The Practice and Theory of Lawyer Disqualification

Abstract

Lawyer disqualification is commonly feared as a “strategic,” “tactical,” and “harassing” “potent weapon” depriving clients of their trusted counsel of choice. Although disqualification comes with costs, fundamental misunderstandings fuel this common fear. This Article finds that disqualification is a uniquely effective remedy for lawyer misconduct and makes the following contributions to the law and practice of lawyer disqualification: (1) an exhaustive study surveying disqualification cases and refuting the common misconception that disqualification motions are uncontrollably on the rise and uncontrollably bad; (2) an accessible analysis of lawyer disqualification doctrine that permits lawyers and judges to begin assessing common disqualification questions efficiently and comprehensively; and (3) specific suggestions for practical improvements, including cost-shifting, legal presumptions, and better procedures in disqualification proceedings.

Keywords: Lawyer Disqualification, Law Firm Disqualification, Screening, Model Rules of Professional Conduct, Motions to Disqualify, Strategic Motion to Disqualify, Attorney Disqualification, the Appearance of Impropriety, Conflict of Interest, Lawyer Misconduct