I have found only two decisions — one state and one federal — ruling on a motion to disqualify a firm based on the presence of a non-lawyer who formerly worked at the opposing firm. The sole New York State case addressing the question of non-lawyer conflicts is Glover Bottled Gas Corp. v. Circle M. Beverage Barn, Inc. [514 N.Y.S.2d 440 (2d Dept. 1987)].
disqualify opposing counsel, the present client of the attorney who is the target of the motion,6 and third parties. The law with respect to disqualification varies depending on the conflict relation and the poten-tially harmed party. This Comment will focus on those cases in which an attorney moves to disqualify opposing counsel because the opponent
ORDER ON DEFENDANTS' MOTION TO DISQUALIFY COUNSEL Defendants' Motion to Disqualify the Law Firm of Bickel & Brewer and Its Attorneys, Appearing Pro Hac Vice, filed December 4, 2007, after having been fully briefed, is now properly before this Court. After having considered the briefs submitted on this Motion, having consulted with the Georgia
any lawyer’s arsenal is a motion to disqualify opposing counsel. If used successfully, it stops the opposing party in its tracks and forces an adversary to start over with a new lawyer. And for those on the receiving end of such a motion, it is crucial to know whether it should be granted or rejected. Courts have developed a
Imputed disqualification means that you and all the members of your firm are treated as a unit for the purposes of conflicts. This includes any group of lawyers that work together closely or share responsibilities, e.g., private firms, government agency offices, and corporate law departments.
n. a situation in which a person has a duty to more than one person or organization, but cannot do justice to the actual or potentially adverse interests of both parties.
The principle of imputed disqualification is based on the professional obligation of loyalty that a lawyer owes his clients. Rule 1.10 cmt. [2]. The principle also reflects the presumption that lawyers associated in a law firm share client confidences with each other.
When a lawyer associates with a law firm, the principle of loyalty to the client extends beyond the individual lawyer and applies with equal force to the other lawyers practicing in the firm. Peters, 951 P. 2d at 930. This principle is known as the “rule of imputed disqualification.” Id.
Types of conflict of interest and dutyActual conflict of interest: ... Potential conflict of interest: ... Perceived conflict of interest: ... Conflict of duty: ... Direct interests: ... Indirect interests: ... Financial interests: ... Non-financial interests:Jul 19, 2016
Some types of conflicts of interest include:Nepotism. ... Self-dealing. ... Gift issuance. ... Insider trading. ... Review the employee handbook. ... Attend business ethics training. ... Report conflicts of interest. ... Disclose.Apr 1, 2021
Remember that conflict checking is not one and done, but an ongoing process. You check at the intake stage, when a new party enters the action, and when a new attorney becomes involved. Being proactive with ongoing conflicts checks helps to protect your client and to guard against malpractice.Nov 28, 2018
Rule 1.06 Conflict of Interest: General Rule (a) A lawyer shall not represent opposing parties to the same litigation. (2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or laws firm's won interests.
Implied or imputed waiver10 occurs where a party acts in a manner that is inconsistent with the maintenance of confidentiality attaching to the communication. The test is inconsistency of action, to be determined objectively – a party's subjective intention becomes irrelevant.
Concurrent representation is the he simultaneous representation of more than one person in the same matter. This can result in conflict of interest when the considerations of one party is to the detriment of another.
Subparagraph (a)(1) provides that a prohibition based on a lawyer's “personal interest” (e.g., close personal or professional relationship) is not imputed to other lawyers in the firm so long as that interest does not create a significant risk of materially limiting the representation of the firm's client.
If the person switching sides were an attorney instead of a paralegal — that is, if an attorney switched from the opposing firm to your firm in the middle of a case — the question would be governed by DR 5 108 and DR 5-105 (D) of the New York Code of Professional Responsibility. The operation of that tandem of rules is known by most lawyers.
New York law on this question is sparse. I have found only two decisions — one state and one federal — ruling on a motion to disqualify a firm based on the presence of a non-lawyer who formerly worked at the opposing firm.
Riddell and Glover hold many lessons for New York lawyers. First, if you hire a paralegal from an opposing firm, the opposing law firm will very likely move to disqualify your firm.
No New York case or ethics opinion has yet decided whether screening a non-lawyer can defeat a motion to disqualify, but many other jurisdictions have ruled on this question.
The split in state court decisions suggests that whether or not to allow screening to cure non-lawyer conflicts is a policy choice. But before we can weigh the competing policies, we need to determine whether we really have a choice in New York.
New York needs to make two basic choices regarding migratory non-lawyers. First, should the presumption that a non-lawyer learned confidences and secrets in the former firm be rebuttable? As with lawyers, that should depend on whether the non-lawyer worked on the matter at her former firm.
Until New York courts reach a consensus on whether screens can cure non-lawyer conflicts, here are five steps that a prudent law firm can take.
A motion to disqualify tests whether the opposing party’s right to counsel of his or her choice, which is an important right, “must yield to ethical considerations that affect the fundamental principles of our judicial process.”.
Plaintiff Julie Pavlina San Giorgio (“Julie”) has filed a motion to disqualify the firm of Farella Braun & Martel (“Farella”), counsel for Defendant and Cross-complainant Stephen Pavlina, Jr. (“Stephen”).1 “A trial court’s authority to disqualify an attorney derives from the power inherent in every court ‘ [t]o control in furtherance of justice, the conduct of its ministerial officers, and of all...