I need to file a motion to disqualify opposing council. I've already sent the attorney a letter requesting that he removes himself based on conflict of interest. How do I file the motion, when we go to court or with the clerks office before that? What should be in the motion?
Unless this lawyer represented you and during the course of that representation, learned confidential facts about this tenancy and the landlord's right to possession that make this representation of your landlord improper, you don't have grounds for this motion.
Since UD actions are only about 1 thing --the landlord's right to possession-- and since most landlord's lawyers don't represent tenants, it seems unlikely that there's a conflict of interest under CA law here.
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It is not clear what the basis for disqualifying the opposing counsel would be. I agree with Attorney Koslyn that the probability is pretty small that you have a valid argument.
Generally speaking, you can read the following to determine whether or not you have a basis to disqualify before you actually prepare and file such a motion.
In California, in determining whether an attorney should be disqualified by reason of a conflict of interest, two rules are potentially implicated.
The first is the per se rule of disqualification which generally prevents an attorney from undertaking a representation which is adverse to a current client. The attorney's duty of undivided loyalty prevents such simultaneous representation, even on matters which are wholly unrelated, without the informed written consent of both clients.
The second rule governs successive representation of clients with adverse interests. An attorney is forbidden from undertaking a representation adverse to a former client if there is a “substantial relationship” between the current and former matters. This prohibition stems from the attorney’s duty to maintain client confidences. (Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft (1999) 69 Cal.App.4th 223, 230.)
Pursuant to Rule of Professional Conduct 3-310(D), an attorney may not accept employment adverse to a client or former client where, by reason of the representation, the attorney has obtained confidential information. The purpose of the rule is to protect the confidential relationship, which continues even after the formal relationship ends. The fiduciary nature of that relationship requires the application of strict standards.
In determining whether there is a substantial relationship between the former representation and the current representation, the Court looks to “the practical consequences of the attorney's representation of the former client” and considers “whether confidential information material to the current dispute would normally have been imparted to the attorney by virtue of the nature of the former representation.” (H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1454.) In doing so, the Court focuses “on the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney's involvement with the cases,” including “the time spent by the attorney on the earlier cases, the type of work performed, and the attorney’s possible exposure to formulation of policy or strategy.” (Id. at p. 1455.) Where there is a substantial relationship between the current and former representation, a conclusive presumption is triggered that the attorney possesses confidences that could prejudice the former client in the present matter. (Id.)
The substantial relationship test is broad and not limited to the strict facts, claims and issues involved in a particular action. The legal theories and issues that an attorney discusses with a former client may be different than those involved in the subsequent lawsuit against that client. Where an attorney acquires knowledge about the former client’s “attitudes,” practices, business customs, “litigation philosophy,” strengths, weaknesses or strategy, disqualification may be required for that reason alone. (Knight v. Ferguson (2007) 149 Cal.App.4th 1207, 1213-1215; citing Jessen v. Hartford Cas. Ins. Co. (2003) 111 Cal.App.4th 698, 712.)
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
what is the basis of your disqualification motion. Did the lawyer represent you previously? Hire a lawyer for a consultation and to assist you as motions to disqualify are quite tricky.
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