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Taking on Matters Adverse to Former Clients (Part 3)

By Gina Hendryx, OBA Ethics Counsel

This is the third installment of a three-part series on conflicts with former clients. The following will address the remedies available to the aggrieved client who believes his former attorney is acting improperly by representing a current client against the former client’s interests.

If the adverse counsel does not agree that a conflict exists with his current representation, the former client’s remedy is to file a motion to disqualify the lawyer from the matter.  Motions to disqualify are used to remove another party’s counsel from the case. Motions to disqualify can be both a tactical tool as well as a legitimate means to remove a lawyer from a case. The complaining party generally argues that the other counsel has obtained confidential information about the person during a prior representation that could be used to his detriment in the present matter. Also, courts may sua sponte, in the interests of justice, decide that a lawyer should be disqualified. Restatement (Third) of the Law Governing Lawyers § 6 cmt.i (2000).

When considering a motion to disqualify counsel, the court will hold an evidentiary hearing to determine if a conflict exists sufficient to disqualify a party’s counsel. Piette v. Bradley & Leseberg, 1996 OK 124, 930 P.2d 183. The court may weigh several factors when considering a motion to disqualify counsel. 

  • Prejudice to the complaining party if the lawyer remains as counsel in the case.
  • Hardship to the current client.
  • Standing of the proponent to bring the motion.
  • Timing of the motion (unreasonable delay in bringing of the motion).

The Oklahoma Supreme Court has stated that “[t]he right to the assistance of counsel includes the right to be represented by a legal practitioner of one’s own choosing.” Towne v. Hubbard, 2000 OK 30, 3 P.3d 154, 160.  “Legal practitioners are not interchangeable commodities. Personal qualities and professional abilities differ from one attorney to another, making the choice of a legal practitioner critical both in terms of the quality of the attorney-client relationship and the type and skillfulness of the professional services to be rendered.” Id. This rationale confirms that the motion for disqualification will be scrutinized with a balancing of interests involving several competing considerations.

In The Prospective Investment and Trading Company LTD. v. GBK Corporation, 2002 OK CIV APP 113, 60 P.3d 520, the Oklahoma Court of Civil Appeals reviewed a disqualification order from the trial court.  In this case, the trial court had disqualified a law firm from representation because of its prior involvement with one of the parties.

The court set forth the standard and analysis to be employed when seeking disqualification based upon prior representation in a substantially related matter as defined in Rule 1.9 of the Oklahoma Rules of Professional Conduct. The Court of Civil Appeals affirmed the existence of an attorney- client relationship and a substantial relationship between the former and current representation.

Generally, only current or former clients who would be adversely affected if the lawyer remains in the case have standing to seek the lawyer or law firm’s removal. However, there may be some circumstances where the lawyer’s continued involvement will prejudice the fairness of the proceedings thus requiring removal. Restatement (Third) of the Law Governing Lawyers § 6 cmt.i (2000). To argue this exception for threatened prejudice, the non-client must show how the continued involvement of the lawyer will actually prejudice the proceeding. Colyer v. Smith, 50 F. Supp. 2d 966 (C.D. Cal. 1999).

If considering a motion to disqualify, the aggrieved party should file for disqualification as soon as possible after discerning the problem. Circumstances to consider when determining if the timing is reasonable include length between filing and knowledge of the potential conflict, whether the aggrieved party was represented by counsel during the interim, why the delay occurred and if the delay will result in prejudice to the client of the conflicted lawyer. A party who knowingly delays in filing a motion to disqualify may be deemed to have waived the objection to the continued representation.

Courts will weigh all these factors when considering whether to disqualify a counsel or a law firm from a case. General principles of attorney selection versus client confidences will be balanced to ensure fairness and justice.

Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact Ms. Hendryx at ginah@okbar.org or (405) 416-7083; (800) 522-8065.

Originally published in the Oklahoma Bar Journal -- Nov.8, 2008 -- Vol. 79; No. 29.