Disqualification analysis is unusual in part because the movant[1] is scrutinized just as closely as the lawyer whose conduct is at issue. Because many courts and commentators generally disdain disqualification motions and fear that such motions are increasing significantly, courts apply heightened scrutiny to the movant’s motivations and conduct. Courts will analyze the movant’s: (1) standing to challenge the lawyer’s conduct; (2) diligence (or delay) in bringing the motion; (3) knowledge of (or informed consent to) the circumstances; (4) fault or misconduct; (5) motive in bringing the motion; and (6) potential prejudice if the motion is denied.[2]

 

[1]     By movant, I mean the party (and if applicable, the party’s lawyer) moving for disqualification.

[2]     To review these factors and this discussion in more detail, see Keith Swisher, The Practice and Theory of Lawyer Disqualification, 27 Geo. J. Legal Ethics 71 (2014) (Part I.B.1).