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Legal Memorandum: Disqualification of an Attorney

Issue: Under Model Rules of Professional Conduct, may an attorney be disqualified from participation in a case due to a claimed conflict of interest with a non-lawyer employee?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Disqualification of an attorney; Conflict of interest; Non-lawyer employee
Jurisdiction: Federal
Cited Cases: 819 F. Supp. 1099; 588 F. Supp. 1037
Cited Statutes: Model Rules of Prof'l Conduct R. 1.9; Model Rules of Prof'l Conduct R. 5.3; Model Rules of Prof'l Conduct, R. 1.10
Date: 05/01/2004

Reliance on Model Rule of Professional Conduct 1.9 to disqualify based on the employment of a non-lawyer with an arguable conflict of interest is wrong.  Model Rule 1.9 is totally irrelevant to this issue because it deals with a conflict of interest of a former client.         

A disqualification motion is most closely related to Model Rule 5.3, which addresses attorneys’ responsibilities regarding nonlawyer assistants.  The Rule provides as follows with respect to a nonlawyer employed or retained by a lawyer: 

(a)                a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b)               a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that he person’s conduct is compatible with the professional obligations of the lawyer; and

(c)                a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1)               the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

 

(2)               the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority […]

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