Archive | Lawyer Disqualification Motions

Should Disqualification Lead to Discipline?

In New York and elsewhere, attorney discipline has been imposed rarely, sporadically, and seemingly randomly, after lawyers or their firms have been disqualified in civil or criminal litigation due to a conflict of interest or for other infractions. What factors should trigger a subsequent disciplinary investigation? Does disqualification for a conflict of interest or other […]

Reprinted with permission from the April 4, 2014 edition of the New York Law Journal ©2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

  1. See, e.g., Universal City Studios v. Reimerdes, supra, p. 2.
  1. “Issue” conflicts arise if advocating a legal position on behalf of one client creates precedent adverse to the interests of another client in a different case. See, N.Y. R.P.C. 1.7, comment 24. See, e.g., United States v. Binday, 2013 WL 1104258 (S.D.N.Y. March 14, 2013).
  1. The “hot potato” doctrine provides that a lawyer may not drop an existing client like a hot potato in order to take on a new matter adverse to the interests of the existing client absent informed consent. See, e.g., Stratagem Development Corp. v. Heron Int’l N.V., 756 F.Supp. 789 (S.D.N.Y. 1991).
  1. The “advocate-witness” rule, N.Y. R.P.C. 3.7, concerns combining the roles of advocate and witness wherein the trier of fact may be confused or misled by the lawyer’s serving in both capacities. See, e.g., Skiff-Murray v. Murray, 3 A.D.3d 610 (3d Dept. 2004).
  1. 98 F.Supp.2d 449 (S.D.N.Y. 2000).
  1. Id. at 451; see Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976).
  1. Id. at 455.
  1. Id. at 456.
  1. 84 N.Y.2d 562 (1994).
  1. 281 A.D.2d 23 (1st Dept. 2001).
  1. Harvard Law Review, Developments in the Law: “Conflicts of Interest in the Legal Profession,” Vol. 94, No. 6, p. 1501 (April 1981), citing Maryland State Bar Ass’n v. Agnew, 271 Md. 543, 549, 318 A.2d 811, 814 (1974) (other citations omitted).

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Working Knowledge of Conflict of Interest Rules is Essential

Important Concepts on Ethical Duties Of Loyalty and to Maintain Confidentiality Every lawyer, whether engaged in litigation or transactional work, must have a working knowledge of the law relating to conflicts of interest to properly deal with conflicts situations when they arise, as they very likely will. Failure to have such an understanding can result […]

Reprinted with permission from the September 27, 2004 edition of the New York Law Journal ©2004 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

  1. See Disciplinary Rules (DRs) 5-101(A) and 5-105(C) of the New York Lawyer’s Code of Professional Responsibility.
  2. See DR 5-105(D).
  3. N.Y. City Op. 2000-4 (2000).
  4. For example, compare Kassis v. Teacher’s Insurance and Annuity, 93 N.Y. 2d 611(1999) with Cummin v. Cummin, 264 A.D. 2d 637 (1st Dept. 1999).
  5. See DR 9-101(B).
  6. See DR 5-105(E); N.Y. City Op. 2003-3 (2003).
  7. See DR 5-101(A).

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