The Practice and Theory of Lawyer Disqualification

113 Pages Posted: 15 Nov 2013 Last revised: 2 May 2014

Keith Swisher

University of Arizona - James E. Rogers College of Law

Date Written: November 15, 2013

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

Suggested Citation

Swisher, Keith, The Practice and Theory of Lawyer Disqualification (November 15, 2013). Georgetown Journal of Legal Ethics, Vol. 27, No. 1, p. 71, 2014. Available at SSRN: https://ssrn.com/abstract=2354832

Keith Swisher (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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