The issue of disqualification can irritate many lawyers and judges.  For example, some fear that disqualification motions are invariably “tactical” or “strategic” moves that should be viewed with “skepticism” and “extreme caution.”  Others, however, tend to view the lawyers or firms at issue as ignoring their ethical responsibilities and rationalizing away clear conflicts of interest or other misconduct.  This skepticism (or misconduct) occasionally leads to sanctions — often in the form of an order requiring payment of the other side’s fees and costs.  For general authority on sanctions for raising or defending allegedly frivolous disqualification issues, see ABA/BNA Lawyers’ Manual on Professional Conduct § 51:1911, 1915 (noting that lawyers have been sanctioned both for using disqualification motions as “purely tactical weapons” and for violating Rule 11 of the Federal Rules of Civil Procedure and state equivalents); cf. Alex B. Long, Attorney Liability for Tortious Interference: Interference with Contractual Relations or Interference with the Practice of Law?, 18 Geo. J. Legal Ethics 471, 518 (2005) (arguing that a tortious interference claim should be available in limited circumstances against lawyers who file motions to disqualify in bad faith).  Two very recent examples illustrate the infliction of sanctions.

First, the Eastern District of Louisiana just concluded that a plaintiff had brought suit solely as a tactic to have his wife’s lawyers disqualified in a separate divorce proceeding and awarded attorneys’ fees as a consequence:

[I]t appears that Plaintiff brought this suit as a litigation tactic in the divorce proceeding. In this suit, Plaintiff alleges that Defendants were engaged in a conspiracy with their client, Ms. Martin. After this suit was filed, Plaintiff sought to disqualify Defendants from representing Ms. Martin in the divorce proceeding, arguing that this lawsuit had created a conflict of interest between Ms. Martin and Defendants. As explained above, Plaintiff, himself an attorney, could not have reasonably believed that this lawsuit had merit. Therefore, in the absence of any other evidence, the Court concludes that Plaintiff brought this suit in an effort to create a conflict of interest so that he could seek disqualification of his wife’s divorce attorneys. This is not a legitimate legal reason. Accordingly, the Court finds that this action was brought in bad faith and for the purposes of harassment and that Defendants are entitled to attorney’s fees . . . .
. . .
The full opinion is available here: Allen v. Lowe, No. CIV.A. 14-204, 2015 WL 1021695 (E.D. La. Mar. 9, 2015).
. . .
Second, in an unpublished decision last week, the Second Circuit upheld a high-dollar attorneys’ fees award against Boies, Schiller & Flexner (BSF) for failing to withdraw (and instead making the opposing side file a motion to disqualify).  As the Second Circuit summarized:
. . .
Host moved for sanctions on the grounds that BSF’s representation of Madison 92nd Street Associates, LLC (“Madison”) presented a clear conflict of interest in light of BSF’s earlier, substantially related representation of Host, and that BSF unreasonably refused to withdraw from its representation of Host until faced with a motion to disqualify. The district court agreed, concluding that “[a] clearer conflict of interest cannot be imagined” and that Host was entitled to fees and costs incurred in preparing the motion to disqualify BSF.
. . .
The Second Circuit then went on to affirm the district court’s sanctions award, although “without endorsing all of the tonalities of the district court’s opinion.”  The underlying district court opinion is striking in its description of BSF’s conduct:

A clearer conflict of interest cannot be imagined. A first year law student on day one of an ethics course should be able to spot it.
BSF, which holds itself out as one of the country’s preeminent law firms, did not.
Not when it undertook a representation that would inevitably attack its own work for Host.
Not when its former client raised the issue—which occurred as soon as Host learned that Plaintiff had retained BSF and read a copy of the draft complaint that its former lawyers had prepared.
Not when Host’s counsel in this lawsuit, the Proskauer Rose firm, formally notified BSF in writing that its prior representation of Host created a conflict.
Not when the firm, after being warned about the conflict, filed a lawsuit containing allegations as to which its own attorneys (including quite possibly name partner David Boies, who billed time to both representations) were important—indeed virtually necessary—rebuttal witnesses.
Not even when a BSF partner reviewed key documents, including a 23 page memorandum addressed to Host’s general counsel, in which BSF opined that Host’s Board [Redacted]
Eventually, after Proskauer prepared a motion to disqualify that spelled out the situation in words of one syllable, BSF capitulated and withdrew. Host now moves for sanctions in the amount of attorneys’ fees it incurred in getting BSF off this case.
The motion is granted.
. . .
The district court and the circuit court opinions are available here: Madison 92nd St. Associates, LLC v. Marriott Int’l, Inc., No. 13 CIV. 291 CM, 2013 WL 5913382 (S.D.N.Y. Oct. 31, 2013), aff’d sub nom. Boies, Schiller & Flexner LLP v. Host Hotels & Resorts, Inc., No. 14-2949, 2015 WL 1035841 (2d Cir. Mar. 11, 2015) (summary order).
As an interesting aside, although the district judge in her above ruling was clearly no friend to the large large firm of BSF, she happened to be notably nice to another large law firm (namely, Sidley Austin, LLP) last week.  In short, the judge held that because Sidley screened a partner who had represented the other side in the same dispute, Sidley was not disqualified.  As the judge acknowledged, though, all of her authority permitting screening involved situations in which the personally disqualified lawyer had left one firm and joined a new one; here, however, the Sidley partner was with Sidley at the time of his earlier (albeit brief) representation of the other side.  That controversial opinion is available here: Maricultura Del Norte, S. de R.L. de C.V. v. Worldbusiness Capital, Inc., No. 14 CIV. 10143 CM, 2015 WL 1062167 (S.D.N.Y. Mar. 9, 2015); and a summary of some of the players and issues is available here.