Conflicts of interest in litigation: The judicial role

Fordham Law Review

Volumn 65, Issue 1, 1996, Pages 71-128

  Green, Bruce A ^a,b,c,d  

^a FORDHAM UNIVERSITY   (United States)

^b Stein Ctr Ethics Pub Interest Law

^c PRINCETON UNIVERSITY   (United States)

^d Howard Hughes Medical Institute

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[No Author keywords available]

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EID: 2242430733     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (237)

1. Model Rules of Professional Conduct (1996) [hereinafter Model Rules].
2. Model Code of Professional Responsibility (1980) [hereinafter Model Code].
3. Another judicial role, which grows out of the first two, is as law-interpreter. Courts interpret disciplinary rules and other law governing lawyers in the course of reviewing disciplinary decisions or resolving issues of professional conduct that arise in litigation. The courts' role as interpreters of conflict-of-interest law is addressed only tangentially in this Article.
4. A recent study by Professor Daniel Coquillette determined that out of 443 reported federal decisions involving attorney conduct over a five-year period, 46% involved conflict-of-interest rules and an additional 10% involved the attorney-witness disqualification rules, which many regard as conflict-of-interest rules. See Daniel R. Coquillette, Study of Recent Federal Cases (1990-1995) Involving Rules of Attorney Conduct 3-4 (Dec. 1, 1995) (distributed at the Special Study Conference of Federal Rules Governing Attorney Conduct in Los Angeles, California, on January 9-10, 1996) (on file with the Fordham Law Review). For an extensive review of the law governing lawyers' conflicts of interest, see Developments in the Law: Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244 (1981).
5. A recent study by Professor Daniel Coquillette determined that out of 443 reported federal decisions involving attorney conduct over a five-year period, 46% involved conflict-of-interest rules and an additional 10% involved the attorney-witness disqualification rules, which many regard as conflict-of-interest rules. See Daniel R. Coquillette, Study of Recent Federal Cases (1990-1995) Involving Rules of Attorney Conduct 3-4 (Dec. 1, 1995) (distributed at the Special Study Conference of Federal Rules Governing Attorney Conduct in Los Angeles, California, on January 9-10, 1996) (on file with the Fordham Law Review). For an extensive review of the law governing lawyers' conflicts of interest, see Developments in the Law: Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244 (1981).
6. See Model Rules, supra note 1, Rules 1.7 - 1.12; Model Code, supra note 2, DR 5-101 - DR 5-107.
7. By "conflict rules," this Article means disciplinary provisions addressing conflicts of interest. See supra note 5 and accompanying text.
8. See Kevin McMunigal, Rethinking Attorney Conflict of Interest Doctrine, 5 Geo. J. Legal Ethics 823, 826 (1992).
9. See Model Rules, supra note 1, Preamble.
10. David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 801, 829 (1992); see Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev. 69, 91 (1995); Developments in the Law - Lawyers' Responsibilities and Lawyers' Responses, 107 Harv. L. Rev. 1547, 1597-605 (1994).
11. David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 801, 829 (1992); see Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev. 69, 91 (1995); Developments in the Law - Lawyers' Responsibilities and Lawyers' Responses, 107 Harv. L. Rev. 1547, 1597-605 (1994).
12. David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 801, 829 (1992); see Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev. 69, 91 (1995); Developments in the Law - Lawyers' Responsibilities and Lawyers' Responses, 107 Harv. L. Rev. 1547, 1597-605 (1994).
13. Wilkins, supra note 9, at 827-28.
14. Id. at 805-09.
15. In referring to a disqualification as a "remedy," this Article means a device to prevent future harm, as distinguished from a punishment.
16. See Linda A. Winslow, Note, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 Wash. L. Rev. 863 (1987); cf. Sanders v. Rosenberg, 896 P.2d 491, 493 (N.M. Ct. App. 1995) (noting conflicting approaches).
17. In a succession of decisions in the 1980s, the Supreme Court held that decisions on disqualification motions are not immediately appealable. See, e.g., Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 430 (1985) (holding that a disqualification order in a civil case was not immediately appealable); Flanagan v. United States, 465 U.S. 259, 260 (1984) (holding that a disqualification order in a criminal case was not immediately appealable); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 370 (1981) (vacating judgment of Court of Appeals because orders denying motions to disqualify counsel are not immediately appealable). Underlying these decisions is a concept of disqualification as a remedy for harms that may or may not later occur, rather than as a sanction. If disqualification were thought to serve primarily to sanction the lawyer for violating a conflict rule, one should expect the Court to afford. disqualified lawyers an immediate opportunity to appeal.
18. See, e.g., Armstrong v. McAlpin, 625 F.2d 433, 445-46 (2d Cir. 1980) (en banc) (finding that bar association disciplinary machinery is better equipped to handle ethical conflicts that arise during litigation); Board of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979) (finding that because disqualification would immediately disrupt the litigation, questions about the lawyer's conduct would be better handled by other means); see also W.T. Grant Co. v. Haines, 531 F.2d 671, 677 (2d Cir. 1976) ("The business of the court is to dispose of litigation and not to act as a general overseer of the ethics . . . unless the questioned behavior taints the trial of the cause before it.").
19. 972 F.2d 605 (5th Cir. 1992), cert. denied, 507 U.S. 912 (1993). The case came to the court by way of petition for a writ of mandamus. Id. at 608.
20. Id. at 610-11.
21. Id. at 611. Insofar as disqualification serves a disciplinary function, courts may impose this sanction pursuant to their inherent authority to regulate lawyers. See, e.g., Pantori, Inc. v. Stephenson, 384 So. 2d 1357, 1358-59 (Fla. Dist. Ct. App. 1980) (finding that Florida Constitution empowers supreme court to regulate attorney conduct). For discussions of the courts' supervisory authority over the practice of law, see generally Charles W. Wolfram, Modern Legal Ethics 22-33 (1986) (discussing courts' inherent powers to regulate lawyers' conduct); Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1 (1989-90) (arguing that courts have an inherent, but non-exclusive, power to regulate lawyers in the absence of statutes specifying otherwise); Note, The Inherent Power of the Judiciary to Regulate the Practice of Law - A Proposed Delineation, 60 Minn. L. Rev. 783, 784 (1976) (discussing the role courts play in tandem with the legislative branch in regulating attorney conduct). Questions concerning the scope of judicial authority to regulate lawyers arise intermittently. Most recently, the question has been posed by the regulation recently promulgated by the Department of Justice to govern federal prosecutors' communications with represented persons. As Rory Little discusses in his article for this Symposium, the regulation purports to supersede rules of conduct adopted by federal courts to regulate lawyers' communications with represented parties. The Department defends the regulation based in part on its claim that federal courts lack authority to regulate prosecutors' out-of-court conduct. See Rory Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 Fordham L. Rev. 355 (1996); Bruce A. Green, Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be Created?, 64 Geo. Wash. L. Rev. (forthcoming 1996) (manuscript on file with the Fordham Law Review) [hereinafter Green, Whose Rules of Professional Conduct].
22. Id. at 611. Insofar as disqualification serves a disciplinary function, courts may impose this sanction pursuant to their inherent authority to regulate lawyers. See, e.g., Pantori, Inc. v. Stephenson, 384 So. 2d 1357, 1358-59 (Fla. Dist. Ct. App. 1980) (finding that Florida Constitution empowers supreme court to regulate attorney conduct). For discussions of the courts' supervisory authority over the practice of law, see generally Charles W. Wolfram, Modern Legal Ethics 22-33 (1986) (discussing courts' inherent powers to regulate lawyers' conduct); Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1 (1989-90) (arguing that courts have an inherent, but non-exclusive, power to regulate lawyers in the absence of statutes specifying otherwise); Note, The Inherent Power of the Judiciary to Regulate the Practice of Law - A Proposed Delineation, 60 Minn. L. Rev. 783, 784 (1976) (discussing the role courts play in tandem with the legislative branch in regulating attorney conduct). Questions concerning the scope of judicial authority to regulate lawyers arise intermittently. Most recently, the question has been posed by the regulation recently promulgated by the Department of Justice to govern federal prosecutors' communications with represented persons. As Rory Little discusses in his article for this Symposium, the regulation purports to supersede rules of conduct adopted by federal courts to regulate lawyers' communications with represented parties. The Department defends the regulation based in part on its claim that federal courts lack authority to regulate prosecutors' out-of-court conduct. See Rory Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 Fordham L. Rev. 355 (1996); Bruce A. Green, Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be Created?, 64 Geo. Wash. L. Rev. (forthcoming 1996) (manuscript on file with the Fordham Law Review) [hereinafter Green, Whose Rules of Professional Conduct].
23. Id. at 611. Insofar as disqualification serves a disciplinary function, courts may impose this sanction pursuant to their inherent authority to regulate lawyers. See, e.g., Pantori, Inc. v. Stephenson, 384 So. 2d 1357, 1358-59 (Fla. Dist. Ct. App. 1980) (finding that Florida Constitution empowers supreme court to regulate attorney conduct). For discussions of the courts' supervisory authority over the practice of law, see generally Charles W. Wolfram, Modern Legal Ethics 22-33 (1986) (discussing courts' inherent powers to regulate lawyers' conduct); Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1 (1989-90) (arguing that courts have an inherent, but non-exclusive, power to regulate lawyers in the absence of statutes specifying otherwise); Note, The Inherent Power of the Judiciary to Regulate the Practice of Law - A Proposed Delineation, 60 Minn. L. Rev. 783, 784 (1976) (discussing the role courts play in tandem with the legislative branch in regulating attorney conduct). Questions concerning the scope of judicial authority to regulate lawyers arise intermittently. Most recently, the question has been posed by the regulation recently promulgated by the Department of Justice to govern federal prosecutors' communications with represented persons. As Rory Little discusses in his article for this Symposium, the regulation purports to supersede rules of conduct adopted by federal courts to regulate lawyers' communications with represented parties. The Department defends the regulation based in part on its claim that federal courts lack authority to regulate prosecutors' out-of-court conduct. See Rory Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 Fordham L. Rev. 355 (1996); Bruce A. Green, Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be Created?, 64 Geo. Wash. L. Rev. (forthcoming 1996) (manuscript on file with the Fordham Law Review) [hereinafter Green, Whose Rules of Professional Conduct].
24. Id. at 611. Insofar as disqualification serves a disciplinary function, courts may impose this sanction pursuant to their inherent authority to regulate lawyers. See, e.g., Pantori, Inc. v. Stephenson, 384 So. 2d 1357, 1358-59 (Fla. Dist. Ct. App. 1980) (finding that Florida Constitution empowers supreme court to regulate attorney conduct). For discussions of the courts' supervisory authority over the practice of law, see generally Charles W. Wolfram, Modern Legal Ethics 22-33 (1986) (discussing courts' inherent powers to regulate lawyers' conduct); Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1 (1989-90) (arguing that courts have an inherent, but non-exclusive, power to regulate lawyers in the absence of statutes specifying otherwise); Note, The Inherent Power of the Judiciary to Regulate the Practice of Law - A Proposed Delineation, 60 Minn. L. Rev. 783, 784 (1976) (discussing the role courts play in tandem with the legislative branch in regulating attorney conduct). Questions concerning the scope of judicial authority to regulate lawyers arise intermittently. Most recently, the question has been posed by the regulation recently promulgated by the Department of Justice to govern federal prosecutors' communications with represented persons. As Rory Little discusses in his article for this Symposium, the regulation purports to supersede rules of conduct adopted by federal courts to regulate lawyers' communications with represented parties. The Department defends the regulation based in part on its claim that federal courts lack authority to regulate prosecutors' out-of-court conduct. See Rory Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 Fordham L. Rev. 355 (1996); Bruce A. Green, Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be Created?, 64 Geo. Wash. L. Rev. (forthcoming 1996) (manuscript on file with the Fordham Law Review) [hereinafter Green, Whose Rules of Professional Conduct].
25. Id. at 611. Insofar as disqualification serves a disciplinary function, courts may impose this sanction pursuant to their inherent authority to regulate lawyers. See, e.g., Pantori, Inc. v. Stephenson, 384 So. 2d 1357, 1358-59 (Fla. Dist. Ct. App. 1980) (finding that Florida Constitution empowers supreme court to regulate attorney conduct). For discussions of the courts' supervisory authority over the practice of law, see generally Charles W. Wolfram, Modern Legal Ethics 22-33 (1986) (discussing courts' inherent powers to regulate lawyers' conduct); Charles W. Wolfram, Lawyer Turf and Lawyer Regulation - The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1 (1989-90) (arguing that courts have an inherent, but non-exclusive, power to regulate lawyers in the absence of statutes specifying otherwise); Note, The Inherent Power of the Judiciary to Regulate the Practice of Law - A Proposed Delineation, 60 Minn. L. Rev. 783, 784 (1976) (discussing the role courts play in tandem with the legislative branch in regulating attorney conduct). Questions concerning the scope of judicial authority to regulate lawyers arise intermittently. Most recently, the question has been posed by the regulation recently promulgated by the Department of Justice to govern federal prosecutors' communications with represented persons. As Rory Little discusses in his article for this Symposium, the regulation purports to supersede rules of conduct adopted by federal courts to regulate lawyers' communications with represented parties. The Department defends the regulation based in part on its claim that federal courts lack authority to regulate prosecutors' out-of-court conduct. See Rory Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 Fordham L. Rev. 355 (1996); Bruce A. Green, Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be Created?, 64 Geo. Wash. L. Rev. (forthcoming 1996) (manuscript on file with the Fordham Law Review) [hereinafter Green, Whose Rules of Professional Conduct].
26. In re American Airlines, Inc., 972 F.2d at 611.
27. Restatement of the Law Governing Lawyers § 205 at 118 (Council Draft No. 3, 1989) [hereinafter 1989 Draft Restatement].
28. Id.
29. Id. at 119.
30. Id. at 118-19.
31. That this draft of the Restatement envisioned disqualification as a remedy, not a sanction, is also suggested by its endorsement of a "standing" requirement. See infra note 53.
32. Restatement of the Law Governing Lawyers § 201 at 554 (Proposed Final Draft No. 1, 1996).
33. See id. ("In addition to the sanction of professional discipline, disqualifying a lawyer from further participation in a pending matter is a common remedy for conflicts of interest in litigation.").
34. Oddly enough, in the Director's Foreword to the Proposed Final Draft, Professor Hazard observes that "[p]erhaps the most important issue pervading the text is that of remedies and the related question of the precise contours of conduct that occasions some remedy other than those provided through the disciplinary process." Id. at xxii.
35. Id. at xxiii.
36. Professor Hazard's Foreword to the draft Restatement recognizes that the conflict rules should not always determine the outcome of disqualification decisions. It provides the illustration of the lawyer who, only after undertaking the representation, discovers that another lawyer in the firm formerly represented the client's adversary. Even if the applicable disciplinary rule would have forbidden the lawyer from knowingly undertaking the representation and would require the lawyer to withdraw from the representation once the conflict is discovered, Professor Hazard suggests that "screening" the lawyer involved in the prior representation may be a sufficient remedy. Id. at xxv. Presumably, screening would be sufficient because insofar as the conflict rules would have forbidden the firm from accepting the representation with screening, the rules are overinclusive. The Foreword also notes, however, that "if the standards [of professional conduct contained in the lawyers codes] are an adequate predicate for the sanction of professional discipline, they could not often be 'overinclusive' when applied in other remedial contexts" such as in the disqualification context. Id. at xxiii. This Article shares Professor Hazard's view that the standards for imposing disciplinary sanctions should not necessarily be employed in ruling on disqualification motions. However, it rejects Professor Hazard's view that the conflict rules are rarely "overinclusive." The Article argues, in contrast, that the conflict rules are "overinclusive" by design. See infra part II.B. As a consequence, it argues, there will often be cases in which a litigator should be sanctioned, but not disqualified, for representing a party in violation of the conflict rules.
37. On the question of whether federal courts should, rely on the Model Rules or draft their own, more detailed rules of professional conduct, see Green, Whose Rules of Professional Conduct, supra note 18.
38. See, e.g., Griva v. Davison, 637 A.2d 830, 837 (D.C. 1994) (reevaluating allegations of impropriety by making reference to the Model Code of Professional Responsibility); Chrispens v. Coastal Ref. & Mktg., 897 P.2d 104, 110 (Kan. 1995) (referring to Model Rules 1.9 and 1.10 in determining whether alleged conflicts were substantially related); Adam v. MacDonald Page & Co., 644 A.2d 461, 463 (Me. 1994) (using the "substantial relationship test" suggested by Model Rule 1.9).
39. In re American Airlines, Inc., 972 F.2d 605, 611 (5th Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted); see In re Dresser Industries, 972 F.2d 540, 543-44 (5th Cir. 1992) ("When presented with a motion to disqualify counsel in a more generic civil case [not governed by statutory or constitutional provision], however, we consider the motion governed by the ethical rules announced by the national profession in the light of the public interest and the litigants' rights.").
40. See, e.g., Brownlee v. State, 666 So. 2d 91 (Ala. Crim. App. 1995) (making no mention of conflict rules); Mitchell v. State, 405 S.E.2d 38 (Ga. 1991) (same).
41. Cf. In re Dresser, 972 F.2d at 543-44 & n.5 (suggesting that general standards be used to evaluate a motion to disqualify).
42. See infra note 202.
43. Wilkins, supra note 9.
44. Id. at 827-28.
45. Id. at 828.
46. In re American Airlines, Inc., 972 F.2d 605, 611 (5th Cir. 1992), cert. denied, 507 U.S. 912 (1993).
47. James Lindgren, Toward a New Standard of Attorney Disqualification, 1982 Am. B. Found. Res. J. 421, 423.
48. Steven H. Goldberg, The Former Client's Disqualification Gambit: A Bad Move in Pursuit of an Ethical Anomaly, 72 Minn. L. Rev. 227 (1987). Professor Goldberg's article focuses on conflicts of interest arising when a law firm represents a new client against a former client. He argues that courts have no legitimate interest in employing disqualification to vindicate the profession's rules of ethics, except when violations of these rules affect the functioning of the adversary system. Id. at 267-68. He argues further that the conflict rules restricting a lawyer from undertaking a representation adverse to a former client advance no legitimate interest of the adversary system, in part because truth-seeking would be promoted by disclosure of the confidences that these rules are intended to protect. Id. at 269-80.
49. Nathan M. Crystal, Disqualification of Counsel for Unrelated Matter Conflicts of Interest, 4 Geo. J. Legal Ethics 273 (1990). Professor Crystal argues that, under some circumstances, a law firm should be permitted to represent one client in litigation against another client whom the law firm represents in an unrelated matter. This situation may arise when: (1) a long-term client asks the firm to represent it in litigation against another client; (2) the firm's conflicts check fails to reveal that the adversary is represented in another matter; (3) a corporate client's business reorganizes; or (4) a law firm merges. Id. at 274. He proposes an analytical framework that focuses on two questions. The first is whether the dual representation is improper, because the adversary in litigation is a current client who will not or cannot provide effective consent. Id. at 298-309. The second is whether disqualification is an appropriate remedy given a balance between the risks of tainting the trial or undermining the relationship with the non-litigation client, on one hand, and the countervailing costs of disqualification to the client represented in litigation, on the other. Id. at 310-11.
50. Another important contribution to the subject of disqualification decisions is Kenneth L. Penegar, The Loss of Innocence: A Brief History of Law Firm Disqualification in the Courts, 8 Geo. J. Legal Ethics 831 (1995). Professor Penegar first traces the historical development of disqualification doctrine, id. at 837-83, and then examines the doctrinal development against a social and cultural backdrop that includes the growth of large law firms, id. at 889-93, and what he terms "the cult of the litigator." Id. at 893-96. He concludes that an initially clear distinction between "codes for discipline and court-created rules for trial conduct" broke down over time, and that the courts' eventual reliance on conflict rules as the basis for disqualification decisions corresponds with the profession's abdication of its traditional responsibility for enforcing professional norms. Id. at 899.
51. Professor Lindgren argues that in cases in which disqualification motions are filed, courts should refer the lawyer to disciplinary authorities. Although disciplinary authorities may generally be reluctant to address conflicts of interest in litigation, he argues that they will be more likely to do so when a referral is made by a court. Lindgren, supra note 40, at 436-37. Similarly, Professor Goldberg argues that insofar as the profession seeks to prevent disclosures of client confidences, lawyers who improperly reveal or use client confidences should be sanctioned personally. Goldberg, supra note 41, at 286. This would be more appropriate than disciplinary sanctions which punish the lawyer's client rather than the lawyer. Id. Finally, Professor Crystal argues that either a damage award or a disciplinary sanction is preferable to disqualification when the lawyer's conflict does not substantially risk tainting a trial, because both "can be calibrated to reflect the degree of wrongdoing," while, at the same time, avoiding the costs that disqualification inflicts on both the client and the legal system. Crystal, supra note 42, at 287-88, 311-12.
52. See David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. Cal. L. Rev. 1145 (1993).
53. See Model Rules, supra note 1, Rule 1.7(a).
54. See id. Rule 1.9.
55. See id. Rules 1.7(b)(2), 1.8(g).
56. See id. Rule 1.7(b), 1.8(j); Model Code, supra note 2, DR 5-101(A).
57. See Model Rules, supra note 1, Rule 1.8(i).
58. See id. Rule 1.10.
59. See generally Goldberg, supra note 41 (explaining the evolution of successive conflict disqualification and rejecting Model Rules addressing successive conflicts).
60. Compare In re Yarn Processing Patent Validity Litig., 530 F.2d 83, 90 (5th Cir. 1976) (stating that only a client has standing to raise a conflict) and In re Appeal of Infotechnology, Inc., 582 A.2d 215, 221 (Del. 1990) (stating that non-client has standing only if "he or she can demonstrate that the opposing counsel's conflict somehow prejudiced his or her rights") with Fiandaca v. Cunningham, 827 F.2d 825, 828 (1st Cir. 1987) (allowing non-client to raise conflict). An early version of the draft Restatement proposed a standing requirement. See 1989 Draft Restatement, supra note 20, at 83-84 ("The costs associated with disqualification require that standing to seek disqualification ordinarily be limited to present or former clients who would be adversely affected by the continued representation.").
61. See, e.g., Crystal, supra note 42, at 274 (addressing the "conflict [that] occurs when a lawyer represents one client while that lawyer or another member of her firm is simultaneously representing that client's adversary, not directly against the first client, but in an unrelated matter"); Goldberg, supra note 41 (addressing conflicts arising out of litigation against a former client).
62. See, e.g., Peggy Walz, Inc. v. Liz Wain, Inc., No. 94 Civ. 1579, 1996 WL 88556 (S.D.N.Y. Mar. 1, 1996) (involving an incorporation agreement providing plaintiff's lawyer with a direct financial stake in plaintiff's cause of action).
63. Following an unfavorable resolution of the litigation, however, a client who believes its lawyer had a conflict of interest may raise this in connection with a civil lawsuit against the lawyer. See, e.g., Damron v. Herzog, 67 F.3d 211, 213 (9th Cir. 1995) (holding that a former client may bring a cause of action when an attorney breaches her duty "not to represent an interest adverse to [the] former client on a matter substantially related to the matter of [the] engagement").
64. See Model Rules, supra note 1, Rule 1.7(b)(1); Model Code, supra note 2, DR 5-105(C).
65. For an interesting and much discussed counter-example, see Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987).
66. See, e.g., Brown & Williamson Tobacco Corp. v. Daniel Int'l Corp., 563 F.2d 671, 673 (5th Cir. 1977) (noting that non-client's attorneys are "authorized to report any ethical violations committed in the case").
67. See, e.g., United States v. Rahman, 837 F. Supp. 64, 65 (S.D.N.Y. 1993) (involving government's motion to bar defense counsel from representing more than one defendant).
68. Model Rules, supra note 1, Rule 3.8 cmt.
69. See generally Bruce A. Green, Her Brother's Keeper: The Prosecutor's Responsibility When Defense Counsel Has a Potential Conflict of Interest, 16 Am. J. Crim. L. 323, 356-65 (1989) (describing justifications for a prosecutor's disqualification motion).
70. Wilkins, supra note 9, at 809.
71. Id. at 810.
72. 579 F.2d 271 (3d Cir. 1978).
73. See Wilkins, supra note 9, at 827 n.112.
74. Andrew L. Kaufman, Problems in Professional Responsibility 42-52 (3d ed. 1989). Other casebooks also employ Levin to varying degrees. See, e.g., Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 255-57 (4th ed. 1995) (discussing circumstances where a lawyer may act adversely to a client on an unrelated matter); Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility 148 (6th ed. 1995) (discussing when a person is a "client" for conflict purposes); Geoffrey C. Hazard Jr. et al., The Law and Ethics of Lawyering 636-37 (2d ed. 1994) (same).
75. Andrew L. Kaufman, Problems in Professional Responsibility 42-52 (3d ed. 1989). Other casebooks also employ Levin to varying degrees. See, e.g., Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 255-57 (4th ed. 1995) (discussing circumstances where a lawyer may act adversely to a client on an unrelated matter); Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility 148 (6th ed. 1995) (discussing when a person is a "client" for conflict purposes); Geoffrey C. Hazard Jr. et al., The Law and Ethics of Lawyering 636-37 (2d ed. 1994) (same).
76. Andrew L. Kaufman, Problems in Professional Responsibility 42-52 (3d ed. 1989). Other casebooks also employ Levin to varying degrees. See, e.g., Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 255-57 (4th ed. 1995) (discussing circumstances where a lawyer may act adversely to a client on an unrelated matter); Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility 148 (6th ed. 1995) (discussing when a person is a "client" for conflict purposes); Geoffrey C. Hazard Jr. et al., The Law and Ethics of Lawyering 636-37 (2d ed. 1994) (same).
77. Andrew L. Kaufman, Problems in Professional Responsibility 42-52 (3d ed. 1989). Other casebooks also employ Levin to varying degrees. See, e.g., Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 255-57 (4th ed. 1995) (discussing circumstances where a lawyer may act adversely to a client on an unrelated matter); Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility 148 (6th ed. 1995) (discussing when a person is a "client" for conflict purposes); Geoffrey C. Hazard Jr. et al., The Law and Ethics of Lawyering 636-37 (2d ed. 1994) (same).
78. See Crystal, supra note 42, at 278-79, 291-92, 295-300, 306, 313-14.
79. See infra note 136.
80. Model Rule 1.7(a) provides: A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation. Model Rules, supra note 1, Rule 1.7(a); see also infra note 136.
81. IBM v. Levin, 579 F.2d 271, 279-80 (3d Cir. 1978).
82. Id. at 281.
83. W.T. Grant Co. v. Haines, 531 F.2d 671, 677 (2d Cir. 1976) (citing Lefrak v. Arabian American Oil Co., 527 F.2d 1136, 1141 (2d Cirr. 1975)).
84. See Levin, 579 F.2d at 283 ("[D]isqualification in circumstances such as these where specific injury to the moving party has not been shown is primarily justified as a vindication of the integrity of the bar."); cf. Wheat v. United States, 486 U.S. 153, 160 (1988) ("Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession . . . .").
85. Denial of a disqualification motion can also mean that the court is agnostic as to whether the lawyer's participation in the ongoing representation is appropriate. Thus, the continued participation could later be sanctioned by a disciplinary body.
86. An analogy may be drawn to the exclusionary rule of the Fourth Amendment. At one time, the exclusion of illegally obtained evidence was justified by "the imperative of judicial integrity," Elkins v. United States, 364 U.S. 206, 222 (1960), but the Supreme Court has since rejected that rationale. See United States v. Leon, 468 U.S. 897, 922 (1984). Thus, a court may condemn the manner in which the state, through its officers, obtains evidence, and may afford a civil remedy against the state or its officers for the misconduct, while allowing the evidence to be used in a criminal proceeding.
87. See, e.g., Ceramco, Inc. v. Lee Pharmaceutical, 510 F.2d 268, 271 (2d Cir. 1975) (finding counsel's conduct insensitive, but not necessitating counsel's disqualification).
88. See infra part II.B.
89. Cf. In re Cook, 49 F.3d 263, 265 (7th Cir. 1995) (arguing that misconduct in federal court proceedings should be prosecuted by state disciplinary authorities). Two related but seemingly inconsistent arguments might be that disciplinary hearing panels are preferable to judges either because: (1) insofar as they are comprised of fellow lawyers, a disciplined lawyer is more likely to take their criticisms seriously; and (2) insofar as they include nonlawyers, their judgments are less likely to seem unduly protective of lawyers accused of misconduct.
90. Cf. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 811-12 (1987) (holding that in a contempt proceeding, appointment of a party's lawyer to serve as prosecutor creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system).
91. Presently, even when violations of conflict rules are called to their attention, disciplinary bodies, because of limited resources, will often decline to commence proceedings as a matter of discretion in cases in which no actual harm occurs.
92. Wilkins, supra note 9, at 824-30.
93. Id. at 819-20.
94. Id. at 826-28.
95. The situation is different in criminal cases in which a defendant is appointed counsel. Unable to discharge the trial lawyer and retain another, the defendant who is displeased with the lawyer's performance can be expected to bring the complaint to the trial court, rather than to a disciplinary authority. Following a conviction, the defendant similarly can be expected to raise the problem with an appellate court. Although the underlying problems can be described as "agency" problems, rather than "externality" problems, the defendant will look to the court because it is the most effective forum to redress his complaints - the trial court by substituting a new lawyer prior to trial, or the appellate court by overturning a conviction.
96. See, e.g., ABA Standards for Imposing Lawyer Sanctions, Standard 1.1 (1992), reprinted in ABA/BNA Law. Manual on Prof. Conduct 01:801, 01:807 (1992) [hereinafter ABA Standards] ("The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession.").
97. 1989 Draft Restatement, supra note 20, at 83; see Bergeron v. Mackler, 623 A.2d 489, 493 (Conn. 1993) (holding that a court ruling on a disqualification motion "must be . . . mindful of the fact that a client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and 'may lose the benefit of its longtime counsel's specialized knowledge of its operations.'" (citation omitted)).
98. See, e.g., ABA Standards, supra note 86, Standards 2.1 - 2.8 (listing various sanctions).
99. Cf. Fed. R. Civ. P. 11 (allowing imposition of monetary sanctions on violating attorneys or law firms).
100. Wilkins, supra note 9, at 827 n.112.
101. This is true even in cases of corporate clients. The corporate officer hiring outside counsel to represent the corporation is often a nonlawyer. Even when that officer is in-house counsel, he or she may not be trained as a litigator, and, consequently, may be less likely than outside counsel to recognize that circumstances give rise to a conflict of interest.
102. Cf. Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-67 (1980) (holding that federal judges have inherent power to issue sanctions for contempt against attorneys and may have power to levy costs against counsel); Bower v. Weisman, 674 F. Supp. 109, 112 (S.D.N.Y. 1987) (holding that courts have inherent power to dismiss a lawyer for perjury). See generally Deborah T. Landis, Annotation, Inherent Power of Federal District Court to Impose Monetary Sanctions on Counsel in Absence of Contempt of Court, 77 A.L.R. Fed. 789 (1986) (discussing power of district courts to impose monetary sanctions on counsel).
103. Cf. Fed. R. Civ. P. 11 (Sanctions must be "limited to what is sufficient to deter repetition of such conduct or comparable conduct."). The ABA Standards might provide a starting point for considering the appropriate sanction. The Standards, however, although specifically addressing conflicts of interest, see ABA Standards, supra note 86, Standard 4.3, are not entirely appropriate for at least two reasons. First, they contemplate that discipline will occur after the effect of a conflict of interest can be determined. Thus, a principal consideration is the extent to which a client has been injured as a result of the conflict of interest. In the context of litigation, however, a conflict of interest that is likely to cause serious harm will result in disqualification. Insofar as disqualification averts serious harm, a sanction based on the amount of actual harm caused will not adequately reflect the seriousness of the wrongdoing. Second, the ABA Standards contemplate a more limited range of sanctions than may be available to the courts. The principal sanctions contemplated by the ABA Standards are disbarment, suspension, reprimand, admonition and probation. Id. Standards 2.1 - 2.7. Although they also contemplate the possibilities of restitution and assessment of costs, they do not consider monetary sanctions. See id. Standard 2.8(a)-(b). Monetary sanctions would provide an appropriate middle ground between disbarment or suspension, which may seem unduly harsh, and reprimand or admonition, which may seem unduly lenient. Cf. Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1486 (Fed. Cir. 1984) (doubling costs on appeal as sanction for various misconduct, including misrepresenting the lower court record through selective quotation).
104. Professor Crystal has endorsed this approach. See Crystal, supra note 42, at 287-88, 311-12.
105. Cf. Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987) (holding that Rule 11 sanctions may include warnings, oral reprimands, or written admonitions).
106. Cf. In re Ames Dep't Stores, Inc., 76 F.3d 66, 69 (2d Cir. 1996) (involving an appeal from sanctions brought exclusively for reputational reasons).
107. See Richard A. Epstein, The Legal Regulation of Lawyers' Conflicts of Interest, 60 Fordham L. Rev. 579, 591-92 (1992) (arguing that imposing "heavy sanctions" on law firms that violate bright-line conflict rules would "structure incentives so as to minimize the number of violations that take place in order to avoid the difficulties of running a clean-up operation, at enormous inconvenience and expense to everyone, after the conflicts have occurred").
108. One of the ironies, if not perversities, of the prevailing disqualification doctrine is that while it places little weight on the client's innocence, it accounts for the "innocence" of the law firm that is subject to a conflict of interest. For example, in cases in which a conflict of interest arises unexpectedly in the course of the representation - such as where a law firm's corporate client acquires a company against which the firm is litigating - courts are more apt to allow a law firm to represent a party in litigation against another client who is represented in unrelated matters, notwithstanding the general rule forbidding such representation. See, e.g., Whiting Corp. v. White Mach. Corp., 567 F.2d 713, 716 (7th Cir. 1977) (noting that the plaintiff's firm "is innocent of any wrongdoing" where its long-time corporate client acquired an interest in the defendant corporation); Pennwalt Corp. v. Plough, Inc., 85 F.R.D. 264, 272 (D. Del. 1980) (finding no ethical violation when a law firm represented the corporate plaintiff against the corporate defendant which became a subsidiary of the corporate parent of another law firm client ten months after the litigation commenced). These decisions reflect in part the courts' assumption that one purpose, if not the sole purpose, of disqualification is to sanction lawyers who violate the conflict rules. Where the conflict of interest is inadvertent, disqualification would serve no legitimate regulatory function. These decisions reflect further the courts' recognition that although the continued representation might violate the conflict rules, there is no significant likelihood that interests protected by the rules would thereby be disserved, because the rules themselves are overly protective. Thus, in these cases, disqualification would serve no remedial purpose, either. This Article argues that even if the lawyers' conduct in cases such as these is wrongful, disqualification is inappropriate because the lawyers' clients are innocent.
109. For a well-publicized example of a court's imposition of direct sanctions on a law firm as an alternative to disqualification, see In re Leslie Fay Cos., 175 B.R. 525, 539 (Bankr. S.D.N.Y. 1994) (imposing a monetary sanction of approximately $800,000 and precluding a firm from taking on new matters arising out of a case, when the firm improperly represented debtors and interests adverse to debtors without disclosure to court).
110. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980).
111. Because the lawyer's interest in defending himself would be consistent with the lawyer's interest in defending the client's right to retain the lawyer, there would be no conflict in simultaneously defending against a disciplinary sanction and representing the client in opposition to the disqualification motion.
112. Particularly in federal court, this would promote the effective development of the law governing conflicts of interest. Presently, the law of some circuits, such as the Second Circuit, has not developed since the 1980s because of the unavailability of interlocutory appellate review of decisions regarding disqualification, see supra note 14, and the limited availability of review by way of mandamus. District courts in the Second Circuit continue to apply a "taint" test that was announced in decisions more than fifteen years ago but never refined or reconsidered in light of developments in professional regulation. See supra text accompanying note 15.
113. Cf. Wilkins, supra note 9, at 821 ("[E]nforcement officials will generally only impose sanctions when a lawyer has clearly violated a relatively unambiguous professional norm.").
114. See supra note 10 and accompanying text.
115. Presently, some courts use the disqualification decision to serve this function. See, e.g., In re City Mattress, Inc., 163 B.R. 687 (Bankr. W.D.N.Y. 1994) (allowing debtor's counsel to secure fees by receiving mortgage on real property in issue in reorganization); cf. In re Milford Group, Inc., 164 B.R. 899 (Bankr. M.D. Pa. 1993) (allowing counsel to represent trustee on contingent fee basis).
116. See generally Eli J. Richardson, Demystifying the Federal Law of Attorney Ethics, 29 Ga. L. Rev. 137 (1994) (pointing out the undesirable consequences of the federal courts' failure to form a "cohesive and efficient structure of ethical rules," and advocating a reform of federal law of attorney ethics).
117. It is a common misconception that disqualification decisions set the standard of conduct for litigators. The Reporters Notes to the conflict-of-interest provisions of the draft Restatement cite disqualification decisions extensively. On occasion, bar association ethics opinions providing advice to lawyers about whether their prospective conduct would entail an impermissible conflict of interest also cite disqualification decisions, generally without regard to whether the decisions purported to set the standard of conduct at the outset of the representation or whether they merely reflected a determination that disqualification was an unnecessary remedy. See, e.g., N.Y. St. B.A. Comm. on Prof. Ethics, Op. 628 (1993) (relying on federal and state decisions in concluding that an attorney may represent a client in a tort claim against a restaurant that the attorney formerly represented in an unrelated matter).
118. It would be inappropriate to regard disqualification as one aspect of the sanction, and therefore to take account of the fact of disqualification as justification for mitigating the severity of the personal sanction. Doing so would create an incentive for lawyers defending against both a disqualification motion and a motion for personal sanctions to argue less vigorously against disqualification as a remedy in order to promote their own disciplinary interests.
119. See generally Georgene M. Vairo, Rule 11 Sanctions: Case Law Perspectives and Preventive Measures (1991) (explaining that the 1983 amendment to Rule 11 has given federal courts greater opportunity to evaluate lawyer performance); Lawrence M. Grosberg, Illusion and Reality in Regulating Lawyer Performance: Rethinking Rule 11, 32 Vill. L. Rev. 575 (1987) (same); Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot? Looking for a Middle Ground on Rule 11 Sanctions, 41 Hastings L.J. 383 (1990) (same).
120. See generally Georgene M. Vairo, Rule 11 Sanctions: Case Law Perspectives and Preventive Measures (1991) (explaining that the 1983 amendment to Rule 11 has given federal courts greater opportunity to evaluate lawyer performance); Lawrence M. Grosberg, Illusion and Reality in Regulating Lawyer Performance: Rethinking Rule 11, 32 Vill. L. Rev. 575 (1987) (same); Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot? Looking for a Middle Ground on Rule 11 Sanctions, 41 Hastings L.J. 383 (1990) (same).
121. See generally Georgene M. Vairo, Rule 11 Sanctions: Case Law Perspectives and Preventive Measures (1991) (explaining that the 1983 amendment to Rule 11 has given federal courts greater opportunity to evaluate lawyer performance); Lawrence M. Grosberg, Illusion and Reality in Regulating Lawyer Performance: Rethinking Rule 11, 32 Vill. L. Rev. 575 (1987) (same); Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot? Looking for a Middle Ground on Rule 11 Sanctions, 41 Hastings L.J. 383 (1990) (same).
122. The judicial responsibility for imposing personal sanctions on lawyers who violate conflict rules in connection with an ongoing litigation is entirely consistent with practice under Federal Rule of Civil Procedure 11. If satellite litigation is justified under Rule 11, it is more clearly justified with respect to conflicts of interest because the sanction question will be interrelated with the disqualification question that must be resolved, rather than entirely ancillary as it often is under Rule 11.
123. See supra text accompanying note 15.
124. See Lindgren, supra note 40, at 440-41.
125. See Marco v. Dulles, 169 F. Supp. 622, 632 (S.D.N.Y. 1959) (holding that disqualification is equitable in nature).
126. See, e.g., Baker v. Humphrey, 101 U.S. 494, 502 (1879) (holding that a lawyer engaged in constructive fraud by switching sides in a matter); Manning v. Hayden, 16 F. Cas. 645, 653 (D. Or. 1879) (stating that an attorney who purchased land for himself from his client put his duty to the client in conflict with his interest as the purchaser to the detriment of his client and must account to the client as a trustee).
127. Stated somewhat differently, disqualification should be afforded to enforce the lawyer's fiduciary duty to refrain from conflicts of interest - a duty that either coexists with, or is embodied in, the conflict rules.
128. The Ninth Circuit recently took this view of Idaho's former-client disqualification rule. See Damron v. Herzog, 67 F.3d 211, 215 (9th Cir. 1995) (violating former-client disqualification rule may be basis of malpractice action under Idaho law, even absent use or disclosure of client confidences). Presumably, however, whether the lawyer provided substandard representation or breached a confidence would be relevant to the question of damages. Cf. Timms v. Rosenblum, 713 F. Supp. 948, 954 (E.D. Va. 1989) (disallowing recovery for emotional distress caused by loss of child custody as a result of lawyer's negligence), aff'd, 900 F.2d 256 (4th Cir. 1990); Suppressed v. Suppressed, 565 N.E.2d 101, 105-06 (Ill. App. 1990) (denying compensation for client's mental anguish caused by lawyer's breach of fiduciary duty in making sexual advances). But see Cummings v. Pinder, 574 A.2d 843, 845 (Del. 1990) (allowing damages for emotional distress); Salley v. Childs, 541 A.2d 1297, 1300 nn.2&4 (Me. 1988) (same).
129. See Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1286 (Pa. 1992).
130. Cf. Peck v. Meda-Care Ambulance Corp., 457 N.W.2d 538, 542-43 (Wis. Ct. App. 1990) (holding that violating the advocate-witness rule did not breach a duty owed to the client).
131. See, e.g., Fishman v. Brooks, 487 N.E.2d 1377, 1381 (Mass. 1986) ("A violation of a . . . disciplinary rule is not itself [a] breach of duty to a client."); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 407 (Tenn. 1991) (stating that violating codes of conduct is not conclusively a breach of duty); Hizey v. Carpenter, 830 P.2d 646, 654 (Wash. 1992) (en banc) (holding that jury may not be informed of ethical rules in determining legal malpractice). But see Avianca, Inc. v. Corriea, 705 F. Supp. 666, 679 (D.D.C. 1989) (stating that although it does not expressly provide a basis for a civil action, the Model Code nonetheless "may be considered to define the minimum level of professional conduct required of an attorney, such that a violation of one of the DRs is conclusive evidence of a breach of the attorney's common law fiduciary obligations."); Lipton v. Boesky, 313 N.W.2d 163, 167 (Mich. Ct. App. 1981) ("[A]s with statutes, a violation of the Code is rebuttable evidence of malpractice."). For commentary addressing this issue, see Robert Dahlquist, The Code of Professional Responsibility and Civil Damage Actions Against Attorneys, 9 Ohio N.U. L. Rev. 1 (1982); Jean E. Faure & R. Keith Strong, The Model Rules of Professional Conduct: No Standard for Malpractice, 47 Mont. L. Rev. 363 (1986); Charles W. Wolfram, The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C. L. Rev. 281 (1979); Michael J. Benjamin, Note, The Rules of Professional Conduct: Basis for Civil Liability of Attorneys, 39 U. Fla. L. Rev. 777 (1987).
132. See, e.g., Fishman v. Brooks, 487 N.E.2d 1377, 1381 (Mass. 1986) ("A violation of a . . . disciplinary rule is not itself [a] breach of duty to a client."); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 407 (Tenn. 1991) (stating that violating codes of conduct is not conclusively a breach of duty); Hizey v. Carpenter, 830 P.2d 646, 654 (Wash. 1992) (en banc) (holding that jury may not be informed of ethical rules in determining legal malpractice). But see Avianca, Inc. v. Corriea, 705 F. Supp. 666, 679 (D.D.C. 1989) (stating that although it does not expressly provide a basis for a civil action, the Model Code nonetheless "may be considered to define the minimum level of professional conduct required of an attorney, such that a violation of one of the DRs is conclusive evidence of a breach of the attorney's common law fiduciary obligations."); Lipton v. Boesky, 313 N.W.2d 163, 167 (Mich. Ct. App. 1981) ("[A]s with statutes, a violation of the Code is rebuttable evidence of malpractice."). For commentary addressing this issue, see Robert Dahlquist, The Code of Professional Responsibility and Civil Damage Actions Against Attorneys, 9 Ohio N.U. L. Rev. 1 (1982); Jean E. Faure & R. Keith Strong, The Model Rules of Professional Conduct: No Standard for Malpractice, 47 Mont. L. Rev. 363 (1986); Charles W. Wolfram, The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C. L. Rev. 281 (1979); Michael J. Benjamin, Note, The Rules of Professional Conduct: Basis for Civil Liability of Attorneys, 39 U. Fla. L. Rev. 777 (1987).
133. See, e.g., Fishman v. Brooks, 487 N.E.2d 1377, 1381 (Mass. 1986) ("A violation of a . . . disciplinary rule is not itself [a] breach of duty to a client."); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 407 (Tenn. 1991) (stating that violating codes of conduct is not conclusively a breach of duty); Hizey v. Carpenter, 830 P.2d 646, 654 (Wash. 1992) (en banc) (holding that jury may not be informed of ethical rules in determining legal malpractice). But see Avianca, Inc. v. Corriea, 705 F. Supp. 666, 679 (D.D.C. 1989) (stating that although it does not expressly provide a basis for a civil action, the Model Code nonetheless "may be considered to define the minimum level of professional conduct required of an attorney, such that a violation of one of the DRs is conclusive evidence of a breach of the attorney's common law fiduciary obligations."); Lipton v. Boesky, 313 N.W.2d 163, 167 (Mich. Ct. App. 1981) ("[A]s with statutes, a violation of the Code is rebuttable evidence of malpractice."). For commentary addressing this issue, see Robert Dahlquist, The Code of Professional Responsibility and Civil Damage Actions Against Attorneys, 9 Ohio N.U. L. Rev. 1 (1982); Jean E. Faure & R. Keith Strong, The Model Rules of Professional Conduct: No Standard for Malpractice, 47 Mont. L. Rev. 363 (1986); Charles W. Wolfram, The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C. L. Rev. 281 (1979); Michael J. Benjamin, Note, The Rules of Professional Conduct: Basis for Civil Liability of Attorneys, 39 U. Fla. L. Rev. 777 (1987).
134. See, e.g., Fishman v. Brooks, 487 N.E.2d 1377, 1381 (Mass. 1986) ("A violation of a . . . disciplinary rule is not itself [a] breach of duty to a client."); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 407 (Tenn. 1991) (stating that violating codes of conduct is not conclusively a breach of duty); Hizey v. Carpenter, 830 P.2d 646, 654 (Wash. 1992) (en banc) (holding that jury may not be informed of ethical rules in determining legal malpractice). But see Avianca, Inc. v. Corriea, 705 F. Supp. 666, 679 (D.D.C. 1989) (stating that although it does not expressly provide a basis for a civil action, the Model Code nonetheless "may be considered to define the minimum level of professional conduct required of an attorney, such that a violation of one of the DRs is conclusive evidence of a breach of the
135. See, e.g., Miami Int'l Realty Co. v. Paynter, 841 F.2d 348, 353 (10th Cir. 1988) (holding that although the Model Code is admissible in malpractice suit to show standard for attorneys, it has no force and effect of law); Fishman, 487 N.E.2d at 1381 (finding a violation of a disciplinary rule may be evidence of attorney negligence); Lazy Seven Coal Sales, 813 S.W.2d at 405 (noting that the Model Code provides guidance in ascertaining a lawyer's obligations and constitutes evidence of standards of conduct). See generally Michael P. Ambrosio & Denis F. McLaughlin, The Use of Expert Witnesses in Establishing Liability in Legal Malpractice Cases, 61 Temp. L. Rev. 1351, 1360-62 (1988) (noting that the Model Rules do not provide an independent cause of action, but can be used to show malpractice).
136. Cf. Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537, 543 (2d Cir. 1994) (involving a law firm's breach of fiduciary duty by assisting client in business transaction about which it had previously counseled another client).
137. Cf. County of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1407, 1414 (E.D.N.Y. 1989) (noting that the Supremacy Clause supersedes state rules regarding attorney conduct); Sullivan v. Alaska Bar Ass'n, 551 P.2d 531, 534 (Alaska 1976) (stating that court has inherent authority to depart from rules governing admission to practice law). Professor Penegar's history of judicial disqualification decisions suggests that, at least initially, a disqualification order was not viewed as a personal remedy for the violation of a party's right. Rather, a disqualification order was issued pursuant to a court's supervisory authority over the practice of law and over judicial proceedings in order to enforce judicially established standards of conduct. See Penegar, supra note 43, at 837-55.
138. See supra notes 87-97 and accompanying text.
139. See, e.g., Smith v. Staso Milling Co., 18 F.2d 736, 737 (2d Cir. 1927) (stating that a court considering whether to grant injunctive relief should balance "the comparative hardships of the continued wrong and the injunction"). See generally David S. Schoenbrod, The Measure of an Injunction: A Principle to Replace Balancing the Equities and Tailoring the Remedy, 72 Minn. L. Rev. 627, 655 (1988) (arguing that "a suit for an injunction without balancing the equities would present a rare instance of the judicial process without a safety valve").
140. Cf. Model Rules, supra note 1, Rule 1.16(a)(1) (stating that a lawyer must seek to withdraw from the representation if "the representation will result in violation of the rules of professional conduct").
141. Cf. Lindgren, supra note 40, at 432-33 (stating that a new conflict of interest between a lawyer and her client emerges when opposing counsel raises the prospect of a conflict of interest, because counsel's incentive to clear her name may conflict with her incentive to promote her client's interests).
142. Moreover, the remote possibility that the client in the litigation will bring a malpractice action if the lawyer represents it poorly may counterbalance the incentive to render inadequate representation to avoid the equally remote possibility of a civil lawsuit by the other client.
143. As a legal matter, a judicial determination that a lawyer may continue the representation would almost self-evidently foreclose a malpractice claim founded on negligence. It is less clear that as a legal matter compliance with judicial standards would foreclose a claim founded on contract or agency principles. See generally Roy Ryden Anderson & Walter W. Steele, Jr., Fiduciary Duty, Tort and Contract: A Primer on the Legal Malpractice Puzzle, 47 SMU L. Rev. 235 (1994) (arguing that courts should establish a consistent set of rules when classifying legal malpractice).
144. For commentary addressing this source of judicial authority, see supra note 18.
145. Cf. Earl Scheib, Inc. v. Superior Court, 61 Cal. Rptr. 386, 390 (1967) (holding that injury to former client is presumed when an attorney represents conflicting interests).
146. See Ted Schneyer, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. Tex. L. Rev. 639, 644 (1994).
147. See McMunigal, supra note 7, at 834 (positing that conflict of interest doctrine is based on the assumption that something is needed to protect the judicial process from the threat of impairment).
148. See, e.g., Restatement of the Law Governing Lawyers § 209 (Proposed Final Draft No. 1, 1996) (requiring consent before permitting an attorney to represent two or more clients in civil litigation when there is a "substantial risk" that the attorney's representation of one of the clients would be materially adversely affected by the attorney's duties to the other client[s]); McMunigal, supra note 7, at 839 (explaining the "risk avoidance approach" to conflict of interest rules). In some cases, a risk of harm will be acceptable, not because the risk is slight, but because the countervailing benefits of undertaking the representation are substantial. For example, lawyers generally may not acquire a proprietary interest in a client's cause of action, in part because of the conflict between the lawyer's interests and those of the client that thereby arises. An exception is made, however, for attorneys representing civil litigants on a contingent fee basis because of the social utility of this practice. See, e.g., Model Rules, supra note 1, Rules 1.5, 1.8(j) (1993) (setting forth contingent fee regulations). See generally Stewart Jay, The Dilemmas of Attorney Contingent Fees, 2 Geo. J. Legal Ethics 813 (1989) (arguing that contingent fee contracts that calculate the fee as a percentage of the recovery present sufficiently serious possibilities of abuse of the attorney-client relationship to warrant elimination by regulation); Pamela S. Karlan, Contingent Fees and Criminal Cases, 93 Colum. L. Rev. 595 (1993) (discussing issues raised by the ban on contingent fees in criminal cases and suggesting a partial step back from the prohibition). Similarly, as Professor McMunigal has pointed out, lawyers for civil rights defendants have been permitted to condition settlement offers on waivers of attorneys' fees by the plaintiffs' lawyers, even though the offers give rise to substantial conflicts between the interests of the plaintiffs and their lawyers. See McMunigal, supra note 7, at 865-68.
149. See, e.g., Restatement of the Law Governing Lawyers § 209 (Proposed Final Draft No. 1, 1996) (requiring consent before permitting an attorney to represent two or more clients in civil litigation when there is a "substantial risk" that the attorney's representation of one of the clients would be materially adversely affected by the attorney's duties to the other client[s]); McMunigal, supra note 7, at 839 (explaining the "risk avoidance approach" to conflict of interest rules). In some cases, a risk of harm will be acceptable, not because the risk is slight, but because the countervailing benefits of undertaking the representation are substantial. For example, lawyers generally may not acquire a proprietary interest in a client's cause of action, in part because of the conflict between the lawyer's interests and those of the client that thereby arises. An exception is made, however, for attorneys representing civil litigants on a contingent fee basis because of the social utility of this practice. See, e.g., Model Rules, supra note 1, Rules 1.5, 1.8(j) (1993) (setting forth contingent fee regulations). See generally Stewart Jay, The Dilemmas of Attorney Contingent Fees, 2 Geo. J. Legal Ethics 813 (1989) (arguing that contingent fee contracts that calculate the fee as a percentage of the recovery present sufficiently serious possibilities of abuse of the attorney-client relationship to warrant elimination by regulation); Pamela S. Karlan, Contingent Fees and Criminal Cases, 93 Colum. L. Rev. 595 (1993) (discussing issues raised by the ban on contingent fees in criminal cases and suggesting a partial step back from the prohibition). Similarly, as Professor McMunigal has pointed out, lawyers for civil rights defendants have been permitted to condition settlement offers on waivers of attorneys' fees by the plaintiffs' lawyers, even though the offers give rise to substantial conflicts between the interests of the plaintiffs and their lawyers. See McMunigal, supra note 7, at 865-68.
150. Many examples may be found in criminal cases involving conflicts of interest. In order to secure a new trial based on trial counsel's conflict, a convicted defendant must show that the lawyer had an actual conflict that impaired the quality of the representation. See Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980). Defendants are rarely able to meet this standard, even in cases where the lawyer violated the applicable rules of professional conduct.
151. Among the possibilities is that in seeking to avoid one set of harms, lawyers will engage in overly cautious conduct that itself undermines a client's interests.
152. The Model Rules of Professional Conduct strongly endorse the principle applied in Levin. The rules provide that in the ordinary case, even with client consent, "a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated." Model Rules, supra note 1, Rule 1.7 cmt. While recognizing that there may be an exception where the lawyer "represent[s] an enterprise with diverse operations," a lawyer seeking employment as an advocate against such an enterprise would require the consent of both clients before doing so. Id. This principle is also embodied in the draft Restatement. See infra note 189 and accompanying text; see also Ethics Conference Speakers Take Controversial Positions, 12 ABA/BNA Lawyers' Manual on Prof. Conduct 73, 86-87 (Mar. 20, 1996) (opposing Professor Thomas Morgan's suggestion for liberalizing the rule against suing current clients). But see Steven C. Krane, Re-evaluating Expectations in the Attorney-Client Relationship, 1994 The Prof. Law. 7, 15 (suggesting that Rules should allow representation adverse to client interest unless there would be "some palpable detrimental impact" on the lawyer's professional judgment).
153. The Model Rules of Professional Conduct strongly endorse the principle applied in Levin. The rules provide that in the ordinary case, even with client consent, "a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated." Model Rules, supra note 1, Rule 1.7 cmt. While recognizing that there may be an exception where the lawyer "represent[s] an enterprise with diverse operations," a lawyer seeking employment as an advocate against such an enterprise would require the consent of both clients before doing so. Id. This principle is also embodied in the draft Restatement. See infra note 189 and accompanying text; see also Ethics Conference Speakers Take Controversial Positions, 12 ABA/BNA Lawyers' Manual on Prof. Conduct 73, 86-87 (Mar. 20, 1996) (opposing Professor Thomas Morgan's suggestion for liberalizing the rule against suing current clients). But see Steven C. Krane, Re-evaluating Expectations in the Attorney-Client Relationship, 1994 The Prof. Law. 7, 15 (suggesting that Rules should allow representation adverse to client interest unless there would be "some palpable detrimental impact" on the lawyer's professional judgment).
154. Professor Crystal refers to this problem as "the risk of disharmony." Crystal, supra note 42, at 293-94.
155. The conflict rules require client consent even where one might objectively conclude that it is obvious that the conflict of interest poses no practical risk. The low threshold might be justified on the ground that regardless of the lawyer's conclusion, this is information that a client ordinarily should be provided in order to make an informed decision regarding the representation that is entrusted to the client, namely, the decision of whom to retain as counsel. Cf. Model Rules, supra note 1, Rule 1.4(b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."). The low threshold is problematic, however, in situations in which the client is incapable of giving informed consent, for example, where the client is incapacitated or, under traditional doctrine, where the client is a government agency.
156. In some cases, the advantage may be to deprive the adversary of one good lawyer among many, of a lawyer in whom the adversary reposes particular confidence because of past dealings, or of a lawyer who can proceed with particular efficiency because of prior familiarity with the adversary's business. In other cases, the advantage may be considerably greater. Consider a case in which a lawyer already representing the plaintiff in pending litigation against several defendants identifies another possible defendant who turns out to be a client in an unrelated matter. If consent is withheld, the plaintiff may decide to forego adding the additional defendant rather than retaining a new lawyer.
157. On the general question of decision-making in representation of incapacitated clients, see Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 Fordham L. Rev. 1473, 1474 n.4 (1996); Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 Fordham L. Rev. 1073 (1994); Jan Ellen Rein, Clients With. Destructive and Socially Harmful Choices - What's an Attorney to Do?: Within and Beyond the Competency Construct, 62 Fordham L. Rev. 1101 (1994).
158. On the general question of decision-making in representation of incapacitated clients, see Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 Fordham L. Rev. 1473, 1474 n.4 (1996); Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 Fordham L. Rev. 1073 (1994); Jan Ellen Rein, Clients With. Destructive and Socially Harmful Choices - What's an Attorney to Do?: Within and Beyond the Competency Construct, 62 Fordham L. Rev. 1101 (1994).
159. On the general question of decision-making in representation of incapacitated clients, see Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 Fordham L. Rev. 1473, 1474 n.4 (1996); Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 Fordham L. Rev. 1073 (1994); Jan Ellen Rein, Clients With. Destructive and Socially Harmful Choices - What's an Attorney to Do?: Within and Beyond the Competency Construct, 62 Fordham L. Rev. 1101 (1994).
160. Cf. Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 (2d Cir. 1976) ("Where the relationship is a continuing one, adverse representation is prima facie improper, . . . and the attorney must be prepared to show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation.").
161. Cf. Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1127 (N.D. Ohio 1990) (holding that where merger of law firms resulted in firm's representation of one client against another, the appropriate remedy was not disqualification, but for the firm to choose which client to withdraw from representing); Crystal, supra note 42, at 297 ("As between two innocent clients, it seems more appropriate to consider the respective interests of those clients rather than reflexively favoring the interests of one client over the other.").
162. While it is true that the sins of the lawyer are often visited on their clients in the form of procedural penalties for their lawyers' lapses, the conditions that ordinarily justify such penalties - e.g., sanctions for failing to comply with timing requirements - are not present in the disqualification context. Ordinarily, the penalty protects an innocent third party at the expense of the lawyer's client. Here, both are clients. The question is which client to burden.
163. See Crystal, supra note 42, at 297 ("On the facts of the Levin case, for example, it seems that Levin rather than IBM had the superior interest in continued representation.").
164. Generally, courts allow disqualified lawyers to provide their work product to their successors, at least absent a showing that identifiable items contained, or were impermissibly based on, another client's confidential information. See, e.g., First Wis. Mortgage Trust v. First Wis. Corp., 584 F.2d 201, 211 (7th Cir. 1978) (directing former counsel to turn over work product because there would be no improper advantage); IBM v. Levin, 579 F.2d 271, 275, 283 (holding that ordering the turning over of work product to substitute counsel did not abuse the court's discretion under the circumstances).
165. See, e.g., Model Rules, supra note 1, Rule 1.9(a) (permitting law firm to undertake new representation adverse to a former client where the new representation is unrelated to the former representation).
166. As the foregoing discussion reflects, this Article adopts Professor Crystal's approach, see Crystal, supra note 42, which is in some ways more restrictive and in other ways more permissive than the Second Circuit's "taint" analysis, and which was endorsed by Professor Lingren in his article on disqualification for conflicts of interest. See Lindgren, supra note 40. It is more permissive in the sense that it would countenance some risk of "taint" - i.e., adverse consequences in the pending litigation - where the risks are acceptable in light of the greater harm that might be caused by disqualification. See Crystal, supra note 42, at 310 ("[C]ourts should focus precisely on a balance of the prospective benefits and costs."). It is more restrictive in the sense that it examines harms occurring outside the litigation - e.g., to clients represented on unrelated transactional matters. See id. at 310, 313 (focusing on the risk either of trial taint in the adversity matter or disharmony in the nonadversity matter from continued misrepresentation).
167. As Professor Crystal explains, a law firm should often be able to avoid disqualification by withdrawing from the representation of one of two clients who are adversaries. It does not follow, however, that a law firm acts properly by doing so unilaterally. See Crystal, supra note 42, at 294-95, 310. For example, a law firm may not knowingly undertake a new representation with the intention of withdrawing from an ongoing representation with which the new one will conflict. See Restatement of the Law Governing Lawyers § 213 cmt. c. (Proposed Final Draft No. 1, 1996). By the same token, if the law firm withdraws from representing the client that has the stronger claim to the lawyer's continued services, the withdrawal should compound the impropriety in initially undertaking the representation of conflicting interests. Indeed, it might be argued that, absent client consent to its withdrawal, a law firm should never unilaterally withdraw from representing one client in order to represent another. By doing so, the law firm deprives the client of an opportunity for a disinterested, judicial determination as to which client has the stronger claim to the lawyer's services. On the other hand, the possibility of withdrawal with client consent, as a way of avoiding disqualification, provides the possibility of a private resolution. The law firm may offer one client or the other an inducement for client consent - e.g., the return of fees already expended on the representation. Attempting to negotiate for client consent, however, might simply compound the lawyer's conflict of interest. Further, withdrawing from the representation would not prevent the possibility of sanctions for having improperly undertaken conflicting representations in the first place.
168. Some courts employ explicitly the Model Rules as the standards governing disqualification decisions. See, e.g., Host Marriot Corp. v. Fast Food Operators, Inc., 891 F. Supp. 1002, 1007 (D.N.J. 1995) (applying New Jersey Rules of Professional Conduct, Rule 1.9(a)(1) in determining whether an attorney should be disqualified). See generally Richardson, supra note 106, at 152-56 (discussing local courts' adoption of the Model Rules to govern attorney conduct and how they conflict with existing local rules).
169. For example, if courts believe that screening is a generally acceptable solution to the problem of vicarious disqualification for certain types of conflicts, courts should promulgate rules that permit screening.
170. See Bruce A. Green, Through a Glass, Darkly: How the Court Sees Motions to Disqualify Criminal Defense Lawyers, 89 Colum. L. Rev. 1201, 1255-56 (1989) [hereinafter Green, Through a Glass, Darkly].
171. The conflict provisions of the Model Code and Model Rules are explicitly intended to apply both pre- and mid-representation. See Model Code, supra note 2, DR 5-105(B) ("A lawyer shall not continue multiple employment . . . ."); Model Rules, supra note 1, Rule 1.7 cmt. 2 ("If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation.").
172. See supra note 87 and accompanying text.
173. Professor Lindgren deserves credit for making this point in response to the argument that the conflict-of-interest standards applied in disciplinary and disqualification proceedings are prophylactic standards "requir[ing a] similar determination of costs and benefits." Lindgren, supra note 40, at 430-31 (quoting Note, Developments in the Law: Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1470-71 (1981)). Professor Lindgren concurred in the conception of the conflict rules as prophylactic rules that strike a balance between the costs and benefits of undertaking the particular representation in the face of a conflict of interest. He argued, however, that these rules are unduly restrictive in the disqualification setting, because they do not account for unrecoverable work done by the lawyer by the time a disqualification motion is filed. Thus, when the court rules on a disqualification motion, the balance may tip in favor of preserving an attorney-client relationship that should not have been established at the outset. Id. at 431-32.
174. Wheat v. United States, 486 U.S. 153, 163 (1988). For commentary on the decision, see Green, Through a Glass, Darkly, supra note 151; William J. Stuntz, Waiving Rights in Criminal Procedure, 75 Va. L. Rev. 761, 797-801 (1989).
175. Wheat v. United States, 486 U.S. 153, 163 (1988). For commentary on the decision, see Green, Through a Glass, Darkly, supra note 151; William J. Stuntz, Waiving Rights in Criminal Procedure, 75 Va. L. Rev. 761, 797-801 (1989).
176. Courts often enforce lawyers' fee-sharing agreements that violated the rules of professional conduct. For example, in New York, DR 2-107 permits a division of fees between lawyers only if "the division is made in proportion to the services performed and responsibility assumed by each" or each lawyer assumes joint responsibility for the representation, but the judicial standard governing enforceability of fee sharing agreements is different from, and more permissive than, the disciplinary standard. As long as both lawyers in the joint representation have some responsibility for the representation or both lawyers have done some work, the agreement will ordinarily be enforced without consideration of whether the allocation between the lawyers accurately reflects the relative amount of work performed. The agreement will be deemed void as against public policy only if it is a pure referral fee agreement in which, in exchange for the referral, one attorney agrees to split fees with another lawyer who renders no services whatsoever to the client. See, e.g., Oberman v. Reilly, 66 A.D.2d 686, 687 (N.Y. App. Div. 1978) (holding that an agreement dividing legal fees was valid provided the attorneys seeking shares contributed services); Wojcik v. Miller Bakeries Corp., 142 N.E.2d 409, 412 (N.Y. 1957) (stating that a dispute between attorneys is not grounds to void a contract if both attorneys have performed services for their clients); cf. N.Y. St. B.A. Committee on Prof. Ethics, Opinion 414 (1975) (noting that a lawyer has an ethical duty to revise the original fee-sharing agreement if it turns out to be disproportionate to work performed). One possible reason is that courts do not want to be drawn into disagreements about precisely how much work the co-counsel performed. A second is the policy generally favoring the sanctity of contract, particularly between equally sophisticated parties, such as attorneys. A third is that the lawyer seeking to void the agreement, having voluntarily entered into it, lacks "clean hands." See, e.g., Carter v. Katz, Shandell, Katz & Erasmous, 465 N.Y.S.2d 991, 997 (Sup. Ct. 1983) ("Whatever minor transgressions one might perceive, this court cannot condone this defendant's use of the Code's provisions as a shield to avoid its legal, ethical and moral obligations.").
177. See, e.g., Model Rules, supra note 1, Preamble (stating that rules are not intended to have extra-disciplinary consequences).
178. See Cuyler v. Sullivan, 446 U.S. 335 (1980).
179. Courts are likely to interpret the rules of conduct more appropriately if they allow a lawyer to continue the representation despite an impermissible conflict of interest in cases in which disqualification is not necessary as a remedy. If the disciplinary and disqualification standards were precisely the same, courts interpreting the professional rules in the disqualification context would be influenced to adopt interpretations that were too permissive, as viewed ex ante, in order to avoid unnecessarily depriving a litigant of chosen counsel. See infra note 163 and accompanying text.
180. See IBM v. Levin, 579 F.2d 271, 280 (3d Cir. 1978).
181. See id.
182. This is precisely why it took IBM five years to discover that its own law firm was representing its adversary in litigation.
183. On the utility of rules versus standards, see Ronald M. Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967); Lawrence Friedman, Laws, Rules, and the Interpretation of Written Documents, 59 Nw. U. L. Rev. 751 (1965); Lon L. Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941); Roscoe Pound, The Theory of Judicial Decision, 36 Harv. L. Rev. 940 (1923); Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 24, 57-59 (1992).
184. On the utility of rules versus standards, see Ronald M. Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967); Lawrence Friedman, Laws, Rules, and the Interpretation of Written Documents, 59 Nw. U. L. Rev. 751 (1965); Lon L. Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941); Roscoe Pound, The Theory of Judicial Decision, 36 Harv. L. Rev. 940 (1923); Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 24, 57-59 (1992).
185. On the utility of rules versus standards, see Ronald M. Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967); Lawrence Friedman, Laws, Rules, and the Interpretation of Written Documents, 59 Nw. U. L. Rev. 751 (1965); Lon L. Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941); Roscoe Pound, The Theory of Judicial Decision, 36 Harv. L. Rev. 940 (1923); Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 24, 57-59 (1992).
186. On the utility of rules versus standards, see Ronald M. Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967); Lawrence Friedman, Laws, Rules, and the Interpretation of Written Documents, 59 Nw. U. L. Rev. 751 (1965); Lon L. Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941); Roscoe Pound, The Theory of Judicial Decision, 36 Harv. L. Rev. 940 (1923); Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 24, 57-59 (1992).
187. On the utility of rules versus standards, see Ronald M. Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967); Lawrence Friedman, Laws, Rules, and the Interpretation of Written Documents, 59 Nw. U. L. Rev. 751 (1965); Lon L. Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941); Roscoe Pound, The Theory of Judicial Decision, 36 Harv. L. Rev. 940 (1923); Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 24, 57-59 (1992).
188. See, e.g., Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168, 172 (5th Cir. 1979) ("A client would feel wronged if an opponent prevailed against him with the aid of an attorney who formerly represented the client in the same matter."). But see Christensen v. United States Dist. Court, 844 F.2d 694, 699 (9th Cir. 1988) (allowing representation where former client had "no reason to believe that information given to counsel [would] not be disclosed to the firm's current client").
189. See supra text accompanying note 56.
190. Section 201, which expresses the basic prohibition of conflicts of interest, is framed as a rule of conduct. See Restatement of the Law Governing Lawyers § 201 (Proposed Final Draft No. 1, 1996) ("Unless all affected clients and other necessary persons consent . . . a lawyer may not represent a client if the representation would involve a conflict of interest."). Subsequent provisions, which elaborate on the basic prohibition, are similarly worded.
191. In re American Airlines, Inc., 972 F.2d 605, 611 (5th Cir. 1992).
192. See generally Green, Whose Rules of Professional Conduct, supra note 18 (proposing that federal courts employ a rule-making process to develop and promulgate rules of professional conduct to govern litigators in federal-court proceedings).
193. Criminal case law interpreting the defendant's Sixth Amendment right to counsel reflects this insight. Courts are far more likely to remedy conflicts prior to trial than after trial. Prior to trial, courts have broad discretion to disqualify criminal defense lawyers with potential conflicts of interest. This reflects both the difficulty of predicting whether the quality of representation will in fact be impaired as the representation progresses as a consequence of a lawyer's conflict, and recognition that the cost of disqualifying a lawyer at an early stage of the proceeding is modest, particularly compared with the cost of later overturning a conviction to remedy a conflict of interest. See Wheat v. United States, 486 U.S. 153, 162-63 (1988). Post-conviction, a defendant is entitled to a new trial based on the lawyer's conflict of interest only if the defendant can show that the lawyer had an actual conflict that adversely affected the representation. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). This standard in part reflects confidence that, once the representation unfolds, a court is in a better position to ascertain whether and how a conflict affected a lawyer's performance, as well as recognition that overturning a conviction has considerable costs to the courts and the public.
194. See, e.g., Burkes v. Hales, 478 N.W.2d 37 (Wis. Ct. App. 1991) (involving a motion for disqualification, filed immediately after the lawyer was appointed, based on the lawyer's former representation of partners of predecessor firm that represented him).
195. See Crystal, supra note 42, at 293-96 (noting that the extent to which representing one client against another may undermine the lawyer's zealousness in representing the client in litigation or may cause disharmony in the lawyer's relationship with the non-litigation client will vary depending on such factors as the importance of the respective clients to the law firm, whether the clients are individuals or corporations, and the presence of in-house counsel for corporate clients to offer independent advice).
196. See ABA/BNA Law. Manual on Prof. Conduct 51:2003 (1993) (indicating that Illinois, Michigan, Oregon, Pennsylvania, and Washington have incorporated screening provisions into their rules on imputed disqualification).
197. On the efficacy of screening to avoid law firm disqualification, see Martin Lipton & Robert B. Mazur, The Chinese Wall Solution to the Conflict Problems of Securities Firms, 50 N.Y.U. L. Rev. 459 (1975);
198. Thomas D. Morgan, Screening the Disqualified Lawyer: The Wrong Solution to the Wrong Problem, 10 U. Ark. Little Rock L.J. 37 (1987-88);
199. M. Peter Moser, Chinese Walls: A Means of Avoiding Law Firm Disqualification When a Personally Disqualified Lawyer Joins the Firm, 3 Geo. J. Legal Ethics 399 (1990);
200. Craig A. Peterson, Rebuttable Presumptions and Intra-Firm Screenings: The New Seventh Circuit Approach to Vicarious Disqualification of Litigation Counsel, 59 Notre Dame L. Rev. 399 (1984);
201. Comment, The Chinese Wall Defense to Law-Firm Disqualification, 128 U. Pa. L. Rev. 677 (1980).
202. Cf. Cardinale v. Golinello, 372 N.E.2d 26, 30 (N.Y. 1977) ("Irrespective of any actual detriment, the first client is entitled to freedom from apprehension and to certainty that his interests will not be prejudiced in consequence of representation of the opposing litigant by the client's former attorney.").
203. See, e.g., In re Del-Val Fin. Corp. Sec. Litig., 158 F.R.D. 270, 274 (S.D.N.Y. 1994) (permitting screening devices when the attorney was only peripherally involved in the representation).
204. One recent example where disqualification may have been unnecessary as a remedy for a conceded violation of the screening requirement is Cobb Publishing, Inc. v. Hearst Corp., 891 F. Supp. 388 (E.D. Mich. 1995). In Cobb, the rule of imputed disqualification, although allowing screening of a lawyer who switches firms if the screen is put in place at the outset of the representation, was violated because the firm waited 11 days to set up the screen and 16 days to notify the court. Id. at 395. Assuming that the "tainted" lawyer had not discussed the case with others in the firm or allowed them access to confidential material during the intervening period, disqualification might be unnecessary. Another example is Decora Inc. v. DW Wallcovering, Inc., 899 F. Supp. 132 (S.D.N.Y. 1995). In that case, the lawyer who switched firms had worked on the other side of the case for less than two hours at the previous firm. The district court determined that screening of the lawyer came too late, id. at 139-40, even though the lawyer said he remembered nothing from the previous representation and, thus, had imparted nothing. Id. at 134-35. Had the court credited the lawyer, disqualification would have been unnecessary.
205. See, e.g., Solow v. W.R. Grace & Co., 632 N.E.2d 437 (N.Y. 1994) (holding that a large and departmentalized law firm was not per se disqualified from representing the plaintiff in a suit against a former client).
206. Courts make distinctions, for example, between for-profit law offices and government or other not-for-profit law offices. See, e.g., State ex rel. Romley v. Superior Court, 908 P.2d 37, 42 (Ariz. Ct. App. 1995) (advocating a less restrictive standard for vicarious disqualification for government prosecutors office); People v. Christian, 48 Cal. Rptr. 2d 867, 875 (Cal. Ct. App. 1996) (finding "ethical walls" adequate to prevent vicarious disqualification of public sector law office and permitting continued representation).
207. On the efficacy of sanctions against law firms, rather than individual lawyers, see Ted Schneyer, Professional Discipline for Law Firms?, 77 Cornell L. Rev. 1 (1991).
208. See infra note 202.
209. See supra note 136.
210. See Lindgren, supra note 40, at 458 (suggesting that a "necessarily vague standard" should govern disqualification decisions).
211. This approach to disqualification might also be appropriate in settings, such as bankruptcy proceedings, where the lawyer's conduct is governed by statute, rather than or in addition to disciplinary rules relating to conflicts of interest. Cf. Rome v. Braunstein, 19 F.3d 54, 57-59 & n.3 (1st Cir. 1994) (stating that although the prophylactic ethical rules governing attorney conduct under the Bankruptcy Code impose "particularly rigorous conflict-of-interest restraints upon the employment of professional persons in a bankruptcy case," in special circumstances, the bankruptcy court could determine, in its discretion, "that any potential impairment of its institutional integrity, or risk of divided loyalty by counsel, was substantially outweighed by the benefits to be derived from counsel's continued representation of multiple entities or the impracticability of disentangling multiple interests 'without unreasonable delay and expense.'").
212. See supra note 15 and accompanying text.
213. See supra note 53; see also Linda Ann Winslow, Note, Federal Courts and Attorney Disqualification Motions: A Realistic Approach to Conflicts of Interest, 62 Wash. L. Rev. 863, 877-78 (1987) (advocating stricter standing requirements).
214. See, e.g., Employers Ins. v. Albert D. Seeno Constr., 692 F. Supp. 1150, 1165 (N.D. Cal. 1988) (considering particularly "whether the motion was delayed for tactical reasons"); First Nat'l Bank v. St. Charles Nat'l Bank, 504 N.E.2d 1257, 1264 (Ill. App. Ct. 1987) (stating that "failure to raise this issue in the trial court at an earlier time effectively waives the right to object to plaintiff's counsel on conflict of interest grounds."); River West, Inc. v. Nickel, 188 Cal. App. 3d 1297, 1313 (Cal. Ct. App. 1987) (reversing disqualification order where the delay in making the disqualification motion was unreasonable and resulted in great prejudice); cf. Hrudka v. Hrudka, 1 CA-CV 93-0155, 1995 Ariz. App. LEXIS 257, at *9 (Nov. 21, 1995) (holding that disqualification of husband's attorney after over a year of litigation would be an "excessive penalty").
215. See supra note 42.
216. See supra note 29 and accompanying text; infra note 201 and accompanying text.
217. Restatement of the Law Governing Lawyers § 209 at 554 (Proposed Final Draft No. 1, 1996).
218. Id. § 204(2).
219. One procedural barrier is that the "tainted" lawyer may not share the confidential information he possesses with those in the firm who would undertake the representation and who are therefore in the best position to assess the significance of the confidential information.
220. See, e.g., United States v. Iorizzo, 786 F.2d 52, 57 (2d Cir. 1986) (finding ineffective assistance of counsel because of conflict of interest arising when attorney's former client was the government's key witness against the current client); United States v. Jeffers, 520 F.2d 1256, 1264-65 (7th Cir. 1975) (discussing the possibility of a conflict of interest arising when an attorney's former client is called as an adverse witness), cert. denied, 423 U.S. 1066 (1976); see also Gary T. Lowenthal, Successive Representation by Criminal Lawyers, 93 Yale L.J. 1, 1-22 (1983) (providing data from an empirical study on the frequency with which criminal defense attorneys must face former clients as adverse witnesses and discussing several ethical considerations in such cases).
221. See, e.g., Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1127 (N.D. Ohio 1990) (explaining that disqualification is appropriate when a conflict of interest arises from a merger between law firms).
222. See, e.g., In re Wingspread Corp., 152 B.R. 861, 864 (Bankr. S.D.N.Y. 1993) (pointing out that, through no fault of a law firm, previously unrelated representations can raise a possible conflict of interest because of a merger between two companies); Pennwalt Corp. v. Plough, Inc., 85 F.R.D. 264, 273 (D.Del. 1980) (suggesting, in dicta, that law firms inform both clients in writing as soon as the firm learns of a potential conflict of interest caused by a change in the internal operations of the clients).
223. For instance, a lawyer who represents the plaintiff in a legal malpractice action may be the subject of the defendant's third-party action for contribution. See, e.g., Costin v. Wick, 95 CA 006133, 1996 Ohio App. LEXIS 233, at *7 (Jan. 24, 1996) (involving plaintiffs' malpractice attorney who was forced to withdraw after being joined as a third party defendant). This possibility raises a conflict between the plaintiff's interest in prevailing in the malpractice action and the lawyer's interest in avoiding liability. The conflict exists even if plaintiff's counsel is convinced that a threatened action against it would be utterly meritless. See, e.g., Schenck v. Hill, Lent & Troescher, 130 A.D.2d 734, 734 (N.Y. App. Div. 1987) (affirming the decision to disqualify plaintiff's counsel who was impleaded as a third-party defendant). Moreover, this may be a conflict to which consent ordinarily would be unavailable under the conflict rules. In criminal cases, the defense lawyer's personal interests may unexpectedly be implicated if the lawyer is accused of participating in the defendant's alleged crime or subjected to unrelated accusations that might lead the lawyer to advocate less vigorously to curry favor with the prosecution. See, e.g., Mannhalt v. Reed, 847 F.2d 576, 581 (9th Cir. 1988) (holding that a conflict exists when an attorney is accused of crimes related to those of his client, because of the great potential for diminished effectiveness in representation).
224. Bank Brussels Lambert v. Chase Manhattan Bank, N.A., No. 93 Civ. 5298, 1996 WL 346009 (S.D.N.Y. May 13, 1996).
225. The same rationale should apply when a conflict of interest that should have been apparent at the outset is identified only after the representation has commenced and withdrawal would be costly to the client. See Restatement of the Law Governing Lawyers xxv (Proposed Final Draft No. 1, 1996). Suppose, for example, that five years after the representation commenced, the conflict in Levin was identified by Carpenter, Bennett, rather than IBM, and instead of concealing the problem, the firm unsuccessfully requested IBM's consent at that late date. If the firm, rather than awaiting a disqualification motion, itself sought a declaratory judgment permitting the ongoing representation, it would have been appropriate for the district court to consider the motion and to do so under the same standard as it would have reviewed IBM's disqualification motion. The willingness to consider such requests, even when the conflict of interest was far from inadvertent, would not encourage lawyers to ignore the conflict rules as long as the court also directly sanctioned the lawyers. The lawyers' disclosure might mitigate the sanction, but not excuse the wrongdoing.
226. See Carrie Menkel-Meadow, Ethics and the Settlements of Mass Torts: When the Rules Meet the Road, 80 Cornell L. Rev. 1159, 1194 & n.148 (1995).
227. For an argument that conflict rules should apply differently in cases involving family members, see Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 Fordham L. Rev. 1253 (1994).
228. For discussions of conflicts of interest in representing child clients, see Nancy J. Moore, Conflicts of Interests in the Representation of Children, 64 Fordham L. Rev. 1819 (1996); Christopher N. Wu, Conflicts of Interest in the Representation of Children in Dependency Cases, 64 Fordham L. Rev. 1857 (1996).
229. For discussions of conflicts of interest in representing child clients, see Nancy J. Moore, Conflicts of Interests in the Representation of Children, 64 Fordham L. Rev. 1819 (1996); Christopher N. Wu, Conflicts of Interest in the Representation of Children in Dependency Cases, 64 Fordham L. Rev. 1857 (1996).
230. At the recent Conference on Ethical Issues in the Legal Representation of Children, participants addressed this problem without agreeing on a satisfactory resolution. A group of participants who focused on conflicts of interest in the legal representation of children proposed that judicial authorization be allowed to substitute for consent of the child client. The Conference ultimately recommended, however, that further study be given to this question. See Recommendations of the Conference on Ethical Issues in the Legal Representation of Children, 64 Fordham L. Rev. 1301, 1319-20 (1996);
231. Report of the Working Group on Conflicts of Interest, 64 Fordham L. Rev. 1379, 1385-86 (1996). At present, there would be little incentive for the lawyer to seek judicial approval before accepting the representation where the conflict rules ordinarily require consent but the client is incapable of providing it. In this context, there is little danger of disqualification or a personal sanction for what might be considered a violation of the applicable rules. In cases in which courts have reason to know that there may be an impermissible representation - for example, where a lawyer enters an appearance on behalf of co-clients, one of whom is a child - the court itself may initiate an inquiry and, if it finds a violation, impose a sanction. Thus, the willingness of courts to become "proactive" in civil cases, as they presently are to some degree in criminal cases, see, e.g., Fed. R. Crim. P. 44(c) (requiring judicial inquiry where criminal defendants are jointly represented), may encourage lawyers to seek judicial guidance at the out-set of a proposed representation where it is appropriate to do so. In contexts, however, where a possible conflict would not be reasonably apparent to the court, less scrupulous lawyers would have little incentive to seek judicial review until such time as disciplinary agencies became stricter in enforcing the relevant conflict provisions.
232. In class action litigation, the question of whether an attorney is barred by a conflict of interest from engaging in a particular representation may arise in various contexts, including at the certification stage, when the court determines the adequacy of class counsel. See Fed. R. Civ. P. 23(a)(4); see, e.g., Tedesco v. Mishkin, 689 F. Supp. 1327 (S.D.N.Y. 1988) (holding that in a class action certification motion, attorney representing plaintiff class had to withdraw from representing individual co-trustee because of conflict); Jackshaw Pontiac, Inc., v. Cleveland Press Publishing Co., 102 F.R.D. 183 (N.D. Ohio 1984) (holding that attorneys could not adequately represent plaintiff class because of simultaneous representation of different plaintiff in action against same defendant). The issue may also arise in the context of proceedings concerning the fairness of a settlement. See, e.g., Parker v. Anderson, 667 F.2d 1204, 1213-14 (5th Cir. 1982) (holding that a settlement providing for attorney's fees payable out of a settlement fund does not create a conflict of interest); Georgine v. Amchem Products, Inc., 157 F.R.D. 246 (E.D. Pa. 1994) (holding that settlement and attorney's fees were fair and reasonable, and that concurrent representation of clients with similar claims to class was not a conflict), vacated and remanded, 83 F.3d 610 (3d Cir. 1996); Holden v. Burlington N., Inc., 665 F. Supp. 1398, 1426-28 (D. Minn. 1987) (allowing attorneys to concurrently negotiate settlement and attorneys' fees).
233. See In re Agent Orange Prod. Liab. Litig., 800 F.2d 14, 18-19 (2d Cir. 1986); In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 162-66 (3d Cir. 1984) (Adams, J., concurring); 3 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 15.01 at 15-3 (3d ed. 1992); Charles W. Wolfram, Modern Legal Ethics 493 (1986). Recent articles addressing the settlement of asbestos-related personal injury claims in Georgine, demonstrate the considerable need for study of class counsel's conflicts of interest. See Susan P. Koniak, Feasting While the Widow Weeps: Georgine v. Amchem Products, Inc., 80 Cornell L. Rev. 1045 (1995); Menkel-Meadow, supra note 198. Professor Koniak's article suggests that in the course of determining the fairness of a proposed class action settlement - which necessarily requires consideration of the adequacy of counsel's representation - a district court may be tempted to approve of representation that would be improper under a seemingly straightforward application of conflict rules. Koniak, supra at 1078-86. Professor Menkel-Meadow's article suggests that one reason for doing so is the imperfect fit between the class action setting and conflict rules that contemplate the representation of individual clients and the possibility of client consent in situations raising a theoretical, but not realistic, possibility that the lawyer's representation will be impaired because of other interests the lawyer may be tempted to serve. Menkel-Meadow, supra note 198, at 1189-98.
234. See Fed. R. Civ. P. 23(e).
235. See, e.g., In re Corn Derivatives, 748 F.2d at 165 (Adams, J., concurring) (noting that strict procedural requirements, and particularly fairness hearings, serve as safeguards for the rights of class action members); Mary Kay Kane, Of Carrots and Sticks: Evaluating the Role of the Class Action Lawyer, 66 Tex. L. Rev. 385, 397 (1987) ("Rule 23(e) protects class members from some potential attorney conflicts of interest in settlements by mandating judicial approval and notice of any proposed settlement.").
236. Cf. Bash v. Firstmark Standard Life Ins. Co., 861 F.2d 159, 161 (7th Cir. 1988) (denying a motion to disqualify former class counsel from representing unnamed class members in an appellate challenge to the settlement). In Bash, the court stated: When all is said and done, Williams has represented two sides of the same case - the defense of the settlement before the district judge, and the attack on the settlement in this court. But conflicts of interest are built into the device of the class action, where a single lawyer may be representing a class consisting of thousands of persons not all of whom will have identical interests and views. Recognizing that strict application of rules on attorney conduct that were designed with simpler litigation in mind might make the class-action device unworkable in many cases, the courts insist that a serious conflict be shown before they will take remedial or disciplinary action. Id.
237. One exception is in bankruptcy cases, where conflicts of interest are governed in part by statute. See supra note 183.