Risk Update

Disqualification Discussions: Government Lawyers, Imputed Conflicts, Malpractice Management & Texas

Karen Rubin at Thomson Hine notes: “Prosecutor’s conflict DQ’s entire office, says WA appeals court” —

  • “A Washington appellate court recently disqualified a county prosecutor’s entire office from participating in the re-trial of a murder case. The chief prosecutor had previously represented the defendant while in private practice. The case shines a light on government lawyers and imputed conflicts of interest.”

  • “The county prosecuting attorney, Garth Dano, had worked closely as a “consulting attorney” with the murder defendant’s trial team, and communicated about strategy, the theory of the case, potential witnesses and jury selection. Dano also had appeared in court with the defendant. After the guilty verdict, and while the case was on appeal, Dano won election as county prosecuting attorney.”

  • “No amount of screening can be sufficient to fully wall off” Dano, the court of appeals held…. You might think that the lack of an imputation rule for government lawyers would have allowed all the county prosecutors except Dano to participate in the remanded murder case, particularly since Dano had been screened from the other prosecutors. But not so. The court said that Washington’s then-version of Rule 1.11 simply meant that instead of a sweeping rule of imputation, as in Rule 1.10, government lawyer conflicts must be ‘assessed more narrowly, according to each lawyer’s individual circumstances.'”

Attorney Disqualification in a Legal Malpractice Setting” —

  • “Akin to a pro-se situation, when law firms defend themselves in a legal malpractice setting they run the risk of attorney disqualification on the attorney-witness rule. “Quadrozzi v Castro 2019 NY Slip Op 30550(U) March 5, 2019 Supreme Court, New York County Docket Number: 151675/2018 Judge: Frank P. Nervo is a good example.”

  • “‘However, the Court finds it is likely that defense counsel will be a witness on a significant issue of fact, namely the defendants’ representation of plaintiff in the real estate closing and research regarding liens. Plaintiff has established that defense counsel performed legal work on the matter giving rise to the instant malpractice action, and although defense counsel characterizes his involvement in the matter as more closely related to that of an assistant, he does not refute that he corresponded with plaintiff regarding the matter and billed plaintiff for 4.25 hours of said work. Defendant does not identify any other witness, besides Defendant Castro, who may be able to provide testimony relating to standard of legal work performed for the closing. Consequently, defense counsel’s testimony regarding the closing is likely to be necessary, and he should be disqualified from representing defendants (Delgado, 109 AD3d at 47; Chang, 190 AD2d at 311).'”

Bill Freivogel notes a Texan disqualification, noting unique Texan rules in play:

  • “In re Liebbe, 2019 WL 1416637 (Tex. App. March 29, 2019). Susan Whomble suffers from Alzheimer’s disease. In this proceeding Richard Whomble applied to be guardian of Susan’s person. Donna Liebbe, Susan’s friend, contested Richard’s application. Donna’s lawyer was Bill Liebbe. Richard moved to disqualify Bill. The trial court granted the motion. Donna appealed.”

  • “In this opinion the appellate court affirmed (denied mandamus). Bill had earlier represented Richard in two personal injury cases. The appellate court dwelled upon the interplay of Texas Rules 1.5 (Texas’ confidentiality rule) and 1.9 (Texas’ former client rule). Put simply, because it was probable that Bill violated Texas Rule 1.5, the prohibition of Rule 1.9 was triggered. [Bill’s note: This opinion can only be useful to Texas lawyers, so we are not going to say any more about it. Because of the uniqueness of Texas rules in circumstances such as this, we are completely unable to say whether this opinion has precedential value in Texas (or anywhere else, for that matter).]

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