The Ethics of Moving for Disqualification of Opposing Counsel
| Publication year | 1984 |
| Pages | 55 |
| Citation | Vol. 13 No. 1 Pg. 55 |
1984, January, Pg. 55. The Ethics of Moving for Disqualification of Opposing Counsel
Motions to disqualify opposing counsel should not be used as trial tactics to frustrate the timely resolution of private disputes. Unfortunately, dilatory motions to disqualify are filed routinely. While constructing rules for the sound application of the Canons of Ethics, the courts also should erect standards designed to inhibit the abusive use of motions to disqualify. This article addresses such abuse in the context of motions made under DR5-101(B) and DR5-102.(fn1)
Litigators often face the strictures of DR5-101(B) and DR5-102 in cases involving transactions in which their partners or associates participated in some fashion. Generally, such participation includes drafting and negotiation, as in the leading Colorado case of Greenebaum-Mountain Mortgage Co. v. Pioneer National Title Insurance Co.,(fn2) but the participation may take a variety of other recognizable forms,(fn3) Whatever form the participation takes, however, the application of the "advocate-witness rule" is especially troublesome for large, full-service firms and medium-sized specialty firms.
The rule essentially bars attorneys from acting as trial counsel in cases in which they or members of their firms will be material witnesses. Unquestionably, it serves important public policies designed to insure that "litigation can be conducted in fairness to all."(fn4) Nevertheless, as the Fifth Circuit observed in a related context:
as attempts to disqualify opposing counsel are becoming increasingly frequent, we cannot permit [the Canons of Ethics] to be manipulated for strategic advantage on the account of an impropriety which exists only in the minds of imaginative lawyers.(fn5)
Accordingly, when addressing a motion to disqualify pursuant to DR5-101(B) or DR5-102, courts also should consider whether the motion itself was properly filed.
Unfortunately, only vague admonitions guide the courts' consideration of the propriety of filing motions to disqualify under the "advocate-witness" rule. This article therefore offers a number of standards designed to enhance the courts' ability to evaluate the bona fides of motions under DR5-101(B) and DR5-102. Before setting forth those standards, the typical characteristics of decisions denying such motions should be surveyed. Those characteristics evidence an increasing judicial sensitivity "to the tactical abuse of motions to disqualify."(fn6)
With varying degrees of emphasis, four features often characterize those cases that deny motions to disqualify under DR5-101(B) and DR5-102. First is the refusal to apply the disqualification provisions literally. In Greenebaum-Mountain Mortgage Co., for example, the court relied on an informal opinion of the ABA Committee on Professional Ethics in recognizing "that DR5-101(B) and DR5-102(A) are not per se rules which require a literal reading, but that their application necessarily depends 'upon the attending facts' in each case."(fn7) Similarly, Second Circuit Judge Gurfein warned, in J.P. Foley & Co. v. Vanderbilt,(fn8) that invocation of the "advocate-witness rule" should demand "judicial scrutiny to prevent literalism from possibly overcoming substantial justice to the parties."(fn9)
Having opened the door for interpretation of the rule by avoiding the rigidity of literalism, the courts next assess their cases in light of the purported purposes behind the rule.(fn10)
The proscription of the attorney's double function is primarily intended to protect the legal profession from the appearance of impropriety. A testifying advocate, supporters of the rule of reason, would likely arouse questions and suspicion in the minds of the jurors about the veracity of his statements on the witness stand, and in the minds of the general public about his effectiveness as an advocate and, apparently, about the ethics of the legal profession generally. The Code seeks to attain the public confedence
objective by precluding the attorney from acting as counsel if he will be required to testify,(fn11)
A third characteristic of decisions denying motions to disqualify under DR5-101(B) or DR5-102 is the predictable reliance of the courts on one or more of the exceptions embodied in those rules. Frequently, such reliance focuses on the fourth exception, pertaining to hardship on the client who is forced to secure new counsel:
As to the fourth exception, it seems clear that there would be some hardship on Plaintiff if its corporate counsel of longstanding could not prosecute the case. One reason for maintaining a continuing relationship with a lawyer or law firm is to prevent the difficulty which would ensue if...
To continue reading
Request your trial