In an October 25, 2013 opinion, Bowers v. The Ophthalmology Group, the US Court of Appeals for the Sixth Circuit held that disqualification of counsel was proper where a prior attorney-client relationship existed between a party and an opposing party's counsel in a "substantially related" matter.

Plaintiff Bowers, an ophthalmologist, filed suit in the US District Court for the Western District of Kentucky against the defendant, The Ophthalmology Group, for gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and Kentucky law after being expelled from the partnership. The district court granted summary judgment in favor of the defendant because as a former partner of The Ophthalmology Group, she was not an "employee" under Title VII. The district court dismissed Bowers's remaining state-law claims.

Bowers also moved to disqualify The Ophthalmology Group's counsel based on a conflict of interest because an attorney at the firm previously represented Bowers in substantially related matters, including in a matter where she tried to establish another ophthalmology practice. The district court denied Bowers's motion to disqualify the defendant's counsel as moot because it had granted summary judgment to the defendant and dismissed the state-law claims.

On appeal, the Sixth Circuit reversed the district court and granted Bowers's motion to disqualify the defendant's counsel. The Sixth Circuit vacated the summary judgment ruling because it found that the district court should have first determined the merits of the plaintiff's motion to disqualify counsel before ruling on the motion for summary judgment to prevent confidential information from being used.

The Sixth Circuit stated that disqualification of counsel is appropriate where confidential information was shared in a previous matter and the subject matter of the former attorney-client relationship is substantially related to the current case. Noting that it had not previously explored what constitutes "substantially related" in this context, the court found that it must look to the general type of information that the potentially conflicted lawyer would have been exposed to in a typical representation of the type that occurred with the now-adverse client. The Sixth Circuit stated it was necessary to use such an approach to avoid forcing the plaintiff to reveal confidential information the defendant's attorneys may have obtained in their prior representation of the plaintiff to prove that a conflict of interest existed in the current matter.

Adopting this approach, the court concluded that there was a substantial risk that confidential information obtained in the firm's representation of Bowers in her attempt to establish an additional ophthalmology practice would materially advance The Ophthalmology Group's position in the present case. The court gave as an example that in a typical representation of this type, counsel is likely to obtain confidential information regarding Bowers's relationships with her partners at The Ophthalmology Group and such information could undermine Bowers's Title VII claim.