A Guide to Disqualification Under Georgia Rules of Professional Conduct 1.6, 1.7 & 1.9
| Publication year | 2019 |
| Pages | 0018 |
The Legal
A Guide to Disqualification Under Georgia Rules of Professional Conduct 1.6, 1.7 and 1.9
Few guidelines describe the mechanics for disqualification under Georgia law, what factors and relevant case law the practitioner should consider, and the ultimate benefits and potential drawbacks of filing a motion to disqualify. This article attempts to briefly address these issues while simultaneously walking you through this seldom-discussed but ubiquitous occurrence with a carefully selected case study.
BY TAREK ABDEL-ALEEM AND YUSSUF A. ALEEM
In 2010, State Bar of Georgia General Counsel Paula Frederick published a short article in the Georgia Bar Journal advising readers that a two-minute phone call with a potential client may constitute a conflict and grounds for immediate withdrawal in a pending legal matter.[1] Few guidelines describe the mechanics for disqualification under Georgia law, what factors and relevant case law the practitioner should consider, and the ultimate benefits and potential drawbacks of filing a motion to disqualify. This article attempts to briefly address these issues while simultaneously walking you through this seldom-discussed but ubiquitous occurrence with a carefully selected case study.
Hypothetical
Assume, as in the Frederick hypothetical, that your client called an attorney and spoke to her during an initial consultation for approximately one hour. During this consultation, your client divulged confidential information to the attorney pertaining to the nature of his business relationships with others, relevant work experience, personal and business background, clientele, business and personal finances. Your client received a retainer agreement as well as escrow instructions for wiring the retainer via email. For various reasons, he never retained that lawyer.
A few years later, your client gives a deposition in a different matter only to find himself across from that very same lawyer he consulted with, in a breach of contract case in which your client is the plaintiff. Halfway through the deposition, your client informs you that he consulted with opposing counsel years ago and that she is questioning him about information she obtained in confidence. He feels very uncomfortable in the proceeding. Your client does not want to proceed with the deposition.
Quickly, you suspend the deposition and ask opposing counsel to withdraw. Unsurprisingly, she emphatically denies your request and threatens sanctions if you do not proceed with the deposition. Your client, flush in the face and antsy, turns to you for advice. What do you do? As set forth below, you should file a motion to disqualify.
Timeliness
Under Georgia law, a motion to disqualify should be made with "reasonable promptness" after a party discovers the facts that lead to the motion. Four factors are determinative of this issue:
(1) the length of the delay in light of the circumstances of the particular case, inclusive of when the movant learned of the conflict;
(2) whether the movant was represented by counsel during the delay;
(3) why the delay occurred; and
(4) whether disqualification would result in prejudice to the nonmoving party.[2]
Failure to file a motion to disqualify with reasonable promptness may result in a waiver of the right to oppose continued representation.[3]
In Shuttleworth, the litigant seeking to disqualify the attorney waited eleven months after the entry of the attorney into the case and waited an additional seven months before seeking disqualification, despite knowing of the involvement of the opposing counsel prior to the suit being filed. The court nonetheless granted the motion for disqualification, finding no prejudice to the opposing party because discovery was not yet complete.[4]
In the instant hypothethical, assume approximately 12 months has passed since opposing counsel entered her appearance on the case but your client raised the issue of disqualification on the same day during the deposition, after hearing opposing counsel's voice for the first time since the initial phone consultation. Here, the fact that you immediately alerted both the court and the opposing counsel to the conflict the same day and filed a motion in less than a week would appear to be timely. Importantly, the focus should be on when the conflict was discovered.
Applicable Rules of Professional Conduct
After exploring the issue of timeliness, the court must consider the potential prejudice to the opposing party if the court were to grant the motion for disqualification.[5] When considering an adverse counsel or party's motion for disqualification on the basis of a conflict of interest between clients, a Georgia court will consider the adverse party's essential right to counsel,[6] the immediate adverse effect,[7] the time and expense of requiring that party to obtain new counsel,[8] and whether there is a violation of the rules which is "sufficiently severe to call in question the fair and efficient administration of justice."[9] Furthermore, the court explains, "disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly."[10]
Furthermore, Rule 1.6 (a) states:
(a) A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the court.
Rule 1.7 (a) states:
(a) A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted in (b).
Rules 1.6 (a) and 1.6 (b) "require[] a lawyer to maintain in confidence all information...
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