In New York and elsewhere, attorney discipline has been imposed rarely, sporadically, and seemingly randomly, after lawyers or their firms have been disqualified in civil or criminal litigation due to a conflict of interest or for other infractions. What factors should trigger a subsequent disciplinary investigation? Does disqualification for a conflict of interest or other rule violation ipso facto require discipline?
Not necessarily. Is it fair to impose discipline when a lawyer, in good faith, contends that a motion to disqualify is unwarranted and has been interposed principally for tactical reasons, as some are?1 Moreover, it is clear from review of the case law that many disqualification motions based on alleged conflicts or other issues may entail close questions of fact, such as whether the allegedly aggrieved movant is a “current” or “former” client, whether two matters are substantially related, or as to the connection between affiliate entities.
