Although it is not the most common basis for lawyer disqualification, an additional category—containing diverse forms of lawyer misconduct and strange circumstances—is worth mentioning.[1] One example is contacting, or even bribing, jurors, and another example is contacting, or even bribing, judges.[2] “Misconduct” could even include providing financial assistance to a destitute client.[3] Although the misconduct of this category is substantively varied, it is worth noting for context, and it at least shares a common feature with the other categories in that it may be remedied through disqualification.

[1]     See, e.g., W. William Hodes, Getting Lawyer Disqualification Straight Book Review, Lawyer Disqualification: Conflicts of Interest and Other Bases by Richard E. Flamm, 17 Geo. J. Legal Ethics 339, 341 n.6 (2004) (citing Flamm at 25-28) (mentioning “several other grounds sometimes advanced as a basis for disqualification, such as intemperate public criticism of a judge, charging excessive fees, making improper loans to clients for living expenses, obtaining publicity rights to the subject of the pending litigation, and initiating a sexual relationship with a client”); see also Comuso v. Nat’l R.R. Passenger Corp., 267 F.3d 331, 340 (3d Cir. 2001) (noting that the trial court disqualified the lawyer for verbally and physically threatening opposing counsel, dismissing the appeal for lack of jurisdiction, and denying the lawyer’s petition for a writ of mandamus).

[2]     See, e.g., Bushkin Assocs., Inc. v. Raytheon Co., 121 F.R.D. 5 (D. Mass. 1988) (disqualifying counsel for contacting jurors post-trial).

[3]     Shade v. Great Lakes Dredge & Dock Co., 72 F. Supp. 2d 518, 522 (E.D. Pa. 1999) (denying disqualification and finding no public interest to outweigh the interest of the client in his chosen counsel and that “the danger of public dissatisfaction with the legal process appears to be greater from the last minute disqualification of an attorney who apparently provided housing for a client who was faced with dire financial circumstances”). But see In re K.A.H., 967 P.2d 91, 92 (Alaska 1998) (denying reimbursement from settlement funds “[b]ecause we conclude that Rule 1.8(e) prohibits lawyers from advancing living expenses to clients and does not unconstitutionally interfere with court access”); Waldman v. Waldman, 118 A.D.2d 577, 499 N.Y.S.2d 184, 185 (N.Y. App. Div. 1986) (concluding that trial court did not abuse discretion by granting disqualification because lawyer had provided financial assistance to client, even though the lawyer’s sole motivation was “genuine concern for his client’s financial plight”).

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