Navigating the Risks of Attorney Disqualification Motions

Navigating the Risks of Attorney Disqualification Motions

According to an article by Matthew R. Henderson, Partner at Hinshaw & Culbertson, attorney disqualification motions are becoming increasingly common in the legal landscape, particularly in intellectual property cases involving bioscience and technology sectors. These motions are often filed under seal to protect client confidentiality, leading to potential challenges for law firms that may face them unexpectedly.

The movement of lateral partners can trigger disqualification risks if their former clients oppose the new representation, especially in high-stakes litigation. The implications are severe, as disqualification can lead to the loss of preferred counsel, necessitating a costly transition to new attorneys familiar with complex matters. The Delaware courts, known for their stringent views on disqualification, focus on whether conflicts undermine legitimacy rather than mere ethics violations.

To mitigate these risks, Henderson suggests that law firms should adopt proactive strategies, such as including advance conflict waivers in engagement letters, which can be effective when working with sophisticated clients. Key elements of effective waivers include descriptions of potential future conflicts and terms governing adverse representation. 

Additionally, law firms must conduct thorough conflict checks upon onboarding lateral attorneys, considering the comprehensive review of prior representations and confidential information access.

Henderson also says firms should maintain robust screening protocols to prevent conflicts impacting client confidentiality and ensure compliance with jurisdiction-specific imputation rules. In the event of a filed disqualification motion, firms should promptly consult clients, assess the situation, and decide whether to contest the motion or withdraw.

Understanding and managing the risks associated with attorney disqualification motions is crucial. Effective measures include advance conflict waivers, diligent attorney vetting, and robust conflict screening to maintain client relationships and uphold the integrity of the legal process. Even if disqualification occurs, it does not automatically lead to civil liability or disciplinary actions, particularly if the conflict is deemed technical without client harm.