Everybody's Doing It-but Who Should Be? Standing to Make a Disqualification Motion Based on an Attorney's Representation of a Client With Interests Adverse to Those of a Former Client
| Publication year | 1983 |
I. Introduction
Ideally, an attorney would like to represent as many clients as possible. Yet, when an attorney represents a client in court with interests that are conceivably adverse to a former client's interests, he does so at his peril. He risks finding himself the object of a disqualification motion charging him with violating the conflict of interest provisions of the American Bar Association's Model Code of Professional Responsibility (Code).(fn1) Even if the former client is not a party to the litigation or has consented to the attorney's representation of the new client, the attorney may still face a disqualification motion. Some courts permit third parties (generally opposing counsel) to make disqualification motions based on a conflict of interest to which they have no personal relation.(fn2)
The ostensible purpose of a disqualification motion is to expose and eliminate unethical conduct in order to protect both the interests of the former client and the interest of the public in the integrity of the bar.(fn3) Motions to disqualify, however, have become tools of the litigation process, used solely for strategic purposes.(fn4) As a result, they have proliferated in the federal courts.
Federal courts are by no means blind to the strategic uses to which disqualification motions can be put.(fn5) In ruling on the actual merit of disqualification motions, courts have grown increasingly sensitive to the hardships which inure to the client who loses his chosen counsel through disqualification.(fn6)
To curb the strategic uses and abuses of disqualification motions, courts should look for reasons behind the proliferation of such motions. The standing rules have received little attention in this respect. Some federal courts have allowed parties other than the former client to make disqualification motions on the basis of an attorney's representation of a client with interests adverse to those of a former client.(fn7) This practice has greatly expanded the number of litigants with standing to make disqualification motions.
This article will examine the issue of standing for disqualification motions based on an attorney's representation of a client with interests adverse to those of a former client of the attorney. The article focuses on the appropriateness of granting standing to nonclients to make disqualification motions, particularly when the former client has not objected to the attorney's alleged conflict of interest. The question of standing in this situation cannot be disposed of merely by reference to general standing requirements applicable to other areas of law(fn8) because the nature of the inquiry into a motion to disqualify is "ethical," not "legal,"(fn9) setting the treatment and consideration of disqualification motions apart from that of other litigation motions. Inasmuch as far more than legal issues are involved in motions to disqualify (such as the public's perception of the bar and the legal system) ethical concerns must play the major role in determining who should have the right to bring the disqualification issue to the attention of the court.
The question of who has standing to raise an issue is dependent upon whose rights are to be protected.(fn10) Therefore, since the Code provides the source of the right, it is first necessary to examine the Code provisions implicated when an attorney is charged with a conflict of interest between present and former clients to discern what rights the Code wanted to safeguard. Second, this article will consider the standing of the former client to determine whose rights are being protected when he moves to disqualify and to provide a frame of reference for the analysis of nonclient standing. Finally, the bulk of this article will focus on the propriety of permitting nonclients to make disqualification motions. This article suggests that courts will provide better, long-term protection for the interests the Code seeks to safeguard by curtailing the standing rights of nonclients to make disqualification motions.
II. The Role of the Code in the Disqualification Process
The drafters of the Code designed the provisions concerning an attorney's conflict of interest between former and present clients to: (1) foster confidence in the attorney-client relationship by protecting the client's confidences (Canon 4) and ensuring the attorney's undivided loyalty to his client (Canon 5),(fn11) (2) aid in the maintenance of public confidence in the legal system (Canon 9),(fn12) and (3) provide attorneys a standard by which to measure their professional conduct.(fn13) Although the Code makes no attempt to prescribe either disciplinary procedures or penalties for Code violations,(fn14) courts nevertheless look to it for guidance and will disqualify an attorney when they find an impermissible violation of the Code.(fn15) Moreover, as set forth below, the Code was not designed as a basis for standing to make disqualification motions. However, such a result has, in fact, occurred.
Canon 4 requires a lawyer to preserve the confidences and secrets of a client.(fn16) The Canon implicitly incorporates the admonition, embodied in old Canon 6 of the Canons of Professional Ethics(fn17) that "the [lawyer's] obligation to represent the client with undivided fidelity and not divulge his secrets or confidences forbids also the subsequent retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."(fn18) This ethical duty survives the termination of the attorney-client relationship.
Canon 4 and its accompanying Disciplinary Rules, especially Disciplinary Rule 4-101(B),(fn19) are designed to allay any apprehension that a client may have about frank discussion of sensitive information with counsel. Without strict enforcement of such ethical standards, a client would hesitate to discuss problems freely and extensively with his lawyer due to fear that the information the client reveals may one day be used against him. A lawyer's good faith efforts to follow the Code, when standing alone, are insufficient safeguards to protect the client from the possibility of disclosure.(fn20) Courts have developed and applied a strict prophylactic rule to prevent any possibility that the attorney might violate Canon 4 by using confidential information acquired from a former client to the former client's disadvantage. This rule is embodied in the "substantial relationship test" first articulated by Judge Weinfeld in
Thus, if the former client facing his one-time attorney in litigation proves the existence of (1) the attorney-client relationship, and (2) a substantial relationship between the content of the two representations, a pair of presumptions arise that may lead to the disqualification of his former attorney.(fn23) The first presumption is that the client disclosed confidences to the attorney, which the attorney should not reveal.(fn24) The second presumption is that the attorney shared the knowledge of the former client's confidences with all the members of his law firm.(fn25) This presumption can lead not only to the disqualification of the attorney but also to the vicarious disqualification of his law firm.
Canon 5 requires a lawyer to exercise independent professional judgment on behalf of a client. Disciplinary Rule 5-105(fn26) contains a test for determining the propriety of an attorney representing a client; this test in effect consists of the lawyer's analysis of whether a given representation will so influence his independent professional judgment as to affect or to be likely to affect the interests of another client adversely. Disciplinary Rule 5-105 strives to ensure that the attorney represents each client with undivided loyalty. The Rule attempts to prevent an attorney from getting into a position in which, even unconsciously, the attorney will be tempted to "soft pedal" zealous representation of one client in order to avoid an obvious clash with another.(fn27)
Courts have interpreted Canons 4 and 5 to provide the former client with the right to move for the disqualification of an attorney who is in a position to use confidential information to the former client's detriment. The drafters of the Code designed these two Canons primarily to protect clients-to ensure that clients are able to obtain the best legal...
To continue reading
Request your trial