"This lawsuit pits son against father in a tragic dispute that has torn this family apart."

That's what Gibson, Dunn & Crutcher's Randy Mastro wrote in court papers late last month—and it might be one of the few things both sides agree upon. 

Because in this case, the hard feelings appear to extend beyond the family members to the lawyers themselves.

Last week, opposing counsel Richard Mooney of RJM Litigation Group in San Francisco filed a motion in Los Angeles County Superior Court to disqualify Gibson Dunn, claiming that the firm's "pleadings and declarations contain systemic falsehoods." 

Firm lawyers "attempt to weaponize the very information with which they were previously entrusted," Mooney asserted. "Gibson Dunn's inaccurate and potentially perjurious statements are both an ethical violation and clear grounds for removal from this action. … Gibson Dunn has on at least three occasions made representations and/or sworn statements to courts that cross the line to dishonesty."

Whoa there. Those are big accusations.

Gibson Dunn in court papers responded that the motion is "transparently frivolous" and sanctionable.

"Plaintiffs' disqualification arguments are utterly meritless—designed solely for delay, obstruction, and to run up costs—as even a passing inspection of their motion demonstrates," wrote Gibson Dunn partner James Fogelman. 

What the heck is going on? 

Gibson Dunn represents Joel Marcus, who is the CEO and executive chairman of Alexandria Real Estate Equities Inc., or ARE. He's pitted against his son, Steven Marcus, and his son's company, Bugsby Properties. Both are represented by Mooney, though the DQ motion comes only from the son.

In late 2013, ARE's stock was under-performing. Joel allegedly approached his son for help, and asked Steven/ Bugsby to "create a new capital strategy for ARE to boost its stock price, and to aid Joel in retaining his tenure," according to the plaintiff. "Bugsby agreed, with the understanding that Bugsby would—if successful—receive market-based compensation."

The strategy worked, though the two sides dispute how much credit Steven Marcus deserves. What's clear is that ARE's stock soared and Joel Marcus retained his job as CEO, allegedly raking in nearly $70 million in pay and close to $80 million in stock sales.

But Steven says he/Bugsby got no compensation for having saved the day, and have sued for quantum meruit and fraud claims, seeking $12 million for their services.

The father counters that the parties had a written agreement that specified "the only compensation owed to Steven was the right to promote his work" that and "no monetary compensation is or was owed to Steven or Bugsby."

Was the agreement valid? Properly obtained? Does it cover all the right parties? 

It's hard to say. The merits of the underlying dispute aren't what interest me right now. It's the fight involving Gibson Dunn.

There are two main issues. First, should Gibson Dunn be disqualified because the firm previously represented Steven Marcus? And second, did the firm lie to the court about a filing date?

Steven says Mastro represented him and a company where he was the principal, Northmoore Capital Management, in a bid in 2010 to acquire another company, Transit Wireless—though he admits there was no formal engagement letter. "[T]he bid concluded before a formal letter could be signed, and the signing was delayed when Gibson Dunn sent the proposed letter to the wrong address," he explained. 

Steven said Gibson Dunn also represented him and Northmoore in a bid to form a joint venture with Silvercup Studios—except he also acknowledged Silvercup was actually Gibson Dunn's client.

(The firm "chose to side with the more lucrative and larger client, Silvercup, as the parties negotiated a private settlement to end their joint efforts," Mooney wrote.) 

The firm also allegedly represented both father and son in forming an LLC to acquire a residential apartment in New York where Steven lived.

Partner Andy Lance also reportedly assisted father and son in mediating "certain issues" regarding the "interests of the family members and business partners" involving Steven's apartment.

Mooney argues that this adds up to an impermissible conflict of interest. "Mr. Mastro and his Gibson Dunn partners attempt now to unfairly exploit confidential information about Steven Marcus acquired in their prior, substantially related representation to their advantage in this litigation," he wrote.

Gibson Dunn bluntly counters that "Steven has never been a client of Gibson Dunn and has never sought the firm's counsel about any issues even remotely related to this lawsuit."

Mastro in court papers acknowledged the "brief interaction" in connection with the Transit Wireless bid in 2010, but stressed that he was never actually retained. Moreover, he said that he was "not aware of any further contact with Steven thereafter—not a single email in nearly nine years."

"But even assuming that Steven Marcus was a former client of Gibson Dunn—and he was not, as many of his own allegations make crystal clear—nothing in defendants' disqualification motion even suggests that the alleged 'prior multiple representations' of Steven were 'substantially related' to this dispute," Fogelman wrote.

The first judge to consider the conflict of interest question did a hard reality check on Steven's claims.

Steven originally filed suit in Manhattan state court in February of 2019. Justice O. Peter Sherwood in a July hearing queried whether Mastro would have actually gained any edge from his previous contact with Steven.

The parties are "father and son," the justice noted, according to a court transcript." You know, maybe my father and me are different or your father and you are different … but usually, parents and children know an awful lot about one another. Joel could have told, you know, Mr. Mastro a thing or two—a story or two—better than anything that Steve would possibly have told Mr. Mastro."

Steve Marcus' previous lawyer, Tyler Meade of The Meade Law Firm in San Francisco, beat a hasty retreat. 

"I understand your Honor's point," Meade said. "In fact, my father could say many things about me …I won't belabor the point."

Sherwood went on to side with Gibson Dunn that the case rightly belonged in Los Angeles, not New York—a significant ruling, given California's shorter statute of limitations. That's where accusations about lying to the court about a filing date come in. 

In considering the forum, Sherwood on one hand had Steven's suit, filed in New York County Supreme Court suit on Feb. 7, 2019. On the other was Gibson Dunn's complaint filed in Los Angeles County Superior Court seeking declaratory relief. But when exactly was Gibson's complaint filed?

Per the court's official timestamp, it was at February 13, 2019 at 12:09 PM, Mooney noted, but he said that Gibson Dunn falsely claimed it was actually filed earlier. 

"In their unethical and dishonest effort to circumvent the proper New York forum, Gibson Dunn has repeatedly claimed, both in signed pleadings and in declarations signed under penalty of perjury, that they filed the complaint in this court on February 7, 2019," Mooney wrote in the motion filed in Los Angeles. 

Mastro in a declaration explained the discrepancy:  "Due to errors generated by the new electronic filing system in Los Angeles Superior Court, the complaint first appeared as file-stamped on February 13, 2019."

This seems like a question that the Los Angeles Superior Court can dispense of easily—surely the court itself will know about any glitches when it implemented its new electronic filing system. 

In any event, Sherwood in dismissing the New York complaint on inconvenient forum grounds considered a range of factors, such as where the parties and witnesses live, where the conduct occurred, and the choice of law provision in the agreement at issue. And he also noted that priority of filing "is not a factor in forum non conveniens analysis."

Which all makes me deeply skeptical that Gibson Dunn lawyers would have intentionally deceived the court about the filing date. They're not stupid.

In the meantime, Bugsby (but not Steven) filed suit in U.S. District Court for the Southern District of New York asserting that "ARE and Joel Marcus have unjustly received something of tremendous and longterm value for nothing, all at the expense of Bugsby's immensely valuable ideas and advice."

Gibson Dunn has responded that the case "is a copycat of one already dismissed in New York state court, but instead of going to California, where these same parties are already litigating related claims, new counsel is trying to make a federal case of it here in the S.D.N.Y., in a desperate attempt to avoid California's statute of limitations bar."

In a not-great sign for Bugsby, U.S. District Judge Valerie Caproni on Nov. 22 stayed discovery and declined to enter a case management plan pending her ruling on the motion to dismiss.

Mooney declined comment on the litigation. Fogelman of Gibson Dunn in a statement said, "The motion to disqualify filed by Steven Marcus is frivolous.  It is nearly identical to one he already raised in a related case in New York and then was voluntarily dropped by Steven after the judge made it clear he would lose. Shopping it to a new forum won't change the result."