Not all disqualification motions are created equal. Where a challenged representation threatens to encroach on an attorney’s duty to a former or current client, it will be subject to far more exacting scrutiny than a motion seeking disqualification under the advocate-witness rule, which counsels against an attorney testifying and representing a party before the same tribunal. Several recent decisions illustrate the contrasting approaches to different types of disqualification motions and provide useful practical guidance on how attorneys can (and in some instances cannot) avoid disqualification in the midst of litigation.
The Advocate-Witness Rule
When a party becomes embroiled in litigation over a deal gone sour, it often, understandably, wants the lawyers who represented it in the transaction to handle the litigation as well. Lawyers considering such representations (particularly where they may be fact witnesses on a disputed point of importance to the case) should be mindful of the advocate-witness rule, and plan accordingly so that their client will not unexpectedly have to obtain new representation as the case progresses.
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