When a lawyer contacts a person (typically the opposing party or the opposing party’s employees) represented in a litigated matter, the person’s lawyer might well respond with a motion to disqualify the lawyer. One concern is that the lawyer might have unfairly or unethically gained privileged or confidential information through the improper contact. Although courts will often look for less drastic sanctions against the lawyer, disqualification is a significant possibility.[1]

[1]     See, e.g., Camden v. Maryland, 910 F. Supp. 1115, 1124 (D. Md. 1996) (granting disqualification because the attorney contacted a former employee of the moving party and obtained confidential information); Faison v. Thornton, 863 F. Supp. 1204, 1215 (D. Nev. 1993) (noting the various ways courts have dealt with “improper ex parte communications” from excluding evidence to dismissal of pending litigation), overruled on other grounds by 338 F.3d 981 (9th Cir. 2003).   But see Ceramco, Inc. v. Lee Pharms., 510 F.2d 268, 271 (2d Cir. 1975) (denying disqualification because it “would be too harsh to rule that the action of counsel in telephoning defendant’s employees to obtain non-privileged, relevant, and accurate information as to jurisdiction and venue constituted actual wrongdoing”); Davidson Supply Co., v. P.P.E., Inc., 986 F. Supp. 956, 958 (D. Md. 1997) (denying disqualification of lawyer who contacted a party’s former employee and obtained non-privileged information). See generally ABA/BNA Lawyers’ Manual on Professional Conduct § 51:1901 (2013) (noting that courts will occasionally disqualify lawyers for ex parte contacts); Richard Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases § 15 (2003) (discussing disqualification for “unauthorized contacts with parties”).

[Source: Keith Swisher, The Practice and Theory of Lawyer Disqualification, 27 Geo. J. Legal Ethics 71 (2014)]