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Disqualification of Counsel, Attorney; Conflict of Interest

Attorneys have a duty of loyalty to their clients and must work in the client’s best interests. For this reason, it is obvious that an attorney cannot simultaneously represent both a plaintiff and a defendant in the same lawsuit. Things become much more murky when a lawyer represents a client in one matter and then subsequently represents another client against the former client.

Whenever an attorney has a conflict of interest with a current or former client in a litigation setting, a motion to diqualify is the proper way to remove the attorney from a case. A motion to disqualify should be made with “reasonable promptness” after the party becomes aware of the conflict so that it cannot be used as a strategic tool to deprive his opponent of counsel after a substantial amount of time has been spent on a case. Terre Du Lac Property Owners’ Ass’n, Inc. v. Shrum, 661 S.W.2d 45, 48 (Mo. Ct. App. 1983).

Motions to disqualify are not always straightforward, particularly in the case of former clients. Specifically, under Rule 4-1.9, a lawyer who has represented a client cannot afterwards represent another person in the same or a “substantialy related” matter in which that person’s interests are materially adverse to the former client — unless the former client gives informed consent, confirmed in writing. Numerous factors are considered in determining whether a matter is “substantially related”:

(1) the case involved the same client and the matters or transactions in question are relatively interconnected or reveal the client’s pattern of conduct; (2) the lawyer had interviewed a witness who was key in both cases; (3) the lawyer’s knowledge of a former client’s negotiation strategies was relevant; (4) the commonality of witnesses, legal theories, business practices of the client, and location of the client were significant; (5) a common subject matter, issues and causes of action existed; and (6) information existed on the former client’s ability to satisfy debts and its possible defense and negotiation strategies. In re Carey, 89 S.W.3d 477 (Mo. banc 2002).

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