Law Firm Disqualification and Nonlawyer Employees: A Proposal for a Consistent Analysis
Mississippi College Law Review, Vol. 26, p. 163, 2007
23 Pages Posted: 26 Oct 2014
Date Written: 2007
Four key values should be considered in formulating a procedure for evaluating disqualification motions based upon the movement of a nonlawyer employee. They are the protection of the former client's confidential information, the right of the new client to have the lawyer of his choice, the mobility of nonlawyer personnel and the administration of justice. For the past client, concerns about the protection of valuable or critical private information create incentives to seek to disqualify past counsel. For the new client, the issue is important as well. Disqualification may cause a client to lose the attorney of his choice and may force the client to incur substantial costs to replace existing counsel with fresh counsel who will have to spend time and energy to get up to speed. For attorneys and their employees, disqualification may impose burdens on the movement of lawyers and employees who may be unable to obtain employment if the rules are too strict. And, recently, disqualification motions have become a form of gamesmanship or even harassment that diverts attention from the real cause of action. These issues point out a very real need for a predictable standard by which to review motions to disqualify counsel. For lawyers and their staffs, a predictable analysis would make planning for new employees more efficient. Knowing what rules will be applied makes it possible to create a set of internal controls tailored to meet the applicable standard. For courts, a predictable rule enhances decision making and should reduce not only the time needed to decide a motion, but the number of motions as well. If the rule is transparent, the court will be free to focus on the merits of the underlying claim rather than on the sideshow of the disqualification motion.
The rules for disqualification of lawyers are quite strict. The question presented here is whether the same rules that apply to lawyers should apply to nonlawyer employees. Most often, these conflicts arise when a nonlawyer employee is hired by a firm that represents a client in a case in which the employee's prior employer also represents a party.
Keywords: Law Firm, Employees, Disqualification
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