The Civil Litigator
| Publication year | 1979 |
| Pages | 2225 |
1979, November, Pg. 2225. The Civil Litigator
Leveling the charge of impropriety at opposing counsel which, if sustained, would require withdrawal, should not be a standard part of counsel's offensive armament to be used routinely or without reasonable and good faith belief in its necessity.(fn1)
Notwithstanding this admonition by the Seventh Circuit, motions to disqualify trial counsel for ethical violations because of previous representation of the moving party are common. "[A]ttorneys now commonly use disqualification motions for purely strategic purposes."(fn2) Attempts at consecutive representation of clients with conflicting interests have been uniformly unsuccessful. Despite the legal niceties of the appellate decisions in this area, one need not read too far to get a sense of the readiness with which courts will disqualify trial counsel, sometimes with serious consequences not only for the attorneys, but also for the client.(fn3)
The test most often applied is whether a substantial relationship exists between the pending suit and the matters in which the attorney is charged to have previously represented the moving party.(fn4) The "substantially related" test rests upon the presumption that confidences potentially damaging to the client have been disclosed to the attorney during the former period of representation.(fn5) Thus, the court need not inquire whether counsel did in fact receive confidential information during his previous employment.(fn6)
Knowledge of the confidential communication is then imputed to the partners, former partners, law clerks and all other employees of the firm who may have had access to the client's files.(fn7) Imputation persists despite the erection of "Chinese Walls" within the firm.(fn8) The imputation stops at co-counsel only if both attorneys are retained by the client, so that no employer-employee relationship exists between co-counsel.(fn9)
Even when the matters are not substantially related, the court may order disqualification because of the attorney's duty of undivided loyalty and because of the strong need to maintain the public confidence in the propriety of our system of justice.(fn10) In IBM v. Levin,(fn11) Levin was represented by a major firm in attempting to obtain competitive terms on an installment sale of computer equipment from IBM. At the same time, the firm represented IBM in a jurisdictional dispute
with an electrical workers union. On behalf of Levin, the firm filed an antitrust action against IBM to obtain the installment sale.
While attending a law school alumni luncheon, IBM's house counsel met a partner of the firm and the dual representation...
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