trailer Glossary | xref 0000002756 00000 n 0000008252 00000 n Discussion: Motions to disqualify counsel present competing policy considerations. Kusch v Ballard, 645 So. 2d 1357 (Fla. 5th DCA 1980) 4 1D20-2470 & 1D20-2472 Joseph W. Jacquot, Esq. 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. Rule 4-1.9(a) RRTFB | Conflict of Interest; Former Clients Conflict of Interest: Attempting to defeat the motion without advising the client is not an acceptable solution. 7X Denied | Duval | 2019 | Attorney Filing | Former Client; New Attorney; 58 0 obj In addition, if the motion is made by a former client, attorneys should consider providing notice of a potential circumstance to their legal malpractice insurer. 2d 1035 (Fla. 4th DCA 1994) A motion to disqualify must be in writing and "specifically allege the facts and reasons" relied on to show the basis for disqualification. Bauer Declaration . THI Holdings, LLC v Shattuck, 93 So. 9 Disqualification motions implicate the most important duties that an attorney owes a client: the duties of confidentiality and loyalty. R. Prof. 0000002252 00000 n Comments 1 - 7: SUSTAINED. This is to protect a clients ability to share secrets with counsel, unafraid of the possibility that lawyer may use the secrets against them while representing an opponent. [D]isqualification motions involve a conflict between the clients right to counsel of their choice and the need to maintain ethical standards of professional responsibility [Citation.] # MOVING PARTY: (1) Plaintiffs Robert Warren Jackson and Gregory Bauer; - see Livingston v. State, 441 So.2d 1083, 1086-87 (Fla. 1983) 59 0 obj Pro Se Filing. 9@5t| .T:M76xl|02K/e,f!BGrC^ Rq?q| >1d8[.6 Courts often cite this fact when deciding motions to disqualify. I. Definitions 0000000896 00000 n Copyright 2021 by Will Newman, all rights reserved. Canon 3-C, Florida Code of Judicial Conduct, Allied Signal Recovery v Allied Signal, 934 So.2d 675 (Fla. 2d DCA 2006), Fleitman v McPherson, 691 So. Dept. Disqualification is proper where two conditions are satsid: (1) "at last a reasonable possibility that some specifically identifiable impropriety di occur" and (2) "the likelihood of public suspicin or obloquy outweighs the social interest which will be servd by a lawyer's continued paricipation in a particular case." Kleiner v. ; Utica Mut. endstream endobj 58 0 obj <>stream 55 0 obj Notice of Joinder 0000007338 00000 n EPA v Pollution Control Bd., 372 NE 2d Plaintiff, by and through counsel, to this Honorable Court. This Standard Document contains integrated drafting notes with important explanations and tips for drafting the caption, the body of the motion or notice of motion, the signature block, and proof of service. 2d 572 (Fla. 3d DCA 1998) 0000009036 00000 n BACKGROUND of Corp. v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145; Code Civ. 7. 0000006588 00000 n January 9, 2012 All Rights Reserved. (a) Representing Adverse Interests. 81 0 obj 2d 1254 0000001632 00000 n 0 15 NINA YUAN, an individual, RICHWAVE Trautman v General Motors, 426 So.2d 1183 (Fla. 5th DCA 1983) xb```b``ag`f``ba@ 08 ]]%/LL0*ASzUVrr>24 K@YPdYFe%+%010 Solution: see Morse v Clark, 890 So. 2023 Dentons. "the inability to perform some act due to the existence of factors rendering the performance improper or inappropriate. 0000033372 00000 n 51 0 obj All rights reserved. Search | STATEMENT OF FACTS A. Mandated: Trial courts may decide removal is mandated To proceed, please click Accept. 0000006483 00000 n is not a referendum on the trustworthiness of the counsel sought to be disqualified. Deposit Ins. (1) the representation of 1 client will be directly adverse to another client; or Courts also appear to distinguish between conflicts based on multiple representations and those based on successive representations. 48 0 obj <> endobj & Fin. R . "the inability to perform some act due to the existence of factors rendering the performance improper or inappropriate. 0000001764 00000 n ,"w0:IYbJ!`.^OtX]8Xhyi(< 1+!)CafX>2p1D0UXrA!iP2j\ But the main things that attorneys do to avoid disqualification are to strictly follow ethical guidelines about conflicts of interest and to remind clients that litigation can become more costly and complicated than originally anticipated because of motions such as these and to therefore consider settlement. 69 0 obj <>stream %PDF-1.3 % You want to win a lawsuit, but not on the merits, but instead for some procedural and strategic reasons. (NCNB Tex. Brown v. Encompass Ins. 2d 582 (Fla. 1st DCA 1998) Automatic Presumption of Disclosure: Once you consult with an attorney the court's automatically assume you've disclosed privileged information 2d 810 (Fla. 1st DCA 2006) 3d 419 (Fla. 2d DCA 2012), Abamar Housing v Lisa Duly, 724 So. many hours conferring with counsel, and had delivered to counsel memo-randa and personal files relating to various legal matters in which the corporation was involved (144 Cal. II. If competent evidence does not establish such a conflict, the attorney is not disqualified for a conflict. Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 425-426. 0000005378 00000 n For instance, a judge may be disqualified from, Source: Barron's Dictionary of Legal Terms, Steven H. Gifis, 5th Edition; 2016, These rules apply to all actions of a civil nature and all special statutory, (1) the representation of 1 client will be directly adverse to another client; or. 0000021736 00000 n Where a This is likely because they recognize the tremendous power imbalance between the two parties: insurance companies can write the policies and policyholders have very little say into the terms. "The standard of review for orders entered on motions to disqualify counsel is that of an abuse of discretion." 0 see Russakoff v Dept of Insur., 724 So. Less frequently, a lawyer may claim to represent a business when it actually does not. 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. 2d 1254 Duval. A lawyer who has formerly represented a client in a matter must not afterwards represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client gives informed consent; The affidavits present very different versions of the nature and scope of Weinstein's work on school board cases at Becker, Poliakoff. [e.s.]). 0000008453 00000 n 0000001261 00000 n endobj This is because it must be presumed that a client shared confidences with its attorney pursuant to the attorneyclient relationship.9 Appreciating this distinction is important to successfully making or defeating a motion to disqualify. Dec. 16, 2014) (the court noted that [m]otions to disqualify opposing counsel are viewed with suspicion). 2. Dec. 10, 2014) (order disqualifying Jones Day), assets.law360news.com/ 0606000/606910/Celgard-LGC%20Order%20disqualifying%20 Jones%20Day.pdf. Counsel should also anticipate what occurs if the party responsible for preparing the order fails to complete the task. Estright v Bay Point, 921 So. Contact TBD for more free samples Frequently, a former client accuses the attorney of having insider information regarding the client that does not rise to the level of a client confidence. 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. 0000000016 00000 n 0000027807 00000 n To avoid conflicts, lawyer at firms normally run a conflict check before taking on a new matter. Legal Ethics, DOCX, PDF, TXT or read online from Scribd, 0% found this document useful, Mark this document as useful, 0% found this document not useful, Mark this document as not useful, Save Motion to Disqualify Counsel - Sample For Later, X ---------------------------------------------------x. For example, many law firms exclusively represent large corporate defendants or individual employee plaintiffs so they are less likely to be prohibited from representing similar clients in the future. The attorney may know the clients bottom line for settlement or how the client prefers to approach litigation. Last Updated9/12/2022 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. Pantori v Stephenson, 384 So. You will now be taken from the global Dentons website to the $redirectingsite website. 11. The form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary. 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. Partially Granted | Duval | 2013 | Attorney Filing | Whistleblower Case; Trayvon Martin Fallout; Advocate and Witness; - No Ruling | Duval | 2014 | Attorney Filing | Settlement stuff; Marital Stuff; Former Client; Material Witness. see EPA v Pollution Control Bd., 372 NE 2d 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. 0000009248 00000 n 13. (b) Former Clients of Newly Associated Lawyer. 293 In those circumstances, courts are generally protective of confidences or secrets that the law firm or attorney may possess or to which the firm or attorney has access as a consequence of either the prior or the existing representation. 0000005084 00000 n Attorneys should not assume that possession of mere playbook knowledge precludes disqualification. 0000007716 00000 n v . Ct., 704 P.2d 851, 853 (Colo. 1985)). Your recipients will receive an email with this envelope shortly and Motion to Dismiss Portions of Plaintiff's Complaint, as to the fraud and deceit claim. National Century Financial Enterprises, Inc. ("NCFE") 2 Motions to disqualify are far from rare occurrences. 12. Newer: Comments on Recent Cases: October 2021, Cross-Border Issues in Judgment Enforcement. This is true, even if you challenge a lawsuit on the grounds of the statute of limitations or similar defenses. Independent counsel, free from the suggestion of economic self-interest, often can more effectively than the attorney press the case for allowing the client to keep its counsel of choice. 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 On the one hand, a court must not hesitate to disqualify an attorney when it is satisfactorily established that he or she wrongfully acquired an unfair advantage that undermines the integrity of the judicial process and will have a continuing effect on the proceedings before the court. On the other hand, it must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorneys innocent client, who must bear the monetary and other costs of finding a replacement. Accordingly, for Attys. 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. 49.] Templates Motion to Disqualify Counsel. 2d 496 (Fla. 4th DCA 2004), Trautman v General Motors, 426 So.2d 1183 (Fla. 5th DCA 1983), Livingston v. State, 441 So.2d 1083 (Fla. 1983), An attorney has appeared in your civil case on behalf of your civil opponent, That attorney's representation is improper and/or unauthorized, You ask the Court to remove/disqualify the attorney from your case. P. A lawyer is prohibited from using information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these rules. A firm that represents a large bank once may prefer never to be prohibited from representing that large bank again, so it may never accept a case against the bank. 0000002415 00000 n As part of this process, they ask their colleagues if they are aware of any conflict that would prevent them from participating in a matter. %%EOF Typically, a former client seeking to disqualify a former attorney from representing an opposing party must identify specific, cogent information that the attorney possesses and show that the information is confidential and implicates the duty of loyalty. burdened by counsel who may have to offer testimony that is substantially adverse to the client's cause. 438 30 see Allstate Ins. 0000001344 00000 n 1Duval Version | Replace all placeholder tags (eg "[plfName]" becomes "John Doe"). But even so, a defendant can prevail by explaining that the plaintiffs evidence does not support his case. 0000001219 00000 n 3- No Ruling | Duval | 2014 | Attorney Filing | Settlement stuff; Marital Stuff; Former Client; Material Witness II. Image credit: https://en.wikipedia.org/wiki/Conflict_of_interest#/media/File:Corrupt-Legislation-Vedder-Highsmith-detail-1.jpeg. As Judge Gross made clear in his opinion for the court:" 2d (SD Fla. 2010) Attorneys should be aware, however, that clients can make a successful case for disqualifying attorneys who had a greatly invested role with the organizational client or where the playbook knowledge is uniquely and particularly relevant to the new representation. 2d 994 (Fla. 4th DCA 2002), Freeman v Chicago Musical, 689 F. 2d 715 (7th Cir. Conduct 3.08, comment 9. IV. 2d 908 (Fla. 1998) ( b ) Former clients of Newly Associated lawyer Cal.App.4th 410, 425-426 2002 ), assets.law360news.com/ 0606000/606910/Celgard-LGC % %... 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