On the one hand, a court must not hesitate to disqualify an attorney when it is satisfactorily established that he or she wrongfully acquired an unfair advantage that undermines the integrity of the judicial process and will have a continuing effect on the proceedings before the court. On the other hand, it must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorneys innocent client, who must bear the monetary and other costs of finding a replacement. Finally, the law firm may want to consider whether the firm should itself defend the motion to disqualify or whether independent counsel should be retained. 10. Lee v Florida Department of Insurance, 586 SO.2d 1185 (Fla. 1st DCA 1991) 0000001348 00000 n see In re yarn Processing Patent Validity, 530 F.2d 83 (5th Cir. 1982) Solution: lVpIRC@,Pj=0H3Q@ 8 1977) the interests of the present client and former client are materially adverse. In some cases, the lawyer herself may be involved in the facts of the case and so have the need to testify as a fact witness. Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046 (Fla. 5th DCA 2004) Generally speaking, a lawyer cannot represent clients with adverse interests. Id. 0000001011 00000 n P. | Scope and Title of Rules Forms for Attorneys and Government Entities. In those circumstances, courts are generally protective of confidences or secrets that the law firm or attorney may possess or to which the firm or attorney has access as a consequence of either the prior or the existing representation. 0000000016 00000 n Document: Memorandum in Support of Defendants' Motion to Disqualify Counsel (Feb. 1, 2008) Barrera v. Boughton ( U.S. District Court for the District of Connecticut) back to case Save. for an impermissible conflict of interest. ", "We are of the opinion that a lawyer represents conflicting interests, within the meaning of the Canon, when it becomes his duty, on behalf of one client, to contend for that which his duty to another client would require him to oppose. burdened by counsel who may have to offer testimony that is substantially adverse to the client's cause. 1982) i[54ViL =nn8+ap(k. est, but because opposing counsel is dangerously competent. (a) Imputed Disqualification of All Lawyers in Firm. see Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046 (Fla. 5th DCA 2004) See Swisher, The Practice and Theory of Lawyer Disqualification, 27 Geo. Significantly, the increasing mobility of lateral attorneys (with attorneys rarely spending their entire legal careers at a single law practice or firm) has raised issues that can serve as the basis of a motion to disqualify. Misconduct: Litigation misconduct can serve as the basis for disqualification This is true, even if you challenge a lawsuit on the grounds of the statute of limitations or similar defenses. 1D20-2470 & 1D20-2472 Joseph W. Jacquot, Esq. 242 0 obj <>stream 1 - 7: SUSTAINED. see Allstate Ins co v Bowne, 817 So. "the inability to perform some act due to the existence of factors rendering the performance improper or inappropriate. 1975) See also Harlan, 54 P.3d at 877 (the Court noted that [i]n determining whether disqualification is warranted the critical question is whether the litigation can be conducted in fairness to all parties and explained that [d]isqualification should not be imposed unless the claimed misconduct in some way taints the trial or legal system) (quoting Fed. 49.] 1Duval Version | Replace all placeholder tags (eg "[plfName]" becomes "John Doe"). When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter. Disqualification We have notified your account executive who will contact you shortly. We will email you (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Courts differ on how they address motions to disqualify, especially because such motions are at times simply a litigation tactic by an opposing party in search of a strategic advantage. Lawyers cannot represent any client that wants to retain them. endstream endobj 232 0 obj <>/Metadata 35 0 R/PieceInfo<>>>/Pages 32 0 R/PageLayout/OneColumn/OCProperties<>/OCGs[233 0 R]>>/StructTreeRoot 37 0 R/Type/Catalog/LastModified(D:20090911173402)/PageLabels 30 0 R>> endobj 233 0 obj <. Contact | - see Livingston v. State, 441 So.2d 1083, 1086-87 (Fla. 1983) In those cases, she may be prohibited from serving as trial counsel through the advocate witness rule. This rule arises from the fear that a juror may believe a lawyer is more credible than a lay witness. Hubbard v Hubbard, 233 So.2d 150 (Fla. 4th DCA 1970) W}2),8n%2J17s\lu,E1cYNTd`VyzpQ}@W % It should be used in conjunction with. 58 0 obj Other lawyers remind the court that motions to disqualify are often used as procedural tools to interfere with a clients choice of her counsel and to drive up the costs of litigation on matters that are unrelated to the actual subject of the dispute. Some cases hold that the complaining party must prove a present or past attorney-client relationship with the attorney who is the target of the motion. Open PDF State / Territory: Connecticut. It is not uncommon for a firm to be retained that has one or more attorneys with aconflict of interest. 0000009978 00000 n [I]f the nature of the representation is such that confidences could have been exchanged between the lawyer and client, and it would be if it satisfies both prongs of this test, courts will conclusively presume they were exchanged, and disqualification will be required. City Nat. Litigants frequently seek to domesticate foreign judgments in the United States because defendants often have accounts at American banks. trailer 15 NINA YUAN, an individual, RICHWAVE One way that lawyers can enforce this duty is by asking the court to disqualify another lawyer from representing her client. Allied Signal Recovery v Allied Signal, 934 So.2d 675 (Fla. 2d DCA 2006) An attorney has appeared in your civil case on behalf of your civil opponent <>/ProcSet[/PDF/Text]>>/Rotate 0/Type/Page>> "the inability to perform some act due to the existence of factors rendering the performance improper or inappropriate. Lewis v Nical of Palm Beach, Inc. 959 So. 5 matters are substantially similar Where a conflict exists, an effective written consent is the best defense to a motion to disqualify. IV. Rarely Granted: Courts rarely grant Motions to Disqualify After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendants' Motion is HEREBY GRANTED for the reasons set forth below. HtSMO0W8.qi!(? Co. v. Isham, 782 F.Supp. For more information, please consult with an attorney. 0000004250 00000 n Petrey Wholesale, Inc. The prior decisions of this court do not so hold. Additional Notes 0000003895 00000 n Allstate Ins. EPA v Pollution Control Bd., 372 NE 2d Nos. A complaining party who files a motion to disqualify is required to have standing. 1982), Minakan v Husted, 27 So. Plaintiff Julie Pavlina San Giorgio (Julie) has filed a motion to disqualify the firm of Farella Braun & Martel (Farella), counsel for Defendant and Cross-complainant Stephen Pavlina, Jr. (Stephen).1 114546.) endobj Santa Barbara County Superior Court see THI Holdings, LLC v Shattuck, 93 So. These rules apply to all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply. 3 at 81 - . 2d 1035 (Fla. 4th DCA 1994) <<27B8ED659639B4449D47E3DE1DCEC2A7>]>> A powerhouse editor is directly at your fingertips offering you various useful instruments for completing a Motion To Disqualify Counsel Sample Texas. "an attorney may not represent conflicting interests in the same general transaction, no matter how well-meaning his motive or however slight such adverse interest may be. 0000038842 00000 n Instead, a defendant needs to litigate a case through its conclusion. 13. Rule 4-1.6(a) RRTFB Similarly, another may never represent the bank so it can be free to represent many plaintiffs who sue that bank. For instance, a judge may be disqualified from hearing a particular case because of having previously represented one of the parties involved." By far the majority of successful motions to disqualify are brought on the basis of a conflict of interest with a former or concurrent client or imputation, but attorneys should also be aware that successful motions to disqualify have been brought on the following bases, among others: (1) lawyer as witness, (2) appearance of impropriety, (3) receipt of confidential data, (4) personal interest, (5) violation of the no contact rules, and (6) misconduct with a witness. 3d 545]. (b) Using Information to Disadvantage of Client. These rules shall be construed to secure the just, speedy, and inexpensive determination of every action. 0000002694 00000 n The far more common motion to disqualify involves a former client, either of the law firm or of an individual attorney (who may have recently joined the firm). 0000001974 00000 n Samples Courts also appear to distinguish between conflicts based on multiple representations and those based on successive representations.5 After all, parties filing disqualification motions based on multiple representation conflicts are typically strangers to the attorneyclient relationship. However, by understanding the underpinnings of this ethical issue, attorneys will be better prepared to anticipate, respond to, or even avoid motions to disqualify. Templates 0000006178 00000 n Minakan v Husted, 27 So. Cross-Defendant W.L. TECHNOLOGY, INC., a Taiwan corporation, 0000001005 00000 n The far more common motion to disqualify involves a former client, either of the law firm or of an individual attorney (who may have recently joined the firm). and Kaplin Stewart Meloff Reitner & Stein, PC; and (2) stay the case pending the outcome of state criminal charges. All Rights Reserved. 0000001764 00000 n 0000022455 00000 n 11. In assessing motions to disqualify based on conflicts, Colorado courts also consider (1) a clients preference for a particular counsel, (2) the clients right to confidentiality in communications with his or her attorney, (3) the integrity of the judicial process, and (4) the nature of the particular conflict of interest involved.10 Below are some important concepts that have emerged in the context of motions to disqualify.11, The Colorado Rules do not bar attorneys from representing current clients against former clients. 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