MOTIONS TO DISQUALIFY ABA Center for Professional Responsibility 40th Annual National Conference on Professional Responsibility May 30, 2014 Robert G. Krupka Krupka Law Group, P.C. Los Angeles, CA

OVERARCHING ISSUES Focus on the Big Picture – Will DQ help or hurt your client’s overall goal in the case Delays the ultimate resolution by 6 months or more. Distracts you, your client, your opponent, and the Court from the merits. A DQ fight often annoys, even alienates, the Court. Does it advance the interests of your client? – Do the facts justify the uphill battle? Will you be better off if you fight, even if you win? – Taint may hang over challenged counsel, even if retained. – New counsel may be more effective. – Your opponent may be more motivated, regardless of outcome. – Cost and delay may limit what you can do in the rest of the case.

WHAT YOU NEED TO PROVE TO WIN Local law controls, usually even in federal court – See, e.g., N.D. CA Local Rule 11-4(a)(1) – In re County Of Los Angeles, 223 F.3d 990, 995 (9th Cir. 2000) A violation of a rule of professional conduct – Often focused on prior representation and access to privileged and confidential information relevant to present representation. – See, e.g., CA Rule of Professional Conduct 3-310(E) Most jurisdictions impose strict judicial scrutiny to preclude tactical abuse – See, e.g,, Oracle Am., Inc. v. Innovative Tech. Distrib., LLC, 11-CV LHK, 2011 WL , at 4 (N.D. Cal July 20, 2011) Law recognizes the substantial hardship and monetary and other costs replacing counsel entails. – See, e.g., Gregori v. Bank of Am., 207 Cal App. 3d 291, 300 (Ct. App. 1989) Practically speaking, more than a technical violation or de minimis prejudice is required

WHEN TO FILE As early as possible. As soon as you have sufficient facts to sustain a motion. – The longer you wait, the harder disqualification becomes. Disclose the issue to the opponent/Court before you file? – Almost always a good idea. – Gives opponent a chance to explain or withdraw. – Shows the Court you did not “ambush” your opponent.

WHAT RELIEF DO YOU REQUEST Disqualification – Of an entire firm? – Of individual attorneys? Special Master to oversee discovery to uncover more facts – You may have enough to file motion, but not enough to persuade a skeptical Court that disqualification is necessary. – Asking initially for less than DQ can demonstrate good faith and lack of tactical gamesmanship. Sanctions – Don’t get greedy. DQ is a sanction in and of itself. Overreaching can sink your motion.

HOW TO PROCEED Usually decided on the motion papers – Supported by affidavits, documents, deposition testimony, expert opinions. – Present facts, argument without excessive passion. Let the facts speak for themselves. Seek discovery before filing reply brief if possible – Depose any affiants and experts relied upon by opponent You will not get a second bite on DQ. Get all the facts you can before submitting the motion for decision. Hearing – Testimony from client, experts, opposing law firm. May present the problem of a “cold cross.” The law of unintended consequences may bite you.

WHAT DO YOU DO IF YOU WIN Don’t overreach – Agree to delay for opponent to find new counsel and get them up to speed Agree to update/reopen discovery if asked – Courts will generally allow so do not risk backlash by opposing Offer to work with new counsel to agree on updated schedule – Courts value cooperation, especially from a gracious victor Be careful asking for costs and fees associated with motion – Court may consider this “piling on”

WHAT DO YOU DO IF YOU LOSE Motion for Reconsideration – Difficult to meet requirements Mistake of Law Mistake of Fact – Even more difficult to succeed Appeal – Further delay – Difficult to overturn trial court Request delay sufficient to retain new counsel and get them up to speed Consult with new counsel regarding whether to seek to redo prior discovery, etc.