Motions to disqualify counsel are orchestrated for two primary reasons: Either an attorney or law firm have been unduly abusive or they have been so effective in defending or prosecuting a case that their adversaries want them off of it. Disqualification motions are left to the discretion of the trial judge. They are rarely granted because they threaten a client's Constitutional right to be represented by the advocate of their choice.

In some cases, disqualifications are sought based upon a conflict where, for example, an attorney representing a party has previously represented an opposing party or witness or is doing so during the case itself. In rare occasions a conflict may arise where the attorney is a party or a witness. Most of these cases are resolved by brief proffers and waivers by a client whose interests may be affected by the appearance of a conflict. In state courts, they may be resolved by a hearing pursuant to People v. Gomberg, 38 N.Y.2d 307 (1975) and in a federal case by the application of United States v. Curcio, 680 F.2d 881 (1982). The ruling with respect to conflicts are both discretionary and mandatory. They may be based upon an appearance of impropriety which is sometimes resolved by joint defense agreements or in still rarer cases by the appointment of counsel to review the situation and report to the court. The review usually involves appointed counsel interviewing the affected party to determine whether they have been advised about the nature of the potential conflict and whether they have knowingly waived it. It is never the case that witnesses are called in a so-called evidentiary hearing because the conflict, if any, is factual and can be decided by a simple voir dire and as a matter of law.

Where it is alleged that the attorney is a potential witness, the movant must also prove what the attorney would be a witness to as a substantial issue of material facts relevant to the case to be tried. See Code of Professional Responsibility, Rule 3.7(a). This proffer must be closely scrutinized and not be based upon conjecture or speculation. It cannot be tangential, remote or collateral. Law Firm of Omar T. Mohammedi v. Computer Assisted Practice Electronic Management Solutions, 2018 U.S. Dist. Lexis 126143, Index No. 17 Civ. 4567 (ER)(HBP). As noted by Magistrate Judge Henry Pitman, applications for disqualifications sometimes cause unnecessary, purposeful delays. They can become a needless diversion in the case to disparage opposing counsel or to augment the judge's dislike for counsel or to give the court a convenient excuse for disqualifying counsel that it finds too obstreperous or too effective.

Motions for disqualification should not be cavalierly made. Prior to making such a motion, movants should be advised of the penalties that may be imposed for an abuse of the adversarial process. See Rule 11 of the Federal Rules of Civil Procedure and 22 NYCRR §130-1.1. But see also Thomas F. Liotti and Drummond C. Smith, “Sanctions and Costs: The Enemy of Advocacy,” NYSBA Commercial and Federal Litigation Section Newsletter (Summer 2011, vol. 17, no. 2) at 1, 12, 13 and 14.

The so-called “no contact rule,” as per the Code of Professional Responsibility, Rule 4.2, states that an attorney should not be in contact with a represented party. But again, the purported contact must be geared to circumvent the involvement of the represented party's counsel in settlement discussions. The contact cannot be inadvertent, innocuous or insubstantial such as counsel bumping into a party at a social event where polite greetings may have been exchanged. The Thornburgh Memo is an example of a clear violation of the “no-contact rule” where the Department of Justice sought to override local disciplinary rules by passing its own rule allowing prosecutors to contact represented defendants in circumventing defense attorneys who might stand in the way of cooperation and plea deals. See William Glaberson, “Thornburgh Policy Leads to a Sharp Ethics Battle,” The New York Times (March 1, 1991). See also Scott Shane, “U.S. Practiced Torture After 9/11, Nonpartisan Review Concludes,” The New York Times (April 16, 2013) at 1 & A8. A Constitution Project Report just released “describes in detail the ethical compromise of government lawyers who offered 'acrobatic' advice to justify brutal interrogations” and “the Justice Department's Office of Legal Counsel wrote a series of legal opinions from 2002 to 2005 concluding that the methods were not torture if used under strict rules; all the memos were later withdrawn.” The ethics and secret memos of DOJ prosecutors in glass houses must, therefore, be seriously questioned.

Naturally the nature of the contact itself must be considered because the Rule is not to be applied per se. It is clearly not the purpose of the Rule to prohibit all contact. A violation of the Rule also does not lead to disqualification unless it is tied to a significant issue of material facts as per 3.7(a) supra or violates some other provision of the Code such as threatening a criminal prosecution in a civil case.

Originally the draftspersons of the Rule did not contemplate its application to children, especially those of tender years who may be represented by a law guardian or an attorney for the children (AFC) but whose counsel is not present when an attorney for one spouse in a matrimonial case is meeting with his client. The presence of counsel in the absence of the AFC does not violate the “no contact rule.” Something more must be shown such as a deliberate attempt to avoid contacting the AFC while the attorney for the spouse attempts to alienate or even speak to the children about the case.

In one case where an attorney was representing a defendant on a criminal case charged with a deportable Megan's Law offense, the attorney's associate took a written statement from the 17-year-old alleged victim, albeit not the complainant. The alleged victim was not represented by counsel in the criminal case but was represented by counsel in a companion Family Court case. The statement was immediately transmitted to the Criminal Court and Family Court. The prosecutors in Criminal Court moved for defense counsel's disqualification there. It was denied and defense counsel was then able to negotiate a plea to a non-Megan's Law offense and one that was not deportable. Counsel was disqualified from representing the same respondent in the Family Court over his vigorous objection. People v. Rafael Quiroz, 15 Misc. 3d 1128(A), 2007 W.L. 1247257 (TABLE) (N.Y. Dist. Ct.), 2007 N.Y. Slip Op. 50895(U) (April 18, 2007).

Initiating a Summons and Complaint against an attorney or law firm for the sole purpose of making a disqualification motion may be in the nature of harassment or retaliation. If shown to be either one, the imposition of sanctions should be considered by the court together with costs and counsel fees. See 22 NYCRR 130-1.1 (see Tso-Horiuchi v. Horiuchi, 122 A.D.3d 918, 918 (2014); Navin v. Mosquera, 30 A.D.3d 883, 883 (2006); 22 NYCRR 130-1.1[a]).

One of the first or last points for the court to consider on any motion to disqualify is the hardship of the party whose counsel would be disqualified. This consideration is not merely financial where a party may or may not be able to pay for new counsel, but it is also a matter of where the case is procedurally and whether new counsel could come up to speed. Obviously the closer a case is to trial or if it is on trial, this becomes a consideration even where disqualification may otherwise be warranted.

Finally, if there is a bond and working relationship that counsel has with the client, it must be considered especially if the client has had other counsel with whom she was dissatisfied. Does she have confidence in her counsel? Is she satisfied with the representation? What would a break in that relationship do to the client and the case?

Thomas F. Liotti is an attorney in Garden City and Lucia Maria Ciaravino is an associate in his office.