recognized two situations in which a risk of trial taint may require disqualification. See Nyquist, 590 F.2d at 1246. The first arises “when an attorney places himself in a position where he could use a client’s privileged information against the client.” Hempstead Video, 409 F.3d at 133. The second arises when an attorney places himself in a position where he may not exercise independent judgment on behalf of a client, for example, as a result of a representation -of a separate- client. This “undermin[es] the Court’s confidence in the vigor of the. attorney’s representation of his client.” Nyquist, 590 F.2d at 1246.

When a conflict has been found between two client representations by an attorney, the standard for disqualification varies depending on whether the representations were successive or concurrent. Hempstead Video, 409 F.3d at 133.

The disqualification standard for successive representations turns on whether there was a “substantial relationship” between the matters. In such cases, the attorney may be disqualified if:

“(1) the moving party is a former client of the adverse party’s counsel;

(2) there is a substantial relationship between the subject matter of the counsel’s prior representation of the moving party and the issues in the present law.suit; and.

(3) the attorney whose disqualification ⅛ sought had access to, or was likely to have had access to, relevant privileged information in the course of his prior representation of the client.”

Hempstead Video, 409 F.3d at 127 (quoting Evans, 715 F.2d at 791).

The disqualification standard for concurrent representations is stricter. “[I]t is ‘prima facie improper’ for an attorney to simultaneously represent a client and another party with interests directly adverse to that client.” Id. (citing Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 (2d Cir. 1976)). A concurrent representation implicates “the duty of undivided loyalty which an attorney owes to each of his clients,” who are entitled to the lawyer’s “‘undivided allegiance and faithful, devoted service.’” Cinema 5, Ltd., 528 F.2d at 1386. Where a concurrent representation is found, it will “not suffice to show that the two, matters upon which an attorney represents existing clients are unrelated.” GSI Commerce, 618 F.3d at 209. As the Second Circuit has explained: “‘The lawyer who-would sue his own client, asserting in justification the lack of ‘substantial relationship’ between the litigation and the work he has undertaken to perform for that client, is leaning on a slender read indeed.’” Id. (quoting Cinema 5, 528 F.2d at 1386). Instead, “it is incumbent upon the attorney to ‘show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation.’” Id.; Hempstead Video, 409 F.3d at 133. (emphasis in original). “This,” the Second Circuit has stated, “is ‘a burden so heavy that it will rarely be met.’” GSI Commerce, 618 F.3d at 209 (quoting Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 749 (2d Cir. 1981)); see, e.g., Stratagem Development Corp., 756 F.Supp. 789 (S.D.N.Y. 1991) (SWK) (disqualifying, firm after determining that standard for concurrent representation applied).

B. Discussion

• Murex’s motion to disqualify requires the-Court to resolve, in sequence, three issues. First, did H & K provide legal services to, and form an attorney-client relationship with, Murex, implicating canons of professional responsibility? Or, did H & K’s services for Murex consist exclusively of lobbying work, which, upder Mu-rex’s Engagement Agreement, permitted H & K to represent adverse parties in unrelated matters? Second, assuming that H & K served as Murex’s attorney, was H <& K’s legal representation of Murex concurrent with or successive to H & K’s representation of FNBC? Third, under the operative standard, is disqualification required?

The Court addresses these issues in turn.

1. Did H & K Provide Legal Services to, and Form an Attorney-Client Relationship With, Murex?

In denying a conflict, H & K argues that Murex was solely a lobbying client and that H & K provided Murex only “lobbying services.” FNBC Br. 1. Mc-Adams, it notes, although identified on H & K’s website as a law school graduate, lacks a law license, works solely as a lobbyist, and is held out by the firm as a “Senior Policy Analyst.” Id. at 1-2. And the Engagement Agreement with Murex, H & K notes, described the engagement as a “Lobbying/ Consulting Engagement” and defined H & K’s services as those of lobbyist:

“Under the scope of this engagement H & K will provide Murex with the following: an overview of current EPA regulations and the impacts to Murex operations to date; secure meetings with key decision and policy makers at EPA regarding the implications of current regulations to your company and the RIN market in general; and H & K will seek support from the relevant congressional staff to reinforce your position with EPA if appropriate.”

Id. at 3 (quoting Engagement Agreement ¶ 2). Further, H & K notes, in the agreement, Murex agreed that “the services for which you have engaged [H & K] are ‘law-related services’ and not ‘legal services’ ”; that “the firm will not be acting as your lawyers in this matter but rather in a lobbying capacity using nonlawyer personnel”; that “[a]s such, the protections which accompany an attorney-client relationship do not apply,” such that “the firm’s lawyers would not be prohibited from providing legal services to clients in unrelated legal matters that are adverse to you.” Id. at 3-4 (quoting Engagement Agreement ¶¶ 3-5). Finally, H & K notes, a document entitled “Terms of Engagement” which the Engagement Agreement incorporated stated:

“We will provide consulting services only. You have acknowledged in the accompanying letter that you do not expect to receive, and we will not provide[,] any legal services as part of this engagement. Consequently, no attorney-client relationship will result from this engagement and you will not become entitled to any of the benefits of any attorney client relationship[.]”

Id. at 4 (quoting McAdams Deck, Ex. 4).

Given these writings, H & K argues, “it was literally as plain as the words on the page that the Engagement Agreement and the Terms of Engagement did not create an attorney-client relationship between Murex and H & K” and “did not impose on H & K the conflict of interest limitations that apply to attorney-client relationships.” Id. at 5.

The Court has little doubt that, had H & K’s ensuing services to Murex been confined to those described in the Engagement Agreement, Murex could not credibly claim that H & K had provided it legal services, formed an attorney-client relationship with it, or took on a conflicting engagement in breach of canons of professional responsibility. The codes of conduct applicable to the District of Columbia, where H & K’s EPA-related work for Murex was centered, identify lobbying as a distinct discipline from the practice of law. Lobbying is defined as:

“[Activities [that] may include, but are not limited to: oral, written and electronic communications with members of Congress, congressional committees, ... congressional staff [and executive agencies and agency personnel] with regard to the formulation, modification, or adoption of federal legislation [and regulations]; preparation and planning activities, research, and' other background work in support of such contacts; and development of ... strate