The right of a party to be represented in litigation by the attorney of its choice is significant, and disqualification of that attorney won’t be required just because that attorney has represented the opposing party in the past. Rather, there must be a violation or threatened violation of an ethical rule.
What are the grounds for disqualifying an attorney? Most disqualification motions are brought on the ground that the “tainted” attorney has obtained knowledge of otherwise confidential information that could be used unfairly to the disadvantage of the moving client or former client. See Cal Rules of Prof Cond 1.9. There’s precedent for seeking disqualification for alleged violation of other ethical rules, e.g., the rule limiting an attorney’s ability to testify at a hearing or trial on behalf of his or her client, or the rule restricting an attorney’s ability to communicate directly with a party represented by counsel. See Comden v Superior Court (1978) 20 C3d 906; Smith, Smith & Kring v Superior Court (1997) 60 CA4th 573. But the court in In re Marriage of Murchison (2016) 245 CA4th 847, 852 held that the court’s inherent authority to disqualify a lawyer was limited to a situation in which misconduct would have continuing effect on the proceedings; the court had no inherent authority when the nonmoving party wished to continue the representation and there was no harm to the moving party’s interest.
Who can move to disqualify an attorney? To bring a motion to disqualify an attorney from representing one of the parties, the moving party must have standing to do so, which is generally an attorney-client relationship with that attorney or some other sort of confidential or fiduciary relationship. For example, in In re Marriage of Murchison (2016) 245 CA4th 847, 851, the court found that the husband, who had never been represented by the wife’s attorney, didn’t have standing to move to disqualify the wife’s attorney.
What are the consequences of a delay in filing a motion to disqualify an attorney? A motion to disqualify an attorney won’t be denied just because the former client delayed in filing the motion, but waiver of the right to disqualify counsel may be implied when inexcusable delay in bringing the motion causes substantial prejudice to the current client. River W., Inc. v Nickel (1987) 188 CA3d 1297, 1305 (47-month delay). See also Ontiveros v Constable (2016) 245 CA4th 686, 701 (14-month delay in bringing motion did not result in waiver). Courts are sensitive to the burden of changing counsel during litigation, as well as to the tactical motivations for an opposing party making the motion, and are therefore more likely to deny disqualification motions made close to trial.
Can a party appeal a disqualification ruling? In addition to petitioning for a writ of mandate, California courts, unlike federal courts, allow for an immediate appeal of attorney disqualification orders. An appeal of an order disqualifying an attorney automatically stays enforcement of the order, but doesn’t automatically stay all trial court proceedings. Parties seeking a stay of some or all other trial court proceedings may submit a stipulation to the trial court or file a noticed motion for a stay of proceedings, in whole or in part, in the trial court. URS Corp. v Atkinson/Walsh Joint Venture (2017) 15 CA5th 872, 889.
For more on disqualification of attorneys and their firms, see California Civil Procedure Before Trial, chap 2. And get forms for obtaining consent to representation after disclosing a conflict of interest, in CEB’s California Client Communications Manual: Sample Letters and Forms, chap 4.
Other CEBblog™ articles you may find useful:
- 3 Ways to Deal with Client Conflicts
- Does an Ethical Breach Bar an Attorney from Getting Fees?
- Highlights of the New California Professional Rules
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