Lawyers cannot represent any client that wants to retain them. Among other reasons, lawyers have a duty to their clients to avoid conflicts of interest. One way that lawyers can enforce this duty is by asking the court to disqualify another lawyer from representing her client.

Why should you read this post about motions to disqualify counsel?

  • You don’t like a lawyer and are curious about ways to tell a judge why.

  • You want to win a lawsuit, but not on the merits, but instead for some procedural and strategic reasons.

  • Books are too long and there are no other webpages, unfortunately.

Image credit: https://en.wikipedia.org/wiki/Conflict_of_interest#/media/File:Corrupt-Legislation-Vedder-Highsmith-detail-1.jpeg

Lawyers Must Avoid Conflicts of Interest

Generally speaking, a lawyer cannot represent clients with adverse interests. So, for example, a lawyer cannot represent a plaintiff and a defendant in the same dispute. This is to protect a client’s ability to share secrets with counsel, unafraid of the possibility that lawyer may use the secrets against them while representing an opponent.

While lawyers rarely attempt to do that, there are numerous occasions where a lawyer represents one client and then considers representing another when there is or could be an adverse relationship between the two.

To avoid conflicts, lawyer at firms normally run a “conflict check” before taking on a new matter. As part of this process, they ask their colleagues if they are aware of any conflict that would prevent them from participating in a matter. They usually also search their records for any sign of a possible conflict.

Not all conflicts are fatal though: some (but not all) can be waived if the lawyer notifies both clients of the conflict and the clients agree to work with the lawyer anyway.

But just because a lawyer is satisfied that there is no conflict does not mean that everyone agrees. One party may insist that the court bar the lawyer from representing another party through a motion to disqualify. In New York, that motion requires:

  1. the existence of a prior attorney-client relationship between the moving party and opposing counsel

  2. the matters involved in both representations are substantially related, and

  3. the interests of the present client and former client are materially adverse.

Other Grounds Exist to Disqualify Counsel

Even when a lawyer does not represent two conflicting clients, she still may be subject to disqualification.

In some cases, the lawyer herself may be involved in the facts of the case and so have the need to testify as a fact witness. In those cases, she may be prohibited from serving as trial counsel through the “advocate witness rule.” This rule arises from the fear that a juror may believe a lawyer is more credible than a lay witness. This rule, however, ordinarily does not preclude the lawyer from representing her client in matters before the judge because courts are less concerned that judges will put undue credit on the testimony of a lawyer.

Less frequently, a lawyer may claim to represent a business when it actually does not. This may happen when it is unclear which person or people may act on behalf of a business to hire counsel and decide legal strategy. One person may hire counsel to pursue a legal strategy when someone else at the company claims that the lawyer does not speak for the company and claims authority to decide that the company should adopt a different position. This issue arises less frequently, but it happens on occasion. In those cases, a court may examine whether the specific person or people at the company who hired the lawyer had the authority to do so.

Avoiding Disqualification

Many law firms avoid disqualification by focusing on certain types of clients. For example, many law firms exclusively represent large corporate defendants or individual employee plaintiffs so they are less likely to be prohibited from representing similar clients in the future. A firm that represents a large bank once may prefer never to be prohibited from representing that large bank again, so it may never accept a case against the bank. Similarly, another may never represent the bank so it can be free to represent many plaintiffs who sue that bank.

Other lawyers remind the court that motions to disqualify are often used as procedural tools to interfere with a client’s choice of her counsel and to drive up the costs of litigation on matters that are unrelated to the actual subject of the dispute. Courts often cite this fact when deciding motions to disqualify.

But the main things that attorneys do to avoid disqualification are to strictly follow ethical guidelines about conflicts of interest and to remind clients that litigation can become more costly and complicated than originally anticipated because of motions such as these and to therefore consider settlement. While declining a representation often means declining money and while settlement often means compromising a deeply supported position, these choices could avoid substantial ethical problems and costly motion practice.