Most Courts ‘Skeptical’ on Disqualification Motions

CLE faculty: Removing attorney spans case law, professional conduct rules

In an adversarial system, complications come when an attorney crosses the aisle.

The concept of disqualifying counsel spans more than a century and by proxy is “a fairly extensive topic,” according to Charles Mendez, an associate in the Denver-based Burg Simpson Eldredge Hersh & Jardine, during a CLE on the topic Feb. 8. Some view a motion to disqualify as “a sort of lousy litigation strategy,” but Mendez said the issue is important because it implicates issues of conflicts of interest and client loyalties.

Motions to disqualify are typically filed by opposing counsel, citing conflicts averse to their own client, when they have prior knowledge or involvement on the other side of the case. The oldest case involving a disqualification dates back to 1852 in Georgia’s Gaulden v. State, in which the prosecutor attempted to switch sides. Since then, there have been a few treatises between the 19th-century case and the 1970s mainly focused on client loyalty and client confidences.

However, those cases were rare. There are very few reported cases of disqualification during that time period, Mendez said, sometimes decades passed without one reported.

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