Disqualification of Counsel

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 347-374

CHAPTER 12

Disqualification of Counsel

§12:01 New York Trial Notebook 12-2

I. GROUNDS—IN GENERAL

§12:01 Use of Disqualification

Although disqualification of judges is rare

and very restricted [see Ch 11], motions for

disqualification 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 firm representing the other side on

the ground of conflict of interests, breach of

confidence, unethical conduct, etc.”

[Kupferman, The Unfortunate Lawyer, 22 The

Advocate, 71 Bronx County Bar Assn.; quoted

in Saftler v. Government 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 disqualification.

In general, “in a disqualification situation, any

doubt is to be resolved in favor of disqualification.”

[Schmidt v. Magnetic Head Corp., 101 AD2d

268, 277, 476 NYS2d 151, 157 (2d Dept 1984).]

However, “[T]he party seeking the disqualification

[] 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 disqualification is warranted.”

[Scopin v. Goolsby, 88 AD3d 782, 784, 930

NYS2d 639, 642 (2d Dept 2011). However, see

360 West 11th LLC v. ACG Credit Co., 90 AD3d

552 , 9 35 NYS 2d 289 (1st Dept 2011) (where a

proposed amendment to plaintiff’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 disqualification, 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.).]

§12:02 Usual Grounds for

Disqualification

Leaving aside tactical considerations for the

moment, there are three basic situations in which

attorneys are disqualified:

• When the attorney arguably has a conflict

of interest. [Implicated in Disciplinary Rule

(DR) 4-101 (22 NYCRR §1200.19) and

DR 1-108 (22 NYCRR §1200.27). See

§12:10 ff.; and further implicated in DR

5-101 (22 NYCRR §1200.20(a)) and DR

5-105 (22 NYCRR §1200.24]. See §12:10

ff.] [Effective April 1, 2009, New York’s

venerable Disciplinary Rules are replaced

with Rules of Professional Conduct (RPC),

which follow the format of the model ABA

rules. Comparable Conflict of Interest

Rules are RPC 1.7, 1.8, 1.9, 1.10 and 1.18.]

• When the attorney may be called as a

witness. [Implicated in DR 5-101 (22

NYCRR §1200.20) and DR 5-101 (22

NYCRR §1200.21). See §12:70 ff.]

[Comparable RPC 3.7.]

• When the attorney has committed some

egregious conduct meriting disqualification.

The first two situations are becoming more

frequent, as observed above, and nearly always are

brought on by an opposing party’s motion.

The last situation is uncommon, but may arise,

for example, when the attorney and the court

become antagonistic, in which case the court

might sua sponte disqualify the attorney. [See,

e.g., Solow v. Wellner, 157 AD2d 459, 459,

549 NYS2d 384, 385 (1st Dept 1990) (attorney

was reinstated after an Article 78 proceeding);

Landsman v. Moss, 180 AD2d 718, 579 NYS2d

450 (2d Dept 1992) (reversed trial court’s sua

sponte disqualification of plaintiff’s counsel on