Richard Flamm, Lawyer Disqualification: Conflicts and Other Bases (2003). Reprinted with permission.
CHAPTER
25
Tactical Motions
§25.1
§25.2
§25.3
§25.4
§25.5
Introduction
Tactical Reasons for Moving to Disqualify
Significance of the Moving Party’s Motivation
Establishing a Tactical Motivation
Failure to Establish a Tactical Motivation
§25.1 Introduction
Motions to disqualify can be properly utilized to draw the court’s
attention to situations where counsel has violated the applicable
rules of professional conduct. It has long been realized, however,
that notwithstanding their value in ensuring that lawyers observe
the highest standards of integrity and fidelity, 1 motions to
disqualify attorney and law firms are not always motivated by
high-minded concerns about ethical derelictions on the part of
challenged counsel. 2
1
In re Ferrante, 126 B.R. 642, 649 (D. Me. 1991).
See, e.g., Donohoe v. Consol. Oper’g & Prod. Corp., 691 F. Supp. 109, 121
(N.D. Ill. 1988) (noting that, while courts give careful scrutiny to the factors
supporting disqualification in order to foster adherence to the ethics of the legal
profession, “[l]itigants are typically less public-policy minded”); Klein v.
Superior Court, 198 Cal. App. 3d 894, 913 (1988). Cf. Shaw v. London Carrier,
Inc., 2009 U.S. Dist. LEXIS 109862, at *8 (W.D. Mich. 2009) (“motions to
disqualify [are] necessary to protect the integrity of judicial proceedings and the
ethics of the bar, [but] courts must be vigilant in reviewing [such motions]”); In
re Complaint of Cardinal Servs., 2006 U.S. Dist. LEXIS 55883, at *2-3 (W.D.
La. 2006) (“Professing grave concern for the quality of Mr. Breaud’s anticipated
advice to his client…the claimants seek disqualification of [counsel]”).
2
659
§25.1
Part VIII Performing the Balancing Test
On the contrary, as a number of federal 3 and state 4 courts have
recognized, such motions have often been interposed in bad faith; 5
for tactical reasons 6 wholly unrelated to any legitimate concern the
movant might have about preserving confidentiality, or the ethical
purity of the legal profession. 7
3
See, e.g., Swilley v. Tipton, 2007 U.S. Dist. LEXIS 7481, 2007 WL
316951, at *7 (E.D. Ky. 2007) (“The former client cannot sit on the right for
tactical purposes”); Comm’l Union Ins. Co. v. Marco Int’l Corp., 1999 U.S.
Dist. Lexis 3885 (S.D.N.Y. 1999); Somascan Plaza v. Siemens Med. Sys., 1999
U.S. Dist. Lexis 6231 (D.P.R. 1999); RTC v. Fid. and Deposit Co. of Md., 1997
U.S. Dist. Lexis 22177, at *11 (D.N.J. 1997); Bartech Indus. v. Int’l Baking Co.,
910 F. Supp. 388 (E.D. Tenn. 1996); Cook v. City of Columbia Heights, 945 F.
Supp. 183 (D. Minn. 1996).
4
Schertz v. Jenkins, 4 Misc.3d 298, 291, 777 N.Y.S.2d 290, 296 (N.Y.C.C.C.
2004) (“there is... reason to suspect that the motion was designed to achieve a
tactical advantage”); Campbell v. Indep. Outlook, Inc., 2004 Ohio App. LEXIS
6248, at *12-13 (2004) (“Motions to disqualify…may be used as strategic
litigation tactics”); Donahue v. Burke, 2003 WL 21956995, at *1 (Me. Super.
2003) (“[a] motion to disqualify...is capable of being abused for tactical
purposes”); Del. Trust Co. v. Brady, 1988 Del. Ch. Lexis 121, at *7 (1988)
(“When the relevant facts justify [disqualification], a court ought not to hesitate
to require it. But a decent respect for the reality of litigation requires one to
acknowledge that this step may be sought for tactical reasons”); Assoc’d
Wholesale Grocers v. Americold Corp., 266 Kan. 1047, 1057 (1999).
5
See Ernie Ball, Inc. v. Earvana, LLC, 2006 U.S. Dist. LEXIS 96976, at *6-7
n.1 (C.D. Cal. 2006); State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986)
(“the trial court is entitled to consider whether the defendant’s effort to displace
existing counsel has substantive merit and is being pursued in good faith”).
6
See, e.g., Hackett v. Feeney, 2010 U.S. Dist. LEXIS 113553, at *10 (D.
Nev. 2010) (“Tactical considerations often motivate such motions”); Karlen v.
Westport Bd. of Educ., 2009 U.S. Dist. LEXIS 23765, at *3 (D. Conn. 2009)
(“[Courts] are reluctant to grant motions to disqualify because such motions may
be tactically motivated”); Plumley v. Doug Mockett & Co., 2008 U.S. Dist.
LEXIS 105634, at *10 (C.D. Cal. 2008) (“we must be mindful that a litigant
may seek to disqualify opposing counsel in order to gain a tactical advantage”).
7
Gay v. Luihn Food Sys., Inc., 54 Va. Cir. 468, at *7 (2001)
(“disqualification can itself be a weapon in the adversarial contest intended to
accomplish strategic litigation goals of the requesting party – like retiring from
the scene the very lawyers in whom an opponent has the most confidence, or
distracting an opponent with a costly and potentially embarrassing pretrial
diversion, or simply launching a thinly veiled ad hominem attack – all under the
cover of a dutiful effort to reprove an ethically challenged lawyer. Only the
naive would discount the possibility of such motivations infecting modern
litigation”).
660
Chapter 25 Tactical Motions
§25.1
Of course, not every motion to disqualify an attorney or law
firm is motivated by a desire to delay the proceedings, 8 to harass
an adverse party, 9 or some other strategic purpose; and not every
state 10 or federal 11 court that has been presented with a
disqualification motion has found that it was tactically motivated.
A strategic motive is particularly unlikely to be found in a situation
where the motion was filed promptly upon learning of the grounds
therefore; 12 or where it is not apparent to the court that the moving
8
Jones v. Kovacs, 659 F. Supp. 835, 839 (S.D. Tex. 1987).
Adkins v. Hosp. Auth. of Houston County, 2009 U.S. Dist. LEXIS 97361,
at *24 (M.D. Ga. 2009) (no evidence suggests “that this motion was brought to
delay the case, harass the opposing side, or for any other tactical reason”).
10
In re Guidry, 316 S.W.3d 729, 742 (Tex. App. 2010) (“there is little…to
suggest that the Brokers are seeking to disqualify for tactical reasons”); Kelly,
Remmel & Zimmerman v. Walsh, 2007 Me. Super. LEXIS 71, at *10 n.4 (2007)
(finding that the motion was not a litigation tactic); Reg. Refuse Disposal Dist.
v. Town of Acworth, 141 N.H. 479, 483-484, 686 A.2d 755 (1996) (the motion
sought “to protect the very interests that Rule 1.9 was designed to safeguard and
does not…seek to contort the rules beyond their mission”); Sirianni v.
Tomlinson, 133 A.D.2d 391, 519 N.Y.S.2d 385, 387 (1987) (holding that the
lower court erred in finding that the motion was made merely for tactical
purposes). Cf. Barragree v. Tri-County Elec. Coop., 263 Kan. 446, 460, 950
P.2d 1351 (1997) (“Did the motion carry a purpose beyond an acceptable
tactical motive? We neither reach a conclusion nor signal an inference”); C.K.
Smith & Co. v. Lee, 1996 Mass. Supp. Lexis 429, at *9 (1996) (there was “no
suggestion that there was a hidden motivation of stalling the litigation”).
11
See, e.g., Nelson v. Hartford Ins. Co., 2012 U.S. Dist. LEXIS 30983, at *22
(D. Mont. 2012) (“There is no evidence beyond Plaintiffs’ assertions that
Hartford filed this motion for tactical reasons”); Roosevelt Irrigation Dist. v.
Salt River Project Agric. Improvement & Power Dist., 810 F. Supp. 2d 929,
985-986 (D. Ariz. 2011) (“The final factor…does not weigh against
disqualification. Moving Defendants filed their motions [promptly] and they
also have a legitimate concern”); Capital Mach. Co. v. Miller Veneers, Inc.,
2010 U.S. Dist. LEXIS 114384, at *13 (S.D. Ind. 2010); Hill v. Hunt, 2008 U.S.
Dist. LEXIS 68925, at *54 (N.D. Tex. 2008) (finding insufficient evidence that
defendant’s motion was tactical); Essex County Jail Annex Inmates v.
Treffinger, 18 F. Supp. 2d 418, 444 (D.N.J. 1998) (“no credible evidence was
presented…to support a finding that the defendants’ primary purpose in moving
for disqualification was for strategic” purposes).
12
Shaw v. London Carrier, Inc., 2009 U.S. Dist. LEXIS 109862, at *23-24
(W.D. Mich. 2009) (“Defense counsel was up front…in raising the issue on an
early basis…[It] cannot be faulted for waiting several months thereafter to move
for disqualification, thereby giving the Fieger firm a chance to accomplish what
9
661
§25.1
Part VIII Performing the Balancing Test
party would have anything to gain by counsel’s disqualification. 13
As more than one court has observed, however, the use of
disqualification motions as tactical weapons is increasing 14 – to the
point where such motions are now a common weapon in many
litigators’ arsenals. 15
In order to inhibit the use of disqualification motions as
strategic weapons courts in a number of jurisdictions have held, or
by their holdings implied, that in deciding whether to grant such a
motion one factor that a court can properly take into consideration
is whether the motion was filed for a tactical purpose. 16 In
jurisdictions which have adopted such an approach, a non-moving
party has often attempted to defeat a disqualification motion by
showing not only that it is baseless, or that the moving party would
be prejudiced by the granting of the motion, but that the motion
was filed as a strategic ploy, rather than out of a genuine concern
about possible harm from the misconduct that has been alleged. 17
the rules require”); In re CellCyte Genetic Corp. Sec. Litig., 2008 U.S. Dist.
LEXIS 94761, at *5-6 (W.D. Wash. 2008) (“current counsel raised the conflict
issue [within a week and prior] counsel had also raised the issue with [the firm].
The evidence does not support a finding that this motion is a tactic”).
13
In re 3dfx Interactive, Inc., 2007 Bankr. LEXIS 1941, at *17 (N.D. Cal.
2007) (“there is…no real basis for the assertion that disqualification is sought
for tactical reasons. Neither of the Moving Parties has anything to gain”).
14
Reed v. Hoosier Health Sys., Inc., 825 N.E.2d 408, 414 (Ind. App. 2005),
Barnes, J., concurring (The disqualification of attorneys on [conflict] grounds is
a matter that is increasingly being done by members of the bar as a tactical
device, in some instances with little to do with our professional ethics”).
15
Openwave Sys. v. Myriad France S.A.S., 2011 U.S. Dist. LEXIS 35526, at
*15 (N.D. Cal. 2011) (“Too much money is being wasted these days on tactical
motions to disqualify”); Borman v. Borman, 378 Mass. 775, 780 n.10 (1979)
(motions to disqualify have become “a commonly used pretrial tactic”).
16
See, e.g., Roosevelt Irrigation Dist., 810 F. Supp. 2d at 985-986; In re La.
Tex. Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689-690 (Tex. App. 2011)
(“the court…[should consider any evidence] which indicates the motion is being
filed not due to a concern that confidences related in an attorney-client
relationship may be divulged but as a dilatory trial tactic”).
17
Silicon Graphics, Inc. v. Ati Techs., Inc., 2010 U.S. Dist. LEXIS 107057,
at *13 (W.D. Wis. 2010) (“clients should not be exposed to unfair risks…[but]
former clients should not be permitted to use ethical rules as a weapon to cripple
their opponent when there is no legitimate concern about [harm]”).
662
Chapter 25 Tactical Motions
§25.1
§25.2 Tactical Reasons for Moving to Disqualify
Many things could motivate a party to file a motion seeking to
disqualify an opposing party’s attorney apart from a legitimate
concern about counsel’s conduct. First and foremost, because a
successful disqualification motion, by definition, deprives a party
of the services of its chosen counsel, parties sometimes move to
disqualify counsel not so much out of concern about how it has
behaved, as out of a belief that eliminating the services of its
adversary’s attorney may yield a significant litigation advantage 1 –
particularly if a motion is filed after litigation is well underway. 2
A concern about disqualification being sought for such a
purpose is particularly likely to be voiced in that situation where
the targeted attorney is an eminent, 3 capable, 4 and formidable5
advocate; or one who possesses unique knowledge of the subject
matter, 6 or extensive experience with the case, 7 that would be
1
See, e.g., Smith v. Whatcott, 757 F.2d 1098, 1100 (10th Cir. 1985); Gould
v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1126 (N.D. Ohio 1990);
Moriarty v. Sullivan, 2009 Mass. Super. LEXIS 193, at *2 (2009) (“[counsel]
and her clients are attempting through this motion…to interfere with [plaintiff’s
right] to be represented by an attorney of his choosing”). Cf. Siemens Energy v.
Coleman Elec. Supply Co., 1999 U.S. Dist. Lexis 11210, at *22 (E.D.N.Y.
1999); Kitchen v. Aristech Chem., 769 F. Supp. 254, 256 (S.D. Ohio 1991).
2
Quicken Loans v. Jolly, 2008 U.S. Dist. LEXIS 48266, at *5-6 (E.D. Mich.
2008) (disqualification “can work a severe hardship and give the [movant a
significant advantage. This is often the motivation for] filing such motions”).
3
Bauerle v. Bauerle, 161 Misc.2d 973, 974 (1994) (disqualification is to be
“used as a shield…[not a sword to prejudice defendant from] obtaining eminent
counsel”). Cf. Commonwealth v. Cassidy, 568 A.2d 693, 698 n.4 (Pa. Super.
1989) (seeking to disqualify the most competent lawyers is “not a novel idea”).
4
Howe Inv., Ltd. v. Perez y Cia. de P.R., 2000 U.S. Dist. Lexis 5765, at *3
(D.P.R. 2000) (“A motion to disqualify…may successfully result in denial of
opposing party’s entitlement to services of [capable counsel]…a weapon that
needs constraint when groundless”). Cf. Shaw v. London Carrier, Inc., 2009
U.S. Dist. LEXIS 109862, at *8 (W.D. Mich. 2009) (“‘ability to deny one’s
opponent the services of capable counsel is a potent weapon’”), quoting
Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222 (6th Cir. 1988).
5
See, e.g., Atasi Corp. v. Seagate Tech., 847 F.2d 826, 832 (Fed. Cir. 1988);
Nelson v. Green Bldrs., 823 F. Supp. 1439, 1444 (E.D. Wis. 1993); In re G & H
Steel Serv., 76 B.R. 508, 511 (Bankr. E.D. Pa. 1987).
6
Hannan v. Watt, 147 Ill. App. 3d 456, 497 N.E.2d 1307, 1311 (1986).
663
§25.2
Part VIII Performing the Balancing Test
difficult or even impossible to duplicate by successor counsel. 8 A
party may also file a motion to disqualify in the hopes of
disrupting, 9 frustrating, 10 hindering, 11 hobbling12 or harassing an
adversary, 13 or its counsel; 14 or with any eye towards
complicating, 15 fragmenting, 16 increasing the cost of pursuing, 17 or
diverting attention from the merits of the case. 18
7
Alexander v. Primerica Holdings, 822 F. Supp. 1099, 1119 (D.N.J. 1993).
Cf. Gov’t of India v. Cook, 569 F.2d 737 (2d Cir. 1978); Liberty Nat’l Enters.,
L.P. v. Chi. Title Ins. Co., 194 Cal. App. 4th 839, 848 (2011) (“McDougal was
not only Liberty’s longtime lawyer and the man who filed…this case, he was
successful with [it]. That marked him as a lawyer of great value to Liberty (and
quite possibly provided the motivation for the motion)”).
8
Lee v. Gadasa Corp., 714 So. 2d 610, 613 (Fla. App. 1998) (expressing
reluctance to sanction the use of a disciplinary rule for the purpose of “depriving
the opponent of [counsel] who is intimately familiar with the litigation, and
forcing it [to] spend additional funds for new counsel or to concede defeat”).
9
In re Ferrante, 126 B.R. at 649; Daniels v. State, 17 P.3d 75, 82 (Alaska
App. 2001) (“motions to disqualify an opposing litigant’s attorney can [be] used
as a tactic to weaken or disrupt the presentation of an opponent’s case”).
10
Ross v. Ross, 94 Ohio App. 3d 123, 640 N.E.2d 265, 271 (1994).
11
Klupt v. Krongard, 126 Md. App. 179, 206, 728 A.2d 727 (1999).
12
FDIC v. Amundson, 682 F. Supp. 981, 988-989 (D. Minn. 1988) (“We are
now in a time when ethics has ceased to be a common guide to virtuous
behavior. It is now a sword in hand, to be used to slay a colleague. This kind of
ethics does not reflect a heightened awareness of moral responsibility or a means
to temper one’s zeal for his or her client. It is instead a means to hobble the
opposition by driving a spurious wedge between [client and counsel]”).
13
N. Am. Foreign Trading Corp. v. Zale Corp., 83 F.R.D. 293, 296-297
(S.D.N.Y. 1979) (“No purpose has been served by [the] instant motion other
than to harass plaintiff and his counsel”).
14
O’Malley v. Novoselsky, 2011 U.S. Dist. LEXIS 66406, at *4 (N.D. Ill.
2011) (“there are concerns about the technical [sic] use of such motions to
harass opposing counsel”); F&R Constr. v. Ah Dev., 1996 U.S. Dist. Lexis
16216, at *4 (D.P.R. 1996); Koch v. Koch Indus., 798 F. Supp. 1525, 1530 (D.
Kan. 1992); Ussery v. Gray, 804 S.W.2d 232, 236 (Tex. App. 1991).
15
First Wis. Mortg. Trust v. First Wis. Corp., 584 F.2d 201, 221 (7th Cir.
1978) (Castle, Senior C.J., concurring in part).
16
Aetna Cas. & Sur. Co. v. U.S., 570 F.2d 1197, 1201 (4th Cir. 1978).
17
See, e.g., Munk v. Goldome Nat’l Corp., 697 F. Supp. 784, 788 (S.D.N.Y.
1988); Vegetable Kingdom v. Katzen, 653 F. Supp. 917, 925 (N.D.N.Y. 1987).
18
See, e.g., SWS Fin. Fund A v. Salomon Bros., 790 F. Supp. 1392, 1401
(N.D. Ill. 1992).
664
Chapter 25 Tactical Motions
§25.2
There have also been times when motions to disqualify have
been utilized as negotiating tools 19 – often with the goal of
intimidating an adversary or its counsel into accepting a settlement
on terms that might otherwise be unacceptable. 20 Such motions
have also been filed for the purpose of retaliating for perceived
wrongdoing on the part of the moving party’s adversary, 21 or for
similar motions brought against the moving party’s counsel; 22 or to
generate the delay that almost inevitably attends the need for the
non-moving party to locate and retain successor counsel. 23
It has been recognized, moreover, that a party who moves to
disqualify an attorney or law firm does not necessarily need to
prevail on its motion in order to reap a substantial advantage. For
one thing, even ultimately unsuccessful disqualification motions
inevitably stall, if not derail the proceedings, 24 and motions to
19
See Quicken Loans, 2008 U.S. Dist. LEXIS 48266, at *16 (“there is a risk
that motions to dismiss counsel will be used…to gain negotiating leverage”);
Heci Explor’n Co. v. Clajon Gas Co., 843 S.W.2d 622, 627 (Tex. App. 1992)
(the trial court’s finding that the motion was “a negotiating tool” was supported
by testimony that the moving party had offered to abandon the disqualification
issue if the challenged firm would agree to forego certain defenses). Cf. In re Jet
1 Center, Inc., 310 B.R. 649, 653-654 (Bankr. M.D. Fla. 2004) (“It was not until
NAA was unwilling to ‘settle’…that the Bank decided to ‘go after’ Amato. To
describe this…as a mere negotiation tool would be more than charitable”).
20
See, e.g., Doe No. 1 v. Fulton-DeKalb Hosp. Auth., 2006 U.S. Dist. LEXIS
76624, at *12-13 (N.D. Ga. 2006) (“[Billips says] he had no tactical reason to
seek…disqualification[…He] knows that anything that puts pressure on a
Defendant…increases the settlement value”). Cf. Lee v. Todd, 555 F. Supp. 628,
632 (W.D. Tenn. 1982) (stating that motions should not be used to coerce
settlement); In re Estate of Giantasio, 173 Misc.2d 100, 102 (1997).
21
Bayles v. Hendrick, 188 W. Va. 47, 422 S.E.2d 524, 528 n.* (1992).
22
Int’l Elecs. Corp. v. Flanzer, 527 F.2d 1288, 1296 (2d Cir. 1975);
Colandrea v. Town of Orangetown, 490 F. Supp. 2d 342, 353 (S.D.N.Y. 2007)
(counsel “states, in a declaration no less, that the reason for his [motion is]
…because Defendants indicated that they intended to move to disqualify him”).
23
Guzewicz v. Eberle, 953 F. Supp. 108, 114 (E.D. Pa. 1997) (“if new
counsel had to be appointed it would cause a great deal of delay and expense”).
24
See, e.g., Kelly v. Roker, 2012 U.S. Dist. LEXIS 33604, at *6 (N.D. Cal.
2012) (“Motions for disqualification…tend to derail the efficient progress of
litigation”); Cole Mech. Corp. v. Nat’l Grange Mut. Ins. Co., 2007 U.S. Dist.
LEXIS 66584, at *12-13 (S.D.N.Y. 2007) (“[courts are] reluctant to grant
motions to disqualify because they inevitably result in delay”); Guillen v. City
of Chicago, 956 F. Supp. 1416 (N.D. Ill. 1997); Moss v. TACC Int’l Corp., 776
665
§25.2
Part VIII Performing the Balancing Test
disqualify have sometimes been filed for that purpose; 25 often, but
not always, 26 by defendants, who tend to be the ones who are most
likely to profit from such delay. 27 It has been said, in fact, that it
would be naive not to recognize that motions to disqualify are
frequently employed as delaying tactics. 28
F. Supp. 622, 624 (D. Mass. 1991); N. Star Hotels v. Mid-City Hotel Assocs.,
118 F.R.D. 109, 112 (D. Minn. 1987) (the court was sensitive to the fact that
disqualification motions “may serve to improperly delay proceedings”).
25
See, e.g., Emplrs. Ins. Co. of Wausau v. Munich Reins. Am., Inc., 2011
U.S. Dist. LEXIS 52048, at *10 (S.D.N.Y. 2011) (“a disqualification motion
might be used as tactical device to delay a case”); Hana Bank v. S. Pac.
Petroleum Corp., 2010 U.S. Dist. LEXIS 84384, at *12-13 (D. Guam. 2010)
(“‘Motions to disqualify are often used as a tactical device to delay litigation’”);
First Interreg’l Advisors Corp. v. Wolff, 956 F. Supp. 480, 489 (S.D.N.Y. 1997)
(disqualification motions are subject to strict scrutiny because of the strong
potential to “stall and derail the proceedings”). Cf. Banque Arabe v. Ameritrust
Corp., 690 F. Supp. 607, 613 (S.D. Ohio 1988) (noting that, when a
disqualification motion is used as a delaying tactic, the moving party may obtain
a decisive advantage); I.N.A. Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1, 6
(E.D. Pa. 1983); In re Leyendecker, 2012 Tex. App. LEXIS 6581, at *4 (2012)
(a “court must strictly adhere to an exacting standard to discourage a party from
using the motion as a dilatory tactic”); Centra, Inc. v. Chandler Ins. Co., 248
Neb. 844, 852, 540 N.W.2d 318 (1995) (“we hesitate…to disqualify counsel and
reward a continuing pattern aimed at frustrating adjudication of the case in
district court”); River W. v. Nickel, 188 Cal. App. 3d 1297, 1306 (1987).
26
See e.g., Wild Game NG, LLC v. Wong’s Int’l (USA) Corp., 2007 U.S.
Dist. LEXIS 61044, at *4-5 (D. Nev. 2007) (“While the court is not aware of
what exact advantage [a one month delay] bestowed on Plaintiff…it does not
require a great deal of imagination to infer that the advantage could have been
purely in making Defendant’s counsel’s job more burdensome”); Alexander,
822 F. Supp. at 1119 (plaintiffs, having “lost their sense of urgency,” sought to
indefinitely delay a resolution of the case by requiring defendant to obtain new
counsel). Cf. Decora Inc. v. DW Wallcovering, 901 F. Supp. 161, 164-165
(S.D.N.Y. 1995) (“[t]he plaintiff incurred real costs by making the motion
because it inevitably delayed the prosecution of its own case”).
27
See Cobb Publ’g v. Hearst Corp., 907 F. Supp. 1038 (E.D. Mich. 1995)
(acknowledging that the fact that the motion was brought by a plaintiff – when
usually such motions are made by defendants, who benefit from the delay that is
the by-product of motions to disqualify – supported the view that the motion
was not brought for any tactical reason); Bongiasca v. Bongiasca, 679 N.Y.S.2d
132, 133 (A.D. 1998) (finding ample support for the finding that defendant had
moved for disqualification as a delaying tactic to avoid his deposition).
28
White v. Superior Court, 98 Cal. App. 3d 51, 55 (1979). Cf. In re Cont’l
Inv. Corp., 637 F.2d 1, 6 (1st Cir. 1980).
666
Chapter 25 Tactical Motions
§25.2
§25.3 Significance of the Moving Party’s Motivation
Judges have long recognized the ability of a party to misuse 1 and
abuse 2 the applicable ethical rules, by trying to utilize them to
obtain an improper litigation advantage; 3 or even to manufacture a
conflict of interest for such a purpose. 4 In particular, courts have
often acknowledged that the government is capable of
1
Freeman v. Chicago Musical Instrument Co., 689 F.2d at 722 (7th Cir.
1982) (“there obviously are situations where [motions to disqualify] are both
legitimate and necessary; nonetheless, such motions should be viewed with
extreme caution for they can be misused as techniques of harassment”); Do It
Best Corp. v. Passport Software, Inc., 2004 U.S. Dist. LEXIS 3990, at *6 (N.D.
Ill. 2004) (“because disqualification deprives a party of [counsel of] choice, the
potential exists that a motion to disqualify may be misused”).
2
Franklin v. Clark, 454 F. Supp. 2d 356, 365 (D. Md. 2006) (“Maryland
courts are hesitant to grant disqualification motions, particularly where the
opposing party is the sponsor of such a motion, because they can be abused for
tactical reasons”); Galasso, Langione & Botter, LLP v. Galasso, 22 Misc. 3d
1119A, 880 N.Y.S.2d 872 (2009) (such “motions have been abused in an effort
to gain tactical advantage…[absent a fairly well-documented conflict], they
should not be countenanced”). But cf. Cmwlth. Land Title Ins. Co. v. St. Johns
Bank & Trust Co., 2009 U.S. Dist. LEXIS 87151, at *24 (E.D. Mo. 2009)
(“Nothing in the record leads this Court to believe that [plaintiff] attempted to
abuse the motion to disqualify as a strategic tool”).
3
See Research Corp. Techs. v. Hewlett-Packard Co., 936 F. Supp. 697, 699
(D. Ariz. 1996) (noting, with apparent skepticism, that movant “maintains that
the timing of its renewed contact with the [challenged firm] was nothing more
than an unfortunate coincidence”). Cf. In re Am. Air., 972 F.2d 605, 613 (5th
Cir. 1992) (noting that the alleged facts, if accepted as true, might establish that
the moving party’s efforts were motivated primarily by a desire to ensure that
counsel could not represent its adversary), cert. denied, 113 S. Ct. 1262 (1993).
4
See, e.g., In Re Pressman-Gutman Co., Inc., 459 F.3d 383, 2006 U.S. App.
LEXIS 21219, at *49 (3d Cir. 2006) (“We do not invite defendants…to
manufacture circumstances justifying…disqualification”); Ernie Ball, Inc. v.
Earvana, LLC, 2006 U.S. Dist. LEXIS 96976, at *5-6 (C.D. Cal. 2006) (“where
plaintiff appeared to retain GT and then abruptly changed its mind, ostensibly
reserving the right to call on the firm at some [future time], the case more
closely resembles one in which a party attempts to manufacture a conflict”). But
see State Farm Mut. Auto. Ins. Co. v. Fed. Ins. Co., 86 Cal. Rptr. 2d 20 n.1 (Cal.
App. 1999) (DiBiaso, J. concurring) (“The facts in some of the
declarations...give off a whiff of a suggestion that [defendant]’s reference of the
[cases to challenged counsel] was a step in a plan calculated to put [him] in a
position to be disqualified...but an inference of evidentiary value to such effect
cannot be drawn from these facts”).
667
§25.3
Part VIII Performing the Balancing Test
manufacturing a conflict of interest 5 in order to justify bringing a
motion to disqualify a criminal defendant’s counsel. 6 A question
has sometimes arisen as to what role, if any, the moving party’s
motives in moving to disqualify should play in determining
whether disqualification should be ordered in a particular case.
A party’s motives for moving to disqualify counsel have
nothing to do with whether counsel violated the applicable rules of
professional conduct. For this reason, and because a court is often
dependent upon parties and their counsel to report unethical
conduct that is taking place in a proceeding pending before it, 7
some judges have taken the position that the fact that the moving
party may happen to have an ulterior motive for bringing a
disqualification motion does not, in and of itself, justify a court in
denying it. 8 Some courts have, in fact, pointedly declined to
examine the moving party’s motives for seeking disqualification. 9
5
Wheat v. United States, 108 S. Ct. 1692, 1699 (1988); United States v.
Register, 1999 U.S. App. Lexis 17875, at *32-33 (11th Cir. 1999). Cf. In re
Grand Jury Subp. for Reyes-Requena, 913 F.2d 1118, 1130 (5th Cir. 1990)
(manifesting sensitivity to concerns about unscrupulous attempts to overcome
the presumption in favor of a defendant’s counsel of choice).
6
See, e.g., United States v. Zeka, 2011 U.S. Dist. LEXIS 18260, at *6 (E.D.
Mich. 2011) (“in certain cases “the Government may seek to ‘manufacture’ a
conflict”). But see United States v. Kaufman, 354 F. Supp. 2d 1201, 1207 (D.
Kan. 2005) (“there is [no] reason to believe that the government manufactured
the reasons or circumstances argued in its motion”); United States v. Ring, 878
F. Supp. 134, 139 n.7 (C.D. Ill. 1995) (“[t]he Court is aware of the capability of
the government to ‘manufacture’ a conflict...However, the Court has no reason
whatever to question the motivation of the government in this case”); People v
Carncross, 2010 N.Y. LEXIS 50, at *13 (A.D. 2010) (“there is no indication that
the prosecution’s disqualification request was manufactured”); Hayden v. State,
972 So. 2d 525, 2007 Miss. LEXIS 646, at *28 (2007) (finding no “indication
that the conflict was ‘manufactured’”).
7
Gen. Mill Supply Co. v. SCA Servs., 697 F.2d 704, 713 (6th Cir. 1982)
(noting that, if a court was to weigh the moving party’s motive, it would cut off
information the court needs); Green v. Montgomery County, Ala., 784 F. Supp.
841, 842 n.2 (M.D. Ala. 1992) (“the only person likely to know and care about
the breach of confidentiality…is the former client”).
8
In re Complex Asbestos Litig., 232 Cal. App. 3d 572, 599. Cf. Actel Corp.
v. Quicklogic Corp., 1996 U.S. Dist. Lexis 11815, at *29 (N.D. Cal. 1996).
9
In re Yarn Processing Patent Validity Litig., 530 F.2d 83, 90 (5th Cir.
1976); Global Van Lines v. Superior Court, 144 Cal. App. 3d 483, 490 (1983)
(finding that the movant’s motivation in seeking disqualification was irrelevant).
668
Chapter 25 Tactical Motions
§25.3
There is, however, widespread agreement that leveling charges
of impropriety which, if sustained, would require disqualification
of an opposing party’s counsel is not something that should be a
standard part of a lawyer’s offensive arsenal; to be used routinely,
and without a good faith belief that those charges are justified. 10
The fact is, moreover – as more than one court has observed – that
the rules of professional conduct were not drafted with the
intention of providing a windfall to clients who have hired
strategic-minded litigators. 11 In fact, the drafters of those rules
have themselves warned that the purpose of establishing ethical
rules in the first place can be subverted when rules that were
intended to provide guidance for practitioners are brandished by
their adversaries as procedural weapons. 12
10
First Wis. Mort. Trust v. First Wis. Corp., 584 F.2d 201, 206 (7th Cir.
1978).
11
See, e.g., Caracciolo v. Ballard, 687 F. Supp. 159, 160-161 (E.D. Pa. 1988)
(noting that ethical rules exist to deter professional misconduct and preserve the
professions’ standing – not to add “to the depressingly formidable array of
dilatory strategies already part of the litigator’s arsenal”).
12
See, e.g., Quail Cruises Ship Mgmt., Ltd. v. Agencia De Viagens CVC
Limitada, 2010 U.S. Dist. LEXIS 84593, at *15 (S.D. Fla. 2010) (“The
Preamble to the Florida [RPC] warns parties not to use disqualification motions
as procedural weapons”); SOC-SMG, Inc. v. Day & Zimmermann, Inc., 2010
Del. Ch. LEXIS 195, at *11-12 (2010) (“for a party who so fervently waves the
public policy banner, it is striking that SMG did not file its case in
[Pennsylvania] or file a disciplinary complaint against…Pennsylvania counsel in
Pennsylvania…Rather, SMG rushed into a Delaware court and sought, for its
own selfish, tactical advantage, to use an accusation of attorney misconduct to
advance its position in the pending Arbitration…[our RPC] condemn the use of
allegations of attorney misconduct as ‘procedural weapons’”); Steinert v.
Steinert, 73 Mass. App. Ct. 287, 289, 897 N.E.2d 603 (2008) (“Where…it is
opposing counsel who seeks disqualification, we must ‘be alert that the Canons
of Ethics are not brandished for tactical advantage’”), quoting Serody v. Serody,
19 Mass. App. Ct. 411, 414 (1985); Berry v. Saline Memorial Hosp., 322 Ark.
182, 187, 907 S.W.2d 736 (1995). See also Kevlik v. Goldstein, 724 F.2d 844,
848 (1st Cir. 1984); Vegetable Kingdom v. Katzen, 653 F. Supp. 917, 925-926
(N.D.N.Y. 1987); State v. Wallace, 989 S.W.2d 641, 645 (Mo. App. 1999);
Casco N. Bank v. JBI Assocs., 667 A.2d 856, 859 (Me. 1995) (“If
disqualification does not serve the purposes supporting the ethical rules, it can
only serve to provide the movant with a brief, tactical advantage, a result that
would debase the rules of professional conduct and subvert, not advance, the
public interest they serve”); Lease Am. Corp. v. Stewart, 876 P.2d 184, 191-192
(Kan. App. 1994); Adams v. Reagan, 791 S.W.2d 284, 291 (Tex. App. 1990).
669
§25.3
Part VIII Performing the Balancing Test
It has been noted, too, that if disqualification motions were to
be routinely granted, without regard to the motives of the moving
party, the very rules that were designed to promote public
confidence in the legal system, and prevent public disrespect for
the legal profession, may themselves threaten the integrity of the
judicial process, 13 and foster disrespect for the legal system as a
whole; 14 and may, in the end, wind up diminishing public
confidence in the ability of the process to redress serious wrongs. 15
For these reasons, and because a perception exists that
permitting a court to examine the moving party’s motives in
moving for disqualification may serve the interests of judicial
economy by reducing the number of disqualification motions, 16 a
number of courts – including the Second, 17 Ninth, 18 and Tenth 19
13
See U.S. Chess Fedn., Inc. v. Polgar, 2009 U.S. Dist. LEXIS 96007, at *9
(N.D. Cal. 2009); Gregori v. Bank of Am., 207 Cal. App. 3d 291, 300-301
(1989) (unnecessary disqualification as a result of such tactics may “pose the
very threat to the integrity of the judicial process that they purport to prevent”).
14
Borman v. Borman, 378 Mass. 775, 786-787, 393 N.E.2d 847, 855-856
(1979). Cf. Wold v Mineral Eng’g Co., 575 F. Supp. 166, 167 (D. Colo. 1983)
(disqualification motions, if improperly interposed, “not only unnecessarily
delay lawsuits and…escalate the cost of pursuing a legitimate [claim but] tend to
make a mockery of the noble objectives” of the Code); Lee v. Gadasa Corp., 714
So. 2d 612-613 (Fla. App. 1998) (“Because the client has so clearly waived any
[conflict], it seems to us that permitting the order of disqualification to stand
would be likely to arouse more public suspicion than would reversing it”).
15
See FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1316-1317 (5th Cir. 1995)
(“When, for purely strategic purposes, opposing counsel raises the question of
disqualification, and subsequently prevails, public confidence in the integrity of
the legal system is proportionately diminished”); Metrahealth Ins. Co. v.
Anclote Psych. Hosp., 961 F. Supp. 1580, 1585 (M.D. Fla. 1997).
16
Reed v. Hoosier Health Sys., Inc., 825 N.E.2d 408, 414 (Ind. App. 2005),
Barnes, J., concurring (“litigants would not waste expenses if disqualification
were not to their tactical advantage”).
17
Evans v. Artek Sys. Corp., 715 F.2d 788, 792 (2d Cir. 1983). See also First
Trust v. Moses & Singer, 2000 U.S. Dist. Lexis 10957, at *19 (S.D.N.Y. 2000)
(“the proposed third-party complaint…[appears to be] no more that a tactical
ploy designed to provide a basis for [disqualification]”).
18
Shurance v. Planning Control Int’l, 839 F.2d 1347, 1349 (9th Cir. 1988).
Also compare In re Oracle Sec., 136 F.R.D. 639, 643 n.7 (N.D. Cal. 1991)
(lawyers “sometimes invoke neutral appearing ethical rules to persuade courts to
reach extremely questionable results”) and Genentech, Inc. v. Sanofi-Aventis
Deutschland GMBH, 2010 U.S. Dist. LEXIS 35867, at *11 (N.D. Cal. 2010)
670
Chapter 25 Tactical Motions
§25.3
Circuit Courts of Appeal, as well as the highest courts of Alaska, 20
Iowa, 21 Massachusetts, 22 Nevada, 23 New Hampshire 24 and Texas 25
– have expressed serious reservations about permitting the rules of
professional conduct to be used for tactical reasons. 26
Other judges, and even a United States Supreme Court
Justice, 27 have voiced strong disapproval of the strategic
deployment of disqualification motions as vexatious, 28 hardball, 29
and sometimes even frivolous 30 litigation tactics. 31 These judges –
(“Motions to disqualify are often tactically motivated”) with Openwave Sys. v.
Myriad France S.A.S., 2011 U.S. Dist. LEXIS 35526, at *18 (N.D. Cal. 2011)
(“Because an attempt to disqualify the opposing attorney is often tactically
motivated…disqualification is a drastic measure that is generally disfavored”).
19
Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir. 1975).
20
Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 104 n.17 (Alaska 1992).
21
Bottoms v. Stapleton, 706 N.W.2d 411, 413-414 (Iowa 2005) (“a court
must...be vigilant to thwart any misuse of a motion to disqualify”).
22
Adoption of Erica, 426 Mass. 55, 64-65, 686 N.E.2d 967 (1997).
23
Brown v. Eighth Judicial Dist. Court, 14 P.3d 1266, 1270 (Nev. 2000).
24
Goodrich v. Goodrich, 158 N.H. 130, 140, 960 A.2d 1275 (N.H. 2008).
25
NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 399 (Tex. 1989).
26
In re Nat’l Century Fin. Enters., 2010 U.S. Dist. LEXIS 39524, at *29
(S.D. Ohio 2010) (courts must “guard against [the use of disqualification
motions] as a means of gaining tactical advantage”); Elonex I.P. Holdings v.
Apple Computer, 142 F. Supp. 2d 579, 585 (D. Del. 2001) (depriving plaintiff of
its counsel was likely to “decrease public confidence” in the proceedings); Rizzo
v. Sears, Roebuck & Co., 127 F.R.D. 423, 424 (D. Mass. 1989).
27
Richardson-Merrell v. Koller, 472 U.S. 424, 441 (1985) (Brennan, J.,
concurring) (“the tactical use of attorney-misconduct disqualification motions is
a deeply disturbing phenomenon in modern civil litigation”).
28
Parkinson v. Phonex Corp., 857 F. Supp. 1474, 1481 (D. Utah 1994); N.
Am. Foreign Trading Corp. v. Zale Corp., 83 F.R.D. 293, 297 (S.D.N.Y. 1979)
(finding the disqualification motion to be a vexatious ploy).
29
Hartford Acc. & Indem. Co. v. RJR Nabisco, 721 F. Supp. 534, 541
(S.D.N.Y. 1989) (expressing the need to avoid inviting “an increased number of
disqualification motions, born of little more than hardball litigation strategy”).
30
Rogers v. Pittston Co., 800 F. Supp. 350, 353 (W.D. Va. 1992); Solow v.
W.R. Grace & Co., 83 N.Y.2d 303, 632 N.E.2d 437, 440 (1994).
31
Penn Mut. Life Ins. v. Cleveland Mall Assocs., 841 F. Supp. 815, 819
(E.D. Tenn. 1993); Ferranti Int’l PLC v. Clark, 767 F. Supp. 670, 672 (E.D. Pa.
1991); Responsible Citizens v. Super. Court, 16 Cal. App. 4th 1717, 1725
(1993); Weil, Freiburg & Thomas v. Sara Lee, 577 N.E.2d 1344, 1354 (1991).
671
§25.3
Part VIII Performing the Balancing Test
believing that strict scrutiny32 of disqualification motions may be
an effective deterrent against such objectives 33 – have held that, in
order to inhibit the misuse of disqualification motions as
instruments of delay and harassment, 34 as well as to avoid
hardships on innocent clients, 35 and other unjust results, 36 courts
not only may, but should, 37 or even must 38 evaluate such motions
carefully 39 and judiciously, 40 with skepticism 41 and extreme
Cf. Pennwalt v. Plough, 85 F.R.D. 264, 274 (D. Del. 1980) (an ethical issue may
have been “converted into a litigation tactic…[i]t is assumed all concerned will
carefully reevaluate their roles as officers of the court”); Coffman v. Poole
Truck Line, 811 S.W.2d 908, 911 (Tenn. App. 1991).
32
Turner v. AIGDomestic Claims, Inc., 2011 U.S. Dist. LEXIS 120626, at
*12-13 (D. Neb. 2011) (“such motion must be subjected to ‘particularly strict
judicial scrutiny’ because of the potential for abuse”); Switch Communs. Group
v. Ballard, 2011 U.S. Dist. LEXIS 98308, at *5 (D. Nev. 2011) (“Motions to
disqualify…are subject to particularly strict judicial scrutiny because there is a
significant possibility of abuse”); Sea Trade Mar. Corp. v. Coutsodontis, 2011
U.S. Dist. LEXIS 80668, at *18 (S.D.N.Y. 2011) (“In view of their potential for
abuse as a tactical device, motions to disqualify…are subject to” strict scrutiny).
33
Black v. Missouri, 492 F. Supp. 848, 862 (W.D. Mo. 1980). Cf. Freeman v.
Kulicke & Soffa Indus., 449 F. Supp. 974, 977-978 n.2 (E.D. Pa. 1978).
34
Flo-Con Sys. v. Servsteel, 759 F. Supp. 456, 458 (N.D. Ind. 1990).
35
See, e.g., In re Lee G., 1 Cal. App. 4th 17, 27 (1991).
36
Smith v. Whatcott, 757 F.2d 1098, 1099-1100 (10th Cir. 1985); Parkinson,
857 F. Supp. at 1480 (D. Utah 1994); Gould v. Mitsui Mining & Smelting Co.,
738 F. Supp. 1121, 1126 (N.D. Ohio 1990).
37
Sauer Inc. v. Honeywell Bldg. Solutions SES Corp., 2012 U.S. Dist.
LEXIS 12881, at *7 (W.D. Pa. 2012).
38
Switch Communs. Group v. Ballard, 2011 U.S. Dist. LEXIS 98308, at *5
(D. Nev. 2011) (“Courts must prevent parties from misusing motions for
disqualification as instruments of harassment or delay”); White Cap Constr.
Supply, Inc. v. Tighton Fastener & Supply Corp., 2010 U.S. Dist. LEXIS 93075,
at *25-26 (D. Neb. 2010); Buck v. Palmer, 2010 Tex. App. LEXIS 10082, at
*18 (2010) (“[we must] consider any evidence that indicates the motion is being
filed…as a dilatory trial tactic”).
39
Bd. of Regents of the Univ. of Neb. v. BASF Corp., 2006 U.S. Dist. LEXIS
58255, at *13 (D. Neb. 2006) (a “court’s discretion…must be carefully
exercised, as such motions can be asserted for a variety of tactical reasons”).
40
In re Jackson, 2012 Tex. App. LEXIS 5386, at *4 (2012) (“A trial court
should be extremely judicious in considering a disqualification motion because
the procedure should not be used tactically to deprive an opposing party of the
right to be represented by the lawyer of his or her choosing”).
672
Chapter 25 Tactical Motions
§25.3
caution, 42 if not outright suspicion; 43 considering any evidence
which suggests that the motion may have been filed for the
purpose of delaying the litigation, 44 harassing an opposing party or
its counsel, 45 or for some other strategic reason. 46 It has been held
41
Sharp v. Next Enter., Inc., 163 Cal. App. 4th 410, 434 (Cal. App. 2008)
(“[disqualification] may impose a significant hardship on plaintiffs…As such,
we must be skeptical of the impetus and purpose of defendants’ motion”);
Manning v. Cooper, 981 So.2d 668, 670 (Fla. 4th DCA 2008) (per curiam)
(“Motions for disqualification are generally viewed with skepticism because
[they] are often interposed for tactical purposes”). Cf. Vinton v. Virzi, 2012 CO
10 [*PP11-12], 269 P.3d 1242 (Colo. 2012) (“[we have] required that motions to
disqualify an opponent’s attorney be viewed with skepticism in light of their
potential abuse as dilatory or tactical devices…These same concerns apply with
equal, if not greater, force to attempts to amend ongoing litigation by joining an
opponent’s attorney in allegations of fraud previously leveled against the
opponent himself. Because granting such a motion will almost certainly
necessitate the withdrawal or disqualification of the opposing party’s attorney,
its prejudicial impact will necessarily be both substantial and immediate”).
42
Fish v. Hennessy, 2012 U.S. Dist. LEXIS 119571, at *11-12 (N.D. Ill.
2012); In re Carreras, 2011 Bankr. LEXIS 4022, at *5 (Bankr. D.P.R. 2011);
Golson-Dunlap v. Am. Motorists Ins. Co., 2007 U.S. Dist. LEXIS 22699, at *20
(S.D. Ind. 2007). Cf. Simply Fit of N. Am., Inc. v. Poyner, 579 F. Supp. 2d 371,
384 (E.D.N.Y. 2008) (“parties not affected by a conflict are free to move for
disqualification, [but] courts must act cautiously where…motions are made by
unaffected parties as such motions are often no more than tactical devices”).
43
Greenway Univ., Inc. v. Greenway of Ariz., LLC, 2011 U.S. Dist. LEXIS
101820, at *4 (D. Colo. 2011) (“The Court should evaluate motions to
disqualify with suspicion”); Corbello v. Devito, 2011 U.S. Dist. LEXIS 98305,
at *12-13 (D. Nev. 2011) (“Courts have become increasingly suspicious of such
motions, especially where they are used as a tool to attempt to destroy the
reputation and credibility of opposing counsel”); Adams v. Vill. of Keesville,
2008 U.S. Dist. LEXIS 61764, at *25 (N.D.N.Y. 2008) (“Disqualification
motions are approached with suspicion because there looms the overarching
element that they are nothing more than tactical maneuvers”); Jones v. Rabanco,
Ltd., 2006 U.S. Dist. LEXIS 58178, at *3-4 (W.D. Wash. 2006).
44
See, e.g., Jamaica Pub. Serv. Co. Ltd. v. AIU Ins. Co., 92 N.Y.2d 631, 638
(1998) (“Noting the concern that “such motions can become tactical
‘derailment’ weapons”); W. Cont’l Oper’g Co. v. Natural Gas Corp., 212 Cal.
App. 3d 752, 763-764 (1989).
45
See, e.g., Moses v. Sterling Commerce (Am.), Inc., 122 Fed. Appx. 177,
183 (6th Cir. 2005) (“Courts must be vigilant…as the ability to deny one’s
opponent the services of capable counsel is a potent weapon, that can be
misused as a technique of harassment”); Layne Christensen Co. v. Purolite Co.,
2011 U.S. Dist. LEXIS 30471, at *16 (D. Kan. 2011) (“The court reviews such a
673
§25.3
Part VIII Performing the Balancing Test
further, that, where the weight of the evidence suggests that the
movant’s motivation for filing the motion was not a genuine
concern about the ethical issues raised by the motion, but rather the
hope of securing some type of strategic advantage, an otherwise
meritorious motion may be properly denied. 47
motion mindful that it can be used as a part of the litigation strategy or as a
technique for harassing the other side”); SST Castings, Inc. v. Amana
Appliances, Inc., 250 F. Supp. 2d 863, 866 (S.D. Ohio 2002); Handtool Corp. v.
Dresser Indus., 619 N.E.2d 1282, 1289 (Ill. App. 1993).
46
AgSaver LLC v. FMC Corp., 2011 U.S. Dist. LEXIS 61668, at *8 (E.D.
Pa. 2011) (“The court maintains an obligation to prevent tactical efforts to
disqualify opposing counsel”); Nissan N. Am., Inc. v. Johnson Elec. N. Am.,
Inc., 2011 U.S. Dist. LEXIS 51115, at *22 (E.D. Mich. 2011); Hartford Cas. Ins.
Co. v. Am. Dairy & Food Consulting Labs., Inc., 2010 U.S. Dist. LEXIS 70238,
at *4 (E.D. Cal. 2010) (“where there is not a legitimate risk of the use of
[confidences], a litigant may not seek disqualification of his former counsel in
order to gain a tactical advantage”); Fujitsu Ltd. v. Belkin Int’l, Inc., 2010 U.S.
Dist. LEXIS 138407, at *13 (N.D. Cal. 2010) (“courts recognize that the ethical
rules can be used tactically”); Jamieson v. Slater, 2006 U.S. Dist. LEXIS 86712,
at *9 (D. Ariz. 2006) (“this Court [must] be wary of disqualification motions
‘interposed for tactical reasons’”); Buschmeier v. G&G Invs., Inc., 2007 U.S.
Dist. LEXIS 85444, at *14 (W.D. Pa. 2007); FMC Techs., Inc. v. Edwards, 420
F. Supp. 2d 1153, 1157 (W.D. Wash. 2006) (“The Court [must consider] the
danger of a motion to disqualify opposing counsel as a litigation tactic”);
Strongback Corp. v. v N.E.D. Cambridge Ave. Devel. Corp., 2006 N.Y. App.
Div. LEXIS 11515, at *4 (2006); State v. Hatcher, 218 W. Va. 407, 417, 624
S.E.2d 844 (W. Va. 2005) (“The circuit court must consider whether [the State
is] seeking to deprive the defendant of…counsel of choice”).
47
See, e.g., In re Packaged Ice Antitrust Litig. v. Arctic Glacier, Inc., 2010
U.S. Dist. LEXIS 131423, at *31-32 (E.D. Mich. 2010) (“This disqualification
motion is legal legerdemain, and behind the smoke and mirrors the Plaintiff’s
true motivation is transparent”); In re Ferrante, 126 B.R. 642, 649 (D. Me. 1991)
(“when a motion is employed for [an] untoward purpose, it must fail”); I.N.A.
Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1, 6 (E.D. Pa. 1983); Oi Tai Chan
v Society of Shaolin Temple, Inc., 910 N.Y.S.2d 872, 886 (Misc. 2010)
(“Jiang’s cross motion for disqualification was not filed because of a genuine
concern for upholding the [conflict rules, but as a perceived stratagem]”); Benge
v. Oak Grove Motor Court, Inc., 2006 Del. Ch. LEXIS 5 (2006) (“the obviously
tactical nature of Benge’s motion does not obviate the need to enforce the rules
[but] does influence the nature of enforcement. There is no discernible
prejudice…from permitting Kerr to continue to represent her client…therefore, I
deny [the] motion to disqualify”); Hayes v. Central States Ortho. Specialists, 51
P.3d 562, 565 (Okla. 2002) (“A recurring theme in...cases that have recognized
waiver as a basis for denying motions to disqualify is the need to insure that
such motions are not used for strategic purposes”).
674
Chapter 25 Tactical Motions
§25.4
§25.4 Establishing a Tactical Motivation
Even when a tactical motivation is suspect, establishing the
moving party’s reasons for seeking disqualification can prove to be
a formidable task. 1 Obviously, there would be few instances in
which the non-moving party would have concrete evidence of such
a motive, 2 or where it would be fruitful for the court to inquire
directly into the moving party’s objectives. The motivation for a
disqualification motion must, rather, ordinarily be surmised on the
basis of the circumstances under which it was made. 3
A court may suspect that disqualification has been sought for
tactical reasons in a situation where the conduct of the moving
party, 4 or its counsel, reflects that the motion was not brought out
of any sensitivity to ethical concerns. 5 A court may, for example,
1
Int’l Elecs. Corp. v. Flanzer, 527 F.2d 1288, 1296 (2d Cir. 1975); Wolf,
Block, Schorr, & Solis-Cohen LLP v. Navon, 2006 U.S. Dist. LEXIS 9859, at
*4 (E.D. Pa. 2006) (“In filing this motion, it is unclear whether [Jeffrey’s
emotion clouded his objectivity or…he instead has an improper purpose]”).
2
United States v. Kiley, 2011 U.S. Dist. LEXIS 131388, at *23 n.3 (D. Minn.
2011) (“Mahmoud [claims that the Government intentionally chose the wrong
witness] in order to create [a basis for disqualification]…there is no evidence in
the record to support this allegation”). But see Utilimaster Corp. v. Ind. Dep’t of
State Revenue, 967 N.E.2d 92, 98 (Ind. Tax. Ct. 2012) (defendant “invoked
Rule 3.7 in an attempt to conceal its failure to timely pursue discovery”).
3
Fenik v. One Water Place, 2007 U.S. Dist. LEXIS 10096, at *18-19 (N.D.
Fla. 2007) (“the timing of Plaintiff’s objection…is suspect”); Spears v. Fourth
Court of Appeals, 797 S.W.2d 654, 658 (Tex. 1990) (the motion had “all the
appearances of a tactical weapon”). Cf. Steinert v. Steinert, 73 Mass. App. Ct.
287, 290, 897 N.E.2d 603 (2008) (“it is difficult to preclude the notion that this
motion represents…the type of gamesmanship that courts must guard against”).
4
Fox Hollow of Turlock Owners’ Ass’n v. Sinclair, 2011 U.S. Dist. LEXIS
68558, at *9-10 (E.D. Cal. 2011) (an “attempt to disqualify [counsel]…without
new, relevant factual information, convinces the Court that this motion is yet
another attempt to delay these proceedings and/or increase the costs”).
5
See, e.g., FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1315 (5th Cir. 1995)
(“[a] tortured justification for disqualification...premised on a purported possible
[conflict] in the future, suggests not so much a conscientious professional
concern for the profession and the client of the opposing counsel as a tactic”);
Elonex I.P. Holdings v. Apple Computer, 142 F. Supp. 2d 579, 584-585 (D. Del.
2001) (“it seems highly unlikely that [defendant]’s motion is primarily
motivated by a sense of betrayal or a concern for the vindication of the integrity
of the bar”); Gross v. Gross, 1997 U.S. Dist. LEXIS 16312, at *9-10 (E.D. Pa.
675
§25.4
Part VIII Performing the Balancing Test
suspect that the decision to file the motion was prompted by
strategic considerations where the movant could have sought
counsel’s disqualification in a similar or related proceeding, but
did not; 6 could have attempted to address the alleged ethical
misconduct by means of a disciplinary complaint, but did not; 7 or
engaged in other tactics designed to stall the litigation. 8
The court may also be wary of a tactical motive in a situation
where there is reason to suspect that the motion to disqualify was
filed as a means of retaliating against the litigation moves made by
1997); Essepian v. Chrysler Credit Corp., 1997 U.S. Dist. Lexis 15353, at *2223 (N.D.N.Y. 1997) (“It is clear from the way the motion was presented by
plaintiffs’ counsel, even if they initially had grounds to believe disqualification
was warranted, they made little or no effort to verify those grounds”); Orig’l
Appalachian Artworks v. May Dept. Stores, 640 F. Supp. 751, 759 (N.D. Ill.
1986) (“the sequence of events paints this motion as a tactical weapon, rather
than as true effort to cleanse the litigation process of undesirable conflicts”);
Glover v. Libman, 578 F. Supp. 748, 769 (N.D. Ga. 1983) (counsel’s conduct
showed that the motion was brought for tactical reasons); Forward v Foschi, 27
Misc. 3d 1224A, 2010 N.Y. Misc. LEXIS 1066, at *53-54 (2010) (“actions of
[the movant and its counsel suggests] that there is much credence to [counsel’s]
argument that the disqualification motion was made in order to oppress Forward
economically”); Johnson v. Superior Court, 159 Cal. App. 3d 573, 579 (1984).
6
See Sauer Inc. v. Honeywell Bldg. Solutions SES Corp., 2012 U.S. Dist.
LEXIS 12881, at *9 (W.D. Pa. 2012) (“it is disingenuous for Defendant to claim
that there is ‘no point’ to filing a motion to disqualify when it perceives the case
to be of low value, then to immediately turn and complain that the same conflict
‘create[s] a serious shroud of impropriety’…as soon as the case appears more
valuable”); Brown & Williamson Tobacco Corp. v. Pataki, 152 F. Supp. 2d 276,
290 (S.D.N.Y. 2001) (“The State has never moved to disqualify [the firm] in any
other case”); Simmons, Inc. v. Pinkerton’s, Inc., 555 F. Supp. 300, 305 (N.D.
Ind. 1983) (noting, “with interest,” that no motion to disqualify had been filed in
a similar action that was on file in another court); H&H Acq’n Corp. v. Fin.
Intranet Holdings, 2000 U.S. Dist. Lexis 5463, at *11-12 (S.D.N.Y. 2000).
7
Hofmann v. Aspen Dental Mgmt., 2011 U.S. Dist. LEXIS 113446, at *2526 (S.D. Ind. 2011) (“the parties have made no mention of any sort of
disciplinary procedures…that have been initiated against Attorney Schiff”);
Schuff v. A.T. Klemens & Son, 2000 MT 357, 16 P.3d 1002, 1015-1016 (Mont.
2000) (if movant’s counsel viewed challenged counsel’s conduct “as being as
serious as claimed…[it is appropriate that the Commission inquire] into why
such violations were not reported to the disciplinary authority”).
8
United States ex rel. Lord Elec. Co. v. Titan Pac. Constr., 637 F. Supp.
1556, 1562 (W.D. Wash. 1986) (noting that, prior to moving to disqualify,
defendants had engaged in a series of delaying tactics for almost 6 years).
676
Chapter 25 Tactical Motions
§25.4
the opposing party; 9 where the moving party signals that it would
be willing to forego its stated concerns about challenged counsel’s
conduct if the non-moving party agrees to a course of action the
moving party desires; 10 or where the movant failed to give serious
consideration to measures short of disqualification which, in the
estimation of the court, should have sufficed to alleviate any
legitimate concern it may have had. 11
A court is particularly likely to infer a strategic motivation in a
case where the moving party effectively created the ethical
problem that provides the basis for the motion; 12 as where it
created a conflict by naming counsel as a party to the lawsuit; 13
called counsel as a witness, and then moved to disqualify him from
serving as an advocate on that basis; 14 imparted confidential
information to counsel after becoming aware that he was
9
Oi Tai Chan v Society of Shaolin Temple, Inc., 910 N.Y.S.2d 872, 886
(Misc. 2010) (“Jiang’s motives to file the [motion to disqualify] are transparent.
The cross motion was meant to harass and [get] ‘payback’”); Nolte v. Pearson,
133 F.R.D. 585, 596 n.3 (D. Neb. 1990) (finding it “noteworthy” that the motion
was made only after a settlement conference did not fully resolve the matter).
10
Reese v. Va. Int’l Terminals, Inc., 2012 U.S. Dist. LEXIS 109372, at *31
n.9 (E.D. Va. 2012) (“Scriven’s conditional offer to waive the conflict for the
purpose of global settlement discussions betrays a lack of concern that any
confidential information…might be used to the union’s advantage”).
11
Pappas v. Frank Azar & Assocs., P.C., 2007 U.S. Dist. LEXIS 89966, at
*23 (D. Colo. 2007) (“plaintiffs’ improper purpose…is apparent from their
refusal to accept [a proffered stipulation]”). Cf. Dworkin v. Gen. Motors Corp.,
906 F. Supp. 273, 279 (E.D. Pa. 1995) (finding defendant’s refusal to accept the
court’s suggested method for protecting its confidences to be “interesting”).
12
Blaney v. Charlotte-Mecklenburg Hosp. Auth., 2011 U.S. Dist. LEXIS
103159, at *7 (W.D.N.C. 2011) (“the potential for Plaintiffs’ counsel to have to
[choose between competing interests] is entirely of Defendant’s making”);
Anchor Packing Co. v. Pro-Seal, 688 F. Supp. 1215, 1223 (E.D. Mich. 1988).
13
Maddocks v. Ricker, 403 Mass. 592, 531 N.E.2d 583 (1998) (“[a] decision
to add a plaintiff’s lawyer as a third-party defendant has significant
consequences…“[t]he judge should be alert to the possibility that [counsel] is
using the cross-complaint as a tactical device”). Cf. Parler & Wobber v. Miles &
Stockbridge, 359 Md. 671, 756 A.2d 526 (Md. App. 2000); Catania v. Lippman,
98 A.D.2d 826, 827, 470 N.Y.S.2d 487 (1983).
14
See CEF Funding, LLC v. Sher Garner Richter Klein & Hibbert, LLC,
2010 U.S. Dist. LEXIS 83219, 2010 WL 2773116, at *2 (E.D. La. July 9, 2010)
(a “court must be especially sensitive to potential abuse when, as here, the party
seeking disqualification [is] the one wanting to call the attorney as a witness”).
677
§25.4
Part VIII Performing the Balancing Test
representing an adverse party; 15 interviewed an attorney with no
intention of hiring her, in the hopes of creating a basis for seeking
counsel’s disqualification if she later undertook to represent the
other side; 16 or filed a motion for consolidation which, if granted,
would create a conflict potential that did not previously exist. 17
A tactical motivation is perhaps most likely to be suspect
where the motion is deemed by the court to be baseless, 18 or where
the timing of its filing suggests that it was filed in bad faith, 19 for
reasons other than those apparent on the face of the motion; 20 as
where the moving party – although long aware of the conduct that
has allegedly given rise to the need for disqualification 21 –
15
I.N.A. Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1, 6 (E.D. Pa. 1983)
(noting that it could appear that movant approached counsel in order to
disqualify his firm). But see Harrison v. Fisons Corp., 819 F. Supp. 1039, 1041
(M.D. Fla. 1993) (noting that there had been no showing that movant’s
appointment of counsel was in any way contrived to achieve disqualification).
16
SWS Fin. Fund A v. Salomon Bros., 790 F. Supp. 1392, 1402-1403 (N.D.
Ill. 1992) (clients “of enormous size and wealth” should not be encouraged to
“parcel their business among dozens of the best law firms as a means of
purposefully creating the potential for conflicts”); B.F. Goodrich Co. v. Formosa
Plastics Corp., 638 F. Supp. 1050, 1055 (S.D. Tex. 1986) (“[t]here is some merit
to the argument that disqualifying all the lawyers interviewed by a company
…would itself undermine the public’s confidence in the judicial process”).
17
Illinois v. Borg, 564 F. Supp. 102, 104 (N.D. Ill. 1983) (noting, “without
questioning” plaintiffs’ motives, that consolidating the cases would extend the
disqualification of the challenged firm to the consolidated case).
18
Yang Enters. v. Georgalis, 988 So. 2d 1180, 1183 (Fla. App. 2008).
19
Schertz v. Jenkins, 4 Misc.3d 298, 291 (N.Y.C.C.C. 2004).
20
White Cap Constr. Supply, Inc. v. Tighton Fastener & Supply Corp., 2010
U.S. Dist. LEXIS 93075, at *25-26 (D. Neb. 2010) (the circumstances “suggest
that [defendants are] more interested in dislodging plaintiff’s attorneys than in
protecting” confidences); Skyy Spirits, LLC v. Rubyy, LLC, 2009 U.S. Dist.
LEXIS 109641, at *12 (N.D. Cal. 2009) (“Rubyy was aware of the conflict
[from day one]…This motion is largely a tactical gimmick”).
21
Liberty Nat’l Enters., L.P., 194 Cal. App. 4th at 847 (“one can properly
consider the possibility that the ‘party brought the motion as a tactical device to
delay litigation’…This is a reasonable inference…Chicago [was] well aware of
McDougal’s exposure to [its] claims department from the very beginning”);
Moriarty v. Sullivan, 2009 Mass. Super. LEXIS 193, at *5-6 (2009) (counsel
“cannot cogently explain how, if these conflicts actually existed, she remained
silent about them for more than four years after this case was entered in Court”).
678
Chapter 25 Tactical Motions
§25.4
intentionally unreasonably delayed 22 in bringing a motion 23 until a
later point in time; 24 perhaps until near the close of discovery 25 or
the eve of a hearing 26 or a trial, 27 if not during the trial itself. 28
22
TransPerfect Global, Inc. v. MotionPoint Corp., 2012 U.S. Dist. LEXIS
85649, at *38 (N.D. Cal. 2012) (“In determining whether tactical abuse
motivates the disqualification motion, it is common sense to look for any
unexplained delay from the moving party”); O’Neil v. Plan for Salaried Emps.
of RKO Gen., 1992 U.S. Dist. Lexis 237, at *10-12 (S.D.N.Y. 1992) (“Here the
lack of merit to the disqualification motion, taken together with the delay in
bringing the motion, strongly suggests that the motion was not made because of
a genuine concern that attorney-client secrets were being used improperly”).
23
See, e.g., Openwave Sys. v. Myriad France S.A.S., 2011 U.S. Dist. LEXIS
35526, at *18 (N.D. Cal. 2011) (“Myriad’s motion - given the minute likelihood
of an actual breach of confidentiality, its strategic timing, and the delay in its
filing - appears to be motivated by a desire to derail” a summary judgment
motion); Wild Game NG, LLC v. Wong’s Int’l (USA) Corp., 2007 U.S. Dist.
LEXIS 61044, at *5-6 (D. Nev. 2007) (“An inference can be drawn from [the]
long delay that the purpose of the motion was not a genuine concern”); In re
Kvaerner|IHI, 2010 Tex. App. LEXIS 7710, at *5-6 (2010) (“untimely urging of
a disqualification motion lends support to any suspicion that the motion is being
used as a” tactic); D.J. Invest. Group, L.L.C. v. DAE/Westbrook, L.L.C., 2006
UT 62, at *P33 (Utah 2006) (“delay in filing…or in notifying opposing counsel
that a motion to disqualify is likely raises concerns that the party who delays
may be using the motion as a manipulative litigation tactic”).
24
See Murray v. Metro. Life Ins. Co., 583 F.3d 173, 180 (2d. Cir. 2009)
(“Plaintiffs’ delay suggests opportunistic…motives”); Redd v. Shell Oil Co.,
518 F.2d 311, 315 (10th Cir. 1975) (the motion was “held in reserve” until the
most expedient time came along to file it); Resolution Trust Corp. v. Fidelity
and Deposit Co. of Md., 1997 U.S. Dist. LEXIS 22177, at *15 (D.N.J. 1997)
(the court could “reasonably infer,” based on a 3 year delay, that no legitimate
justification for the disqualification motion existed); Am. Plastic Equip., Inc. v.
Toytrackerz, LLC, 2009 U.S. Dist. LEXIS 27790, at *23 (D. Kan. 2009) (“If
Plaintiff were genuinely concerned about any potential prejudice…the Court
would have expected [it to file a motion] to disqualify during the early stages”);
Harrison v. Edison Bros. Apparel Stores, 146 F.R.D. 142, 143 (M.D.N.C. 1993)
(the late date on which the motion was filed suggested “an attempt to interrupt
opposing counsel’s trial preparation”); Lucci v. Lucci, 541 N.Y.S.2d 994, 995
(A.D. 1989); Wild Game NG, LLC, 2007 U.S. Dist. LEXIS 61044, at *11-13
(“Plaintiff waited until the eve of Mr. Ng’s deposition to object”).
25
Freeman, 449 F. Supp. at 978 (where a motion is filed long after suit is
brought, and near the close of discovery, the court “must be sensitive” to the
possibility that it was tactically motivated). Cf. Team Obsolete Ltd. v.
A.H.R.M.A. Ltd., 2006 U.S. Dist. LEXIS 48765, at *27 (E.D.N.Y. 2006) (“This
action has had a tortured history, and discovery is…to be completed [shortly]”).
But see Snapping Shoals Elec. Mbrshp. Corp. v. RLI Ins. Corp., 2006 U.S. Dist.
679
§25.4
Part VIII Performing the Balancing Test
In a situation where the moving party did not promptly object,
the court is apt to suspect that concern about that conduct was not
the true reason for filing the motion. 29 This is so, a fortiori, where
the attorney who represented the non-moving party during the
period of delay was aware of the grounds later alleged to warrant
disqualification, but made no attempt to secure that result; 30 where
LEXIS 45226, at *12-13 (N.D. Ga. 2006) (“The primary cost of disqualifying
plaintiff’s attorney is delay [but four months remain in discovery]…so finding
another attorney should not significantly delay disposition of this case”).
26
See Balt. County v. Barnhart, 201 Md. App. 682, 713, 30 A.3d 291 (2011)
(“The timing of the County’s [request for disqualification], six days before
Willis’ appeal was scheduled to be heard…suggests tactical reasons”).
27
See In re Advanced Telecomm. Network, Inc., 326 B.R. 191, 196 (M.D.
Fla. 2005) (“the Court surmises that the [motion] may have been filed more for
strategic purposes in an attempt to remove experienced counsel on the eve of
trial and not to correct any over arching impropriety”); In re B.L.H., 2008 Tex.
App. LEXIS 2212, at *12-13 (2008) (“Marjorie waited until the night before
trial to enter her motion…even though [her] counsel pondered whether…to raise
[it] for several weeks”); Szoke v. Carter, 974 F. Supp. 360, 370 (S.D.N.Y. 1997)
(finding that the timing of the motion – 22 months after the commencement of
the action – raised “serious questions as to the motives behind the motion”);
Omi v. Chubb Ins. Co. of Can., 1996 U.S. Dist. Lexis 22000, at *7 n.3 (D. Kan.
1996) (that the motion was filed only 3 months before trial “looks suspiciously
like an attempt to gain a strategic advantage”); Cmwlth. Ins. Co. v. Graphix Hot
Line, 808 F. Supp. 1200, 1209 (E.D. Pa. 1992) (where the defendant had been
represented by the same firm since the complaint was filed over 2 years before,
but did not file a motion until 3 weeks prior to trial, it appeared that the primary
reason for filing the motion was to gain a tactical advantage). But see Gorbaty v.
Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 9541, at *11 (E.D.N.Y. 2011)
(“at this early stage of the case, there is no reason to believe defendants have
moved to disqualify Mr. Gorbaty for improper tactical reasons”).
28
Harnett v. Long Island Jewish-Hillside Med. Ctr., 215 A.D.2d 726, 727,
627 N.Y.S.2d 83 (1995) (that the motion was made 8 years after the action was
filed “clearly demonstrates tactical, rather than substantive motives”).
29
Liberty Nat’l Enters., L.P. v. Chi. Title Ins. Co., 194 Cal. App. 4th 839,
847 (2011) (“Delay is significant not only from the perspective of prejudice to
the nonmoving party, it is also an indication that the alleged breach of
confidentiality was not seen as serious or substantial by the moving party”). Cf.
In re Miller, 2011 Bankr. LEXIS 1771, at *25 (Bankr. 10th Cir. 2011) (unpub.)
(“As these Debtors appear to be doing here, litigants often use motions to
disqualify opposing counsel as dilatory or tactical devices”).
30
Heci Explor’n Co. v. Clajon Gas Co., 843 S.W.2d 622, 628-629 (Tex. App.
1992) (that the moving party did not file a motion until 2 months after learning
the relevant facts, where its lawyer conceded that he had discussed a possible
680
Chapter 25 Tactical Motions
§25.4
the moving party fails to articulate how granting the motion would
ameliorate the moving party’s claimed concerns; 31 or where the
prejudice occasioned to the non-moving party by an order
disqualifying her counsel would be severe, 32 and the moving party
has made no showing that it will be prejudiced, 33 or the trial
tainted, 34 if counsel is not disqualified. 35
motion to disqualify with movant’s representatives at various times, supported
the court’s suspicion that the motion was “a negotiating tool”); H.H.B.K. 45th
Street Corp. v. Stern, 158 A.D.2d 395, 551 N.Y.S.2d 517, 518 (1990) (the
possibility that the motion was made to secure a tactical advantage was strongly
suggested by the fact that it was made 6 months after the start of litigation, and
after respondents’ previous attorneys did not seek to have the firm disqualified).
31
Thomas Kinkade Co. v. Hazlewood, 2007 U.S. Dist. LEXIS 41106, at *1315 (N.D. Cal. 2007) (the “motion was filed after nearly all of the substantive
briefing [was] completed…it is not clear what defendants would gain from a
forward-looking disqualification”); Dominica Mgmt., Inc. v. Am. Univ. of
Antigua Coll. of Med., 2005 U.S. Dist. LEXIS 12049, at *18-19 (S.D.N.Y.
2005) (disqualification “would likely be a pyrrhic victory…there has been no
showing that Simon would be restricted in any way from disclosing [the
information DMI alleges was furnished]…Circumstances such as these raise the
concern that the [motion was] interposed purely for tactical purposes”).
32
Reilly v. Computer Assocs. Long-Term Disability Plan, 423 F. Supp. 2d 5,
13-14 (E.D.N.Y. 2006) (disqualifying counsel “would require Reilly to find a
new attorney…The lost time and money associated with this transition is of
particular importance here, where Reilly is unemployed”); Concerned Parents v.
Hous. Auth. of St. Petersburg, 934 F. Supp. 406, 411 (M.D. Fla. 1996) (noting
that, where defendant sought to disqualify a firm that was representing a
citizen’s group pro bono, “the public should be suspicious”); Liberty Nat’l
Enters., L.P. v. Chi. Title Ins. Co., 194 Cal. App. 4th 839, 848 (2011) (“The
timing…reflects a lack of concern…over the alleged breach of confidentiality”).
33
Xcentric Ventures, LLC v. Stanley, 2007 U.S. Dist. LEXIS 55459, at *11
(D. Ariz. 2007) (“the present Motion failed to articulate how Plaintiffs’
representation will imminently result in any injury to Defendants”).
34
In re Agway, Inc. v. Wells Fargo Fin. Leasing, Inc., 2005 Bankr. LEXIS
2945, at *17 (N.D.N.Y. 2005) (“The absence of any real risk of trial taint or
prejudice to Wells Fargo compels the Court to suspect that Wells Fargo has
pursued this motion solely to obtain a tactical advantage”).
35
In re Nat’l Century Fin. Enters., 2010 U.S. Dist. LEXIS 39524, at *39
(S.D. Ohio 2010) (“Credit Suisse hoped to gain an advantage through pure
gamesmanship. This court does not tolerate such behavior”); Vinewood Capital,
LLC v. Dar Al-Maal Al-Islami Trust, 2010 U.S. Dist. LEXIS 30358, at *22
(N.D. Tex. 2010) (a waiver finding is “appropriate when…the attempt at
disqualification appears abusive or is being used as a delaying tactic”).
681
§25.5
Part VIII Performing the Balancing Test
§25.5 Failure to Establish a Tactical Motivation
A court’s suspicions about the moving party’s motives for seeking
disqualification may sometimes play a role in convincing the court
not to grant the requested relief. 1 However, there are times when a
court is unable to discern any improper motive for such a motion; 2
and, even if the court suspects such a motive, it will often be
unable to satisfy itself that the motion was filed for purely strategic
reasons. In such a situation, the court is unlikely to deny the
requested relief. 3 This is so, a fortiori, in a situation where the
court concludes that a decision to withhold disqualification would
be likely to have an adverse impact on public confidence in the
integrity of the legal system. 4
1
See, e.g., Granberry v. Byrne, 2011 U.S. Dist. LEXIS 118293, at *14 (E.D.
Pa. 2011). Cf. Foster v. JLG Indus., 372 F. Supp. 2d 792, 799 (M.D. Pa. 2005)
(“while reluctant to characterize Plaintiff’s motives, the court does not find
Plaintiff’s motion to be grounded in a foundation meriting” disqualification).
2
Sanford v. Virginia, 687 F. Supp. 2d 591, 599 (E.D. Va. 2009) (the claims
“that the motion is brought in this case in bad faith…are conclusory”);
Southwire Co. v. Ramallo Bros. Printing, Inc., 2009 U.S. Dist. LEXIS 116631,
at *18-19 (D.P.R. 2009) (“there is no tangible evidence here…of improper
motive”); United States v. Bin Laden, 58 F. Supp. 2d 113, 119 (S.D.N.Y. 1999)
(“[t]he facts do not indicate that the Government unduly delayed [so much as to]
allow for an inference that [its] motivation was to harass”); Handtool Corp. v.
Dresser Indus., 246 Ill. App. 3d 979, 619 N.E.2d 1282, 1294-1295 (1993).
3
Loomis v. Consol. Stores Corp., 2000 U.S. Dist. Lexis 12391, at *12-13
(S.D.N.Y. 2000) (it did not “escape the Court’s attention” that the motion
followed shortly after failed settlement negotiations, but “this chronology is not
sufficient to conclude that the instant motion was improperly motivated”).
4
Leathermon v. Grandview Mem’l Gardens, Inc., 2010 U.S. Dist. LEXIS
32173, at *46-48 (S.D. Ind. 2010) (finding “clear evidence to suggest that
Grandview LLC’s motion…may have been filed primarily as a litigation
tactic…[But] we cannot withhold the remedy of disqualification where the
confidence of the public and the integrity of the legal system is at stake”).
682