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Posted: January 25, 2016

Client Q&A: Help! My Adversary Is Being Represented By My Old Lawyer. What Can I Do?

Help! My Adversary Is Being Represented By My Old Lawyer. What Can I Do?

By Niall D. O’Murchadha

Whether or not a lawyer can continue to represent his or her client in a particular action is quite a common question, and the answer can be complicated and fact-specific. This post sets out the general rules that govern attempts to prevent a lawyer from continuing a particular representation, which is called “disqualification.”

Three (Contradictory) General Principles

Assuming your adversary refuses to retain a new lawyer, any attempt to disqualify an adversary’s lawyer must be by motion to a court, which will always consider these overarching principles:

  1. People have a constitutional right to be represented by a lawyer of their own choosing;
  2. Disqualification motions are often used as a litigation tactic to disrupt an adversary, and granting a disqualification will inevitably result in inconvenience and sometimes substantial expense to the represented party, who will have to go out and find a new lawyer;
  3. The Bar needs to avoid not only actual impropriety, but also the appearance of impropriety, and allowing lawyers to switch sides in disputes to the detriment of former clients would cause great harm to attorneys’ public reputation as a profession.

These opposing ideas are resolved in different ways depending on the particular basis asserted for disqualification. The principal—but not entirely definitive—rules governing different disqualification motions are set forth in the New York State Rules of Professional Conduct (“NYSRPC”), which can be found here: http://www.nycourts.gov/rules/jointappellate/ny-rules-prof-conduct-1200.pdf. (The NYSRPC sets forth lawyers’ ethical duties; whether a lawyer has engaged in unethical behavior, and whether disqualification is appropriate, are closely related but not identical questions.)

Conflicts Of Interest–Present Clients

The clearest case for attorney disqualification is where a lawyer is trying to represent two adverse parties at the same time. This representation does not need to be in the same lawsuit, as long as there is some likelihood that the dual representation would affect—even inadvertently—the lawyer’s representation of one of the parties, or would give rise to an appearance of impropriety. When two of a lawyer’s present clients may be adverse, the law presumes that disqualification is necessary.

The lawyer can try to avoid disqualification by seeking the informed written consent of all parties, but under some circumstances the conflict of interest and the likelihood of harm to one party can be so severe that even informed consent is insufficient to avoid disqualification.

Conflicts Of Interest—Former Clients

The most common situation where conflicts like this arise is when a lawyer represented two clients that were on the same side (say, business partners, or a married couple) but subsequently become adverse, and the lawyer wants to keep representing one of the parties.

Even if a lawyer no longer represents a client, the lawyer is still obliged to keep information obtained during the previous representation confidential and not to allow any such information to be used against the former client. A former client can have her former lawyer disqualified if she can show that (a) there was an attorney-client relationship between the lawyer and the party seeking disqualification; (b) the lawyer’s former client and current client are adverse in the present dispute, and (c) the two representations are “substantially related.” Even if the two representations are not “substantially related,” the lawyer will be disqualified if the former client can show a reasonable probability that confidential information would be disclosed. In this situation—unlike with present clients—the burden of proof is on the moving party.

The duty of confidentiality also applies to pre-hiring consultations with an attorney, so if a lawyer you consulted with about the case or some related issue appears against you, you may be able to bring a disqualification motion even if you never actually retained that lawyer.

Similar to the current-client rules, disqualification can be waived if the parties provide informed, written consent in advance. The way this usually works is for the initial retainer letter to disclose that the lawyer will represent both parties, but that in the event of a dispute between them he will continue to represent one but not the other.

Conflict Of Interest—Law Firms

One recurring question is whether only the individual lawyer should be disqualified, or whether their entire law firm must be disqualified as well. Where two present clients of the law firm are adverse—even if they are represented by different lawyers at the firm—the entire firm must be disqualified (subject to the informed consent rules, above). Former-client cases often arise when a lawyer moves from a law firm that represented Party A to a law firm that represents Party B, and A and B are adverse. Here, the general rule is that the lawyer’s disqualification is imputed to the entire new firm, which must therefore also be disqualified. However, the courts have created exceptions to this rule—if the lawyer can show that he did not get any relevant confidential information while at the old firm, or that the new firm has set up procedures so that no information the lawyer has will be revealed, disqualification of the entire firm can be avoided.

Time Is Of The Essence

Because disqualification is almost always very disruptive (and expensive) for the present client, disqualification motions are often used strategically to get an advantage in litigation. Courts are therefore suspicious of disqualification motions, and are not eager to grant them. In both current-client and former-client cases, it is essential that the motion for disqualification be made as soon as possible. If the moving party sits and waits, allowing the supposedly harmful representation to continue for some time, courts are likely to find that the motion was brought for strategic purposes, rather than any real concern about confidentiality, and that the moving party has waived any objection he might have had.

Attorney-Witness Disqualification

The attorney-witness rule is another, more technical basis for disqualification. Basically, a lawyer cannot be both an advocate and a witness in the same case, so if the moving party shows that the lawyer’s testimony on some material issue will be “necessary,” she can be disqualified. This situation can arise if, say, the attorney was a witness to a disputed meeting between the parties, or drafted disputed terms in a contract. The moving party must show that the lawyer’s testimony will be “necessary,” not just “helpful” or “relevant”—if other people have the same knowledge as the lawyer, she can be excused from testifying. And in attorney-witness cases, disqualification is not imputed to the lawyer’s entire firm, unless the moving party can show that the lawyer’s testimony is likely to be adverse to her client.

Should I Get My Own Lawyer, Or Can I Be Represented By Yours?

People often confront disqualification issues for the first time when they are asked to sign a retainer letter waiving a conflict. For example, when a company or employer and an employee are both parties to a civil suit, or are both being investigated or interviewed by the government, the employer’s lawyer offers to represent the employee on the condition that the employee waives any future conflicts so the lawyer can continue to represent the employer if the two become adverse later. Being asked to sign a consent like this can be stressful, especially if you are unfamiliar with the legal issues. If you are asked to sign such an agreement, some things to consider are:

  1. Is the primary client going to pay for your representation? (This is common when a lawyer represents an employer & employee at the same time.)
  2. How likely do you think you are to become adverse to the primary client—how likely are they to try and blame you for something that happened, or sue you later (or vice versa)?
  3. Do you have relevant information that you don’t want the primary client, or any other clients also being represented, to know about? (Lawyers are not obliged to keep co-represented clients’ information confidential from one another.)
  4. Do you have the financial resources to hire your own lawyer?
  5. If you’re not comfortable with joint representation, will the primary client pay for you to get your own lawyer?

Conclusion

As you can see, disqualification motions are decided under a number of different standards, depending on the type of conflict asserted. And often, you will have to make a quick decision on a complicated question: Should I move to disqualify? Should I sign this conflict waiver? Schlam Stone & Dolan has substantial experience in making and defending disqualification motions, as well as in drafting conflict waivers. Further, we have substantial experience in representing employees, officers and directors when they have decided to engage their own counsel. We would be happy to give you our advice on questions you might have in these areas of law.

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