Four Things to Know About Motions to Disqualify
| Publication year | 2015 |
| Pages | 59 |
| Citation | Vol. 44 No. 4 Pg. 59 |
Departments
Whoops—Legal Malpractice Prevention
Four Things to Know About Motions to Disqualify
By Randolph Evans, Shari L. Klevens, Lino S. Lipinsky.
This Department is sponsored by the CBA Lawyers' Professional Liability Committee to assist attorneys in preventing legal malpractice. For information about submitting a manuscript or topic suggestion, contact Andrew McLetchie—(303) 298-8603, a_mcletchie@fsf-law.com; or Reba Nance—(303) 824-5320, reban@cobar.org.
About the Authors
Randy Evans is an author, litigator, columnist, and expert in the areas of professional liability, insurance, commercial litigation, entertainment, ethics, and lawyer's law, and handles complex litigation throughout the world. He has authored and co-authored eight books and several newspaper columns. He co-chairs the Georgia Judicial Nominating Commission and serves on the Board of Governors of the State Bar of Georgia— revans@mckennalong.com. Shari Klevens is a partner in the Atlanta and Washington, DC offices of McKenna Long & Aldridge LLP. She represents lawyers and law firms in the defense of legal malpractice claims and counsels lawyers concerning allegations of malpractice, ethical violations, and breaches of duty. She is the chair of the firm's Defense and Risk Management Practice— sklevens@mckennalong.com. Lino Lipinsky is a partner in the Denver office of McKenna Long & Aldridge LLP. He represents clients in real estate, trade secrets, professional liability, creditor's rights, employment, and contract cases. He is a member of the CBA Board of Governors, serves on the Board of the Colorado Judicial Institute, and is a former president of the Faculty of Federal Advocates—llipinsky@mckennalong.com.
Authors' Note
Readers' comments and feedback on this series of "Whoops—Legal Practice Malpractice Prevention" articles are welcomed and appreciated. References in the articles to "safest courses to proceed," "safest course," or "best practices" are not intended to suggest that the Colorado Rules require such actions. Often, best practices and safest courses involve more than just complying with the Rules. In practice, compliance with the Rules can and should avoid a finding of discipline in response to a grievance or a finding of liability in response to a malpractice claim. However, because most claims and grievances are meritless, effective risk management in the modern law practice involves much more. Hence, best practices and safer courses of action do more; they help prevent and more quickly defeat meritless claims and grievances.
Few things are worse for an attorney than getting a new big matter, starting work on it, and then facing a motion to disqualify. At that point, the attorney is put in the awkward position of either explaining to the client why he or she should pay more money to keep the attorney, or absorbing the fees associated with defending the motion to disqualify.
Motions to disqualify are far from rare occurrences. In recent months, a number of high-profile disqualification motions have been reported.[1] Many disqualification motions are well-founded. Others are nothing more than a litigation tactic, forcing attorneys to scramble to protect valued client relationships. Significantly, the increasing mobility of lateral attorneys (with attorneys rarely spending t heir entire legal careers at a single law practice or firm) has raised issues that can serve as the basis of a motion to disqualify.
Disqualification motions implicate the most important duties that an attorney owes a client: the duties of confidentiality and loyalty. Under the Colorado Rules of Professional Conduct (Colorado Rules or Colo. RCP), an attorney must safeguard client confidences and secrets, subject to a few exceptions.[2] The attorney is also obligated to elevate the client's...
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