Legal Malpractice Forum
| Publication year | 1982 |
| Pages | 1214 |
1982, May, Pg. 1214. Legal Malpractice Forum
Genuine conflicts of interest must be scrupulously avoided.(fn1) In the litigation setting, few matters give rise to the level of frustration as the matter of disqualification of trial counsel for conflicts arising from prior representation of the current adverse party. It can be devastating to the client who has entrusted a litigation matter to the attorney of his or her choice to be informed that the attorney must withdraw from further participation. New counsel must be educated and compensated, and faces the unenviable burden of proceeding with litigation prepared and commenced by other attorneys. Dates for hearings and trials, if set, will often be stricken so that new counsel may prepare and make the necessary calendar entries. Thus, disqualification often causes delays in an already overburdened and delay-riddled trial system.
This article discusses those cases in which a party moves for an order disqualifying a lawyer from litigation on the grounds that the lawyer once represented the moving party. The Code of Professional Responsibility ("Code"), which provides guidelines for use in conflict cases, and noteworthy decisions thereunder, are discussed.(fn2)
Canon 5(fn3) of the Code attempts to circumvent the rise of conflicts issues after the commencement of litigation by requiring the lawyer to decline employment that would be likely to involve the lawyer in representing differing interests.(fn4) During the course of representation, if it appears likely that the lawyer will be required to represent differing interests, voluntary withdrawal is required.(fn5)
The litigator should be aware of the provisions of Ethical Consideration ("EC") 5-15. Put simply, there are no exceptions: a lawyer may never represent in litigation multiple clients with even potentially differing interests. Thus, the stage is set for the court to respond with great concern when presented with a motion to disqualify.
A more likely basis for a motion to disqualify trial counsel is Canon 4 of the Code,(fn6) which prohibits disclosure of information divulged to an attorney by the client. The obvious concern is that during the course of litigation, counsel will use information received during the course of prior representation to the disadvantage of the client or to the advantage of the lawyer or a third party. This concern is expressly stated in the Disciplinary Rules.(fn7) However, Canon 4 has received greater treatment in the courts.
The Colorado Supreme Court addressed the prior representation issue in Osborn v. District Court.(fn8) In Osborn, two rules were specifically adopted as Colorado...
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