Few things will impede the progression of a representation faster than a motion to disqualify. Upon receiving a motion to disqualify, the attorney must consult with the client to decide what is in the client's best interest: defending the motion or withdrawing from the representation. If the client wishes to defend the motion, the attorney usually then has to choose between absorbing the time and fees in doing so, or explaining why the client should partially (or exclusively) shoulder the burden.

Assuming the client wishes to proceed in defending, the motion itself puts at issue two important ethical obligations—confidentiality and loyalty—that the attorney owes to the client. Under the professional rules, the attorney is reminded of their responsibility both to safeguard client confidences and secrets and to place the client's interests before their own. While disqualification motions present these and other ethical considerations, courts rarely address them uniformly. Some disqualification motions are well-founded, but others may be wielded as a litigation tactic. In the latter situations, an opposing party moves to disqualify in hopes of gaining a strategic advantage by separating a client from the counsel of choice. For this reason and others, many courts are hesitant to nullify a client's choice of counsel, except when the conflict is both real and non-waivable and where few options exist other than granting the disqualification.

Despite the various situations in which a conflict might give rise to a motion to disqualify, the conflict itself is not typically the focal point for resolving disqualification motions. Indeed, motions to disqualify typically do not depend on evidence of bad intent by an attorney. More often, they require a balancing of one client's right to choose its counsel against the risk that a former client's confidences and secrets might be revealed or impermissibly used. The following four concepts have emerged within the context of these motions.

ABA Model Rule 1.9

The ABA Model Rules permit attorneys to represent current clients against former clients. However, the rule limits the circumstances under which a seemingly adverse representation is permissible. Rule 1.9 of the Model Rules of Professional Conduct provides that "[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."

Comment 3 provides some guidance as to what a substantially related matter is: "Matters are 'substantially related' for purposes of this rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter."

Likewise, the California Rules of Professional Conduct focus on whether confidential information may be material to the representation. Rule 3-310(E) provides: "A member shall not, without the informed consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment."

These rules can help shape whether, upon an allegation of a conflict in a motion to disqualify, the motion should be rebutted or conceded.

The client's strategic know-how

Sometimes, a former client may accuse the attorney of having "insider information," even if the attorney does not have any concrete or direct information regarding the present lawsuit or transaction. In these situations, the client may argue that the attorney understands how the client thinks and acts—that the attorney knows what the client's settlement strategy is or how it prefers to litigate disputes. This unique know-how is often referred to as "playbook knowledge."

As with the substantial relationship test, whether an attorney's playbook knowledge is sufficient for disqualification depends on the particular facts. There is no bright line rule or test applied in determining whether an attorney should be disqualified because of her or his playbook knowledge. However, Comment 3 to ABA Rule 1.9 provides that, "In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation."

Under the ABA Rules, therefore, possessing "general knowledge" about a client may not require disqualification. Thus, a former client seeking to disqualify a former attorney from representing an opposing party typically must identify specific, cogent information that the attorney possesses where the information is confidential and implicates the duty of loyalty. See Faughn v. Perez, 145 Cal. App. 4th 592, 609, 51 Cal. Rptr. 3d 692, 704 (2006) (reversing disqualification where movant alleged attorney's knowledge of client's "litigation playbook" but did not meet the "substantial relationship" test).

Preventing the motion to disqualify

One of the most effective ways to deal with motions to disqualify is to prevent them in the first place.

In this regard, two important pre-motion strategies can be helpful. First, by identifying and resolving conflicts of interest, including both multiple and successive representations, prior to undertaking a representation or hiring a lateral, the firm may be able to protect the representation. In some instances, obtaining a waiver or consent can help defeat a motion to disqualify.

Second, many firms will try to take steps to mitigate or eliminate, wherever possible, risks that a former client's confidences and secrets might be accessible by attorneys working on a matter involving the former client. Whether due to increased lateral hiring or mergers and restructuring of modern law firms, courts have increasingly recognized and approved timely, effective ethics screens as a tool for addressing these risks.

Responding to the motion to disqualify

As with any development during the pendency of a matter, a motion to disqualify can best be attacked by both the attorney and the client. Attempting to defeat the motion without informing the client may result in unintended consequences both from an ethical standpoint and from a client relationship perspective.

Moreover, if the motion is made by a former client, attorneys may consider providing notice of a potential circumstance to the practice's legal malpractice insurer, as such motions are sometimes followed by either a legal malpractice claim or a bar grievance.

Finally, other lawyers will consider whether independent counsel can be of service to defend the motion to disqualify. Because independent counsel is free from the suggestion of economic self-interest, such counsel often can more effectively press the case for allowing a client to keep its counsel of choice.

As published by The Recorder