Attorneys frequently make motions to disqualify opposing counsel, but the motions are rarely granted. Courts address whether the motions are made for strategic reasons or valid concerns. The court must determine whether disqualification will forestall a violation of any ethical principles while it balances the right to counsel of one’s choice versus whether the continued representation will substantially prejudice the moving party.
Courts have broad discretion in determining whether to disqualify counsel. Motions to disqualify frequently claim opposing counsel will be fact witnesses at trial, prejudicing the client if the representation continues. Testimony alone is not the key; it is whether the attorney will advocate a position. The motions are subject to strict scrutiny because of the potential abuse and use as a tactical device. Rule 3.7 of the New York Rules of Professional Conduct provides the guidelines for each ruling.
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