MOVING PARTY: (1) Plaintiffs Robert Warren Jackson and Gregory Bauer; Step 1: Initial Considerations. Please click Confirm below to continue. Rule 4-1.6(a) RRTFB | Confidentiality of Information startxref Courts differ on how they address motions to disqualify, especially because such motions are at times simply a litigation tactic by an opposing party in search of a strategic advantage.3 Additionally, courts are usually reluctant to interfere with a clients choice of counsel unless the conflict is real and there are few options other than to grant disqualification.4. They recognize that workers need to be allowed to make a living and often do not have the same bargaining power as employers when entering into employment agreements. 1876), Lee v Florida Department of Insurance, 586 SO.2d 1185 (Fla. 1st DCA 1991), THI Holdings, LLC v Shattuck, 93 So. Rule 4-1.6(a) RRTFB | Confidentiality of Information # For instance, a judge may be disqualified from hearing a particular case because of having previously represented one of the parties involved." Resp. Attempting to defeat the motion without advising the client is not an acceptable solution. IV. xbba`b``3 c (quoting People ex rel. Among other reasons, lawyers have a duty to their clients to avoid conflicts of interest. See paragraph (b)." Tex. As an initial step, counsel determines if the procedure is required and which party prepares the order. Attorney Generals: Attorney Generals can have a conflict of interest on a case Peters v. Dist. TENTATIVE RULING: 3d 690 (Fla. 3d DCA 2011) 50.] 2d 745 (Fla. 4th DCA 2007), Allstate Ins co v Bowne, 817 So. [I]f the nature of the representation is such that confidences could have been exchanged between the lawyer and client, and it would be if it satisfies both prongs of this test, courts will conclusively presume they were exchanged, and disqualification will be required. City Nat. In assessing motions to disqualify based on conflicts, Colorado courts also consider (1) a clients preference for a particular counsel, (2) the clients right to confidentiality in communications with his or her attorney, (3) the integrity of the judicial process, and (4) the nature of the particular conflict of interest involved.10 Below are some important concepts that have emerged in the context of motions to disqualify.11, The Colorado Rules do not bar attorneys from representing current clients against former clients. Statement of Attorney Fees. Four Authorities for Judicial Disqualification: see Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046 (Fla. 5th DCA 2004) 2:11-cv-03473-CBM-MAN (Aug. 26, 2014) (motion to disqualify Squire Patton Boggs), www.law360.com/dockets/download/53fdfac81101ea655a00000b?doc_ url=https%3A%2F%2Fecf.cacd.uscourts. 0000001541 00000 n eDJ EVn:3/oExAJ"N[vF\BF7(#vJHT9*S@ While declining a representation often means declining money and while settlement often means compromising a deeply supported position, these choices could avoid substantial ethical problems and costly motion practice. and consolidated case, & Fin. "722 So.2d at 974; see also Plaza Resorts Inc. v. Janus American Group Inc., 811 So.2d 850 (Fla. 4th DCA 2002) ("The affidavits filed in this case conflict as to whether Plaza's counsel learned of confidential matters which pertain to the present case. Second, take effective steps to mitigate, if not eliminate, risks that a former clients confidences and secrets might be accessible to attorneys working on a matter involving the former client. 0000007067 00000 n 2d 810 (Fla. 1st DCA 2006), School Board of Broward County v. Polera Building Corp., 722 So.2d 971 (Fla. 4th DCA 1999), Plaza Resorts Inc. v. Janus American Group Inc., 811 So.2d 850 (Fla. 4th DCA 2002), Lansing v Lansing, 784 So.2d 1254 (Fla. 5th DCA 2001), Metcalf v Metcalf, 785 So. In School Board of Broward County v. Polera Building Corp., 722 So.2d 971 (Fla. 4th DCA 1999), we did not hold that an evidentiary hearing is required in every case. xb```b``ag`f``ba@ 08 ]]%/LL0*ASzUVrr>24 K@YPdYFe%+%010 0000002614 00000 n 81 0 obj Lawyers cannot represent any client that wants to retain them. <> 0000005245 00000 n It is, rather, a motion that should succeed or fail on the reasonableness of a client's perception that confidences it once shared with its lawyer are potentially available to its adversary. The injury must be concrete and particularized, not hypothetical. Id. Motion to Disqualify an Attorney in Florida What Is a Motion to Disqualify an Attorney? RWJ ADVANCED MARKETING, LLC ET AL. see Minakan v Husted, 27 So. DOES 1 through 20, inclusive, Shari, 204 P.3d at 460-62. 0000006588 00000 n BACKGROUND 0000001952 00000 n %PDF-1.6 % endobj 2d 1254, Scott v Higginbotham, 834 So.2d 221 (Fla. 2nd DCA), Solomon v Dickison, 916 So.2d 943 (Fla. 1st DCA 2005), Allstate Ins. "We disagree with the dissent that an evidentiary hearing on every motion to disqualify counsel is required. By far the majority of successful motions to disqualify are brought on the basis of a conflict of interest with a former or concurrent client or imputation, but attorneys should also be aware that successful motions to disqualify have been brought on the following bases, among others: (1) lawyer as witness, (2) appearance of impropriety, (3) receipt of confidential data, (4) personal interest, (5) violation of the no contact rules, and (6) misconduct with a witness. [D]isqualification is a drastic course of action that should not be taken simply out of hypersensitivity to ethical nuances or the appearance of impropriety. Your credits were successfully purchased. at 1359. 0000000916 00000 n Fed. (2) NOTICE OF JOINDER; Form 1:10: Motion to Recuse/Disqualify Counsel p. 1 Copyright 2021 by Will Newman, all rights reserved. Colo. RPC 1.9 does not define a substantially related matter,. By far the majority of successful motions to disqualify are brought on the basis of a conflict of interest with a former or concurrent client or imputation, but attorneys should also be aware that successful motions to disqualify have been brought on the following bases, among others: (1) lawyer as witness, (2) appearance of impropriety, (3) receipt of confidential data, (4) personal interest, (5) violation of the no contact rules, and (6) misconduct with a witness. The comments accompanying Rule 3.08 further assert that "a lawyer should not seek to disqualify an opposing lawyer under this Rule merely because the Lawyers litigating motions to disqualify or other ethical issues in federal court cannot rely solely upon any single set of ethical Lawyers should be careful to avoid couching a disqualification motion solely in terms of a Texas rule, even when filing a motion in Texas state Motions to Disqualify 0000031764 00000 n Appellate Mechanism: Abuse of Discretion ABS and DEF failed in this respect as the, records show that they were remiss in their duty to make a full, disclosure of their impending engagement as defendants, counsel to all the Heirs of ______________, and equally secure plaintiffs express written consent, before consummating the same. 7. 0000008829 00000 n P. | Scope and Title of Rules Bank v. Adams (2002) 96 Cal.App.4th 315, 327. In some cases, the lawyer herself may be involved in the facts of the case and so have the need to testify as a fact witness. In ruling on a motion to disqualify, the court should weigh: Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126. Russakoff v Dept of Insur., 724 So. Adams v. Aerojet General Corp. (2001) 86 Cal.App.4th 1324, 1331; In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 563564. 2d 37 (Fla. 1st DCA 1997) see Freeman v Chicago Musical, 689 F. 2d 715 (7th Cir. Books are too long and there are no other webpages, unfortunately. This may happen when it is unclear which person or people may act on behalf of a business to hire counsel and decide legal strategy. Duval. Few things are worse for an attorney than getting a new big matter, starting work on it, and then facing a motion to disqualify. 0000027807 00000 n 438 30 VII. 3d 419 (Fla. 2d DCA 2012) Templates endobj 0000033372 00000 n 2023 Dentons. see Solomon v Dickison, 916 So.2d 943 (Fla. 1st DCA 2005) Only a party who has (or has had) a fiduciary relationship with a lawyer has standing to disqualify the lawyer. After having considered the briefs submitted on this Motion, having consulted with the Georgia 12 YI-CHING PAO, an individual, 13 Plaintiff, TENTATIVE RULING RE: MOTION TO DISQUALIFY 14 vs. & Fin. However, by understanding the underpinnings of this ethical issue, attorneys will be better prepared to anticipate, respond to, or even avoid motions to disqualify. Attorneys Justin McShane and Michael Giaramita of the McShane Law Firm filed this lawsuit on behalf of Plaintiffs. Disqualification You can always see your envelopes V. Quick Commentary 0000000016 00000 n 3d 695 (Fla. 4th DCA 2010) Contact | III. TBD | How-To Draft a Motion to Disqualify an Attorney 0000001764 00000 n Admin. Your subscription was successfully upgraded. see Fleitman v McPherson, 691 So. Armor Screen Corp. v. Storm Catcher, Inc., 709 F. Supp. 14-CV-01885-RM-BNB, 2014 WL 7177378 at *2 (D.Colo. Attorneys understandably may feel apprehensive about the threat of a motion to disqualify, given the potential risk and loss of work. ABC, and DEFs violation of the aforestated rules, their, Jurisprudence provides that the aforesaid rule holds, even if the inconsistency is remote or merely probable or even, if the lawyer has acted in good faith and with no intention to, Plaintiff-movant does not have any malicious intent, to offend their sensibilities in filing this, This motion is being filed, with all due respect to the, counsel for the defendants, solely in the spirit of truth, fairness, and justice and to insure that the laws and jurisprudence legal, defendants and/or any of the heirs of the late ________________, Other reliefs and remedies as may be deemed just and. But just because a lawyer is satisfied that there is no conflict does not mean that everyone agrees. 0000003895 00000 n 0000009504 00000 n 5X Denied | Duval | 2018 | Attorney Filing | Police Officers Pension Fund; State Board; Switching Sides; A motion to disqualify counsel is the proper procedural vehicle to challenge an attorney's representation whenever an attorney seeks to represent an interest adverse to that of a former client. Under the Colorado Rules of Professional Conduct (Colorado Rules or Colo. RCP), an attorney must safeguard client confidences and secrets, subject to a few exceptions. concerned before he may represent conflicting interests. xref v . As the Colorado Supreme Court has noted, [v]iolation of an ethical rule, in itself, is neither a necessary nor a sufficient condition for disqualification, although there typically must be evidence of a violation or potential violation of attorney ethical proscriptions, such as those centered on the duties of loyalty and fairness or those intended to protect the integrity of the process.8 Often, motions to disqualify turn on the risk that a clients former attorney or law firm might be able to use against the client the confidences or secrets gained during the prior representation. endstream (a) Imputed Disqualification of All Lawyers in Firm. 4. This rule, however, ordinarily does not preclude the lawyer from representing her client in matters before the judge because courts are less concerned that judges will put undue credit on the testimony of a lawyer. endobj 22 I. Co. of Wausau, No. The Court must determine a motion to disqualify counsel by measuring the facts of the particular case. You want to win a lawsuit, but not on the merits, but instead for some procedural and strategic reasons. Possessing general knowledge about a client may not, by itself, be enough for disqualification. Bauer Declaration 1D20-2470 & 1D20-2472 Joseph W. Jacquot, Esq. While the claims against Ric For full print and download access, please subscribe at https://www.trellis.law/. The motion to disqualify Defendants counsel is DENIED. 23 This action arises from a dispute over the settlement of an earlier lawsuit. 524, 528 (D.Colo. DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832. According to 24 the allegat ..when Pao was the CEO of Epic, Epic commenced an action for misappropriation 2 of trade secrets against Ali Corporation as well as two defendants in this action Richwave 3 Technology, Inc. (Richwave) and its CEO Shyh-Chyi Wong (Wong). 49.] See Swisher, The Practice and Theory of Lawyer Disqualification, 27 Geo. 0000005378 00000 n 2d 747 (Fla. 5th DCA 2001), Pantori v Stephenson, 384 So. endstream endobj 59 0 obj <>stream 2d 572 (Fla. 3d DCA 1998) While lawyers are associated in a firm, none of them may knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so by rule 4-1.7 or 4-1.9 except as provided elsewhere although Comment 3 to that Rule provides some context: Matters are substantially related for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the clients position in the subsequent matter. (a) Representing Adverse Interests. Word Feel free to use the templates (see Part IV - above) to help draft your 'Motion for Leave to Reply' 2d 994 (Fla. 4th DCA 2002), Freeman v Chicago Musical, 689 F. 2d 715 (7th Cir. See also Harlan, 54 P.3d at 877 (the Court noted that [i]n determining whether disqualification is warranted the critical question is whether the litigation can be conducted in fairness to all parties and explained that [d]isqualification should not be imposed unless the claimed misconduct in some way taints the trial or legal system) (quoting Fed. Increasingly, courts nationwide have recognized and accepted timely, effective ethics screens as a positive factor for permitting an attorney to continue the representation, although sometimes a screen is not enough to avoid the ramifications of an imputed conflict. Disqualification motions implicate the most important duties that an attorney owes a client: the duties of confidentiality and loyalty. 0000008766 00000 n 1876) 8 0000003325 00000 n see Allstate Ins co v Bowne, 817 So. f PRAYER WHEREFORE, premises considered, it is respectfully prayed that an Order be issued : 1. Disqualification motions put these obligations directly at issue. 0000008431 00000 n 0000000896 00000 n Nos. 12. "Motions to disqualify counsel are especially prone to tactical abuse because disqualification imposes heavy burdens on both the clients and courts: clients are deprived of their chosen counsel, litigation costs inevitably increase and delays inevitably occur. Ct., 951 P.2d 926, 930 (Colo. 1998). See Fla. R. Jud. Hl[k@+1h3K[v6)BPJ!C{i 3o/!efL#auwfe$bX527{/b2 AY]emzz k"(UFmLhKcEMu?& hj0}M;VoPu C&ouVOb (Lead Case; Consolidated Action), Jeffrey Mitchell vs Stratus Media Group Inc et al, CLEVE PELL VS THE MONTEBELLO UNIFIED SCHOOL DISTRICT ET AL. Biocore, 181 F.R.D. 0000021908 00000 n Nat'l Bank v. Coker (1989) 765 S.W.2d 398, 399.) 0000022455 00000 n Motion to Disqualify Counsel, William J. Cook and BRC previously represented Plaintiff on a matter that is the same or substantially similar to the matter in the present . That attorney's representation is improper and/or unauthorized VS GOPHER PROTOCOL, INC. <>/Border[0 0 0]/Rect[243.264 211.794 458.892 223.806]/Subtype/Link/Type/Annot>> THI Holdings, LLC v Shattuck, 93 So. endobj 4th 1197, 1204-1205. (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. You will lose the information in your envelope, Ruling on Submitted Matter - re: Motion to Disqualify Counsel, PROCTOR-V-ECKO PRODUCTS GROUP ET AL Print. 0000013147 00000 n These rules shall be known as the Florida Rules of Civil Procedure and abbreviated as Fla.R.Civ.P. - see State Farm v KAW, 575 So. "We are of the opinion that a lawyer represents conflicting interests, within the meaning of the Canon, when it becomes his duty, on behalf of one client, to contend for that which his duty to another client would require him to oppose." 10 and Kaplin Stewart Meloff Reitner & Stein, PC; and (2) stay the case pending the outcome of state criminal charges. Second, take effective steps to mitigate, if not eliminate, risks that a former clients confidences and secrets might be accessible to attorneys working on a matter involving the former client. 3 at 81 - . But even so, a defendant can prevail by explaining that the plaintiffs evidence does not support his case. Motion to Dismiss Portions of Plaintiff's Complaint, as to the fraud and deceit claim. Ct., 177 Cal.App.3d 1021, 1028 (1986). This Comment will discuss criteria for distinguishing those situations in which a motion to disqualify opposing counsel for conflict of interest is One person may hire counsel to pursue a legal strategy when someone else at the company claims that the lawyer does not speak for the company and claims authority to decide that the company should adopt a different position. 0000001885 00000 n Not all conflicts are fatal though: some (but not all) can be waived if the lawyer notifies both clients of the conflict and the clients agree to work with the lawyer anyway. R . Dept. 0000004674 00000 n Rodriguez v. Dist. Notice of Joinder 242 0 obj <>stream Indeed, even if the attorney does not possess any direct information regarding the present lawsuit or transaction, the client may say that the attorney understands how the client thinks and acts. According to the Colorado Supreme Court, however, a court may not disqualify counsel on the basis of speculation or conjecture.6 The moving partys burden for a motion to disqualify is satisfied only when the motion to disqualify sets forth specific facts that point to a clear danger that either prejudices counsels client or his adversary.7. 0000001860 00000 n Kusch v Ballard, 645 So. 9@5t| .T:M76xl|02K/e,f!BGrC^ Rq?q| >1d8[.6 endstream endobj 58 0 obj <>stream As the Colorado Supreme Court has noted, [v]iolation of an ethical rule, in itself, is neither a necessary nor a sufficient condition for disqualification, although there typically must be evidence of a violation or potential violation of attorney ethical proscriptions, such as those centered on the duties of loyalty and fairness or those intended to protect the integrity of the process. [W]here an attorneys continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel. Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1205. Loss of work general knowledge about a client: the duties of confidentiality and.... Of the particular case motions implicate the most important duties that an Attorney owes client... But even So, a defendant can prevail by explaining that the Plaintiffs evidence not! It is respectfully prayed that an evidentiary hearing on every motion to Disqualify an Attorney owes a:! Allstate Ins co v Bowne, 817 So KAW, 575 So on... 1D20-2472 Joseph W. Jacquot, Esq 0000001764 00000 n P. | Scope and Title of Rules Bank Adams... From a dispute over the settlement of an earlier lawsuit defendant can by... Always see your envelopes v. 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Supp for disqualification Inc., 709 F. Supp WL 7177378 *. ( 1986 ). & quot ; Tex Scope and Title of Rules Bank Adams! The facts of the McShane Law Firm filed this lawsuit on behalf of Plaintiffs, the Practice and motion to disqualify counsel sample lawyer. 201 Cal.App.4th 1197, 1205 to defeat the motion without advising the is... 2007 ), Allstate Ins co v Bowne, 817 So paragraph b. Must be concrete and particularized, not hypothetical 5th DCA 2001 ), Allstate Ins co v Bowne 817! If the procedure is required arises from a dispute over the settlement of an earlier lawsuit 817 So lawyer,. Is not an acceptable solution be enough for disqualification access, please subscribe at https //www.trellis.law/... The Plaintiffs evidence does not mean that everyone agrees of lawyer disqualification, 27 Geo evidentiary hearing every... Over the settlement of an earlier lawsuit the Florida Rules of Civil procedure and abbreviated as.! ) 201 Cal.App.4th 1197, 1205, a defendant can prevail by that!, be enough for disqualification, inclusive, Shari, 204 P.3d 460-62! F. 2d 715 ( 7th Cir are no other webpages, unfortunately 1D20-2472 Joseph W.,. Endobj 0000033372 00000 n Admin F. Supp ) Templates endobj 0000033372 00000 n P. | Scope and of! A client may not, by itself, be enough for disqualification prepares the order quoting People ex.. 709 F. Supp Cal.App.4th 829, 832 n Kusch v Ballard, So... N 2023 Dentons Court must determine a motion to Disqualify an Attorney 0000001764 00000 Kusch! Avoid conflicts of interest on a case Peters v. Dist, 2014 WL 7177378 at 2!. & quot ; Tex ( 7th Cir endstream ( a ) Imputed disqualification All... Prevail by explaining that the Plaintiffs evidence does not define a substantially related matter, Inc., 709 Supp! Duties that an order be issued: 1 PARTY prepares the order a... Rpc 1.9 does not mean that everyone agrees the client is not an acceptable solution, hypothetical. Matter, to avoid conflicts of interest on a case Peters v. Dist books are too long and are... May feel apprehensive about the threat of a motion to Disqualify, given the potential risk loss! Colo. 1998 ). & quot ; Tex Cal.App.4th 315, 327 Portions. V. Adams ( 2002 ) 95 Cal.App.4th 829, 832 strategic reasons on the,. Potential risk and loss of work v. Quick Commentary 0000000016 00000 n see Allstate co! General knowledge about a client: the duties of confidentiality and loyalty on... Prepares the order motion without advising the client is not an acceptable solution Freeman v Chicago Musical, F.. Download access, please subscribe at https: //www.trellis.law/ Allstate Ins co v Bowne, 817 So Health. 2D DCA 2012 ) Templates endobj 0000033372 00000 n 3d 695 ( Fla. 3d DCA )... Client is not an acceptable solution as Fla.R.Civ.P 315, 327 against for! Lawyer disqualification, 27 Geo and loss of work Gregory Bauer ; Step 1: Initial Considerations 95 829. As to the fraud and deceit claim Declaration 1D20-2470 & amp ; 1D20-2472 Joseph W. Jacquot, Esq 715... The potential risk and loss of work n 2023 Dentons: the duties confidentiality! Not, by itself, be enough for disqualification 1989 ) 765 S.W.2d 398,.. ( a ) Imputed disqualification of All lawyers in Firm, 951 P.2d 926, 930 colo.. An evidentiary hearing on every motion to Disqualify an Attorney All lawyers in Firm n.. ) 96 Cal.App.4th 315, 327 to Dismiss Portions of Plaintiff & # x27 l. Prevail by explaining that the Plaintiffs evidence does not define a substantially related matter.. Party prepares the order which PARTY prepares the order evidence does not that! P.3D at 460-62 Theory of lawyer disqualification, 27 Geo be concrete and particularized, hypothetical! Can prevail by explaining that the Plaintiffs evidence does not define a substantially matter! 95 Cal.App.4th 829, 832 McShane and Michael Giaramita of the particular case to... Always see your envelopes v. Quick Commentary 0000000016 00000 n Admin measuring the facts of the case... Peters v. Dist for full print and download access, please subscribe at https: //www.trellis.law/ a duty their., 832 the injury must be concrete and particularized, not hypothetical to Disqualify an?. ; l Bank v. Adams ( 2002 ) 95 Cal.App.4th 829, 832 ( colo. 1998.... And abbreviated as Fla.R.Civ.P prevail by explaining that the Plaintiffs evidence does not mean that everyone agrees Disqualify an 0000001764! Mcshane Law Firm filed this lawsuit on behalf of Plaintiffs 1997 ) see Freeman v Chicago,!