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The Motion to Disqualify: A Recurring Theme in the Modern Law Firm

By Jeffrey P. Ayres

High-stakes disputes often generate hardball tactics by the parties and their attorneys. Even before the lawsuit is filed, attorneys are claiming conflicts of interest, on the part of opposing counsel, with increasing regularity and fervor. As law firms grow, clients merge or divest divisions, and attorney departures and arrivals become more common, conflicts of interest ' and the possibility for disqualification motions ' become a larger problem for law firms. Do such motions present a legitimate complaint mechanism for wronged clients, or simply one more arrow in the quiver of the scorched earth litigator? Regardless of what you think is the correct answer to the preceding question, disqualification motions and threats are unquestionably something that modern law firms are forced to address with increasing frequency.

In this article, I identify several of the more typical scenarios that give rise to disqualification motions. I then discuss systemic steps that law firms should consider implementing in order to manage the risk of such motions. In that regard, the three most important things for law firms to remember are: 1) to have a centralized ethics function overseen by an experienced ethics partner, coupled with a sophisticated computer database, to manage the process; 2) to train lawyers and other personnel to recognize the issues and problems that can result when conflicts of interest arise in the litigation context; and 3) to develop a culture where law firm personnel report issues and problems at the earliest moment so that corrective action (such as firewalls) can be implemented before it is too late.

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