Dealing With Conflicts and Qualification Risks Professionally

A recent article suggests that a perceived increase in tactical disqualification motions, including those based on conflicts of interest, may be illusory. On the other hand, large and small firms have recently found themselves on the receiving end of such motions in a number of significant litigations, suggesting that the threat of such motions may be all too real. Though results in the cases vary, the consequences of such motions are also very real, potentially extending far beyond the disqualification itself. The consequences potentially include malpractice actions, sanctions, reimbursement of fees previously paid or writing off significant fees not yet received, the time and expense of investigating and litigating the issue, and the loss of client relationships and reputation.

Not all of these consequences are insured, and some can have long-term consequences. In some of these recent cases, the motions seem largely tactical, while in others the lawyers facing disqualification seem to have made fundamental missteps, at least from the perfect vision of uninvolved hindsight. And in others still, revelation of a conflict during litigation arising from work done years before may have come as an unpleasant surprise, triggering a sense of betrayal on one side, and possible loss of chosen counsel in medias res on the other.

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