Disqualifying an Adversary’s Lawyer

Attorneys owe a number of ethical and fiduciary responsibilities to their clients and third parties.  Such responsibilities are found in rules of professional conduct, caselaw, laws, and other standards governing the legal profession.  In some instances, parties may believe that a lawyer should not represent their adversary because of a conflict of interest or some other reason.  In certain instances, disqualifying an adversary’s lawyer is possible if a variety of conditions are satisfied.

Conflict of Interest

One of the most common instances of disqualifying an adversary’s lawyer is when there is a conflict of interest.  A conflict of interest arises when a lawyer’s representation of a client might be impaired because of its loyalty to another client or other third party.  For instance, a lawyer cannot represent adverse parties in litigation, or represent a client asserting a claim against another client, because the competing interests may impact the lawyer’s ability to provide good representation to both clients.

Sometimes, outside factors may impact a lawyer’s ability to provide competent representation to a client.  For instance, in certain situations, loyalty to family or financial interests may impact a lawyer’s ability to represent a client.  In such instances, lawyers should avoid the representation, and if they do still continue to represent the client, an adversary may be able to ask that a lawyer be disqualified so there are no conflicts.

Advocate-Witness Rule

Another one of the common grounds for disqualifying an adversary’s lawyer is when an opponent’s counsel may have information or materials relevant to the case.  Courts often do not like lawyers to serve as counsel when they may be asked directly by a party for materials or they will have to answer questions under oath related to a matter.  This is because such responsibilities may interfere with the attorney’s ability to represent a client in a matter.  Moreover, if an attorney needs to present arguments at trial, it might be confusing to a jury if an advocate is presenting arguments at one point of the proceeding and is answer questions under oath at another part of the proceeding.

As a result, if parties can show that lawyers have firsthand, personal knowledge related to a matter, they may be disqualified from serving as an attorney in the case.  For instance, if a lawyer is one of the few witnesses to a personal injury incident, they may not be able to represent anyone related to the matter.  Some jurisdictions restrict the advocate-witness rule to mere advocacy at trial and permit an attorney to represent a client if they promise not to be the advocate at trial.  As a result, it is important to speak with a lawyer experienced with disqualification matters to determine if disqualification is appropriate in your case.

Conflict of Interest Waivers

An important thing to keep in mind when disqualifying an adversary’s lawyer is that attorneys can sometimes have clients execute a conflict-of-interest waiver to resolve some conflicts.  Generally, such waivers must be in writing and must fully disclose all of the conflicts and the potential downsides of continuing the representation despite the conflict.  However, some conflicts of interest are not waiverable.  For instance, a lawyer cannot represent a client in making a claim against another client.  In addition, a lawyer cannot obtain a conflict-of-interest waiver if the lawyer cannot reasonably be believed to continue the representation without the conflict having an impact on the representation of clients.  Oftentimes, courts do not even wish to permit the appearance of impropriety in the representation of clients.  As a result, if it is a close call about whether the conflict of interest can be waived, courts will usually disqualify the attorney so that no one’s rights are impacted by the conflict and the continued representation.

Standing

Another important consideration when disqualifying an adversary’s lawyer is that the party requesting disqualification sometimes needs to have standing to make the request.  Courts recognize that parties may wish to disqualify another party’s lawyer to cause disruption in a case and for a variety of other tactical considerations.  As a result, courts sometimes narrow the universe of parties who can ask that a specific lawyer be disqualified from representing a client in a matter.  For instance, if the disqualification is based on a prior representation, then standing to request the disqualification is likely narrowed to the former client.  Moreover, if disqualification is based on a conflict of interest based on a fiduciary or other relationship, then the party that is owed fiduciary or other obligations may need to be the party to make the disqualification request.  There are some instances when standing may be less of an issue to a disqualification application.  For instance, if the disqualification is based on the advocate-witness rule above, then any party to the case may have standing to make the request.  This is because any of the parties to the case may need the information or materials from the attorney-witness, and this necessitate that the attorney refrain from representing a client in the case.

The Rothman Law Firm is experienced with disqualifying counsel and evaluating conflicts of interest.  If you are looking for an experienced New York and New Jersey attorney to handle your disqualification request or other legal issue, please feel free to contact The Rothman Law Firm to request a free consultation.