Legal Memorandum: Disqualification as an Attorney Sanction

Issue: For purposes of an appeal, should disqualification of an attorney be treated like a money sanction?

Area of Law: Ethics & Professional Responsibility
Keywords: Attorney's disqualification; Money sanction
Jurisdiction: Virgin Islands
Cited Cases: 686 F.2d 178
Cited Statutes: Super. Ct. 303(e)(2); LRCi 83.2(b)(4)(B); Revised Organic Act of 1954, as amended, § 23A; Act. No. 6687, §§ 3-4; 4 V.I. Code § 32
Date: 07/01/2007

Disqualification under Rule 1.10 must be viewed as an attorney sanction, as shown above.  If a Rule 1.10 disqualification does not constitute an attorney sanction, not only would such a determination be contrary to the specific findings of numerous courts throughout the Third Circuit, it would mean that a disqualification order fails the first basis for attorney standing.  Further, if the court determines that Rule 1.10 violations are excepted from Super. Ct. 303(e)(2) and LRCi 83.2(b)(4)(B), and that they do not constitute misconduct by operation of law, then they can never satisfy the second basis for attorney standing.  Rule 1.10 violations are not dependent on any acts or omissions by the disqualified attorneys; rather, disqualification is imputed to them solely by reason of their association with a disqualified attorney.  As such, by definition, Rule 1.10 disqualifications will never be supported by proof of affirmative misconduct that damages the attorney’s professional reputation.   

The per se denial of an appeal would have the effect of prohibiting attorney challenges to various prerequisite findings necessary to impute disqualification under Rule 1.10.  For instance, the Rule plainly establishes that before disqualification can be imputed, lawyers must be “associated in a firm.”  Model Rule 1.10.  Yet, unless attorneys have standing to appeal an order imputing disqualification under the Rule, a disqualified co-counsel would be unable to challenge whether the necessary association existed between the disqualified attorney and firm or whether other conditions of imputed disqualifications under Rule 1.10(a) were established before the Superior […]

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