Legal Memorandum: Disqualification of an Attorney

Issue: What is the distinction between representation in the same matter and representation in a different matter of the same type?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Disqualification of an attorney; Representation
Jurisdiction: California, Maryland
Cited Cases: 145 Cal. App. 4; 388 Md. 526; 880 A.2d 322
Cited Statutes: None
Date: 11/01/2007

While criminal matters generally do not provide good examples for civil cases due to differences in burdens of proof and a myriad of Constitutional issues, the fact remains that not even in that context is a request to disqualify counsel over the worry of a breach of confidence automatically granted.  Gatewood v. State, 388 Md. 526,  880 A.2d 322, (2005), was a criminal matter where the defendant found himself on trial for possession of a controlled substance against a prosecutor that had two years previous represented him as a public defender on burglary charges.  The trial court did not grant the defendant=s request that the prosecutor be removed and the decision was upheld on appeal.  The Gatewood court determined that merely showing that there had been prior representation of an adverse party was not enough.  

[A] lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.  Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdiction.  The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.


Id., 880 A.2d at 335-36 (citation omitted) (emphasis […]

Subscribe to Litigation Pathfinder

To get the full-text of this Legal Memorandum ... and more!

(Month-to-month and annual subscriptions available)