session 12 the lifecycle of a motion for disqualification ... · session 12 the lifecycle of a...

Session 12

The Lifecycle of a Motion

for Disqualification –

from Cradle to Grave

40TH ABA NATIONAL CONFERENCE ON PROFESSIONAL RESPONSIBILITY

The Lifecycle of a Motion for Disqualification—From Cradle to Grave

Pamela A. Bresnahan Richard E. Flamm Robert G. Krupka

Monte M. Lemann II Matthew R. Ryan

BACKGROUND

Two centuries ago, Chief Justice Marshall remarked that the authority to disqualify an errant attorney is “incidental to all [c]ourts.”1 Other courts, at the federal and state levels, have explained that the authority to disqualify counsel derives their inherent power to preserve the integrity of the adversary process.2

JUDICIAL PERCEPTION OF MOTIONS TO DISQUALIFY

Courts take a dim view of motions to disqualify, acknowledging that the remedy is severe and deprives a litigant of his/her choice of counsel with potentially great costs in terms of time and money.3

TRADITIONAL BASES FOR DISQUALIFICATION MOTIONS4

A. CONCURRENT CONFLICTS OF INTEREST

In general, concurrent conflicts of interest—a lawyer representing a client that takes an adverse position to another current client without informed consent—are not allowed, and will frequently be the basis for motions for disqualification.5 However, attorneys and their firms are now better able to avoid disqualification if they can show that the matters are sufficiently unrelated and/or the firms are effectively able to wall off the conflicted attorney.

1 Richard E. Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases (2003) (quoting Ex Parte Burr, 22 U.S. 529, 531 (1824)). 2 Id. 3 See, e.g., Freeman v. Chi. Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982) (noting “that disqualification, as a prophylactic device for protecting the attorney-client relationship, is a drastic measure which courts should hesitate to impose except when absolutely necessary”). 4 See Keith Swisher, The Practice and Theory of Lawyer Disqualification, 27 Geo. J. Legal Ethics 71 (Winter 2014). Other bases for disqualification, not discussed in these materials, are attorneys as witnesses, personal interest conflicts, contact with a represented party, misconduct with witnesses, and the appearance of impropriety. See id. at 3. 5 See, e.g., CenTra, Inc. v. Estrin, 538 F.3d 402, 417–19 (6th Cir. 2008).

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Rule Example: ABA Model Rule 1.76

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

B. FORMER CLIENTS

Another common target of disqualification motions is an attorney whose conduct allegedly has created a conflict of interest between herself and a former client.

Rule Example: ABA Model Rule 1.9

(a) 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.

An interpretation of “substantially related”

6 See Paul v. Judicial Watch, Inc., 571 F. Supp. 2d 17, 20 (D.D.C. 2008) (in resolving motions to disqualify, a federal court looks to local rules of the court, rules of professional responsibility adopted by the court, and federal law).

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Matters are substantially related if they involve the same transaction or legal dispute or if there is otherwise 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. ABA Model Rule 1.9, cmt. 3; Bowers v. Ophthalmology Group, 733 F.3d 647, 652 (6th Cir. 2013). Stated another way:

In determining whether a substantial relationship exists, the court evaluates the similarities between the factual bases of the two representations. A commonality of legal claims or issues is not required. At a functional level, the inquiry is whether the attorneys were to acquire information vitally related to the subject matter of the pending litigation. To accomplish this inquiry, the court must be able to reconstruct the attorney’s representation of the former client, to infer what confidential information could have been imparted in that representation, and to decide whether that information has any relevance to the attorney’s representation to the current client. What confidential information could have been imparted involves considering what information and facts ought to have been or would typically be disclosed in such a relationship. Consequently, the representations are substantially related if they involve the same client and the matters or transactions in question are relevantly interconnected or reveal the client’s pattern of conduct.

Id. (quoting Koch v. Koch Indus., 798 F. Supp. 1525, 1536 (D. Kan. 1992)).7

C. PROSPECTIVE CLIENTS

What happens when a lawyer consults with a prospective client regarding a matter in which the lawyer ultimately is not retained, but the lawyer or his/her firm wants to represent a client that is materially adverse to the prospective client in a substantially related litigation? The New York City Bar Association’s Committee on Professional Ethics recently addressed this issue in Formal Opinion 2013-1.8 Rule Example: New York Rule of Professional Conduct 1.18

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a “prospective client.”

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that

7 See also T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F. Supp. 265, 268 (S.D.N.Y. 1953). 8 See Joan C. Rogers, Conflicts of Interest: Competing Unsuccessfully in Beauty Contest Doesn’t Always Bar Adverse Representation, 29 ABA/BNA Lawyers’ Man. on Prof. Conduct 91, Feb. 13, 2013.

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could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing; or

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i) the firm acts promptly and reasonably to notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client;

(ii) the firm implements effective screening procedures to prevent the flow of information about the matter between the disqualified lawyer and the others in the firm;

(iii) the disqualified lawyer is apportioned no part of the fee therefrom; and

(iv) written notice is promptly given to the prospective client; and

(3) a reasonable lawyer would conclude that the law firm will be able to provide competent and diligent representation in the matter.

(e) A person who:

(1) communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship; or

(2) communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter, is not a prospective client within the meaning of paragraph (a).

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New York Rule 1.18 imposes two primary duties on lawyers engaging in discussions with prospective clients:

(1) restrictions regarding revealing or using information learned in the discussions are coextensive with restrictions imposed with regard to former clients; and

(2) a lawyer may not represent a client with materially adverse interests to the prospective client in the same or substantially related matter if information learned from the prospective client could be significantly harmful to the prospective client in that matter.

Application of the Rule:

Who is a prospective client?

The communication must relate to the “possibility of representation.” What types of communications do not give rise to prospective client duties?

• Meetings and other communications that do not focus on a particular representation, such as introductory and general promotional calls or visits

• social meetings

What is the scope of protected information in Rule 1.18?

• must be “confidential information”;

• that is learned during the consultation with the prospective client; and

• that is used to the disadvantage of the prospective client.

What are the restrictions imposed by Rule 1.18 on representing others? A lawyer cannot represent a client who is:

• materially adverse

• to a prospective client

• in the same matter or a substantially related matter as that discussed during the

consultation with the prospective client

o if the information received by the prospective client during the consultation could be “significantly harmful” to the prospective client in the matter.

What does “significantly harmful” mean?

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The guidance provided in the Rule’s comments is limited. Comment 6 to N.Y. Rule 1.18 provides that “the lawyer is not prohibited from representing a client . . . unless the lawyer has received from the prospective client information that could be significantly harmful if used in that matter.” Formal Opinion 2013-1 takes the position that “a lawyer who receives the information may [not] avoid the bar solely on the ground that he or she will make no actual use of the information.” The Formal Opinion cites to several New York cases that have discussed the “significantly harmful” language of Rule 1.18: Zalewski v. Shelroc Homes, LLC, 856 F. Supp. 2d 426, 435 (N.D.N.Y. 2012) (disqualifying attorney because discussion with former prospective client included discussions related to settlement strategies, including what the prospective client believed to be a reasonable settlement, which, although fluid, could “serve as an unfair advantage . . . and could ultimately control the great stakes ahead”); but see ADP, Inc. v. PMJ Enters., LLC, 2007 U.S. Dist. LEXIS 17808, *12–*14 (D.N.J. Mar. 14, 2007) (denying plaintiff’s motion to disqualify, determining that discussions related to the nature of plaintiff’s business, the history of its dispute with defendant, and the factual basis of the anticipated counterclaim, and plaintiff’s settlement position and strategy, were not significantly harmful). Miness v. Ahuja, 762 F. Supp. 2d 465, 480–81 (E.D.N.Y. 2010) (noting that the “broad outlines” of attorney’s social discussions with prospective client “appear publicly in the complaint,” but the court disqualified the attorney from representing a client adverse to the prospective client because he appeared to solicit the prospective client, he received non-public information from the prospective client, such as the prospective client’s “present thoughts and feelings on the matter,” as well as “the prospective client’s personal accounts of each relevant event shortly after it happened, and the prospective client’s strategic thinking”). Van Acker Constr. Corp. v. Hance, 2011 N.Y. Misc. LEXIS 625, at *5 (Sup. Ct. Jan. 11, 2011) (disqualifying law firm because discussion with prospective client included “outlin[ing] potential claims against the Defendant” and “discuss[ing] specifics as to the amount of money needed to settle the case”).

HOW TO AVOID DISQUALIFICATION9

• Limit the initial interview to decrease the chance of receiving information that is critical to the representation of an existing or new client in the same or related matter. See ABA Formal Op. 90-358.

• Be specific in engagement letters regarding status of clients and scope of representation. This helps memorialize the parties’ intent with regard to whether and to what extent the attorney-client relationship is formed.

9 See Douglas J. Hoffer, Navigating Conflict-of-Interest Disqualification Motions, 84 Wis. Lawyer 9, Sept. 2011.

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• Take steps to ensure proper screening in order to avoid imputed disqualification. See ABA Model Rule 1.10(a).10

Use of Ethical Screens: N.Y. City Bar Association Formal Opinion 2013-1

How can a lawyer limit his and his firm’s exposure? The position of the New York City Bar Association’s Committee on Professional Ethics, expressed in Formal Opinion 2013-1 is that the lawyer receiving the information should inform “the prospective client that they do not have a lawyer-client relationship and that the prospective client should provide the lawyer only such information as is necessary to enable a lawyer to decide whether to take on the representation.” The Opinion also explains that “necessary” information should not be limited simply to information sufficient to run a conflicts check; rather, “necessary” information “may encompass any information reasonably necessary to enable the lawyer to decide whether to pursue a representation.” Such information “might include information about factual and legal matters needed for the lawyer to determine whether the firm would be able to provide effective representation or to provide an estimate of fees and expenses.” In addition, a lawyer might reasonably obtain information that would “enable the lawyer to assess the merits of the matter and to formulate possible legal theories or analyses” as well as “to gauge the prospective client’s reaction to these considerations.”

• Consider arranging for substitute counsel or withdrawing if you believe that a conflict will arise.

• Obtain informed consent—an agreement by a client to a representation by a law

firm that would otherwise be precluded because of a conflict of interest.

Case Example regarding informed consent:

Galderma Labs., L.P. v. Actavis Mid Atl. LLC, 2013 U.S. Dist. LEXIS 24171 (N.D. Tex. Feb. 21, 2013). Galderma is a large company with an in-house legal department, that had engaged the services of both large and small law firms for assorted matters. In 2003, the company entered into an attorney-client relationship with the law firm, Vinson & Elkins. Galderma’s Vice President/General Counsel signed the engagement letter sent by Vinson & Elkins, which provided that:

We recognize that we shall be disqualified from representing any other client with interests materially and directly adverse to yours (i) in any matter which is substantially related to our representation of you and (ii) with respect to any matter where there is a reasonable probability that confidential information you furnished to us could be used to your disadvantage. You understand and agree that . . . we are free to represent other

10 “Screened” under the ABA Model Rules is defined as “the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.” ABA Model Rule 1.0(k).

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clients, including clients whose interests may conflict with ours in litigation, business transactions, or other legal matters. You agree that our representing you in this matter will not prevent or disqualify us from representing clients adverse to you in other matters and that you consent in advance to our undertaking such adverse representations.

While Vinson & Elkins was representing Galderma on employment matters, Galderma, through other counsel, filed the instant intellectual-property litigation against Actavis in 2012. Vinson & Elkins filed Actavis’s answer and counterclaims. After discussions with Galderma, Vinson & Elkins withdrew from its representation of Galderma but declined to withdraw from its representation of Actavis, based on Galderma’s consent to waive future conflicts as stated in the 2003 engagement letter.

Under ABA Model Rule 1.7, a client’s waiver of future conflicts is valid when the client gives informed consent. It is the attorney’s burden to prove informed consent. Galderma, 2013 U.S. Dist. LEXIS, at *18–*19 (citing Celgene Corp. v. KV Pharm. Co., 2008 U.S. Dist. LEXIS 58735, at *6 (D.N.J. July 29, 2008); El Camino Res., Ltd. v. Huntington Nat’l Bank, 623 F. Supp. 2d 863, 869 (W.D. Mich. 2007)). To establish that there was informed consent, the attorney must show “that the attorney provided reasonably adequate information for the client to understand the material risks of waiving future conflicts of interest. Id. at *19 (citing ABA Model Rule 1.0, cmt. 6). This analysis raises two questions:

(a) Whether the information disclosed is reasonably adequate for a client to form informed consent. (look to the language of the agreement)11

(i) agreement to a proposed course of conduct;

(ii) after the lawyer has communicated adequate information and explanation about the material risks; and

(iii) the lawyer has proposed reasonably available alternatives to the proposed course of conduct.

(b) If the waiver does, the next question is, whether or not the disclosure is reasonably adequate for the particular client involved in this case (question is related to sophistication of the client—see ABA Model Rule 1.0, cmt. 6 (2010); Restatement (Third) of Law Governing Lawyers § 122, cmt. c(i) (2000)—and whether the client was represented by counsel independent of the law firm seeking the waiver)

The court recognized that “[a] general and open-ended waiver [like the one at issue in this case] will ordinarily be ineffective, because the client will likely not have understood the material risks involved.” Id. at *14 (citing ABA Model Rule 1.7, cmt. 22). In this case,

11 The Galderma court noted that it is not necessary under the current Model Rules that the prospective waiver disclose the nature of the subsequent conflict nor is it necessary under the current Model Rules for the waiver to name an actual potential dispute. See id. at *35–*36. The court also noted, however, that the Third Circuit and New Jersey have adopted a “more stringent standard” requiring lawyers seeking a waiver to inform the client “of specific implications and the specific possibility that the lawyers might represent[]” a specific type of company in a specific future litigation. Id. at *38 (citing Celgene Corp., 2008 U.S. Dist. LEXIS 58735, at *11).

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however, the court found that Galderma gave informed consent because the disclosure language specifically warns Galderma that Vinson & Elkins could represent another client adverse to Galderma in substantially unrelated litigation; Galderma was a sophisticated client; and Galderma had independent counsel. Id. at *41–*42.

WHO HAS STANDING TO FILE A MOTION TO DISQUALIFY IN A CONFLICT OF INTEREST SCENARIO?

• Current clients

• Former clients

• Non-clients?

When a non-client party moves for disqualification of opposing counsel who has represented a non-party former client, the non-client party is urging that the duties owed to a non-party former client be enforced because the prior representation is so connected with the current litigation that the prior representation is likely to affect the just and lawful determination of the non-client party’s position.12

Do non-clients have standing to move to disqualify based on a conflict of interest?13

• Majority view: Non-clients do not have standing to move to disqualify.14

• Minority view: Other courts take a broad view of standing.15

• Middle course: There are exceptions to the general rule that non-clients do not have standing to move on the ground that the current representation may be a breach of duties owed to the former client.

Reasons for prohibiting motions to disqualify by non-clients:16

• An attorney’s duties to a client are supposed to protect the client, not others.

• Motions to disqualify could be used as a litigation tactic.

12 Foley-Ciccantelli v. Bishop’s Grove Condo. Ass’n, 797 N.W.2d 789, 804 (Wis. 2011). 13 See Foley-Ciccantelli, 797 N.W.2d at 805–06. 14 See, e.g., In re Yarn Processing Patent Validity Litig., 530 F.2d 83, 88–90 (5th Cir. 1976); see also, e.g., Colyer v. Smith, 50 F. Supp. 2d 966, 969, 973 (C.D. Cal. 1999). 15 See, e.g., Kevlik v. Goldstein, 724 F.2d 844, 847–48 (1st Cir. 1984).

16 See Foley-Ciccantelli, 797 N.W.2d at 805.

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• Rules of professional conduct should be enforced by the disciplinary authorities,

not in civil actions. Charting a middle course: Case Example: Foley-Ciccantelli v. Bishop’s Grove Condo. Ass’n, 797 N.W.2d 789 (Wis. 2011). Court determined that non-client had standing to move to disqualify counsel. Plaintiffs are husband and wife who purchased a condominium from Bishop’s Grove, the defendant. One of the plaintiffs slipped and fell on condominium common grounds and subsequently sued Bishop’s Grove and its insurer. The Foster Group was the exclusive property manager of Bishop’s Grove and had an agreement with Bishop’s Grove to maintain the buildings and grounds of Bishop’s Grove. Plaintiffs alleged that Bishop’s Grove liability in the case might arise from the acts or omissions of the Foster Group. Bishop’s Grove filed a motion to disqualify plaintiffs’ attorney because plaintiffs’ attorney’s law firm (the Cramer firm) had represented the Foster Group and the Foster Group’s principal, Wayne Foster, in the past. The plaintiffs and Bishop’s Grove submitted affidavits and briefs. The court noted that nothing in the record showed that Wayne Foster or the Foster Group consented to the Cramer firm’s representation of plaintiffs, but nothing showed that Wayne Foster explicitly objected to its representation of plaintiffs. No evidentiary hearing was held to determine whether the Cramer firm’s previous representations of the Foster Group or Wayne Foster were substantially related to the subject matter of the current litigation or whether plaintiffs’ interests were materially adverse to those of the former clients.

Standard: Standing depends on (1) whether the party whose standing is challenged has a personal interest/stake in the controversy; (2) whether the interest of the party whose standing is challenged will be injured, that is, adversely affected; and (3) whether judicial policy calls for protecting the interest of the party whose standing is challenged. Id. at 798–99.

Application: Court held that Bishop’s Grove had standing to move for disqualification of plaintiffs’ counsel because Bishop’s Grove had a personal interest in the motion to disqualify plaintiffs’ counsel that was adversely affected because the prior representation was connected with the current litigation so that the prior representation appeared to have an impact on the just and lawful determination of Bishop’s Grove’s position. -Wayne Foster and employees of the Foster Group could have been key witnesses for plaintiffs.

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-Plaintiffs apparently intended to rely upon the testimony of Wayne Foster regarding duties and actions of Foster Group, to establish Bishop’s Grove’s liability. -Bishop’s Grove’s liability likely would have turned on the actions or omissions of the Foster Group or Wayne Foster, as the property manager of Bishop’s Grove. -The Foster Group’s and Wayne Foster’s conduct as manager was connected with litigation with plaintiffs’ counsel’s prior representation of Wayne Foster and the Foster Group (record shows that prior representation related to condominiums). -Two communications between plaintiffs’ counsel and Wayne Foster tended to show familiarity with respect to the personal-injury litigation. -The first was a phone call between plaintiffs’ counsel and Wayne Foster prior to the commencement of the litigation, where plaintiffs’ counsel asked and Wayne Foster agreed to communicate with the claims adjuster and explain condominium law and the concept of common property. -The second communication was a notice of deposition (rather than a subpoena) sent to Wayne Foster by plaintiffs’ counsel. WHEN SHOULD YOU FILE A MOTION TO DISQUALIFY (AND WHEN IS A COURT LIKELY TO GRANT YOUR MOTION)? When you believe that filing a motion to disqualify is appropriate:

• Consider informally asking the relevant attorney to withdraw from representation prior to filing a motion.

• If you do file a motion — Act quickly, after performing the necessary research and investigation. A failure to act quickly could result in a waiver.17 Courts are concerned about litigants using motions to disqualify as mere litigation tactics, and courts want to evaluate whether disqualification would prejudice the party being deprived of its counsel. A motion to disqualify should be made with reasonable promptness after a party discovers the facts which lead to the motion. A litigant may not delay filing a motion to disqualify in order to use the motion later as a tool to deprive his opponent of counsel of his choice after substantial preparation of the case has been completed.18

17 Cox v. Am. Cast Iron Pipe Co., 847 F.2d 725, 729 (11th Cir. 1988).

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Factors affecting timeliness:19 1. number of times an attorney has appeared in court on the matter 2. whether the former client was present for the attorney’s court appearances 3. whether the case presents a complicated set of facts and/or law 4. the number of hours the attorney has billed in the matter 5. whether trial is imminent

WHAT LAW APPLIES?

• Know your jurisdiction!

o Ninth Circuit applies state law in determining matters of disqualification. In re County of L.A., 223 F.3d 990, 995 (9th Cir. 2000).

o Fifth Circuit looks to “the local rules promulgated by the local court itself,”—e.g., Southern District of Texas—as well as the ABA Model Rules of Professional Conduct. In re ProEducation Int’l, Inc., 587 F.3d 296, 299 (5th Cir. 2009).

o D.C. Circuit looks to D.C. Rules of Professional Conduct and standards

developed under federal law. See Paul v. Judicial Watch, Inc., 571 F. Supp. 2d 17, 20 (D.D.C. 2008).

• Because disqualification motions are “strongly disfavored,” “strict judicial scrutiny”

generally applies20 WHAT KIND OF EVIDENCE IS REQUIRED? At a bare minimum, a movant should provide affidavits or declarations of those who can best speak to the alleged conflict and any documentation, such as e-mails or memoranda, that can demonstrate that a conflict in fact exists.

18 Jackson v. J.C. Penney Co., 521 F. Supp. 1032, 1034–35 (N.D. Ga. 1981) (citing Cent. Milk Producers Co-op v. Sentry Food Stores, 573 F.2d 988 (7th Cir. 1978)). 19 See Douglas J. Hoffer, Navigating Conflict-of-Interest Disqualification Motions, 84 Wis. Lawyer 9, Sept. 2011. 20 Oracle Am. Inc. v. Innovative Tech. Distribs., LLC, 2011 U.S. Dist. LEXIS 78786, at *10–*11 (N.D. Cal. July 20, 2011).

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While a movant might not want to burden the court with litigation within litigation, a movant should consider offering live testimony to create a full record. There are several reasons for this.

• The moving party usually bears the burden of proof.21

• A trial court has broad discretion to determine whether a motion to disqualify should be granted.22

• In the event the ruling on the motion to disqualify is appealed, the appellate court can conduct a more meaningful review of the trial court’s decision.23 If the appellate court remands because of a lack of evidence, the parties will incur further costs and more delay in litigating the ultimate case.

IF YOU LOSE—WHAT NEXT

• Motion for Reconsideration — Difficult to win

o Examples: FRCP 59(e): No later than 28 days after entry of judgment—motion to alter or amend judgment may only be granted if the movant presents newly discovered evidence that was not available at the time of trial or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact.24

FRCP 60(b): Must be filed within a reasonable time, and, for certain reasons, no more than a year after the entry of judgment or order or date of proceeding. Allows for relief of judgment for “mistake, inadvertence, surprise, or excusable neglect,” fraud, misrepresentation, or misconduct by

21 See, e.g., Gotham City Online, LLC v. Art.com, Inc., 2014 U.S. Dist. LEXIS 33680, at *7–*8 (N.D. Cal. Mar. 13, 2014) (citing Eyewear Fashion Int’l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1049 (9th Cir. 1985)). 22 See, e.g., Childress v. Trans Union, LLC, 2012 U.S. Dist. LEXIS 182585, at *13 (S.D. Ind. Dec. 28, 2012) (citing Whiting Corp. v. White Mach. Corp., 567 F.2d 713, 715 (7th Cir. 1977)). 23 See, e.g., Foley-Ciccintalli, 797 N.W.2d at 816 (“Given the paucity of facts in the record . . . we are unable to determine whether the two representations are substantially related . . . or whether the current representation is materially adverse to the former client.”). 24 See, e.g., In re Prince, 85 F.3d 314, 324 (7th Cir. 1994).

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other party, newly discovered evidence that could not have been discovered in time for Rule 59(e) motion. However, the reasons offered must be something that could not have been employed to obtain a reversal by direct appeal.25 Cal. CCP § 1008: Within 10 days after service upon the party of written notice of entry of the order—must be based upon new or different facts, circumstances, or law.

• Appeal

o Direct appeal

Some courts, such as California’s, hold that disqualification orders are directly appealable.26

o Interlocutory Some courts hold that disqualification orders are interlocutory and not directly appealable as a final order.27 This means that those wishing to appeal such orders before final judgment must follow procedures set forth in the appropriate jurisdiction for interlocutory review, which are often stringent.28 Case example: Foley-Ciccantelli Plaintiffs were able to obtain interlocutory review because the question of standing of a non-client party in a civil action to move for the disqualification of an attorney was an issue of first impression in Wisconsin, and therefore satisfied the third prong of the requirements for interlocutory review — to clarify an issue of general importance in the administration of justice.29

25 See Scott v. Hardy, 2012 U.S. Dist. LEXIS 153602, at *3 (S.D. Ill. Oct. 25, 2012) (citing Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000)). 26 Conservatorship of Rich, 46 Cal. App. 4th 1233, 1236 (1996). 27 See, e.g., Flores Rentals v. Flores, 153 P.3d 523, 532 (Kan. 2007) (holding that orders disqualifying counsel are interlocutory, not collateral); Acierno v. Hayward, 859 A.2d 617, 620 (Del. 2004) (same); Travco Hotels v. Piedmont Natural Gas Co., 420 S.E.2d 426, 428 (N.C. 1992); but see PCG Trading v. Seyfarth Shaw, 951 N.E.2d 315, 318 n.6 (Mass. 2011) (noting that an “order granting a motion to disqualify counsel . . . [is] a final judgment and therefore immediately appealable under the collateral order doctrine”); Jacob N. Printing Co. v. Mosley, 779 N.W.2d 596, 599–600 (Neb. 2010) (orders disqualifying counsel subject to collateral order doctrine). 28 See, e.g., 28 U.S.C. § 1292; Ark. R. App. P. Civ. 2; Wis. Stat. § 808.03(2). 29 See also Douglas J. Hoffer, Navigating Conflict-of-Interest Disqualification Motions, 84 Wis. Lawyer 9, Sept. 2011.

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Not all litigants will be able to avail themselves of interlocutory review.

o After final judgment Relief from an erroneous disqualification order may serve as the basis for a new trial motion.30 However, for the litigant dissatisfied by the disqualification order (whether granted or denied), costs could be significant if he/she must wait until a final judgment is rendered before appealing the disqualification order.

30 See, e.g., Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 378 (1981); Fid. Nat’l Title Ins. Co. of N.Y. v. Intercounty Nat’l Title Ins. Co., 310 F.3d 537, 539 (7th Cir. 2002); Settendown Pub. Util., LLC v. Waterscape Util., LLC, 751 S.E.2d 463 (Ga. Ct. App. 2013).

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CHAPTER25 Tactical Motions

§25.1 Introduction§25.2 Tactical Reasons for Moving to Disqualify§25.3 Significance of the Moving Party’s Motivation§25.4 Establishing a Tactical Motivation§25.5 Failure to Establish a Tactical Motivation

§25.1 Introduction

Motions to disqualify can be properly utilized to draw the court’s attention to situations where counsel has violated the applicable rules of professional conduct. It has long been realized, however, that notwithstanding their value in ensuring that lawyers observe the highest standards of integrity and fidelity,1 motions to disqualify attorney and law firms are not always motivated by high-minded concerns about ethical derelictions on the part of challenged counsel.2

1In re Ferrante, 126 B.R. 642, 649 (D. Me. 1991). 2See, e.g., Donohoe v. Consol. Oper’g & Prod. Corp., 691 F. Supp. 109, 121

(N.D. Ill. 1988) (noting that, while courts give careful scrutiny to the factors supporting disqualification in order to foster adherence to the ethics of the legal profession, “[l]itigants are typically less public-policy minded”); Klein v. Superior Court, 198 Cal. App. 3d 894, 913 (1988). Cf. Shaw v. London Carrier, Inc., 2009 U.S. Dist. LEXIS 109862, at *8 (W.D. Mich. 2009) (“motions to disqualify [are] necessary to protect the integrity of judicial proceedings and the ethics of the bar, [but] courts must be vigilant in reviewing [such motions]”); In re Complaint of Cardinal Servs., 2006 U.S. Dist. LEXIS 55883, at *2-3 (W.D. La. 2006) (“Professing grave concern for the quality of Mr. Breaud’s anticipated advice to his client…the claimants seek disqualification of [counsel]”).

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Richard Flamm, Lawyer Disqualification: Conflicts and Other Bases (2003). Reprinted with permission.

https://vpn.lib.ucdavis.edu/us/lnacademic/results/docview/,DanaInfo=www.lexisnexis.com+docview.do?docLinkInd=true&risb=21_T8713893203&format=GNBFI&sort=BOOLEAN&startDocNo=26&resultsUrlKey=29_T8713893206&cisb=22_T8713893205&treeMax=true&treeWidth=0&csi=6323&docNo=33


§25.1 Part VIII Performing the Balancing Test

On the contrary, as a number of federal3 and state4 courts have recognized, such motions have often been interposed in bad faith;5

for tactical reasons6 wholly unrelated to any legitimate concern the movant might have about preserving confidentiality, or the ethical purity of the legal profession.7

3See, e.g., Swilley v. Tipton, 2007 U.S. Dist. LEXIS 7481, 2007 WL 316951, at *7 (E.D. Ky. 2007) (“The former client cannot sit on the right for tactical purposes”); Comm’l Union Ins. Co. v. Marco Int’l Corp., 1999 U.S. Dist. Lexis 3885 (S.D.N.Y. 1999); Somascan Plaza v. Siemens Med. Sys., 1999 U.S. Dist. Lexis 6231 (D.P.R. 1999); RTC v. Fid. and Deposit Co. of Md., 1997 U.S. Dist. Lexis 22177, at *11 (D.N.J. 1997); Bartech Indus. v. Int’l Baking Co., 910 F. Supp. 388 (E.D. Tenn. 1996); Cook v. City of Columbia Heights, 945 F. Supp. 183 (D. Minn. 1996).

4Schertz v. Jenkins, 4 Misc.3d 298, 291, 777 N.Y.S.2d 290, 296 (N.Y.C.C.C. 2004) (“there is... reason to suspect that the motion was designed to achieve a tactical advantage”); Campbell v. Indep. Outlook, Inc., 2004 Ohio App. LEXIS 6248, at *12-13 (2004) (“Motions to disqualify…may be used as strategic litigation tactics”); Donahue v. Burke, 2003 WL 21956995, at *1 (Me. Super. 2003) (“[a] motion to disqualify...is capable of being abused for tactical purposes”); Del. Trust Co. v. Brady, 1988 Del. Ch. Lexis 121, at *7 (1988) (“When the relevant facts justify [disqualification], a court ought not to hesitate to require it. But a decent respect for the reality of litigation requires one to acknowledge that this step may be sought for tactical reasons”); Assoc’d Wholesale Grocers v. Americold Corp., 266 Kan. 1047, 1057 (1999).

5See Ernie Ball, Inc. v. Earvana, LLC, 2006 U.S. Dist. LEXIS 96976, at *6-7 n.1 (C.D. Cal. 2006); State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986) (“the trial court is entitled to consider whether the defendant’s effort to displace existing counsel has substantive merit and is being pursued in good faith”).

6See, e.g., Hackett v. Feeney, 2010 U.S. Dist. LEXIS 113553, at *10 (D. Nev. 2010) (“Tactical considerations often motivate such motions”); Karlen v. Westport Bd. of Educ., 2009 U.S. Dist. LEXIS 23765, at *3 (D. Conn. 2009) (“[Courts] are reluctant to grant motions to disqualify because such motions may be tactically motivated”); Plumley v. Doug Mockett & Co., 2008 U.S. Dist. LEXIS 105634, at *10 (C.D. Cal. 2008) (“we must be mindful that a litigant may seek to disqualify opposing counsel in order to gain a tactical advantage”).

7Gay v. Luihn Food Sys., Inc., 54 Va. Cir. 468, at *7 (2001) (“disqualification can itself be a weapon in the adversarial contest intended to accomplish strategic litigation goals of the requesting party – like retiring from the scene the very lawyers in whom an opponent has the most confidence, or distracting an opponent with a costly and potentially embarrassing pretrial diversion, or simply launching a thinly veiled ad hominem attack – all under the cover of a dutiful effort to reprove an ethically challenged lawyer. Only the naive would discount the possibility of such motivations infecting modern litigation”).

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Chapter 25 Tactical Motions §25.1

Of course, not every motion to disqualify an attorney or law firm is motivated by a desire to delay the proceedings,8 to harass an adverse party,9 or some other strategic purpose; and not every state10 or federal11 court that has been presented with a disqualification motion has found that it was tactically motivated. A strategic motive is particularly unlikely to be found in a situation where the motion was filed promptly upon learning of the grounds therefore;12 or where it is not apparent to the court that the moving

8Jones v. Kovacs, 659 F. Supp. 835, 839 (S.D. Tex. 1987). 9Adkins v. Hosp. Auth. of Houston County, 2009 U.S. Dist. LEXIS 97361,

at *24 (M.D. Ga. 2009) (no evidence suggests “that this motion was brought to delay the case, harass the opposing side, or for any other tactical reason”).

10In re Guidry, 316 S.W.3d 729, 742 (Tex. App. 2010) (“there is little…to suggest that the Brokers are seeking to disqualify for tactical reasons”); Kelly, Remmel & Zimmerman v. Walsh, 2007 Me. Super. LEXIS 71, at *10 n.4 (2007) (finding that the motion was not a litigation tactic); Reg. Refuse Disposal Dist. v. Town of Acworth, 141 N.H. 479, 483-484, 686 A.2d 755 (1996) (the motion sought “to protect the very interests that Rule 1.9 was designed to safeguard and does not…seek to contort the rules beyond their mission”); Sirianni v. Tomlinson, 133 A.D.2d 391, 519 N.Y.S.2d 385, 387 (1987) (holding that the lower court erred in finding that the motion was made merely for tactical purposes). Cf. Barragree v. Tri-County Elec. Coop., 263 Kan. 446, 460, 950 P.2d 1351 (1997) (“Did the motion carry a purpose beyond an acceptable tactical motive? We neither reach a conclusion nor signal an inference”); C.K. Smith & Co. v. Lee, 1996 Mass. Supp. Lexis 429, at *9 (1996) (there was “no suggestion that there was a hidden motivation of stalling the litigation”).

11See, e.g., Nelson v. Hartford Ins. Co., 2012 U.S. Dist. LEXIS 30983, at *22 (D. Mont. 2012) (“There is no evidence beyond Plaintiffs’ assertions that Hartford filed this motion for tactical reasons”); Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist., 810 F. Supp. 2d 929, 985-986 (D. Ariz. 2011) (“The final factor…does not weigh against disqualification. Moving Defendants filed their motions [promptly] and they also have a legitimate concern”); Capital Mach. Co. v. Miller Veneers, Inc., 2010 U.S. Dist. LEXIS 114384, at *13 (S.D. Ind. 2010); Hill v. Hunt, 2008 U.S. Dist. LEXIS 68925, at *54 (N.D. Tex. 2008) (finding insufficient evidence that defendant’s motion was tactical); Essex County Jail Annex Inmates v. Treffinger, 18 F. Supp. 2d 418, 444 (D.N.J. 1998) (“no credible evidence was presented…to support a finding that the defendants’ primary purpose in moving for disqualification was for strategic” purposes).

12Shaw v. London Carrier, Inc., 2009 U.S. Dist. LEXIS 109862, at *23-24 (W.D. Mich. 2009) (“Defense counsel was up front…in raising the issue on an early basis…[It] cannot be faulted for waiting several months thereafter to move for disqualification, thereby giving the Fieger firm a chance to accomplish what

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§25.1 Part VIII Performing the Balancing Test party would have anything to gain by counsel’s disqualification.13 As more than one court has observed, however, the use of disqualification motions as tactical weapons is increasing14 – to the point where such motions are now a common weapon in many litigators’ arsenals.15

In order to inhibit the use of disqualification motions as strategic weapons courts in a number of jurisdictions have held, or by their holdings implied, that in deciding whether to grant such a motion one factor that a court can properly take into consideration is whether the motion was filed for a tactical purpose.16 In jurisdictions which have adopted such an approach, a non-moving party has often attempted to defeat a disqualification motion by showing not only that it is baseless, or that the moving party would be prejudiced by the granting of the motion, but that the motion was filed as a strategic ploy, rather than out of a genuine concern about possible harm from the misconduct that has been alleged.17

the rules require”); In re CellCyte Genetic Corp. Sec. Litig., 2008 U.S. Dist. LEXIS 94761, at *5-6 (W.D. Wash. 2008) (“current counsel raised the conflict issue [within a week and prior] counsel had also raised the issue with [the firm]. The evidence does not support a finding that this motion is a tactic”).

13In re 3dfx Interactive, Inc., 2007 Bankr. LEXIS 1941, at *17 (N.D. Cal. 2007) (“there is…no real basis for the assertion that disqualification is sought for tactical reasons. Neither of the Moving Parties has anything to gain”).

14Reed v. Hoosier Health Sys., Inc., 825 N.E.2d 408, 414 (Ind. App. 2005), Barnes, J., concurring (The disqualification of attorneys on [conflict] grounds is a matter that is increasingly being done by members of the bar as a tactical device, in some instances with little to do with our professional ethics”).

15Openwave Sys. v. Myriad France S.A.S., 2011 U.S. Dist. LEXIS 35526, at *15 (N.D. Cal. 2011) (“Too much money is being wasted these days on tactical motions to disqualify”); Borman v. Borman, 378 Mass. 775, 780 n.10 (1979) (motions to disqualify have become “a commonly used pretrial tactic”).

16See, e.g., Roosevelt Irrigation Dist., 810 F. Supp. 2d at 985-986; In re La. Tex. Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689-690 (Tex. App. 2011) (“the court…[should consider any evidence] which indicates the motion is being filed not due to a concern that confidences related in an attorney-client relationship may be divulged but as a dilatory trial tactic”).

17Silicon Graphics, Inc. v. Ati Techs., Inc., 2010 U.S. Dist. LEXIS 107057, at *13 (W.D. Wis. 2010) (“clients should not be exposed to unfair risks…[but] former clients should not be permitted to use ethical rules as a weapon to cripple their opponent when there is no legitimate concern about [harm]”).

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§25.2 Tactical Reasons for Moving to Disqualify Many things could motivate a party to file a motion seeking to disqualify an opposing party’s attorney apart from a legitimate concern about counsel’s conduct. First and foremost, because a successful disqualification motion, by definition, deprives a party of the services of its chosen counsel, parties sometimes move to disqualify counsel not so much out of concern about how it has behaved, as out of a belief that eliminating the services of its adversary’s attorney may yield a significant litigation advantage1 – particularly if a motion is filed after litigation is well underway.2

A concern about disqualification being sought for such a purpose is particularly likely to be voiced in that situation where the targeted attorney is an eminent,3 capable,4 and formidable5 advocate; or one who possesses unique knowledge of the subject matter,6 or extensive experience with the case,7 that would be

1See, e.g., Smith v. Whatcott, 757 F.2d 1098, 1100 (10th Cir. 1985); Gould v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1126 (N.D. Ohio 1990); Moriarty v. Sullivan, 2009 Mass. Super. LEXIS 193, at *2 (2009) (“[counsel] and her clients are attempting through this motion…to interfere with [plaintiff’s right] to be represented by an attorney of his choosing”). Cf. Siemens Energy v. Coleman Elec. Supply Co., 1999 U.S. Dist. Lexis 11210, at *22 (E.D.N.Y. 1999); Kitchen v. Aristech Chem., 769 F. Supp. 254, 256 (S.D. Ohio 1991).

2Quicken Loans v. Jolly, 2008 U.S. Dist. LEXIS 48266, at *5-6 (E.D. Mich. 2008) (disqualification “can work a severe hardship and give the [movant a significant advantage. This is often the motivation for] filing such motions”).

3Bauerle v. Bauerle, 161 Misc.2d 973, 974 (1994) (disqualification is to be “used as a shield…[not a sword to prejudice defendant from] obtaining eminent counsel”). Cf. Commonwealth v. Cassidy, 568 A.2d 693, 698 n.4 (Pa. Super. 1989) (seeking to disqualify the most competent lawyers is “not a novel idea”).

4Howe Inv., Ltd. v. Perez y Cia. de P.R., 2000 U.S. Dist. Lexis 5765, at *3 (D.P.R. 2000) (“A motion to disqualify…may successfully result in denial of opposing party’s entitlement to services of [capable counsel]…a weapon that needs constraint when groundless”). Cf. Shaw v. London Carrier, Inc., 2009 U.S. Dist. LEXIS 109862, at *8 (W.D. Mich. 2009) (“‘ability to deny one’s opponent the services of capable counsel is a potent weapon’”), quoting Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222 (6th Cir. 1988).

5See, e.g., Atasi Corp. v. Seagate Tech., 847 F.2d 826, 832 (Fed. Cir. 1988); Nelson v. Green Bldrs., 823 F. Supp. 1439, 1444 (E.D. Wis. 1993); In re G & H Steel Serv., 76 B.R. 508, 511 (Bankr. E.D. Pa. 1987).

6Hannan v. Watt, 147 Ill. App. 3d 456, 497 N.E.2d 1307, 1311 (1986). 663


§25.2 Part VIII Performing the Balancing Test difficult or even impossible to duplicate by successor counsel.8 A party may also file a motion to disqualify in the hopes of disrupting,9 frustrating,10 hindering,11 hobbling12 or harassing an adversary,13 or its counsel;14 or with any eye towards complicating,15 fragmenting,16 increasing the cost of pursuing,17 or diverting attention from the merits of the case.18

7Alexander v. Primerica Holdings, 822 F. Supp. 1099, 1119 (D.N.J. 1993). Cf. Gov’t of India v. Cook, 569 F.2d 737 (2d Cir. 1978); Liberty Nat’l Enters., L.P. v. Chi. Title Ins. Co., 194 Cal. App. 4th 839, 848 (2011) (“McDougal was not only Liberty’s longtime lawyer and the man who filed…this case, he was successful with [it]. That marked him as a lawyer of great value to Liberty (and quite possibly provided the motivation for the motion)”).

8Lee v. Gadasa Corp., 714 So. 2d 610, 613 (Fla. App. 1998) (expressing reluctance to sanction the use of a disciplinary rule for the purpose of “depriving the opponent of [counsel] who is intimately familiar with the litigation, and forcing it [to] spend additional funds for new counsel or to concede defeat”).

9In re Ferrante, 126 B.R. at 649; Daniels v. State, 17 P.3d 75, 82 (Alaska App. 2001) (“motions to disqualify an opposing litigant’s attorney can [be] used as a tactic to weaken or disrupt the presentation of an opponent’s case”).

10Ross v. Ross, 94 Ohio App. 3d 123, 640 N.E.2d 265, 271 (1994). 11Klupt v. Krongard, 126 Md. App. 179, 206, 728 A.2d 727 (1999). 12FDIC v. Amundson, 682 F. Supp. 981, 988-989 (D. Minn. 1988) (“We are

now in a time when ethics has ceased to be a common guide to virtuous behavior. It is now a sword in hand, to be used to slay a colleague. This kind of ethics does not reflect a heightened awareness of moral responsibility or a means to temper one’s zeal for his or her client. It is instead a means to hobble the opposition by driving a spurious wedge between [client and counsel]”).

13N. Am. Foreign Trading Corp. v. Zale Corp., 83 F.R.D. 293, 296-297 (S.D.N.Y. 1979) (“No purpose has been served by [the] instant motion other than to harass plaintiff and his counsel”).

14O’Malley v. Novoselsky, 2011 U.S. Dist. LEXIS 66406, at *4 (N.D. Ill. 2011) (“there are concerns about the technical [sic] use of such motions to harass opposing counsel”); F&R Constr. v. Ah Dev., 1996 U.S. Dist. Lexis 16216, at *4 (D.P.R. 1996); Koch v. Koch Indus., 798 F. Supp. 1525, 1530 (D. Kan. 1992); Ussery v. Gray, 804 S.W.2d 232, 236 (Tex. App. 1991).

15First Wis. Mortg. Trust v. First Wis. Corp., 584 F.2d 201, 221 (7th Cir. 1978) (Castle, Senior C.J., concurring in part).

16Aetna Cas. & Sur. Co. v. U.S., 570 F.2d 1197, 1201 (4th Cir. 1978). 17See, e.g., Munk v. Goldome Nat’l Corp., 697 F. Supp. 784, 788 (S.D.N.Y.

1988); Vegetable Kingdom v. Katzen, 653 F. Supp. 917, 925 (N.D.N.Y. 1987). 18See, e.g., SWS Fin. Fund A v. Salomon Bros., 790 F. Supp. 1392, 1401

(N.D. Ill. 1992). 664


There have also been times when motions to disqualify have been utilized as negotiating tools19 – often with the goal of intimidating an adversary or its counsel into accepting a settlement on terms that might otherwise be unacceptable.20 Such motions have also been filed for the purpose of retaliating for perceived wrongdoing on the part of the moving party’s adversary,21 or for similar motions brought against the moving party’s counsel;22 or to generate the delay that almost inevitably attends the need for the non-moving party to locate and retain successor counsel.23

It has been recognized, moreover, that a party who moves to disqualify an attorney or law firm does not necessarily need to prevail on its motion in order to reap a substantial advantage. For one thing, even ultimately unsuccessful disqualification motions inevitably stall, if not derail the proceedings,24 and motions to

19See Quicken Loans, 2008 U.S. Dist. LEXIS 48266, at *16 (“there is a risk that motions to dismiss counsel will be used…to gain negotiating leverage”); Heci Explor’n Co. v. Clajon Gas Co., 843 S.W.2d 622, 627 (Tex. App. 1992) (the trial court’s finding that the motion was “a negotiating tool” was supported by testimony that the moving party had offered to abandon the disqualification issue if the challenged firm would agree to forego certain defenses). Cf. In re Jet 1 Center, Inc., 310 B.R. 649, 653-654 (Bankr. M.D. Fla. 2004) (“It was not until NAA was unwilling to ‘settle’…that the Bank decided to ‘go after’ Amato. To describe this…as a mere negotiation tool would be more than charitable”).

20See, e.g., Doe No. 1 v. Fulton-DeKalb Hosp. Auth., 2006 U.S. Dist. LEXIS 76624, at *12-13 (N.D. Ga. 2006) (“[Billips says] he had no tactical reason to seek…disqualification[…He] knows that anything that puts pressure on a Defendant…increases the settlement value”). Cf. Lee v. Todd, 555 F. Supp. 628, 632 (W.D. Tenn. 1982) (stating that motions should not be used to coerce settlement); In re Estate of Giantasio, 173 Misc.2d 100, 102 (1997).

21Bayles v. Hendrick, 188 W. Va. 47, 422 S.E.2d 524, 528 n.* (1992). 22Int’l Elecs. Corp. v. Flanzer, 527 F.2d 1288, 1296 (2d Cir. 1975);

Colandrea v. Town of Orangetown, 490 F. Supp. 2d 342, 353 (S.D.N.Y. 2007) (counsel “states, in a declaration no less, that the reason for his [motion is] …because Defendants indicated that they intended to move to disqualify him”).

23Guzewicz v. Eberle, 953 F. Supp. 108, 114 (E.D. Pa. 1997) (“if new counsel had to be appointed it would cause a great deal of delay and expense”).

24See, e.g., Kelly v. Roker, 2012 U.S. Dist. LEXIS 33604, at *6 (N.D. Cal. 2012) (“Motions for disqualification…tend to derail the efficient progress of litigation”); Cole Mech. Corp. v. Nat’l Grange Mut. Ins. Co., 2007 U.S. Dist. LEXIS 66584, at *12-13 (S.D.N.Y. 2007) (“[courts are] reluctant to grant motions to disqualify because they inevitably result in delay”); Guillen v. City of Chicago, 956 F. Supp. 1416 (N.D. Ill. 1997); Moss v. TACC Int’l Corp., 776

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§25.2 Part VIII Performing the Balancing Test disqualify have sometimes been filed for that purpose;25 often, but not always,26 by defendants, who tend to be the ones who are most likely to profit from such delay.27 It has been said, in fact, that it would be naive not to recognize that motions to disqualify are frequently employed as delaying tactics.28

F. Supp. 622, 624 (D. Mass. 1991); N. Star Hotels v. Mid-City Hotel Assocs., 118 F.R.D. 109, 112 (D. Minn. 1987) (the court was sensitive to the fact that disqualification motions “may serve to improperly delay proceedings”).

25See, e.g., Emplrs. Ins. Co. of Wausau v. Munich Reins. Am., Inc., 2011 U.S. Dist. LEXIS 52048, at *10 (S.D.N.Y. 2011) (“a disqualification motion might be used as tactical device to delay a case”); Hana Bank v. S. Pac. Petroleum Corp., 2010 U.S. Dist. LEXIS 84384, at *12-13 (D. Guam. 2010) (“‘Motions to disqualify are often used as a tactical device to delay litigation’”); First Interreg’l Advisors Corp. v. Wolff, 956 F. Supp. 480, 489 (S.D.N.Y. 1997) (disqualification motions are subject to strict scrutiny because of the strong potential to “stall and derail the proceedings”). Cf. Banque Arabe v. Ameritrust Corp., 690 F. Supp. 607, 613 (S.D. Ohio 1988) (noting that, when a disqualification motion is used as a delaying tactic, the moving party may obtain a decisive advantage); I.N.A. Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1, 6 (E.D. Pa. 1983); In re Leyendecker, 2012 Tex. App. LEXIS 6581, at *4 (2012) (a “court must strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory tactic”); Centra, Inc. v. Chandler Ins. Co., 248 Neb. 844, 852, 540 N.W.2d 318 (1995) (“we hesitate…to disqualify counsel and reward a continuing pattern aimed at frustrating adjudication of the case in district court”); River W. v. Nickel, 188 Cal. App. 3d 1297, 1306 (1987).

26See e.g., Wild Game NG, LLC v. Wong’s Int’l (USA) Corp., 2007 U.S. Dist. LEXIS 61044, at *4-5 (D. Nev. 2007) (“While the court is not aware of what exact advantage [a one month delay] bestowed on Plaintiff…it does not require a great deal of imagination to infer that the advantage could have been purely in making Defendant’s counsel’s job more burdensome”); Alexander, 822 F. Supp. at 1119 (plaintiffs, having “lost their sense of urgency,” sought to indefinitely delay a resolution of the case by requiring defendant to obtain new counsel). Cf. Decora Inc. v. DW Wallcovering, 901 F. Supp. 161, 164-165 (S.D.N.Y. 1995) (“[t]he plaintiff incurred real costs by making the motion because it inevitably delayed the prosecution of its own case”).

27See Cobb Publ’g v. Hearst Corp., 907 F. Supp. 1038 (E.D. Mich. 1995) (acknowledging that the fact that the motion was brought by a plaintiff – when usually such motions are made by defendants, who benefit from the delay that is the by-product of motions to disqualify – supported the view that the motion was not brought for any tactical reason); Bongiasca v. Bongiasca, 679 N.Y.S.2d 132, 133 (A.D. 1998) (finding ample support for the finding that defendant had moved for disqualification as a delaying tactic to avoid his deposition).

28White v. Superior Court, 98 Cal. App. 3d 51, 55 (1979). Cf. In re Cont’l Inv. Corp., 637 F.2d 1, 6 (1st Cir. 1980).

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§25.3 Significance of the Moving Party’s Motivation Judges have long recognized the ability of a party to misuse1 and abuse2 the applicable ethical rules, by trying to utilize them to obtain an improper litigation advantage;3 or even to manufacture a conflict of interest for such a purpose.4 In particular, courts have often acknowledged that the government is capable of

1Freeman v. Chicago Musical Instrument Co., 689 F.2d at 722 (7th Cir. 1982) (“there obviously are situations where [motions to disqualify] are both legitimate and necessary; nonetheless, such motions should be viewed with extreme caution for they can be misused as techniques of harassment”); Do It Best Corp. v. Passport Software, Inc., 2004 U.S. Dist. LEXIS 3990, at *6 (N.D. Ill. 2004) (“because disqualification deprives a party of [counsel of] choice, the potential exists that a motion to disqualify may be misused”).

2Franklin v. Clark, 454 F. Supp. 2d 356, 365 (D. Md. 2006) (“Maryland courts are hesitant to grant disqualification motions, particularly where the opposing party is the sponsor of such a motion, because they can be abused for tactical reasons”); Galasso, Langione & Botter, LLP v. Galasso, 22 Misc. 3d 1119A, 880 N.Y.S.2d 872 (2009) (such “motions have been abused in an effort to gain tactical advantage…[absent a fairly well-documented conflict], they should not be countenanced”). But cf. Cmwlth. Land Title Ins. Co. v. St. Johns Bank & Trust Co., 2009 U.S. Dist. LEXIS 87151, at *24 (E.D. Mo. 2009) (“Nothing in the record leads this Court to believe that [plaintiff] attempted to abuse the motion to disqualify as a strategic tool”).

3See Research Corp. Techs. v. Hewlett-Packard Co., 936 F. Supp. 697, 699 (D. Ariz. 1996) (noting, with apparent skepticism, that movant “maintains that the timing of its renewed contact with the [challenged firm] was nothing more than an unfortunate coincidence”). Cf. In re Am. Air., 972 F.2d 605, 613 (5th Cir. 1992) (noting that the alleged facts, if accepted as true, might establish that the moving party’s efforts were motivated primarily by a desire to ensure that counsel could not represent its adversary), cert. denied, 113 S. Ct. 1262 (1993).

4See, e.g., In Re Pressman-Gutman Co., Inc., 459 F.3d 383, 2006 U.S. App. LEXIS 21219, at *49 (3d Cir. 2006) (“We do not invite defendants…to manufacture circumstances justifying…disqualification”); Ernie Ball, Inc. v. Earvana, LLC, 2006 U.S. Dist. LEXIS 96976, at *5-6 (C.D. Cal. 2006) (“where plaintiff appeared to retain GT and then abruptly changed its mind, ostensibly reserving the right to call on the firm at some [future time], the case more closely resembles one in which a party attempts to manufacture a conflict”). But see State Farm Mut. Auto. Ins. Co. v. Fed. Ins. Co., 86 Cal. Rptr. 2d 20 n.1 (Cal. App. 1999) (DiBiaso, J. concurring) (“The facts in some of the declarations...give off a whiff of a suggestion that [defendant]’s reference of the [cases to challenged counsel] was a step in a plan calculated to put [him] in a position to be disqualified...but an inference of evidentiary value to such effect cannot be drawn from these facts”).

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§25.3 Part VIII Performing the Balancing Test manufacturing a conflict of interest5 in order to justify bringing a motion to disqualify a criminal defendant’s counsel.6 A question has sometimes arisen as to what role, if any, the moving party’s motives in moving to disqualify should play in determining whether disqualification should be ordered in a particular case.

A party’s motives for moving to disqualify counsel have nothing to do with whether counsel violated the applicable rules of professional conduct. For this reason, and because a court is often dependent upon parties and their counsel to report unethical conduct that is taking place in a proceeding pending before it,7 some judges have taken the position that the fact that the moving party may happen to have an ulterior motive for bringing a disqualification motion does not, in and of itself, justify a court in denying it.8 Some courts have, in fact, pointedly declined to examine the moving party’s motives for seeking disqualification.9

5Wheat v. United States, 108 S. Ct. 1692, 1699 (1988); United States v. Register, 1999 U.S. App. Lexis 17875, at *32-33 (11th Cir. 1999). Cf. In re Grand Jury Subp. for Reyes-Requena, 913 F.2d 1118, 1130 (5th Cir. 1990) (manifesting sensitivity to concerns about unscrupulous attempts to overcome the presumption in favor of a defendant’s counsel of choice).

6See, e.g., United States v. Zeka, 2011 U.S. Dist. LEXIS 18260, at *6 (E.D. Mich. 2011) (“in certain cases “the Government may seek to ‘manufacture’ a conflict”). But see United States v. Kaufman, 354 F. Supp. 2d 1201, 1207 (D. Kan. 2005) (“there is [no] reason to believe that the government manufactured the reasons or circumstances argued in its motion”); United States v. Ring, 878 F. Supp. 134, 139 n.7 (C.D. Ill. 1995) (“[t]he Court is aware of the capability of the government to ‘manufacture’ a conflict...However, the Court has no reason whatever to question the motivation of the government in this case”); People v Carncross, 2010 N.Y. LEXIS 50, at *13 (A.D. 2010) (“there is no indication that the prosecution’s disqualification request was manufactured”); Hayden v. State, 972 So. 2d 525, 2007 Miss. LEXIS 646, at *28 (2007) (finding no “indication that the conflict was ‘manufactured’”).

7Gen. Mill Supply Co. v. SCA Servs., 697 F.2d 704, 713 (6th Cir. 1982) (noting that, if a court was to weigh the moving party’s motive, it would cut off information the court needs); Green v. Montgomery County, Ala., 784 F. Supp. 841, 842 n.2 (M.D. Ala. 1992) (“the only person likely to know and care about the breach of confidentiality…is the former client”).

8In re Complex Asbestos Litig., 232 Cal. App. 3d 572, 599. Cf. Actel Corp. v. Quicklogic Corp., 1996 U.S. Dist. Lexis 11815, at *29 (N.D. Cal. 1996).

9In re Yarn Processing Patent Validity Litig., 530 F.2d 83, 90 (5th Cir. 1976); Global Van Lines v. Superior Court, 144 Cal. App. 3d 483, 490 (1983) (finding that the movant’s motivation in seeking disqualification was irrelevant).

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There is, however, widespread agreement that leveling charges of impropriety which, if sustained, would require disqualification of an opposing party’s counsel is not something that should be a standard part of a lawyer’s offensive arsenal; to be used routinely, and without a good faith belief that those charges are justified.10

The fact is, moreover – as more than one court has observed – that the rules of professional conduct were not drafted with the intention of providing a windfall to clients who have hired strategic-minded litigators.11 In fact, the drafters of those rules have themselves warned that the purpose of establishing ethical rules in the first place can be subverted when rules that were intended to provide guidance for practitioners are brandished by their adversaries as procedural weapons.12

10First Wis. Mort. Trust v. First Wis. Corp., 584 F.2d 201, 206 (7th Cir. 1978).

11See, e.g., Caracciolo v. Ballard, 687 F. Supp. 159, 160-161 (E.D. Pa. 1988) (noting that ethical rules exist to deter professional misconduct and preserve the professions’ standing – not to add “to the depressingly formidable array of dilatory strategies already part of the litigator’s arsenal”).

12See, e.g., Quail Cruises Ship Mgmt., Ltd. v. Agencia De Viagens CVC Limitada, 2010 U.S. Dist. LEXIS 84593, at *15 (S.D. Fla. 2010) (“The Preamble to the Florida [RPC] warns parties not to use disqualification motions as procedural weapons”); SOC-SMG, Inc. v. Day & Zimmermann, Inc., 2010 Del. Ch. LEXIS 195, at *11-12 (2010) (“for a party who so fervently waves the public policy banner, it is striking that SMG did not file its case in [Pennsylvania] or file a disciplinary complaint against…Pennsylvania counsel in Pennsylvania…Rather, SMG rushed into a Delaware court and sought, for its own selfish, tactical advantage, to use an accusation of attorney misconduct to advance its position in the pending Arbitration…[our RPC] condemn the use of allegations of attorney misconduct as ‘procedural weapons’”); Steinert v. Steinert, 73 Mass. App. Ct. 287, 289, 897 N.E.2d 603 (2008) (“Where…it is opposing counsel who seeks disqualification, we must ‘be alert that the Canons of Ethics are not brandished for tactical advantage’”), quoting Serody v. Serody, 19 Mass. App. Ct. 411, 414 (1985); Berry v. Saline Memorial Hosp., 322 Ark. 182, 187, 907 S.W.2d 736 (1995). See also Kevlik v. Goldstein, 724 F.2d 844, 848 (1st Cir. 1984); Vegetable Kingdom v. Katzen, 653 F. Supp. 917, 925-926 (N.D.N.Y. 1987); State v. Wallace, 989 S.W.2d 641, 645 (Mo. App. 1999); Casco N. Bank v. JBI Assocs., 667 A.2d 856, 859 (Me. 1995) (“If disqualification does not serve the purposes supporting the ethical rules, it can only serve to provide the movant with a brief, tactical advantage, a result that would debase the rules of professional conduct and subvert, not advance, the public interest they serve”); Lease Am. Corp. v. Stewart, 876 P.2d 184, 191-192 (Kan. App. 1994); Adams v. Reagan, 791 S.W.2d 284, 291 (Tex. App. 1990).

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It has been noted, too, that if disqualification motions were to be routinely granted, without regard to the motives of the moving party, the very rules that were designed to promote public confidence in the legal system, and prevent public disrespect for the legal profession, may themselves threaten the integrity of the judicial process, 13 and foster disrespect for the legal system as a whole;14 and may, in the end, wind up diminishing public confidence in the ability of the process to redress serious wrongs.15

For these reasons, and because a perception exists that permitting a court to examine the moving party’s motives in moving for disqualification may serve the interests of judicial economy by reducing the number of disqualification motions,16 a number of courts – including the Second,17 Ninth,18 and Tenth19

13See U.S. Chess Fedn., Inc. v. Polgar, 2009 U.S. Dist. LEXIS 96007, at *9 (N.D. Cal. 2009); Gregori v. Bank of Am., 207 Cal. App. 3d 291, 300-301 (1989) (unnecessary disqualification as a result of such tactics may “pose the very threat to the integrity of the judicial process that they purport to prevent”).

14Borman v. Borman, 378 Mass. 775, 786-787, 393 N.E.2d 847, 855-856 (1979). Cf. Wold v Mineral Eng’g Co., 575 F. Supp. 166, 167 (D. Colo. 1983) (disqualification motions, if improperly interposed, “not only unnecessarily delay lawsuits and…escalate the cost of pursuing a legitimate [claim but] tend to make a mockery of the noble objectives” of the Code); Lee v. Gadasa Corp., 714 So. 2d 612-613 (Fla. App. 1998) (“Because the client has so clearly waived any [conflict], it seems to us that permitting the order of disqualification to stand would be likely to arouse more public suspicion than would reversing it”).

15See FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1316-1317 (5th Cir. 1995) (“When, for purely strategic purposes, opposing counsel raises the question of disqualification, and subsequently prevails, public confidence in the integrity of the legal system is proportionately diminished”); Metrahealth Ins. Co. v. Anclote Psych. Hosp., 961 F. Supp. 1580, 1585 (M.D. Fla. 1997).

16Reed v. Hoosier Health Sys., Inc., 825 N.E.2d 408, 414 (Ind. App. 2005), Barnes, J., concurring (“litigants would not waste expenses if disqualification were not to their tactical advantage”).

17Evans v. Artek Sys. Corp., 715 F.2d 788, 792 (2d Cir. 1983). See also First Trust v. Moses & Singer, 2000 U.S. Dist. Lexis 10957, at *19 (S.D.N.Y. 2000) (“the proposed third-party complaint…[appears to be] no more that a tactical ploy designed to provide a basis for [disqualification]”).

18Shurance v. Planning Control Int’l, 839 F.2d 1347, 1349 (9th Cir. 1988). Also compare In re Oracle Sec., 136 F.R.D. 639, 643 n.7 (N.D. Cal. 1991) (lawyers “sometimes invoke neutral appearing ethical rules to persuade courts to reach extremely questionable results”) and Genentech, Inc. v. Sanofi-Aventis Deutschland GMBH, 2010 U.S. Dist. LEXIS 35867, at *11 (N.D. Cal. 2010)

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Chapter 25 Tactical Motions §25.3 Circuit Courts of Appeal, as well as the highest courts of Alaska,20

Iowa,21 Massachusetts,22 Nevada,23 New Hampshire24 and Texas25 – have expressed serious reservations about permitting the rules of professional conduct to be used for tactical reasons.26

Other judges, and even a United States Supreme Court Justice,27 have voiced strong disapproval of the strategic deployment of disqualification motions as vexatious,28 hardball,29 and sometimes even frivolous30 litigation tactics.31 These judges –

(“Motions to disqualify are often tactically motivated”) with Openwave Sys. v. Myriad France S.A.S., 2011 U.S. Dist. LEXIS 35526, at *18 (N.D. Cal. 2011) (“Because an attempt to disqualify the opposing attorney is often tactically motivated…disqualification is a drastic measure that is generally disfavored”).

19Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir. 1975). 20Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 104 n.17 (Alaska 1992). 21Bottoms v. Stapleton, 706 N.W.2d 411, 413-414 (Iowa 2005) (“a court

must...be vigilant to thwart any misuse of a motion to disqualify”). 22Adoption of Erica, 426 Mass. 55, 64-65, 686 N.E.2d 967 (1997). 23Brown v. Eighth Judicial Dist. Court, 14 P.3d 1266, 1270 (Nev. 2000). 24Goodrich v. Goodrich, 158 N.H. 130, 140, 960 A.2d 1275 (N.H. 2008). 25NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 399 (Tex. 1989). 26In re Nat’l Century Fin. Enters., 2010 U.S. Dist. LEXIS 39524, at *29

(S.D. Ohio 2010) (courts must “guard against [the use of disqualification motions] as a means of gaining tactical advantage”); Elonex I.P. Holdings v. Apple Computer, 142 F. Supp. 2d 579, 585 (D. Del. 2001) (depriving plaintiff of its counsel was likely to “decrease public confidence” in the proceedings); Rizzo v. Sears, Roebuck & Co., 127 F.R.D. 423, 424 (D. Mass. 1989).

27Richardson-Merrell v. Koller, 472 U.S. 424, 441 (1985) (Brennan, J., concurring) (“the tactical use of attorney-misconduct disqualification motions is a deeply disturbing phenomenon in modern civil litigation”).

28Parkinson v. Phonex Corp., 857 F. Supp. 1474, 1481 (D. Utah 1994); N. Am. Foreign Trading Corp. v. Zale Corp., 83 F.R.D. 293, 297 (S.D.N.Y. 1979) (finding the disqualification motion to be a vexatious ploy).

29Hartford Acc. & Indem. Co. v. RJR Nabisco, 721 F. Supp. 534, 541 (S.D.N.Y. 1989) (expressing the need to avoid inviting “an increased number of disqualification motions, born of little more than hardball litigation strategy”).

30Rogers v. Pittston Co., 800 F. Supp. 350, 353 (W.D. Va. 1992); Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 632 N.E.2d 437, 440 (1994).

31Penn Mut. Life Ins. v. Cleveland Mall Assocs., 841 F. Supp. 815, 819 (E.D. Tenn. 1993); Ferranti Int’l PLC v. Clark, 767 F. Supp. 670, 672 (E.D. Pa. 1991); Responsible Citizens v. Super. Court, 16 Cal. App. 4th 1717, 1725 (1993); Weil, Freiburg & Thomas v. Sara Lee, 577 N.E.2d 1344, 1354 (1991).

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§25.3 Part VIII Performing the Balancing Test believing that strict scrutiny32 of disqualification motions may be an effective deterrent against such objectives33 – have held that, in order to inhibit the misuse of disqualification motions as instruments of delay and harassment,34 as well as to avoid hardships on innocent clients,35 and other unjust results,36 courts not only may, but should,37 or even must38 evaluate such motions carefully39 and judiciously,40 with skepticism41 and extreme

Cf. Pennwalt v. Plough, 85 F.R.D. 264, 274 (D. Del. 1980) (an ethical issue may have been “converted into a litigation tactic…[i]t is assumed all concerned will carefully reevaluate their roles as officers of the court”); Coffman v. Poole Truck Line, 811 S.W.2d 908, 911 (Tenn. App. 1991).

32Turner v. AIGDomestic Claims, Inc., 2011 U.S. Dist. LEXIS 120626, at *12-13 (D. Neb. 2011) (“such motion must be subjected to ‘particularly strict judicial scrutiny’ because of the potential for abuse”); Switch Communs. Group v. Ballard, 2011 U.S. Dist. LEXIS 98308, at *5 (D. Nev. 2011) (“Motions to disqualify…are subject to particularly strict judicial scrutiny because there is a significant possibility of abuse”); Sea Trade Mar. Corp. v. Coutsodontis, 2011 U.S. Dist. LEXIS 80668, at *18 (S.D.N.Y. 2011) (“In view of their potential for abuse as a tactical device, motions to disqualify…are subject to” strict scrutiny).

33Black v. Missouri, 492 F. Supp. 848, 862 (W.D. Mo. 1980). Cf. Freeman v. Kulicke & Soffa Indus., 449 F. Supp. 974, 977-978 n.2 (E.D. Pa. 1978).

34Flo-Con Sys. v. Servsteel, 759 F. Supp. 456, 458 (N.D. Ind. 1990). 35See, e.g., In re Lee G., 1 Cal. App. 4th 17, 27 (1991). 36Smith v. Whatcott, 757 F.2d 1098, 1099-1100 (10th Cir. 1985); Parkinson,

857 F. Supp. at 1480 (D. Utah 1994); Gould v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1126 (N.D. Ohio 1990).

37Sauer Inc. v. Honeywell Bldg. Solutions SES Corp., 2012 U.S. Dist. LEXIS 12881, at *7 (W.D. Pa. 2012).

38Switch Communs. Group v. Ballard, 2011 U.S. Dist. LEXIS 98308, at *5 (D. Nev. 2011) (“Courts must prevent parties from misusing motions for disqualification as instruments of harassment or delay”); White Cap Constr. Supply, Inc. v. Tighton Fastener & Supply Corp., 2010 U.S. Dist. LEXIS 93075, at *25-26 (D. Neb. 2010); Buck v. Palmer, 2010 Tex. App. LEXIS 10082, at *18 (2010) (“[we must] consider any evidence that indicates the motion is being filed…as a dilatory trial tactic”).

39Bd. of Regents of the Univ. of Neb. v. BASF Corp., 2006 U.S. Dist. LEXIS 58255, at *13 (D. Neb. 2006) (a “court’s discretion…must be carefully exercised, as such motions can be asserted for a variety of tactical reasons”).

40In re Jackson, 2012 Tex. App. LEXIS 5386, at *4 (2012) (“A trial court should be extremely judicious in considering a disqualification motion because the procedure should not be used tactically to deprive an opposing party of the right to be represented by the lawyer of his or her choosing”).

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Chapter 25 Tactical Motions §25.3 caution,42 if not outright suspicion;43 considering any evidence which suggests that the motion may have been filed for the purpose of delaying the litigation,44 harassing an opposing party or its counsel,45 or for some other strategic reason.46 It has been held

41Sharp v. Next Enter., Inc., 163 Cal. App. 4th 410, 434 (Cal. App. 2008) (“[disqualification] may impose a significant hardship on plaintiffs…As such, we must be skeptical of the impetus and purpose of defendants’ motion”); Manning v. Cooper, 981 So.2d 668, 670 (Fla. 4th DCA 2008) (per curiam) (“Motions for disqualification are generally viewed with skepticism because [they] are often interposed for tactical purposes”). Cf. Vinton v. Virzi, 2012 CO 10 [*PP11-12], 269 P.3d 1242 (Colo. 2012) (“[we have] required that motions to disqualify an opponent’s attorney be viewed with skepticism in light of their potential abuse as dilatory or tactical devices…These same concerns apply with equal, if not greater, force to attempts to amend ongoing litigation by joining an opponent’s attorney in allegations of fraud previously leveled against the opponent himself. Because granting such a motion will almost certainly necessitate the withdrawal or disqualification of the opposing party’s attorney, its prejudicial impact will necessarily be both substantial and immediate”).

42Fish v. Hennessy, 2012 U.S. Dist. LEXIS 119571, at *11-12 (N.D. Ill. 2012); In re Carreras, 2011 Bankr. LEXIS 4022, at *5 (Bankr. D.P.R. 2011); Golson-Dunlap v. Am. Motorists Ins. Co., 2007 U.S. Dist. LEXIS 22699, at *20 (S.D. Ind. 2007). Cf. Simply Fit of N. Am., Inc. v. Poyner, 579 F. Supp. 2d 371, 384 (E.D.N.Y. 2008) (“parties not affected by a conflict are free to move for disqualification, [but] courts must act cautiously where…motions are made by unaffected parties as such motions are often no more than tactical devices”).

43Greenway Univ., Inc. v. Greenway of Ariz., LLC, 2011 U.S. Dist. LEXIS 101820, at *4 (D. Colo. 2011) (“The Court should evaluate motions to disqualify with suspicion”); Corbello v. Devito, 2011 U.S. Dist. LEXIS 98305, at *12-13 (D. Nev. 2011) (“Courts have become increasingly suspicious of such motions, especially where they are used as a tool to attempt to destroy the reputation and credibility of opposing counsel”); Adams v. Vill. of Keesville, 2008 U.S. Dist. LEXIS 61764, at *25 (N.D.N.Y. 2008) (“Disqualification motions are approached with suspicion because there looms the overarching element that they are nothing more than tactical maneuvers”); Jones v. Rabanco, Ltd., 2006 U.S. Dist. LEXIS 58178, at *3-4 (W.D. Wash. 2006).

44See, e.g., Jamaica Pub. Serv. Co. Ltd. v. AIU Ins. Co., 92 N.Y.2d 631, 638 (1998) (“Noting the concern that “such motions can become tactical ‘derailment’ weapons”); W. Cont’l Oper’g Co. v. Natural Gas Corp., 212 Cal. App. 3d 752, 763-764 (1989).

45See, e.g., Moses v. Sterling Commerce (Am.), Inc., 122 Fed. Appx. 177, 183 (6th Cir. 2005) (“Courts must be vigilant…as the ability to deny one’s opponent the services of capable counsel is a potent weapon, that can be misused as a technique of harassment”); Layne Christensen Co. v. Purolite Co., 2011 U.S. Dist. LEXIS 30471, at *16 (D. Kan. 2011) (“The court reviews such a

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§25.3 Part VIII Performing the Balancing Test further, that, where the weight of the evidence suggests that the movant’s motivation for filing the motion was not a genuine concern about the ethical issues raised by the motion, but rather the hope of securing some type of strategic advantage, an otherwise meritorious motion may be properly denied.47

motion mindful that it can be used as a part of the litigation strategy or as a technique for harassing the other side”); SST Castings, Inc. v. Amana Appliances, Inc., 250 F. Supp. 2d 863, 866 (S.D. Ohio 2002); Handtool Corp. v. Dresser Indus., 619 N.E.2d 1282, 1289 (Ill. App. 1993).

46AgSaver LLC v. FMC Corp., 2011 U.S. Dist. LEXIS 61668, at *8 (E.D. Pa. 2011) (“The court maintains an obligation to prevent tactical efforts to disqualify opposing counsel”); Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., 2011 U.S. Dist. LEXIS 51115, at *22 (E.D. Mich. 2011); Hartford Cas. Ins. Co. v. Am. Dairy & Food Consulting Labs., Inc., 2010 U.S. Dist. LEXIS 70238, at *4 (E.D. Cal. 2010) (“where there is not a legitimate risk of the use of [confidences], a litigant may not seek disqualification of his former counsel in order to gain a tactical advantage”); Fujitsu Ltd. v. Belkin Int’l, Inc., 2010 U.S. Dist. LEXIS 138407, at *13 (N.D. Cal. 2010) (“courts recognize that the ethical rules can be used tactically”); Jamieson v. Slater, 2006 U.S. Dist. LEXIS 86712, at *9 (D. Ariz. 2006) (“this Court [must] be wary of disqualification motions ‘interposed for tactical reasons’”); Buschmeier v. G&G Invs., Inc., 2007 U.S. Dist. LEXIS 85444, at *14 (W.D. Pa. 2007); FMC Techs., Inc. v. Edwards, 420 F. Supp. 2d 1153, 1157 (W.D. Wash. 2006) (“The Court [must consider] the danger of a motion to disqualify opposing counsel as a litigation tactic”); Strongback Corp. v. v N.E.D. Cambridge Ave. Devel. Corp., 2006 N.Y. App. Div. LEXIS 11515, at *4 (2006); State v. Hatcher, 218 W. Va. 407, 417, 624 S.E.2d 844 (W. Va. 2005) (“The circuit court must consider whether [the State is] seeking to deprive the defendant of…counsel of choice”).

47See, e.g., In re Packaged Ice Antitrust Litig. v. Arctic Glacier, Inc., 2010 U.S. Dist. LEXIS 131423, at *31-32 (E.D. Mich. 2010) (“This disqualification motion is legal legerdemain, and behind the smoke and mirrors the Plaintiff’s true motivation is transparent”); In re Ferrante, 126 B.R. 642, 649 (D. Me. 1991) (“when a motion is employed for [an] untoward purpose, it must fail”); I.N.A. Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1, 6 (E.D. Pa. 1983); Oi Tai Chan v Society of Shaolin Temple, Inc., 910 N.Y.S.2d 872, 886 (Misc. 2010) (“Jiang’s cross motion for disqualification was not filed because of a genuine concern for upholding the [conflict rules, but as a perceived stratagem]”); Benge v. Oak Grove Motor Court, Inc., 2006 Del. Ch. LEXIS 5 (2006) (“the obviously tactical nature of Benge’s motion does not obviate the need to enforce the rules [but] does influence the nature of enforcement. There is no discernible prejudice…from permitting Kerr to continue to represent her client…therefore, I deny [the] motion to disqualify”); Hayes v. Central States Ortho. Specialists, 51 P.3d 562, 565 (Okla. 2002) (“A recurring theme in...cases that have recognized waiver as a basis for denying motions to disqualify is the need to insure that such motions are not used for strategic purposes”).

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§25.4 Establishing a Tactical Motivation Even when a tactical motivation is suspect, establishing the moving party’s reasons for seeking disqualification can prove to be a formidable task.1 Obviously, there would be few instances in which the non-moving party would have concrete evidence of such a motive,2 or where it would be fruitful for the court to inquire directly into the moving party’s objectives. The motivation for a disqualification motion must, rather, ordinarily be surmised on the basis of the circumstances under which it was made.3

A court may suspect that disqualification has been sought for tactical reasons in a situation where the conduct of the moving party,4 or its counsel, reflects that the motion was not brought out of any sensitivity to ethical concerns.5 A court may, for example,

1Int’l Elecs. Corp. v. Flanzer, 527 F.2d 1288, 1296 (2d Cir. 1975); Wolf, Block, Schorr, & Solis-Cohen LLP v. Navon, 2006 U.S. Dist. LEXIS 9859, at *4 (E.D. Pa. 2006) (“In filing this motion, it is unclear whether [Jeffrey’s emotion clouded his objectivity or…he instead has an improper purpose]”).

2United States v. Kiley, 2011 U.S. Dist. LEXIS 131388, at *23 n.3 (D. Minn. 2011) (“Mahmoud [claims that the Government intentionally chose the wrong witness] in order to create [a basis for disqualification]…there is no evidence in the record to support this allegation”). But see Utilimaster Corp. v. Ind. Dep’t of State Revenue, 967 N.E.2d 92, 98 (Ind. Tax. Ct. 2012) (defendant “invoked Rule 3.7 in an attempt to conceal its failure to timely pursue discovery”).

3Fenik v. One Water Place, 2007 U.S. Dist. LEXIS 10096, at *18-19 (N.D. Fla. 2007) (“the timing of Plaintiff’s objection…is suspect”); Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 658 (Tex. 1990) (the motion had “all the appearances of a tactical weapon”). Cf. Steinert v. Steinert, 73 Mass. App. Ct. 287, 290, 897 N.E.2d 603 (2008) (“it is difficult to preclude the notion that this motion represents…the type of gamesmanship that courts must guard against”).

4Fox Hollow of Turlock Owners’ Ass’n v. Sinclair, 2011 U.S. Dist. LEXIS 68558, at *9-10 (E.D. Cal. 2011) (an “attempt to disqualify [counsel]…without new, relevant factual information, convinces the Court that this motion is yet another attempt to delay these proceedings and/or increase the costs”).

5See, e.g., FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1315 (5th Cir. 1995) (“[a] tortured justification for disqualification...premised on a purported possible [conflict] in the future, suggests not so much a conscientious professional concern for the profession and the client of the opposing counsel as a tactic”); Elonex I.P. Holdings v. Apple Computer, 142 F. Supp. 2d 579, 584-585 (D. Del. 2001) (“it seems highly unlikely that [defendant]’s motion is primarily motivated by a sense of betrayal or a concern for the vindication of the integrity of the bar”); Gross v. Gross, 1997 U.S. Dist. LEXIS 16312, at *9-10 (E.D. Pa.

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§25.4 Part VIII Performing the Balancing Test suspect that the decision to file the motion was prompted by strategic considerations where the movant could have sought counsel’s disqualification in a similar or related proceeding, but did not;6 could have attempted to address the alleged ethical misconduct by means of a disciplinary complaint, but did not;7 or engaged in other tactics designed to stall the litigation.8

The court may also be wary of a tactical motive in a situation where there is reason to suspect that the motion to disqualify was filed as a means of retaliating against the litigation moves made by

1997); Essepian v. Chrysler Credit Corp., 1997 U.S. Dist. Lexis 15353, at *22-23 (N.D.N.Y. 1997) (“It is clear from the way the motion was presented by plaintiffs’ counsel, even if they initially had grounds to believe disqualification was warranted, they made little or no effort to verify those grounds”); Orig’l Appalachian Artworks v. May Dept. Stores, 640 F. Supp. 751, 759 (N.D. Ill. 1986) (“the sequence of events paints this motion as a tactical weapon, rather than as true effort to cleanse the litigation process of undesirable conflicts”); Glover v. Libman, 578 F. Supp. 748, 769 (N.D. Ga. 1983) (counsel’s conduct showed that the motion was brought for tactical reasons); Forward v Foschi, 27 Misc. 3d 1224A, 2010 N.Y. Misc. LEXIS 1066, at *53-54 (2010) (“actions of [the movant and its counsel suggests] that there is much credence to [counsel’s] argument that the disqualification motion was made in order to oppress Forward economically”); Johnson v. Superior Court, 159 Cal. App. 3d 573, 579 (1984).

6See Sauer Inc. v. Honeywell Bldg. Solutions SES Corp., 2012 U.S. Dist. LEXIS 12881, at *9 (W.D. Pa. 2012) (“it is disingenuous for Defendant to claim that there is ‘no point’ to filing a motion to disqualify when it perceives the case to be of low value, then to immediately turn and complain that the same conflict ‘create[s] a serious shroud of impropriety’…as soon as the case appears more valuable”); Brown & Williamson Tobacco Corp. v. Pataki, 152 F. Supp. 2d 276, 290 (S.D.N.Y. 2001) (“The State has never moved to disqualify [the firm] in any other case”); Simmons, Inc. v. Pinkerton’s, Inc., 555 F. Supp. 300, 305 (N.D. Ind. 1983) (noting, “with interest,” that no motion to disqualify had been filed in a similar action that was on file in another court); H&H Acq’n Corp. v. Fin. Intranet Holdings, 2000 U.S. Dist. Lexis 5463, at *11-12 (S.D.N.Y. 2000).

7Hofmann v. Aspen Dental Mgmt., 2011 U.S. Dist. LEXIS 113446, at *25-26 (S.D. Ind. 2011) (“the parties have made no mention of any sort of disciplinary procedures…that have been initiated against Attorney Schiff”); Schuff v. A.T. Klemens & Son, 2000 MT 357, 16 P.3d 1002, 1015-1016 (Mont. 2000) (if movant’s counsel viewed challenged counsel’s conduct “as being as serious as claimed…[it is appropriate that the Commission inquire] into why such violations were not reported to the disciplinary authority”).

8United States ex rel. Lord Elec. Co. v. Titan Pac. Constr., 637 F. Supp. 1556, 1562 (W.D. Wash. 1986) (noting that, prior to moving to disqualify, defendants had engaged in a series of delaying tactics for almost 6 years).

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Chapter 25 Tactical Motions §25.4 the opposing party;9 where the moving party signals that it would be willing to forego its stated concerns about challenged counsel’s conduct if the non-moving party agrees to a course of action the moving party desires;10 or where the movant failed to give serious consideration to measures short of disqualification which, in the estimation of the court, should have sufficed to alleviate any legitimate concern it may have had.11

A court is particularly likely to infer a strategic motivation in a case where the moving party effectively created the ethical problem that provides the basis for the motion;12 as where it created a conflict by naming counsel as a party to the lawsuit;13 called counsel as a witness, and then moved to disqualify him from serving as an advocate on that basis;14 imparted confidential information to counsel after becoming aware that he was

9Oi Tai Chan v Society of Shaolin Temple, Inc., 910 N.Y.S.2d 872, 886 (Misc. 2010) (“Jiang’s motives to file the [motion to disqualify] are transparent. The cross motion was meant to harass and [get] ‘payback’”); Nolte v. Pearson, 133 F.R.D. 585, 596 n.3 (D. Neb. 1990) (finding it “noteworthy” that the motion was made only after a settlement conference did not fully resolve the matter).

10Reese v. Va. Int’l Terminals, Inc., 2012 U.S. Dist. LEXIS 109372, at *31 n.9 (E.D. Va. 2012) (“Scriven’s conditional offer to waive the conflict for the purpose of global settlement discussions betrays a lack of concern that any confidential information…might be used to the union’s advantage”).

11Pappas v. Frank Azar & Assocs., P.C., 2007 U.S. Dist. LEXIS 89966, at *23 (D. Colo. 2007) (“plaintiffs’ improper purpose…is apparent from their refusal to accept [a proffered stipulation]”). Cf. Dworkin v. Gen. Motors Corp., 906 F. Supp. 273, 279 (E.D. Pa. 1995) (finding defendant’s refusal to accept the court’s suggested method for protecting its confidences to be “interesting”).

12Blaney v. Charlotte-Mecklenburg Hosp. Auth., 2011 U.S. Dist. LEXIS 103159, at *7 (W.D.N.C. 2011) (“the potential for Plaintiffs’ counsel to have to [choose between competing interests] is entirely of Defendant’s making”); Anchor Packing Co. v. Pro-Seal, 688 F. Supp. 1215, 1223 (E.D. Mich. 1988).

13Maddocks v. Ricker, 403 Mass. 592, 531 N.E.2d 583 (1998) (“[a] decision to add a plaintiff’s lawyer as a third-party defendant has significant consequences…“[t]he judge should be alert to the possibility that [counsel] is using the cross-complaint as a tactical device”). Cf. Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 756 A.2d 526 (Md. App. 2000); Catania v. Lippman, 98 A.D.2d 826, 827, 470 N.Y.S.2d 487 (1983).

14See CEF Funding, LLC v. Sher Garner Richter Klein & Hibbert, LLC, 2010 U.S. Dist. LEXIS 83219, 2010 WL 2773116, at *2 (E.D. La. July 9, 2010) (a “court must be especially sensitive to potential abuse when, as here, the party seeking disqualification [is] the one wanting to call the attorney as a witness”).

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§25.4 Part VIII Performing the Balancing Test representing an adverse party;15 interviewed an attorney with no intention of hiring her, in the hopes of creating a basis for seeking counsel’s disqualification if she later undertook to represent the other side;16 or filed a motion for consolidation which, if granted, would create a conflict potential that did not previously exist.17

A tactical motivation is perhaps most likely to be suspect where the motion is deemed by the court to be baseless,18 or where the timing of its filing suggests that it was filed in bad faith,19 for reasons other than those apparent on the face of the motion;20 as where the moving party – although long aware of the conduct that has allegedly given rise to the need for disqualification21 –

15I.N.A. Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1, 6 (E.D. Pa. 1983) (noting that it could appear that movant approached counsel in order to disqualify his firm). But see Harrison v. Fisons Corp., 819 F. Supp. 1039, 1041 (M.D. Fla. 1993) (noting that there had been no showing that movant’s appointment of counsel was in any way contrived to achieve disqualification).

16SWS Fin. Fund A v. Salomon Bros., 790 F. Supp. 1392, 1402-1403 (N.D. Ill. 1992) (clients “of enormous size and wealth” should not be encouraged to “parcel their business among dozens of the best law firms as a means of purposefully creating the potential for conflicts”); B.F. Goodrich Co. v. Formosa Plastics Corp., 638 F. Supp. 1050, 1055 (S.D. Tex. 1986) (“[t]here is some merit to the argument that disqualifying all the lawyers interviewed by a company …would itself undermine the public’s confidence in the judicial process”).

17Illinois v. Borg, 564 F. Supp. 102, 104 (N.D. Ill. 1983) (noting, “without questioning” plaintiffs’ motives, that consolidating the cases would extend the disqualification of the challenged firm to the consolidated case).

18Yang Enters. v. Georgalis, 988 So. 2d 1180, 1183 (Fla. App. 2008). 19Schertz v. Jenkins, 4 Misc.3d 298, 291 (N.Y.C.C.C. 2004). 20White Cap Constr. Supply, Inc. v. Tighton Fastener & Supply Corp., 2010

U.S. Dist. LEXIS 93075, at *25-26 (D. Neb. 2010) (the circumstances “suggest that [defendants are] more interested in dislodging plaintiff’s attorneys than in protecting” confidences); Skyy Spirits, LLC v. Rubyy, LLC, 2009 U.S. Dist. LEXIS 109641, at *12 (N.D. Cal. 2009) (“Rubyy was aware of the conflict [from day one]…This motion is largely a tactical gimmick”).

21Liberty Nat’l Enters., L.P., 194 Cal. App. 4th at 847 (“one can properly consider the possibility that the ‘party brought the motion as a tactical device to delay litigation’…This is a reasonable inference…Chicago [was] well aware of McDougal’s exposure to [its] claims department from the very beginning”); Moriarty v. Sullivan, 2009 Mass. Super. LEXIS 193, at *5-6 (2009) (counsel “cannot cogently explain how, if these conflicts actually existed, she remained silent about them for more than four years after this case was entered in Court”).

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Chapter 25 Tactical Motions §25.4 intentionally unreasonably delayed22 in bringing a motion23 until a later point in time;24 perhaps until near the close of discovery25 or the eve of a hearing26 or a trial,27 if not during the trial itself.28

22TransPerfect Global, Inc. v. MotionPoint Corp., 2012 U.S. Dist. LEXIS 85649, at *38 (N.D. Cal. 2012) (“In determining whether tactical abuse motivates the disqualification motion, it is common sense to look for any unexplained delay from the moving party”); O’Neil v. Plan for Salaried Emps. of RKO Gen., 1992 U.S. Dist. Lexis 237, at *10-12 (S.D.N.Y. 1992) (“Here the lack of merit to the disqualification motion, taken together with the delay in bringing the motion, strongly suggests that the motion was not made because of a genuine concern that attorney-client secrets were being used improperly”).

23See, e.g., Openwave Sys. v. Myriad France S.A.S., 2011 U.S. Dist. LEXIS 35526, at *18 (N.D. Cal. 2011) (“Myriad’s motion - given the minute likelihood of an actual breach of confidentiality, its strategic timing, and the delay in its filing - appears to be motivated by a desire to derail” a summary judgment motion); Wild Game NG, LLC v. Wong’s Int’l (USA) Corp., 2007 U.S. Dist. LEXIS 61044, at *5-6 (D. Nev. 2007) (“An inference can be drawn from [the] long delay that the purpose of the motion was not a genuine concern”); In re Kvaerner|IHI, 2010 Tex. App. LEXIS 7710, at *5-6 (2010) (“untimely urging of a disqualification motion lends support to any suspicion that the motion is being used as a” tactic); D.J. Invest. Group, L.L.C. v. DAE/Westbrook, L.L.C., 2006 UT 62, at *P33 (Utah 2006) (“delay in filing…or in notifying opposing counsel that a motion to disqualify is likely raises concerns that the party who delays may be using the motion as a manipulative litigation tactic”).

24See Murray v. Metro. Life Ins. Co., 583 F.3d 173, 180 (2d. Cir. 2009) (“Plaintiffs’ delay suggests opportunistic…motives”); Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir. 1975) (the motion was “held in reserve” until the most expedient time came along to file it); Resolution Trust Corp. v. Fidelity and Deposit Co. of Md., 1997 U.S. Dist. LEXIS 22177, at *15 (D.N.J. 1997) (the court could “reasonably infer,” based on a 3 year delay, that no legitimate justification for the disqualification motion existed); Am. Plastic Equip., Inc. v. Toytrackerz, LLC, 2009 U.S. Dist. LEXIS 27790, at *23 (D. Kan. 2009) (“If Plaintiff were genuinely concerned about any potential prejudice…the Court would have expected [it to file a motion] to disqualify during the early stages”); Harrison v. Edison Bros. Apparel Stores, 146 F.R.D. 142, 143 (M.D.N.C. 1993) (the late date on which the motion was filed suggested “an attempt to interrupt opposing counsel’s trial preparation”); Lucci v. Lucci, 541 N.Y.S.2d 994, 995 (A.D. 1989); Wild Game NG, LLC, 2007 U.S. Dist. LEXIS 61044, at *11-13 (“Plaintiff waited until the eve of Mr. Ng’s deposition to object”).

25Freeman, 449 F. Supp. at 978 (where a motion is filed long after suit is brought, and near the close of discovery, the court “must be sensitive” to the possibility that it was tactically motivated). Cf. Team Obsolete Ltd. v. A.H.R.M.A. Ltd., 2006 U.S. Dist. LEXIS 48765, at *27 (E.D.N.Y. 2006) (“This action has had a tortured history, and discovery is…to be completed [shortly]”). But see Snapping Shoals Elec. Mbrshp. Corp. v. RLI Ins. Corp., 2006 U.S. Dist.

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In a situation where the moving party did not promptly object, the court is apt to suspect that concern about that conduct was not the true reason for filing the motion.29 This is so, a fortiori, where the attorney who represented the non-moving party during the period of delay was aware of the grounds later alleged to warrant disqualification, but made no attempt to secure that result;30 where

LEXIS 45226, at *12-13 (N.D. Ga. 2006) (“The primary cost of disqualifying plaintiff’s attorney is delay [but four months remain in discovery]…so finding another attorney should not significantly delay disposition of this case”).

26See Balt. County v. Barnhart, 201 Md. App. 682, 713, 30 A.3d 291 (2011) (“The timing of the County’s [request for disqualification], six days before Willis’ appeal was scheduled to be heard…suggests tactical reasons”).

27See In re Advanced Telecomm. Network, Inc., 326 B.R. 191, 196 (M.D. Fla. 2005) (“the Court surmises that the [motion] may have been filed more for strategic purposes in an attempt to remove experienced counsel on the eve of trial and not to correct any over arching impropriety”); In re B.L.H., 2008 Tex. App. LEXIS 2212, at *12-13 (2008) (“Marjorie waited until the night before trial to enter her motion…even though [her] counsel pondered whether…to raise [it] for several weeks”); Szoke v. Carter, 974 F. Supp. 360, 370 (S.D.N.Y. 1997) (finding that the timing of the motion – 22 months after the commencement of the action – raised “serious questions as to the motives behind the motion”); Omi v. Chubb Ins. Co. of Can., 1996 U.S. Dist. Lexis 22000, at *7 n.3 (D. Kan. 1996) (that the motion was filed only 3 months before trial “looks suspiciously like an attempt to gain a strategic advantage”); Cmwlth. Ins. Co. v. Graphix Hot Line, 808 F. Supp. 1200, 1209 (E.D. Pa. 1992) (where the defendant had been represented by the same firm since the complaint was filed over 2 years before, but did not file a motion until 3 weeks prior to trial, it appeared that the primary reason for filing the motion was to gain a tactical advantage). But see Gorbaty v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 9541, at *11 (E.D.N.Y. 2011) (“at this early stage of the case, there is no reason to believe defendants have moved to disqualify Mr. Gorbaty for improper tactical reasons”).

28Harnett v. Long Island Jewish-Hillside Med. Ctr., 215 A.D.2d 726, 727, 627 N.Y.S.2d 83 (1995) (that the motion was made 8 years after the action was filed “clearly demonstrates tactical, rather than substantive motives”).

29Liberty Nat’l Enters., L.P. v. Chi. Title Ins. Co., 194 Cal. App. 4th 839, 847 (2011) (“Delay is significant not only from the perspective of prejudice to the nonmoving party, it is also an indication that the alleged breach of confidentiality was not seen as serious or substantial by the moving party”). Cf. In re Miller, 2011 Bankr. LEXIS 1771, at *25 (Bankr. 10th Cir. 2011) (unpub.) (“As these Debtors appear to be doing here, litigants often use motions to disqualify opposing counsel as dilatory or tactical devices”).

30Heci Explor’n Co. v. Clajon Gas Co., 843 S.W.2d 622, 628-629 (Tex. App. 1992) (that the moving party did not file a motion until 2 months after learning the relevant facts, where its lawyer conceded that he had discussed a possible

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Chapter 25 Tactical Motions §25.4 the moving party fails to articulate how granting the motion would ameliorate the moving party’s claimed concerns;31 or where the prejudice occasioned to the non-moving party by an order disqualifying her counsel would be severe,32 and the moving party has made no showing that it will be prejudiced,33 or the trial tainted,34 if counsel is not disqualified.35

motion to disqualify with movant’s representatives at various times, supported the court’s suspicion that the motion was “a negotiating tool”); H.H.B.K. 45th Street Corp. v. Stern, 158 A.D.2d 395, 551 N.Y.S.2d 517, 518 (1990) (the possibility that the motion was made to secure a tactical advantage was strongly suggested by the fact that it was made 6 months after the start of litigation, and after respondents’ previous attorneys did not seek to have the firm disqualified).

31Thomas Kinkade Co. v. Hazlewood, 2007 U.S. Dist. LEXIS 41106, at *13-15 (N.D. Cal. 2007) (the “motion was filed after nearly all of the substantive briefing [was] completed…it is not clear what defendants would gain from a forward-looking disqualification”); Dominica Mgmt., Inc. v. Am. Univ. of Antigua Coll. of Med., 2005 U.S. Dist. LEXIS 12049, at *18-19 (S.D.N.Y. 2005) (disqualification “would likely be a pyrrhic victory…there has been no showing that Simon would be restricted in any way from disclosing [the information DMI alleges was furnished]…Circumstances such as these raise the concern that the [motion was] interposed purely for tactical purposes”).

32Reilly v. Computer Assocs. Long-Term Disability Plan, 423 F. Supp. 2d 5, 13-14 (E.D.N.Y. 2006) (disqualifying counsel “would require Reilly to find a new attorney…The lost time and money associated with this transition is of particular importance here, where Reilly is unemployed”); Concerned Parents v. Hous. Auth. of St. Petersburg, 934 F. Supp. 406, 411 (M.D. Fla. 1996) (noting that, where defendant sought to disqualify a firm that was representing a citizen’s group pro bono, “the public should be suspicious”); Liberty Nat’l Enters., L.P. v. Chi. Title Ins. Co., 194 Cal. App. 4th 839, 848 (2011) (“The timing…reflects a lack of concern…over the alleged breach of confidentiality”).

33Xcentric Ventures, LLC v. Stanley, 2007 U.S. Dist. LEXIS 55459, at *11 (D. Ariz. 2007) (“the present Motion failed to articulate how Plaintiffs’ representation will imminently result in any injury to Defendants”).

34In re Agway, Inc. v. Wells Fargo Fin. Leasing, Inc., 2005 Bankr. LEXIS 2945, at *17 (N.D.N.Y. 2005) (“The absence of any real risk of trial taint or prejudice to Wells Fargo compels the Court to suspect that Wells Fargo has pursued this motion solely to obtain a tactical advantage”).

35In re Nat’l Century Fin. Enters., 2010 U.S. Dist. LEXIS 39524, at *39 (S.D. Ohio 2010) (“Credit Suisse hoped to gain an advantage through pure gamesmanship. This court does not tolerate such behavior”); Vinewood Capital, LLC v. Dar Al-Maal Al-Islami Trust, 2010 U.S. Dist. LEXIS 30358, at *22 (N.D. Tex. 2010) (a waiver finding is “appropriate when…the attempt at disqualification appears abusive or is being used as a delaying tactic”).

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§25.5 Failure to Establish a Tactical Motivation A court’s suspicions about the moving party’s motives for seeking disqualification may sometimes play a role in convincing the court not to grant the requested relief.1 However, there are times when a court is unable to discern any improper motive for such a motion;2 and, even if the court suspects such a motive, it will often be unable to satisfy itself that the motion was filed for purely strategic reasons. In such a situation, the court is unlikely to deny the requested relief.3 This is so, a fortiori, in a situation where the court concludes that a decision to withhold disqualification would be likely to have an adverse impact on public confidence in the integrity of the legal system.4

1See, e.g., Granberry v. Byrne, 2011 U.S. Dist. LEXIS 118293, at *14 (E.D. Pa. 2011). Cf. Foster v. JLG Indus., 372 F. Supp. 2d 792, 799 (M.D. Pa. 2005) (“while reluctant to characterize Plaintiff’s motives, the court does not find Plaintiff’s motion to be grounded in a foundation meriting” disqualification).

2Sanford v. Virginia, 687 F. Supp. 2d 591, 599 (E.D. Va. 2009) (the claims “that the motion is brought in this case in bad faith…are conclusory”); Southwire Co. v. Ramallo Bros. Printing, Inc., 2009 U.S. Dist. LEXIS 116631, at *18-19 (D.P.R. 2009) (“there is no tangible evidence here…of improper motive”); United States v. Bin Laden, 58 F. Supp. 2d 113, 119 (S.D.N.Y. 1999) (“[t]he facts do not indicate that the Government unduly delayed [so much as to] allow for an inference that [its] motivation was to harass”); Handtool Corp. v. Dresser Indus., 246 Ill. App. 3d 979, 619 N.E.2d 1282, 1294-1295 (1993).

3Loomis v. Consol. Stores Corp., 2000 U.S. Dist. Lexis 12391, at *12-13 (S.D.N.Y. 2000) (it did not “escape the Court’s attention” that the motion followed shortly after failed settlement negotiations, but “this chronology is not sufficient to conclude that the instant motion was improperly motivated”).

4Leathermon v. Grandview Mem’l Gardens, Inc., 2010 U.S. Dist. LEXIS 32173, at *46-48 (S.D. Ind. 2010) (finding “clear evidence to suggest that Grandview LLC’s motion…may have been filed primarily as a litigation tactic…[But] we cannot withhold the remedy of disqualification where the confidence of the public and the integrity of the legal system is at stake”).

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MOTIONS TO DISQUALIFY

ABA Center for Professional Responsibility 40th Annual National Conference on Professional Responsibility

May 30, 2014

Robert G. Krupka

Krupka Law Group, P.C. Los Angeles, CA

OVERARCHING ISSUES

• Focus on the Big Picture – Will DQ help or hurt your client’s overall goal in the case

• Delays the ultimate resolution by 6 months or more. • Distracts you, your client, your opponent, and the Court from the merits. • A DQ fight often annoys, even alienates, the Court. • Does it advance the interests of your client?

– Do the facts justify the uphill battle?

• Will you be better off if you fight, even if you win? – Taint may hang over challenged counsel, even if retained. – New counsel may be more effective. – Your opponent may be more motivated, regardless of outcome. – Cost and delay may limit what you can do in the rest of the case.

WHAT YOU NEED TO PROVE TO WIN • Local law controls, usually even in federal court

– See, e.g., N.D. CA Local Rule 11-4(a)(1) – In re County Of Los Angeles, 223 F.3d 990, 995 (9th Cir. 2000)

• A violation of a rule of professional conduct – Often focused on prior representation and access to privileged and

confidential information relevant to present representation. – See, e.g., CA Rule of Professional Conduct 3-310(E)

• Most jurisdictions impose strict judicial scrutiny to preclude tactical abuse – See, e.g,, Oracle Am., Inc. v. Innovative Tech. Distrib., LLC, 11-CV-01043-

LHK, 2011 WL 2940313, at 4 (N.D. Cal July 20, 2011) • Law recognizes the substantial hardship and monetary and other costs

replacing counsel entails. – See, e.g., Gregori v. Bank of Am., 207 Cal App. 3d 291, 300 (Ct. App. 1989)

• Practically speaking, more than a technical violation or de minimis prejudice is required

WHEN TO FILE

• As early as possible. • As soon as you have sufficient facts to sustain a motion.

– The longer you wait, the harder disqualification becomes. • Disclose the issue to the opponent/Court before you file?

– Almost always a good idea. – Gives opponent a chance to explain or withdraw. – Shows the Court you did not “ambush” your opponent.

WHAT RELIEF DO YOU REQUEST

• Disqualification – Of an entire firm? – Of individual attorneys?

• Special Master to oversee discovery to uncover more facts – You may have enough to file motion, but not enough to

persuade a skeptical Court that disqualification is necessary. – Asking initially for less than DQ can demonstrate good faith and

lack of tactical gamesmanship. • Sanctions

– Don’t get greedy. • DQ is a sanction in and of itself. • Overreaching can sink your motion.

HOW TO PROCEED

• Usually decided on the motion papers – Supported by affidavits, documents, deposition testimony,

expert opinions. – Present facts, argument without excessive passion.

• Let the facts speak for themselves.

• Seek discovery before filing reply brief if possible – Depose any affiants and experts relied upon by opponent

• You will not get a second bite on DQ. • Get all the facts you can before submitting the motion for decision.

• Hearing – Testimony from client, experts, opposing law firm.

• May present the problem of a “cold cross.” • The law of unintended consequences may bite you.

WHAT DO YOU DO IF YOU WIN

• Don’t overreach – Agree to delay for opponent to find new counsel and get them

up to speed • Agree to update/reopen discovery if asked

– Courts will generally allow so do not risk backlash by opposing • Offer to work with new counsel to agree on updated schedule

– Courts value cooperation, especially from a gracious victor • Be careful asking for costs and fees associated with motion

– Court may consider this “piling on”

WHAT DO YOU DO IF YOU LOSE

• Motion for Reconsideration – Difficult to meet requirements

• Mistake of Law • Mistake of Fact

– Even more difficult to succeed • Appeal

– Further delay – Difficult to overturn trial court

• Request delay sufficient to retain new counsel and get them up to speed

• Consult with new counsel regarding whether to seek to redo prior discovery, etc.

session 12 the lifecycle of a motion for disqualification ... · session 12 the lifecycle of a...

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