Shari L. Klevens (left) and Alanna Clair, Dentons US

Motions to disqualify can have the effect of distracting attorneys from their full devotion to their client's claims or defenses. Attorneys can then find themselves in the uncomfortable position of defending their own conduct to their clients and to the court. Motions to disqualify are commonplace in litigation and can be well-publicized.

For example, in a recent decision in Zelda Enterprises, LLLP v. Guarino, the Georgia Court of Appeals considered the appeal of a trial court's decision to disqualify an attorney. The trial court had found that there was a conflict of interest barring the representation because the attorney had previously represented the opposing party in connection with another matter. Ultimately, the court declined to address the merits of the motion to disqualify (and remanded to the trial court for consideration of whether the former client had waived the ability to seek disqualification due to delay). Nonetheless, the Court of Appeals made an interesting observation regarding the impact of motions to disqualify: Because of “the right involved and the hardships brought about, disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly.”

Regardless of the ultimate resolution, the circumstances in Zelda reflect that motions to disqualify often cause delay and uncertainty, in addition to the expense incurred in litigating the issue. While some motions to disqualify are nothing more than a litigation tactic, others raise legitimate questions regarding the ethical obligations owed by the attorney and her or his law firm to former clients.

Although the basis for motions to disqualify can vary, the most common circumstance involves a former client either of the opposing law firm or of an individual attorney at that law firm who may have recently joined the firm. Indeed, lateral movement was the basis for a highly-publicized motion to disqualify recently filed in Pennsylvania state court, as one party objected to the fact that the opposing law firm had acquired a group of attorneys that had previously represented that party.

Courts may grant motions to disqualify even without evidence of bad intent by an attorney. Instead, the concern is typically whether the client's former attorney or law firm had access to confidences or secrets that can be used against their former client, and the degree to which that concern should take priority over the new client's right to counsel of its choice. Below are three of the key considerations for motions to disqualify:

'Substantially Related' Neither the Georgia Rules of Professional Conduct nor the ABA Model Rules of Professional Conduct contain an outright bar on the representation of current clients against former clients. Instead, Rule 1.9(a) of the Georgia Rules provides that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”

The phrase “substantially related” can be a difficult concept to apply in practice. However, the comments to the rule provide some guidance, noting that matters are substantially related “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.”

Based on this rule, the former client may allege that the attorney obtained “insider information” through the prior representation of the client, even where the later matter is ostensibly unrelated. Such information may include knowledge regarding the former client's preferred strategy or settlement tactics, which is often referred to as “playbook knowledge.”

A motion to disqualify premised on “playbook knowledge” can be compelling in certain circumstances and less meaningful in others. Nonetheless, the comments to Rule 1.9 advise that “[i]n the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation.”

Consider Preventive Measures As noted above, even baseless motions to disqualify can be harmful given the potential for delay and the expense required to oppose the motion. Thus, to the extent possible, many law firms will take steps to prevent motions to disqualify from being filed in the first place. In most circumstances, this involves following and observing the conflicts rules, particularly when it comes to hiring lateral attorneys.

Indeed, many motions to disqualify can be avoided by identifying and resolving any conflicts of interest at the time a lateral is hired and prior to undertaking new representations. If necessary, obtaining effective consent from the former client will provide the law firm with a very strong defense in the event that the former client later moves for disqualification.

Second, a law firm can use various strategies to reduce, or even eliminate, the possibility that a former client's confidences will be accessed by the attorneys working on a subsequent matter involving the former client. A number of courts have recognized, for example, that an ethical wall can effectively address the risks that the former client's confidences will be used against it in the later matter.

Strategies for Responding When faced with a motion to disqualify, the first course of action is typically to notify the client. Depending on the circumstances, a law firm may also consider reporting the motion to its legal malpractice insurer, as a motion to disqualify may be a precursor to a bar grievance or a legal malpractice claim.

Finally, the law firm may want to consider whether the firm should itself defend the motion to disqualify or whether independent counsel should be retained. Courts may view the law firm sought to be disqualified as clouded by self-interest, and thus separate counsel may be more effective in convincing the court that the client should be entitled to its counsel of choice.

Shari L. Klevens is a partner at Dentons US in Atlanta and Washington and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons' global insurance sector team. Alanna Clair is a senior managing associate at Dentons US in Washington and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance.”