Disqualification of Counsel

• Pages: 391-424
• Author: Carl T. Grasso,Edward L. Birnbaum,Ariel E. Belen

DISQUALIFICATION

OF COUNSEL

12-1

CHAPTER 12

DISQUALIFICATION OF COUNSEL

I. GROUNDS—IN GENERAL

§12:01 Use of Disqualification

§12:02 Usual Grounds for Disqualification

§12:03 Agreement Not to Solicit or Represent as Grounds

§12:04 Other Possible Grounds

§12:05 In Practice: Consider Stepping Aside

§12:06 Burden of Proof Is Clear and Convincing Evidence

II. CONFLICT OF INTEREST

A. General Points

§12:10 Disciplinary Rules

§12:11 Requirements for Disqualification

§12:12 Standing Required to Move for Disqualification

B. Prior Attorney-Client Relationship

§12:20 Initial Consultations

§12:21 Employees and Corporation’s Counsel

§12:22 Shareholders and Corporation’s Counsel

§12:23 Corporate Successor

C. Representation Must Be Substantially Related and Adverse

§12:30 Rule and Rationale

§12:31 Case Examples

§12:32 Prior Unrelated Matters

§12:33 Married Attorneys

D. Disqualification of Entire Firm

§12:40 When Issue Arises

§12:41 Case Examples (Prior Law)

§12:42 Extensive Participation and Chinese Walls

§12:43 Firm Barred Even After Disqualified Lawyer Leaves?

§12:44 Paralegals

§12:45 When Former Firm Is Party

§12:46 Disqualification of Experts

E. Representing Multiple Clients

§12:60 Disciplinary Rule

§12:61 Case Examples

F. Counsel’s Judgment Compromised

§12:65 In General

§12:66 Case Examples

DISQUALIFICATION

OF COUNSEL

New York Trial Notebook 12-2

III. COUNSEL AS WITNESS

§12:70 Advocate-Witness Disciplinary Rules

§12:71 Lawyer to Be Called on Client’s Behalf

§12:72 Lawyer to Be Called Other Than on Client’s Behalf

§12:73 When Witness “Ought” to Testify

§12:74 Lawyer as Witness in Another Capacity

§12:75 Pro Se Representation

IV. PROCEDURE

§12:80 Timing

§12:81 Support or Oppose Motion With Appropriate Affidavits

§12:82 Hearing and Disclosure

FORMS

Form 12:10 Notice of Motion to Disqualify Counsel

Form 12:20 Affirmation in Support of Motion to Disqualify Counsel

DISQUALIFICATION

OF COUNSEL

12-3 Disqualification of Counsel §12:01

I. GROUNDS—IN GENERAL

§12:01 Use of Disqualification

Although disqualication of judges is rare and very restricted [see Ch 11], motions for disqualication of

counsel are not uncommonly encountered in the litigation arena.

A going ploy in the court is the attempt to disqualify your legal opponent. In the old days, it will be

recalled, when the law was against you, you argued the facts; if the facts were against you, you argued the

law; and, if they were both against you, you banged the table. Now, as evidenced by a number of recent

decisions, you move to disqualify the law rm representing the other side on the ground of conict of

interests, breach of condence, unethical conduct, etc.”

[Kupferman, The Unfortunate Lawyer, 22 The Advocate, 71 Bronx County Bar Assn.; quoted in Saftler v. Gov-

ernment Employees Insurance Company, 95 AD2d 54, 60, 465 NYS2d 20, 24 (1st Dept 1983).]

The issue is extremely important, striking at the very heart of the adversary system, and not surprisingly has

been the subject of a number of Court of Appeals cases. Attorneys must remain acutely aware that a variety of bad

consequences may occur if they knowingly or unknowingly provide basis for disqualication.

In general, “in a disqualication situation, any doubt is to be resolved in favor of disqualication.” [Schmidt v.

Magnetic Head Corp., 101 AD2d 268, 277, 476 NYS2d 151, 157 (2d Dept 1984).] However, “[T]he party seeking

the disqualication [] bears the burden of establishing that such a drastic remedy is warranted.” [O’Donnell, Fox

& Gartner, P.C. v. R-2000 Corp., 198 AD2d 154, 155, 604 NYS2d 67, 69 (1st Dept 1993).] “Although [a] party’s

entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which

should not be abridged,’ such right will not supersede a clear showing that disqualication is warranted.” [Scopin

v. Goolsby, 88 AD3d 782, 784, 930 NYS2d 639, 642 (2d Dept 2011); see Matter of Nenninger v. Kelly, 140 AD3d

961, 963, 34 NYS3d 131, 133 (2d Dept 2016) (reiterates choosing counsel is a valued right, and “absent actual

prejudice or a substantial risk thereof, the appearance of impropriety alone is not sucient to require disqualication

of an attorney”). See also 360 West 11th LLC v. ACG Credit Co., 90 AD3d 552, 935 NYS2d 289 (1st Dept 2011)

(where a proposed amendment to plainti’s complaint adding an allegation that defendant’s counsel had withheld

information from the court would have required defendant’s counsel to become witnesses, the addition of the cause

of action would have required counsel’s disqualication, prejudicing defendant’s right to counsel of its choice;

motion to amend the complaint was properly denied; for issues involving counsel as a witness, see §§12:70 et seq.).]

In Tekni-Plex v. Meyner & Landis, 89 NY2d 123, 651 NYS2d 954 (1996), the Court of Appeals observed that

the Rule seeking disqualication with respect to prior representation “fully protects a client’s secrets and condences

by preventing even the possibility that they will subsequently be used against the client in related litigation. This

prophylactic measure thus frees clients from apprehension that information imparted in condence might later be

used to their detriment, which, in turn, ‘fosters the open dialogue between lawyer and client that is deemed essential

to eective representation’ (quoted cite omitted). By mandating disqualication irrespective of any actual detri-

ment—that is, ‘even when there may not, in fact, be any conict of interest’—the rule also avoids any suggestion

of impropriety on the part of the attorney (quoted cite omitted). This not only preserves the client’s expectation

of loyalty but also promotes public condence in the integrity of the Bar. Finally, the bright line rule provides a

clear test that is easy to apply, thereby allowing self-enforcement among members of the Bar.” Tekni-Plex at 131.

But the Court of Appeals went on to say that “[n]otwithstanding these important concerns, we have recognized

signicant competing interests inherent in attorney disqualication cases. Disqualication of counsel conicts with

the general policy favoring a party’s right to representation by counsel of choice, and it deprives current clients

of an attorney familiar with the particular matter (cites omitted). Disqualication motions, unfortunately, have

also been used as a litigation tactic to gain strategic advantage over an adversary (cite omitted). Thus, in assessing

whether the moving party has met its burden of satisfying [the requirements under the Rules], courts should avoid

mechanical application of blanket rules.” Tekni-Plex at 131-132.

The Court of Appeals also observed in Niesig v. Team, 76 NY2d 363, 369-370, 559 NYS2d 493 (1990), “what

is at issue is a disciplinary rule, not a statute. In interpreting statutes, which are the enactments of a coequal branch

of government and an expression of the public policy of this State, we are of course bound to implement the will of

the Legislature … . The disciplinary rules have a dierent provenance and purpose. Approved by the New York State