Lawyer Disqualification and Legal Malpractice

It seems obvious that in civil litigation the same lawyer or law firm cannot represent both sides of the case. But what if the lawyers for one side of the dispute have previously represented the party on the other side, or currently represents that party in separate matters? Or, what if a lawyer representing one party to a litigation case leaves his or her law firm and goes to work at the firm representing the adverse party in the case? Lawyers are “jumping ship” all the time these days.

Such instances raise serious conflicts of interest questions that should be carefully explored by a qualified expert. And those fact patterns almost inevitably lead to motions in the litigation to disqualify the lawyers. What is the basis for such motions, what is the effect, and do such disqualifications rise to the level of legal malpractice?

First, the issue of standing must be considered. A party bringing a motion to disqualify a lawyer in litigation should be involved in and affected by the conflict of interest. In other words, the lawyer sought to be conflicted out of the case must have represented you or your entity. A person will generally not be successful in disqualifying a lawyer on the other side just because that lawyer has a conflict of interest in representing the party on the other side and some third party. Generally, the person bringing the motion to disqualify must have standing, which usually means only a client or former client may move to disqualify opposing counsel in a an action.

One California case (Colyer) found an exception to the general standing rule and, applying California law, concluded that a non-client litigant may seek an attorney’s disqualification from an action “where the ethical breach so infects the litigation in which disqualification is sought that it impacts the moving parties’ interest in a just and lawful determination of her claims…In such case…, the prudential barrier to litigating the rights and claims of third parties… would be overcome by the Court’s inherent obligation to manage the conduct of attorneys who appear before it and to ensure the fair administration of justice.” Although announcing the exception, the court refused to order disqualification.

The basis for a motion to disqualify opposing counsel is generally that a conflict of interest exists because that attorney has previously represented the client, and as a result of that representation gained confidential information which could be used to harm the former client’s interests in the case. Surely, lawyers are not strictly prohibited from ever suing a former client on behalf of a new client, but if there is a substantial relationship between the first representation and the issues in the litigation, the Courts will likely presume that confidential information was obtained and disqualify the lawyers. If, on the other hand, the two matters are unrelated, but the moving former client can still show that the lawyer did, in fact, receive potentially damaging confidential information, it is likely a motion to disqualify would be granted.

The effect of the granting of a motion to disqualify opposing counsel does not necessarily give rise to a legal malpractice claim, although it might. The initial effect is, of course, to eliminate the adversary’s counsel of choice in the case and force them to obtain new counsel. And that new counsel should not be allowed to have the benefit of the thinking of the disqualified lawyer. In the disqualification process, communications between the old and new lawyers should be prohibited.

As to any potential legal malpractice claim, such a claim would still require proof of both causation and damages, since a conflict of interest is still just another form of negligence or conduct below the standard of care. So a client would still have to establish causation and damages even after a successful motion to disqualify.

Certainly the legal fees and costs associated with the successful motion to disqualify could be considered damages, and they may be significant, depending on the scope of the fight. And, if other damages arising from the conflict of interest can be identified, a significant legal malpractice claim may be justified.

In any case in which a successful motion to disqualify opposing counsel has been brought, the facts of the situation should be evaluated by a certified legal malpractice specialist. At Stanford, Ryan & Associates, APC we have reviewed dozens and dozens of cases involving the disqualification of counsel. We would be pleased to speak with you should you find yourself in that situation.