Judge Colleen K. Sterne Enter to open, tab to navigate, enter to select, Practical Law Standard Document w-000-5151, https://content.next.westlaw.com/practical-law/document/I0d8f0c423d5911e598dc8b09b4f043e0/Motion-to-Disqualify-or-Withdraw-as-Counsel-Federal-Motion-or-Notice-of-Motion?viewType=FullText&transitionType=Default&contextData=(sc.Default), Motion to Disqualify or Withdraw as Counsel (Federal): Motion or Notice of Motion, Standard Documents, Motion to Disqualify or Withdraw as Counsel (Federal): Memorandum of Law, Motion to Disqualify or Withdraw as Counsel (Federal): Proposed Order, Practice Note, Disqualifying or Withdrawing as Counsel in Federal Court. 2d 1254 Lower-level courts often consult with the higher-level courts before trial to be assured that their judgments will not be appealed, which works quite well for simple disputes. 0000002252 00000 n 2d 37 (Fla. 1st DCA 1997) 2d 994 (Fla. 4th DCA 2002) See People v. Perez, 201 P.3d 1220, 1246 n.11 (Colo. 2009). endobj endobj xref 2 0000001541 00000 n 0000009899 00000 n MOTION TO DISQUALIFY OR RECUSE TRIAL COURT . If your civil opponent has hired an attorney who should not be on the case then file a Motion to Disqualify the attorney. 0000003917 00000 n "the inability to perform some act due to the existence of factors rendering the performance improper or inappropriate. Fed. Kusch v Ballard, 645 So. The prior decisions of this court do not so hold. Conduct 3.08, comment 9. (Lead Case; Consolidated Action), Jeffrey Mitchell vs Stratus Media Group Inc et al, CLEVE PELL VS THE MONTEBELLO UNIFIED SCHOOL DISTRICT ET AL. 0000009154 00000 n People v. Harlan, 54 P.3d 871, 877 (Colo. 2002). You will lose the information in your envelope, Ruling on Submitted Matter - re: Motion to Disqualify Counsel, PROCTOR-V-ECKO PRODUCTS GROUP ET AL Print. Feel free to use the templates (see Part IV - above) to help draft your 'Motion for Leave to Reply' II. H. F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1454. Possessing general knowledge about a client may not, by itself, be enough for disqualification. (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Armor Screen Corp. v. Storm Catcher, Inc., 709 F. Supp. at 664; Beck v. Bd. the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. 0000001885 00000 n Cross-Defendant W.L. 1982), Minakan v Husted, 27 So. Legal Ethics 71, 77 (Winter 2014). 9. see Russakoff v Dept of Insur., 724 So. see Solomon v Dickison, 916 So.2d 943 (Fla. 1st DCA 2005) Second, take effective steps to mitigate, if not eliminate, risks that a former clients confidences and secrets might be accessible to attorneys working on a matter involving the former client. many hours conferring with counsel, and had delivered to counsel memo-randa and personal files relating to various legal matters in which the corporation was involved (144 Cal. In those cases, a court may examine whether the specific person or people at the company who hired the lawyer had the authority to do so. (1) the representation of 1 client will be directly adverse to another client; or This Standard Document contains integrated drafting notes with important explanations and tips for drafting the caption, the body of the motion or notice of motion, the signature block, and proof of service. 0000038842 00000 n Legal Ethics, DOCX, PDF, TXT or read online from Scribd, 0% found this document useful, Mark this document as useful, 0% found this document not useful, Mark this document as not useful, Save Motion to Disqualify Counsel - Sample For Later, X ---------------------------------------------------x. BACKGROUND 2d 572 (Fla. 3d DCA 1998), Armor Screen Corp. v. Storm Catcher, Inc., 709 F. Supp. LAi7p:0qX t` P7SP.X8v('bsX.LC8p) iV 3C4=H0u2Fd Cg. Increasingly, courts nationwide have recognized and accepted timely, effective ethics screens as a positive factor for permitting an attorney to continue the representation, although sometimes a screen is not enough to avoid the ramifications of an imputed conflict. 0000003812 00000 n Hl[k@+1h3K[v6)BPJ!C{i 3o/!efL#auwfe$bX527{/b2 AY]emzz k"(UFmLhKcEMu?& hj0}M;VoPu C&ouVOb Pantori v Stephenson, 384 So. Plaintiff, by and through counsel, to this Honorable Court. 2. Where a How-To: Write a Motion to Disqualify an Attorney Finally, assess whether the firm or different counsel should defend the motion to disqualify. Two important pre-motion strategies are effective. Nat'l Bank v. Coker (1989) 765 S.W.2d 398, 399.) <> . We will email you Partially Granted | Duval | 2013 | Attorney Filing | Whistleblower Case; Trayvon Martin Fallout; Advocate and Witness; - No Ruling | Duval | 2014 | Attorney Filing | Settlement stuff; Marital Stuff; Former Client; Material Witness. This presumption, if applicable, is conclusive and is thus, by definition, not rebuttable. Freeman v Chicago Musical, 689 F. 2d 715 (7th Cir. 0000005084 00000 n This is likely because they recognize the tremendous power imbalance between the two parties: insurance companies can write the policies and policyholders have very little say into the terms. Among other reasons, lawyers have a duty to their clients to avoid conflicts of interest. How-To: Write a Motion to Disqualify an Attorney I. Definitions Disqualification "the inability to perform some act due to the existence of factors rendering the performance improper or inappropriate. A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent. Less frequently, a lawyer may claim to represent a business when it actually does not. These rules shall be known as the Florida Rules of Civil Procedure and abbreviated as Fla.R.Civ.P. 15 NINA YUAN, an individual, RICHWAVE Co. v. Isham, 782 F.Supp. see Allstate Ins. APG/Z=p L_uQ7EVr+MHIRh2)Qg^HWjBY:],h(8BToqSirY[DHWBo~djX$dXS&U.uJ%Tj )].fm_ujmbzY'f}hHm=r5[9Bm^wcrz7zW>~/N School Board of Broward County v. Polera Building Corp., 722 So.2d 971 (Fla. 4th DCA 1999) 55 0 obj <>/Border[0 0 0]/Rect[81.0 144.1365 255.384 153.1455]/Subtype/Link/Type/Annot>> 1992)). !location.countrycode?location.countryName :location.officeName }}, {{ getActiveCase(headerData.languageLinks,'active',true).languageCode | uppercase}}, {{ getActiveCase(headerData.languageLinks,'active',true).name}}. The paramount concern must be to preserve public trust in the scrupulous administration of justice and integrity of the bar. Id. Frequently, a former client accuses the attorney of having insider information regarding the client that does not rise to the level of a client confidence. [W]hile federal courts generally limit standing to bring disqualification motions to clients or former clients, in California where the ethical breach is manifest and glaring and so infects the litigation in which disqualification is sought that it impacts the moving partys interest in a just and lawful determination of [his or] her claims, a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest or other ethical violation. Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204 [135 Cal. W}2),8n%2J17s\lu,E1cYNTd`VyzpQ}@W % Rule 3.840 Fla. R. Crim. Because of this freedom from direct oversight, there is a lot of opportunity for abuse. (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Another strength is that the parties are given a limited timeline to exchange documents, which prevents parties from dragging the case along. 2023 - TBD Corporation. 59 0 obj 467 0 obj "the inability to perform some act due to the existence of factors rendering the performance improper or inappropriate. see Minakan v Husted, 27 So. see Scott v State, 717 So. 3. Legal Citations %PDF-1.4 % Deputy General Counsel Joshua E. Pratt, Esq. Background "Florida courts have held that disqualification of counsel "is an extraordinary remedy and should only be resorted to sparingly." (Manning v. Cooper (2008) 981 So.2d 668, 670 (Fla. 4th DCA 2008) (quoting Alexander v. These rules apply to all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply. X Denied | Duval | 2019 | Attorney Filing | Former Client; New Attorney; existence of an attorney-client relationship. 0000001131 00000 n (a) Representing Adverse Interests. Books are too long and there are no other webpages, unfortunately. 0` h8C `g0p 0000006729 00000 n 0000006123 00000 n In some cases, the lawyer herself may be involved in the facts of the case and so have the need to testify as a fact witness. 0000001764 00000 n endobj Coral Reef of Key Biscayne Developers, Inc. v Lloyd's Underwriters at London, 911 So.2d 155 (Fla. 3d DCA 2005) 9@5t| .T:M76xl|02K/e,f!BGrC^ Rq?q| >1d8[.6 Courts often interpret insurance contracts in a very sympathetic light to policyholders and harshly to insurance companies. Id. Some employers are less generous and offer very little. Petrey Wholesale, Inc. Four Authorities for Judicial Disqualification: 2d 747 (Fla. 5th DCA 2001), Pantori v Stephenson, 384 So. A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent. R. Prof. Conflict violations are not always the focal point for resolution of a motion to disqualify. The descriptions are not intended to provide you with complete information about the law or court procedure involved in each packet. Step 1: Initial Considerations. 1977), Sec'y of Admin. Adams v. Aerojet General Corp. (2001) 86 Cal.App.4th 1324, 1331; In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 563564. "In Florida, there are four separate expressions concerning the disqualification of trial judges, which are set forth in: (1) The Code of Judicial Conduct Canon 3-C; (2) section 38.10, Florida Statutes (1981); (3) Florida Rule of Criminal Procedure 3.230, which was adopted verbatim by this Court from a former statute, section 911.01, Florida Statutes (1967); and (4) Florida Rule of Civil Procedure 1.432." 0000010185 00000 n Unsolicited emails and other information sent to Dentons will not be considered confidential, may be disclosed to others, may not receive a response, and do not create a lawyer-client relationship. endstream endobj 58 0 obj <>stream TBD | How-To Draft a Motion to Disqualify an Attorney As the Colorado Supreme Court has noted, [v]iolation of an ethical rule, in itself, is neither a necessary nor a sufficient condition for disqualification, although there typically must be evidence of a violation or potential violation of attorney ethical proscriptions, such as those centered on the duties of loyalty and fairness or those intended to protect the integrity of the process.8 Often, motions to disqualify turn on the risk that a clients former attorney or law firm might be able to use against the client the confidences or secrets gained during the prior representation. 38.10 FS; 2d 582 (Fla. 1st DCA 1998), Simon DeBartolo Grp., Inc. v. Bratley, 741 So. 2d 908 (Fla. 1998), Coral Reef of Key Biscayne Developers, Inc. v Lloyd's Underwriters at London, 911 So.2d 155 (Fla. 3d DCA 2005), Kusch v Ballard, 645 So. Metcalf v Metcalf, 785 So. Rule 3.840 Fla. R. Civ. 2 Partially Granted | Duval | 2013 | Attorney Filing | Whistleblower Case; Trayvon Martin Fallout; Advocate and Witness; Parties to a contract often go to court when they have different interpretations of what an agreement means. In short, it is widely understood by judges that attorneys now commonly use disqualification motions for purely strategic purposes. Gregori v. Bank of America (1989) 207 Cal.App.3d 300, 301. (Defendants Ex Parte Application to Continue Trial, p. 2:18-19; Skvarna Declaration.) try clicking the minimize button instead. 8. 0000002422 00000 n Rule 4-1.10(a) RRTFB | Imputation of Conflicts of Interest; General Rule Similarly, another may never represent the bank so it can be free to represent many plaintiffs who sue that bank. Please click Confirm below to continue. Last year saw Donald Trump embroiled in dozens of legal battles, including those against his former attorney Michael Cohen, the writer E Jean Carroll, and New York Attorney General Letitia James. 524, 528 (D.Colo. Courts differ on how they address motions to disqualify, especially because such motions are at times simply a litigation tactic by an opposing party in search of a strategic advantage. State Farm v KAW, 575 So. The comments accompanying Rule 3.08 further assert that "a lawyer should not seek to disqualify an opposing lawyer under this Rule merely because the (Dino v 9 COUNTY OF SANTA CLARA %%EOF Deposit Ins. Where a conflict exists, an effective written consent is the best defense to a motion to disqualify. You dont like a lawyer and are curious about ways to tell a judge why. Litigation and Dispute Resolution in the UnitedStates, Four Things to Know About Motions to Disqualify. One party may insist that the court bar the lawyer from representing another party through a motion to disqualify. A lawyer who has formerly represented a client in a matter must not afterwards represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client gives informed consent; In those circumstances, courts are generally protective of confidences or secrets that the law firm or attorney may possess or to which the firm or attorney has access as a consequence of either the prior or the existing representation. Glossary | Notice of Joinder 7 Attorneys switch jobs like most professions more frequently than in the past. see Freeman v Chicago Musical, 689 F. 2d 715 (7th Cir. table.threeCol tr td:nth-child(3) {font-size:smaller;} Attorney Certificates of Good Standing. Please wait a moment while we load this page. <> 0000001348 00000 n These are forms that you MAY need to use with the other packets. "a serious question of conflict of interest arose that should have been resolved by the prompt withdrawal by the respondent from the representation of the trustees and by advising the trustees to secure other attorneys to represent them." 6:12-cv-01293-NAM-TWD (N.D.N.Y. This is because the court system generally relies on the parties to trust each other in the conduct of discovery. endstream endobj 59 0 obj <>stream In addition, if the motion is made by a former client, attorneys should consider providing notice of a potential circumstance to their legal malpractice insurer. Rule 4-1.9(a) RRTFB | Conflict of Interest; Former Clients 0000009978 00000 n 3d 419 (Fla. 2d DCA 2012) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter. endobj 0000000016 00000 n Word 242 0 obj <>stream 2014-1675 (Fed.Cir. Contact | Solution: ABC, and DEFs violation of the aforestated rules, their, Jurisprudence provides that the aforesaid rule holds, even if the inconsistency is remote or merely probable or even, if the lawyer has acted in good faith and with no intention to, Plaintiff-movant does not have any malicious intent, to offend their sensibilities in filing this, This motion is being filed, with all due respect to the, counsel for the defendants, solely in the spirit of truth, fairness, and justice and to insure that the laws and jurisprudence legal, defendants and/or any of the heirs of the late ________________, Other reliefs and remedies as may be deemed just and. Disqualification motions implicate the most important duties that an attorney owes a client: the duties of confidentiality and loyalty. Rule 1.010 Fla. R. Civ. 0000006238 00000 n Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. Ct. (1967) 253 Cal.App.2d 703, 707. Gilbert v. Natl Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240, 1258, citing Smith, Smith & Kring v. Super. Rule 4-1.9(a) RRTFB | Conflict of Interest; Former Clients See also Harlan, 54 P.3d at 877 (the Court noted that [i]n determining whether disqualification is warranted the critical question is whether the litigation can be conducted in fairness to all parties and explained that [d]isqualification should not be imposed unless the claimed misconduct in some way taints the trial or legal system) (quoting Fed. 2d 496 (Fla. 4th DCA 2004), Trautman v General Motors, 426 So.2d 1183 (Fla. 5th DCA 1983), Livingston v. State, 441 So.2d 1083 (Fla. 1983), An attorney has appeared in your civil case on behalf of your civil opponent, That attorney's representation is improper and/or unauthorized, You ask the Court to remove/disqualify the attorney from your case. Hahn Declaration If the court announces its ruling from the bench, counsel should take detailed notes of . 2d 908 (Fla. 1998) the Court DENIES the government's motion to disqualify, and allows Attorney Dale Crawford and his firm, Shumaker, Looper & Kendrick, LLP, to conti nue to serve as Poulsen's counsel in this case. The rule in this respect is rigid, because it is designed not only to prevent the dishonest practitioner from fraudulent conduct but also to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent."

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