Speaker 1: Did you know that a judge can throw a lawyer off a case and end the representation of that client if the lawyer has a conflict of interest? That's what we're going to be talking about here. I'm Drew Stevenson, this is for my professional responsibility class. And this is part of our series of lectures about conflicts of interest. And here we're going to be talking about attorney disqualification, which is one of the things that can happen to you if you don't check for conflicts, or you ignore the conflict of interest and proceed with the representation anyways. So let's dive in. The first thing to understand about disqualification or being thrown off a case is that this only applies in litigation settings. If you're doing a transactional matter, and you have a conflict of interest, there's no judge involved at that point, typically, who could disqualify you or remove you from the case or the representation. So this is something that a judge orders. And how does this happen? Well, typically, the opposing party will file a motion asking the court to remove the attorney, in other words, their opposing counsel, who has the conflict of interest, and basically throw them off the case. Most often, this is brought by a current or former client. Former clients is probably the most common scenario where you're representing, let's say, one party, a plaintiff or a defendant, and the other party in the litigation is a former client that you represented on an unrelated matter. And you didn't get their informed consent to the representation, or you have confidential information from them that's relevant to the current matter. And so they ask the court to throw you off the case. By the way, judges know that this is severe, it's disruptive. And so they're usually going to ask the parties to brief it and hold a hearing before the trial about this. And the judges have a lot of discretion about whether to disqualify a lawyer. Now, that's not where the bad consequences for you, if you're disqualified, are going to end. If a lawyer is disqualified, the client then must scramble to find a new lawyer for litigation that's already underway. Well, that's a big ask when you go for a consultation for a new lawyer to ask them to jump in in the middle of a case. And as you might imagine, if the case is a setback, and if things go wrong, the new lawyer is going to blame everything that goes wrong on the former lawyer who should have known better and got disqualified. This means that a legal malpractice action is pretty likely against the disqualified lawyer, especially if the case doesn't go well for the client who has to go find a new lawyer. Keep in mind also that usually the entire firm will be disqualified from the matter. And so imagine that you're a new lawyer, you go off to court one day, you come back a little while later, and they're saying, wait, I thought you had a trial, and you say, oh, the judge threw us off the case. Well, the firm just lost a piece of lucrative litigation work that was going to generate fees. And so if you were responsible for this goof up, and you didn't adequately check for conflicts of interest, and you got the whole firm disqualified from representing a big client in a big piece of litigation, there's a pretty good chance you could lose your job as a result as well. Now, I want to kind of clarify for my students early in the course the things that can happen when you violate the rules. Not every violation of the rule is going to result in disbarment. So we have sanctions that the state bar brings. The most severe is disbarment. That's where they revoke your law license. Sometimes it's permanently, most often it's for two years or five years. And at the end of which, you're back to square one of applying to be a lawyer and probably will have to retake the bar exam and so forth. They can also suspend you, or the mildest sanction that they could give you, the one you're hoping for if you get in trouble, is a reprimand. And there can be private reprimands or public reprimands. And the private reprimand, you're the only one who knows about it, although the bar will keep a file, keep it in their file, so that if you get in trouble again, they know that you were reprimanded previously. Suspensions are the most common. And it's very often that you'll see suspensions of lawyers for 30 days or 60 days or 90 days. And how is this different from disbarment? Well, you can't practice law while your license is suspended. But the day after your suspension ends, your license automatically reactivates and you can go back to representing your clients. If you're disbarred, you don't have a license anymore. And so you're going to have to refile a declaration of intent to practice law and sit for the bar exam, convince the bar probably that you've changed, right? As you can imagine, the character and fitness evaluation is going to be difficult for someone who has been disbarred for violating the ethical rules. So those are the sanctions that the state bar can impose on you for ethical violations. There's also some, though, that can come from a judge. So a judge could disqualify a lawyer from a case, which is what I've been talking about. They also could hold you in contempt of court and either fine you, that's the most common, or technically put you in jail. That does happen, but it's rare. And keep in mind that the client has a remedy besides complaining to the bar, the client could later on sue you for legal malpractice. And that's a civil remedy. Please note, it's very important for my students to understand for purposes of the MPRE, that one of these things happening does not automatically trigger the others. So the fact that you were disqualified from a case does not mean that the state bar is going to bother coming after you, or that the client will necessarily file a legal malpractice action. And if they do, they would have to show causation and damages and things like that. So keep that in mind. Or the fact that the unrelated conflicts of interest that the state bar pursues a grievance against you and suspends your license does not at all mean that you will be sued by your client for malpractice or that if you are, the client will necessarily win and vice versa. So keep that in mind that we have different types of sanctions. Now for purposes of conflicts of interest, disqualification and malpractice actions are the primary enforcement mechanisms. Occasionally, I'll see a state bar bring a disciplinary action against a lawyer for conflicts of interest. But to be honest, it's rare, by far the most often common disciplinary action causes are failure to communicate with a client and lack of diligence or neglect of a client matter, by far. And so you occasionally you see a conflicts of interest basis for a suspension or disbarment. More often you see the conflicts of interest rules enforced through disqualification in a legal proceeding or a malpractice action by a client after the fact. Who has standing to ask the court to disqualify while the general rule is only former or current clients or the judge has standing to bring a motion to disqualify counsel on the basis of a conflict of interest. This means that it's somewhat rare in criminal cases, the judge could disqualify you from representing a co-defendants in a criminal trial, but the prosecutor, because they're not the state as in your former client typically, is not going to have standing to ask to have you disqualified from a case most of the time. Also note that disqualification is not inevitable. So a violation of rule 1.7 does not always result in disqualification. A judge is going to have to weigh all the factors in the case and how prejudicial this will be to the client or disruptive to the proceedings. So for example, if the firm in good faith has basically identified the lawyer with the conflict and completely removed them from the representation, even though the firm could be disqualified from the case, the judge may decide that the firm has done what it should and has taken adequate precautions to keep that lawyer far away from the case and may let the firm stay on the case. It's possible. The judge also knows that this is usually a big setback or prejudicial to the client who's losing their lawyer, so they're hesitant to do it. It does happen frequently, but you should understand it's not an automatic remedy. The timing of the motion also matters. And so the question is, judges are impatient if, let's say, the firm that's moving to have you thrown off the case knew about the conflict for months and waited until the eve of trial to ambush your client with this. Well, if they did this strategically in order to maximize the harm, the judge probably isn't going to like that. And that concludes our quick lecture about disqualification. It's something to keep in mind about how the conflicts of interest rules work in practice.