STANDING
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Who can make a motion
to disqualify? Is standing an issue? Clearly, a current client of a
law firm has standing to seek disqualification of that law firm in a matter in
which the law firm is acting directly adverse to the client. Likewise, a former
client has standing in a matter that is substantially related to the law firm's
work for the former client.
Whether persons
who were never clients can seek disqualification depends upon the
jurisdiction and the attitude of the court. For example, in Dawson v. City of
Bartlesville, 901 F. Supp. 314 (N.D. Okla. 1995), the court, in a succinct
summary of the conflicting views in this area said:
In some circuits there are virtually no barriers to third-party
standing to seek disqualification of opposing counsel. These courts have
reasoned that attorneys are authorized to report any ethical violations
committed in a case; therefore, any member of the bar aware of facts
justifying a disqualification of counsel has standing, indeed is obligated, to
call the matter to the attention of the court. Kevlik v. Goldstein, 724
F.2d 844 (1st Cir. 1984); United States v. Clarkson, 567 F.2d 270 (4th
Cir. 1977) (citing Estates Theatres v. Columbia Pictures Industries, 345
F. Supp. 93 (S.D.N.Y. 1972); Brown & Williamson v. Daniel Int'l., 563
F.2d 671 (5th Cir. 1977). In effect, this rule provides standing to
virtually any attorney to move for disqualification based on any
asserted ethical violation. This broad grant of standing is contrary to the
intent of the Oklahoma Rules, as expressed in the official commentary. The
official commentary repeatedly cautions against the invocation of the Rules by
opposing parties and specifically states that the Rules do not
automatically provide third-party standing to antagonists seeking enforcement of
the Rules. This Court therefore declines to follow the First, Fourth and Fifth
Circuits on this standing question.
At one time, cmt. [15] to Model Rule 1.7 contemplated non-clients making motions to disqualify
where doing so aided the fair or efficient administration of justice. The
"Ethics 2000" Commission and the ABA House of Delegates deleted old
[15] in 2002. A case specifically applying the older cmt. [15] standard
is Bernocchi v. Forcucci, 614 S.E.2d 775 (Ga. 2005).
In a case that did
not require standing, Planning
& Control, Inc. v. MTS Group, Inc., 1992 U.S. Dist. LEXIS 3004 (S.D.N.Y.
1992), the court said:
Ethical concerns dictate that other persons, especially
attorneys, be permitted to raise the issue of attorney misconduct. The court
believes that the general rule which restricts standing to raise a Canon 4
disqualification motion to one who is a client or former client of the
challenged law firm must give way to a maxim that adequately addresses the need
to ensure both clients and the general public that lawyers will act within the
bounds of ethical conduct.
Following are
collections of cases requiring standing and cases not requiring
standing. We have gathered as many such cases as he could
find, but we have undoubtedly missed some. So, while this article is
a good start, anyone with a standing issue should do the research.
Cases Holding that
One Claiming a Conflict of Interest Must Have Standing to Do So.
Moore
v. Hernandez, 2005 U.S. App. LEXIS 5474 (10th Cir. April 5, 2005)
(same ruling as Chavez, following and quoting the "skepticism"
language in Chavez); Chavez
v. State of New Mexico, 397 F.3d 826 (10th Cir. 2005) (did not say "must," but said a motion without standing
triggers court's "skepticism"); O'Connor v. Jones, 946 F.2d 1395 (8th Cir. 1991);
Fisher Studio, Inc. v.
Loew's Inc., 232 F.2d 199 (2d Cir. 1956) (multiple parties; disqualification
granted only as to those who were former clients); In re Yarn Processing
Patent Validity Litigation, 530 F.2d 83, reh'g denied, 536 F.2d 1025
(5th Cir. 1976); Clemens v. McNamee, 2008 U.S. Dist. LEXIS 36916 (S.D. Tex. May 6,
2008) (analyzing standing in Fifth Circuit); Xcentric Ventures, LLC
v. Stanley, 2007 U.S. Dist. LEXIS 55459 (D. Ariz. July 27, 2007) (odd discussion
of Article III of the U.S. Constitution); Northwest Bypass Group
v. U.S. Army Corps of Engineers, 488 F. Supp. 2d 22 (D.N.H.)
; Marshall
v. Gravitt, 2007 U.S. Dist. LEXIS 4947 (D. Nev. Jan. 18, 2007) (unclear what
court meant by standing); Doe v. Fulton-DeKalb Hosp. Auth., 2006 U.S. Dist. LEXIS 76624 (N.D. Ga. Oct. 19, 2006);
Shire Laboratories Inc. v. Nostrum Pharmaceuticals, Inc., 2006 U.S.
Dist. LEXIS 51043 (D.N.J. July 25, 2006); Lefkowitz
v. Bank of New York, 2003 U.S. Dist. LEXIS 19520 (S.D.N.Y. Oct. 31, 2003); Raiola v. Union Bank of Switzerland, LLC, 230 F. Supp. 2d 355 (S.D.N.Y.
2002); Doe v. Lee, 178
F. Supp. 2d 1239 (M.D. Ala. 2001); Colyer v. Smith, 50 F.
Supp. 2d 966 (C.D. Cal. 1999); USX Corp. v. Tieco, Inc.,
929 F. Supp. 1455 (N.D. Ala. 1996); Griffen v. East Prairie School Dist.,
945 F. Supp. 1251 (E.D. Mo. 1996); Dawson v. City of
Bartlesville, 901 F. Supp. 314 (N.D. Okla. 1995); Gilbert v. Knoxville
Int'l. Energy Exposition, 547 F. Supp. 53 (E.D. Tenn. 1982); Richardson v. Hamilton
Int'l. Corp., 333 F. Supp. 1049 (E.D. Pa. 1971), aff'd 469 F.2d 1382
(3d Cir. 1972), cert. denied, 411 U.S. 986 (1973); Murchison v. Kirby,
201 F. Supp. 122 (S.D.N.Y. 1961); Lowe v. Graves, 404 So. 2d 652
(Ala. 1981); State v. Garaygordobil, 359 P.2d 753 (Ariz. 1961); Machado
v. Superior Court, 55 Cal. Rptr. 2d 902 (Cal. App. 2007)
(court allowed non-party to make motion);
Dino
v. Pelayo, 145 Cal. App. 4th 347 (Cal. App. 2006) (court said
movant could overcome lack of standing if lawyer had fiduciary duty to
non-client); DCH Health Services Corp. v. Waite, 115
Cal. Rptr. 2d 847 (Cal. App. 2002) (contradicted in Li v. Prediwave
Corp., 2005 Cal. App. Unpub. LEXIS 8664 (Cal. App. Sept. 23, 2005)); McPhearson v. Michaels Co., 117 Cal. Rptr. 2d 489 (Cal. App. 2002) (standing not sole ground for reversing disqualification); In re
Appeal of Infotechnology, Inc., 582 A.2d 215 (Del. 1990);
Anderson Trucking Service, Inc. v. Gibson, 884 So. 2d 1046 (Fla. App. 2004) (or, make showing that fair administration of justice
compromised); Piedmont
Hospital, Inc. v. Reddick, 599 S.E.2d 20 (Ga. App. 2004);
Johnson v.
Prime Bank, 464 S.E.2d 24 (Ga. App. 1995); Schwartz v. Cortelloni,
685 N.E.2d 871 (Ill. 1997) (dictum);
Lyons v. Ryan, 756 N.E.2d 396 (Ill. App.
2001); Sadler v. Creekmur, 821
N.E.2d 340 (Ill. App. 2004) (standing required to sue
lawyer for having a conflict of interest). National Bank of Andover, N.A.
v. Aero Standard Tooling, Inc., 49 P.3d 547 (Kan. App. June 28, 2002); Clapper v. Logsdon, 894 So. 2d 510 (La. App. 2005);
Davis v. Poelman, 178
So.2d 306 (La. App. 1965), affirmed in part and reversed in part on other
grounds 319 So. 2d 351 (La. 1975); Payne v. St. Louis Grain Corp.,
562 S.W.2d 102 (Mo. App. 1977); Miller v. City of Omaha, 260 Neb. 507
(2000); Hawkes v. Lewis, 586 N.W.2d 430 (Neb.
1998); In re Anderson, 2006 Neb. App. LEXIS 20 (Neb. App.
Feb. 14, 2006); Tekni-Plex, Inc. v. Meyer & Landis, 674 N.E.2d 663
(N.Y.), reh'g denied, 676 N.E.2d 503 (N.Y. 1996); Hall
Dickler Kent Goldstein & Wood, LLP v. McCormick, 830
N.Y.S.2d 195 (N.Y. App. 2007)
(after saying standing needed, court ruled
on the merits); Develop Don’t Destroy Brooklyn v. Empire State Development Corp.,
816 N.Y.S.2d 424 (N.Y. App. 2006); Singh
v. Friedson,
767 N.Y.S.2d 245 (N.Y. App. 2003) & 783 N.Y.S.2d 46 (N.Y.
App. 2004); D'Alessandro v. Eastman Kodak Co., 765
N.Y.S.2d 286 (N.Y.
App. 2003); Ogilvie v.
McDonald's Corp., 742 N.Y.S.2d 897 (N.Y.
App. May 28, 2002); Witschey v. Medina County Bd. of Commissioners, 862
N.E.2d 535 (Ohio App. 2006)
(followed Morgan, below); Legal Aid Society of Cleveland v. W&D Partners
I, LLC, 834 N.E.2d 850 (Ohio App. 2005) (member of LLC
has not standing to sue former lawyer for LLC); Dawn G. v. Michael L.G., 2004 Ohio App. LEXIS
4463 (Ohio App. Sept. 17, 2004); Morgan v. North Coast Cable Co., 586 N.E.2d 88 (Ohio 1992); City of
Youngstown v. Joenub, Inc., 2001 Ohio App. LEXIS 4438 (Ohio App. 2001); In
re Middleton, 90 S.W.3d 921 (Tex.
App. 2002); Jones v. Lurie,
32 S.W.3d 737 (Tex. App. 2000); Glassell v. Ellis, 956 S.W.2d 676
(Tex. App. 1997); Pioneer
Natural Gas Co. v. Caraway, 562 S.W.2d 284 (Tex. Civ. App. 1978) (as to
Texas, see discussion of Middleton below); Ahearn
v. Ahearn, 993 P.2d 942 (Wyo. 1999).
In
United States v. Rogers, 9 F.3d 1025 (2d Cir. 1993), the court said that the
movant needed standing, but resolved the conflict issue on grounds other than
standing.
In Combustion
Engineering Caribe, Inc. v. George P.
Reintjes Co., Inc., 298
F. Supp. 2d 215 (D.P.R. 2003), the court acknowledged that standing was an issue, but ruled on the
merits without expressly deciding the standing issue.
Cases
Holding that One May Not Need Standing. Kevlik v.
Goldstein, 724 F.2d 844 (1st Cir. 1984); United States v.
Clarkson, 567 F.2d 270 (4th Cir. 1977); Brown &
Williamson Tobacco Corp. v. Lockwood-Greene Engineers, Inc., 563 F.2d 671
(5th Cir. 1977); In re Gopman, 531 F.2d 262 (5th Cir.), rehearing
en banc denied, 542 F.2d 575 (5th Cir. 1976); Walsh
v. Consolidated Design & Engineering, Inc., 2008 U.S. Dist. LEXIS 2474
(E.D. Pa. Jan. 14, 2008); Rudzinski v.
Metropolitan Life Ins. Co. v. Sharp Electronics Corp., 2007 U.S. Dist. LEXIS
79528 (N.D. Ill. Oct. 25, 2007) (no disqualification because conflict would not
affect the "fair administration of justice");
Abraham
v. Super Buy Tires Inc., 2007 U.S. Dist. LEXIS 2229 (S.D. Cal. Jan. 10,
2007);
Jamieson v. Slater, 2006 U.S. Dist. LEXIS 86712 (D. Ariz. Nov. 27,
2006). FMC Technologies, Inc. v. Edwards, 420 F. Supp. 2d 1153 (W.D. Wash. 2006); Robbins v. United
States of America, 2006 U.S. Dist. LEXIS 6593 (D. Ariz. Feb. 14, 2006)
(court ruled on merits without mentioning standing); Tyson v. Equity
Title & Escrow Co., 282
F. Supp. 2d 829 (W.D. Tenn. 2003) (court "presumed" that the plaintiff had standing to move to
disqualify law firm for defendant); Drag
Racing Technologies, Inc. v. Universal City Studios, Inc., 2003 U.S. Dist.
LEXIS 6861 (S.D.N.Y. April 24, 2003); British Int’l.
Ins. Co. v. Seguros La Republica, 2002
U.S. Dist. LEXIS 19514 (S.D.N.Y. October 30, 2002); Skidmore
v Warburg Dillon Read LLC, 2001 U.S. Dist. LEXIS 6101
(S.D.N.Y. 2001); Abbott
v. Kidder, Peabody & Co., Inc., 42 F. Supp. 1046 (D. Colo. 1999): Planning
& Control, Inc. v. MTS Group, Inc., 1992 U.S. Dist. LEXIS 3004 (S.D.N.Y.
1992); Chapman Engineers v. Natural Gas Sales Co., 766 F. Supp. 949 (D.
Kan. 1991); SMI Industries Canada, Ltd. v. Caelter Industries, Inc., 586
F. Supp. 808 (N.D.N.Y. 1984); Altschul v. Paine Webber, Inc.,
488 F. Supp. 858 (S.D.N.Y. 1980); Estates Theatres, Inc. v.
Columbia Pictures Industries, Inc., 345 F. Supp. 93 (S.D.N.Y. 1972); Ex
parte Osbon, 888 So. 2d 1236 (Ala. 2004) (standing not
discussed, even though non-client made the motion); Dino
v. Pelayo, 51 Cal. Rptr. 3d 620 (Cal. App.
2006)
(court said
movant could overcome lack of standing if lawyer had fiduciary duty to
non-client); Li v. Prediwave Corp.,
2005 Cal. App. Unpub. LEXIS 8664 (Cal. App. Sept. 23, 2005)
(contradicting earlier California cases cited in prior paragraph); Zarco Supply Co. v. Bonnell, 658 So. 2d 151 (Fla. App.
1995); Bernocchi v. Forcucci, 614 S.E.2d 775 (Ga. 2005) (applied "fair or efficient administration of justice" standard); Lavaja v. Carter, 505 N.E.2d 694 (Ill. App. 1987), appeal
denied 515 N.E.2d 110; Rowen v. Le Mars Mut. Ins. Co. of Iowa, 230
N.W.2d 905 (Iowa 1975); Perin v. Spurney, 2005 Ohio App.
LEXIS 6112 (Ohio App. Dec. 22, 2005) (need to protect information confers
standing); Henry Filters, Inc. v. Peabody Barnes, Inc.,
611 N.E.2d 873 (Ohio App. 1992); American
Dredging Co. v.
Philadelphia, 389 A.2d 568, 572-573 (Pa. 1978); Weber v.
Lancaster Newspapers, Inc., 878 A.2d 63 (Pa. Super. 2005); Eugster
v. City of Spokane, 39 P.3d 380 (Wash. App. 2002); State ex rel. Morgan
Stanley & Co. v. Macqueen, 416 S.E.2d. 55 (W.Va. 1992); Garlow v.
Zakaib, 413 S.E.2d 112 (W. Va. 1991).
Subject
Never Raised. World Food Systems, Inc. v. Bid Holdings, Ltd.,
2110 U.S. Dist. LEXIS 2449 (S.D.N.Y. 2001). Plaintiff's motion to
disqualify defendants' lawyer, because of conflict among defendants, granted
without anyone, including the court, mentioning standing. Likewise, in Reschke
v. Baldwin Transfer Co., 2007 U.S. Dist. LEXIS 52427 (E.D. Ark. July 19,
2007); Wachel
v. First Colony Life Ins. Co., 2007 U.S. Dist. LEXIS 35549 (N.D. Ind. May
11, 2007); and Ferrara
v. Jordache Enterprises Inc., 819 N.Y.S.2d
421 (N.Y. Misc. 2006)
. In Quality
Developers v. Thorman, 31 P.3d 296 (Kan.
App. 2001) the court considered the plaintiff's motion to disqualify the
defendants' lawyer on the merits, and denied it without ever discussing whether
the plaintiff had standing to bring it. As in World Food, the
plaintiff claimed that the lawyer was representing defendants with conflicting
interests. Similar results in Murray v. Village of Hazel Crest, 2006 U.S. Dist. LEXIS 89388 (N.D.
Ill. Dec. 7, 2006); Robbins v. United States of America, 2006 U.S.
Dist. LEXIS 6593 (D. Ariz. Feb. 14, 2006), and Advanced Display Systems, Inc. v.
Kent State University, 2001 U.S. Dist. LEXIS 19466 (N.D.
Tex. 2001).
Reitzel v. Hale, 820 N.Y.S.2d 845
(N.Y. Misc. 2006)
. The conflicted lawyer raised the other party's standing, but the
court granted the motion to disqualify without commenting on standing any
further.
Hall
Dickler Kent Goldstein & Wood, LLP v. McCormick, 830
N.Y.S.2d 195 (N.Y. App. 2007). The court said the movant needed
standing, but proceeded to rule on the motion even though movant had no
standing.
Lawyer
Disqualified Sua Sponte. Yost
v. V.K. Truck Lines, Inc.,
2006 U.S. Dist. LEXIS 3286 (D. Kan. Jan. 27, 2006); Coaker v. Geon Co., 890 F. Supp. 693
(N.D. Ohio 1995); Seifert v. Dumatic Industries, Inc., 197 A.2d 454 (Pa.
1964).
Deleo v. Swirsky, 2002 U.S. Dist.
LEXIS 8493 (N.D. Ill. May 14, 2002).
Court denied a motion to disqualify the plaintiffs' lawyer for lack of standing,
but then disqualified the plaintiffs' lawyer pursuant to the “court’s
inherent power to supervise the attorneys practicing before it.”
In Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796 (N.D. Cal. 2004), the court held
that the owner of an limited partnership may move to disqualify the law firm
suing the limited partnership where the law firm had represented him
personally but not the limited partnership.
Interesting
Texas Development. In re Middleton, 90 S.W.3d 921 (Tex.
App. 2002). The essential facts are set forth by
the court as follows:
Susan Freeman is Betty Robinson's step-daughter.
According to Freeman, she and her husband and Robinson entered into a
contract. Under the alleged contract, Freeman and her husband would move to
Kerrville to take care of Robinson. In exchange, Robinson would pay the
Freemans $ 40,000 a year; would purchase a house together with the Freemans
and would pay all expenses; would give the Freemans use of her cars; and would
leave them, upon her death, one-third of her estate, her share in the
jointly-owned house, and a car. According to the Freemans, Robinson, with the
encouragement and assistance of Virginia Middleton, Robinson's former
caretaker, did not honor the agreement.
The Freemans sued Robinson and Middleton. The
Freemans then moved to disqualify the lawyer who attempted to represent both
defendants, claiming that it was a conflict of interest to do so. The
trial court granted the motion. The defendants sought mandamus from that
ruling. The appellate granted mandamus and reversed the trial court.
The defendants raised the Freemans' standing to make the
motion. The appellate court noted that two appellate decisions post-dating
Texas' adoption of the Model Rules required standing: Jones v. Lurie, 32
S.W.3d 737 (Tex. App. 2000); and Glassell v. Ellis, 956 S.W.2d 676 (Tex.
App. 1997). Here is where it gets interesting. The court also noted
that neither case made reference to the Texas ethics rules. The court
noted that Comment 17 to Texas Rule 1.06 (Texas' version of Model Rule 1.7)
provided that opposing counsel could raise a conflict if:
. . . . the conflict is such as clearly to call in
question the fair or efficient administration of justice . . . .
The court then ducked the standing issue and decided the
matter by looking at the relationship of the two defendants. After doing
so the court concluded that it did not clearly call in question the fair or
efficient administration of justice.
Note: Texas Comment 17 to its Rule 1.06 is substantively
the same as former Comment 15 to Model Rule 1.7. We had not previously considered that comment in the standing context and cannot
recall any other case that did. We say "former" because
in February 2002 the ABA House of Delegates accepted the "Ethics 2000" Commission's
deletion of Comment 15. In the meantime, until
the states start considering adoption of the Ethics 2000 changes, lawyers facing
a standing argument may want to consider reference to Comment 15 if it appears
in rules of the state in question.
Judge's
Standing? In Dorsainvil v. Parker, 829 N.Y.S.2d
851 (N.Y. Misc. 2006)
, the court noticed what it felt was a clear and unwaivable
conflict. He asked the parties to brief the issue of the court's
standing to raise the issue. He later, in the above opinion,
disqualified the law firm without analyzing the standing issue.
In
Emmis Operating Co. v. CBS Radio, Inc., 480 F. Supp. 2d 1111 (S.D.
Ind. 2007)
, using standing terminology, the court allowed a
non-party to intervene to make a motion to disqualify.
Treatise.
Hazard & Hodes § 10.11, ns. 16 & 17.
Law
Review Articles. Alexander
W. Jones, Student Commentary, Defenses to Disqualification: Fact Situations that
Allow an Attorney to Avoid Disqualification for a Conflict
of Interest, 27 J. Legal
Prof. 195 (2002-2003); Ivy Johnson, Standing
to Raise a Conflict of Interest, 23 N. Ill.
L. Rev. 1 (2002); Douglas R. Richmond, The Rude Question of Standing
in Attorney Disqualification Disputes, Amer.
J. of Trial
Adv. 17
(2001).
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