Few things will impede the progression of a representation faster than a motion to disqualify. Upon receiving a motion to disqualify, the attorney must consult with the client to decide what is in the client’s best interest: defending the motion or withdrawing from the representation. If the client wishes to defend the motion, the attorney usually then has to choose between absorbing the time and fees in doing so, or explaining why the client should partially (or exclusively) shoulder the burden.

Assuming the client wishes to proceed in defending, the motion itself puts at issue two important ethical obligations—confidentiality and loyalty—that the attorney owes to the client. Under the professional rules, the attorney is reminded of their responsibility both to safeguard client confidences and secrets and to place the client’s interests before their own. While disqualification motions present these and other ethical considerations, courts rarely address them uniformly. Some disqualification motions are well-founded, but others may be wielded as a litigation tactic. In the latter situations, an opposing party moves to disqualify in hopes of gaining a strategic advantage by separating a client from the counsel of choice. For this reason and others, many courts are hesitant to nullify a client’s choice of counsel, except when the conflict is both real and non-waivable and where few options exist other than granting the disqualification.

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