David Kluft asks: “Can a judge disqualify me based on evidence I’m not allowed to see?” —

• “A NJ law firm represented a company in financial dispute, and a couple years later appeared adverse to the company in a different financial dispute. The company moved to disqualify the firm on the grounds that the firm understood its former client’s financial condition and how that would impact its ability and willingness to settle.”
• “In support of the disqualification motion, the company’s new counsel submitted a declaration from the company’s owner in camera, without letting the law firm see it. The judge disqualified the firm, stating that he would not have done so but for the declaration, which was ‘personal in nature.'”
• “The law firm appealed its disqualification on the grounds that it was based on evidence it couldn’t see. The NJ Appellate Division vacated and remanded: it was error for the Court to consider the declaration without providing some mechanism for the law firm to review the information and respond, such as providing the document under a protective order, allowing cross-examination of the affiant, and/or letting the firm engage substitute counsel for the motion.”
• Decision: here.

“Court of Appeals Affirms Disqualification for Former Client Conflict” —

• “Division II of the Washington Court of Appeals in Tacoma recently affirmed the disqualification of a law firm in two related cases that were consolidated on appeal. “
• “Day v. Tacoma RV Center, Inc., 2025 WL 2910726 (Wn. App. Oct. 14, 2025) (unpublished), arose on relatively simple facts. In each case, a law firm was pursuing claims against a recreational vehicle dealer and a manufacturer. Although each varied somewhat, they were both oriented around asserted sales practices at the dealer framed as alleged violations of the Washington Consumer Protection Act. A lawyer who had been defending the dealer joined the plaintiffs’ law firm. Although lateral-hire screening is permitted in Washington under RPC 1.10(e), the trial court found (and Court of Appeals agreed) that the law firm failed to meet the requirements of the rule. Therefore, to the extent the new lawyer had a conflict under the former client conflict rule—RPC 1.9RPC 1.9—it would be imputed to the hiring law firm as a whole under RPC 1.10(a) that generally imputes a law firm lawyer’s conflicts to the entire firm. “
• “When the defendants learned of the former defense lawyer’s new position, they moved to disqualify the law firm from the two cases. Following a number of procedural twists at the trial court, the law firm was eventually disqualified. The Court of Appeals affirmed. “
• “The Court of Appeals noted that the leading case in Washington interpreting RPC 1.9 is Plein v. USAA Casualty Insurance Company, 195 Wn.2d 677, 453 P.3d 728 (2020)—which was also a disqualification case. In Plein, the Washington Supreme Court parsed the phrase ‘same or substantially related matter’ that is the benchmark for determining a former client conflict under RPC 1.9. In Plein, the Supreme Court found that the case at issue was factually different from those the law firm had handled earlier and that the law firm’s knowledge of the former clients’ general business practices was not, in and of itself, sufficient to trigger a conflict. By contrast, the Court of Appeals in Day found that the cases involved were ‘nearly identical’ and focused specifically on the same asserted sales practices. The Court of Appeals, therefore, concluded that the law firm had a former client conflict and affirmed its disqualification. “
• “Day highlights both the importance of adequate screening to avoid lateral-hire conflicts in the first place and how the information that a lawyer has acquired in an earlier representation for a former client may be sufficiently relevant to a new matter to trigger a former client conflict. “