A motion to disqualify counsel is often made as tactical gambit to delay litigation. A motion to disqualify is disfavored because it denies a litigant its choice of counsel. The purpose of this article is to discuss under what circumstances should an attorney be disqualified from representing another party that is adverse to a present or former client of a former law firm for which the attorney was affiliated.

An important case concerning attorney disqualification and the adoption of the rebuttable presumption test is Solow v. W.R. Grace & Co., 83 N.Y.2d 303 (1994). There, a motion was made to disqualify the law firm of Stroock & Stroock & Lavan. Stroock represented the plaintiffs in a civil action to recover damages for asbestos contamination against W.R. Grace & Co (Grace). Stroock had previously defended Grace in a civil action titled City of Enterprise v. Grace & Co. (Cir. Ct., Coffee County, Ala., Civ No. 85-87), which also involved asbestos contamination. Stroock had represented Grace for a period of approximately six months in the City of Enterprise litigation. The partner responsible for the City of Enterprise matter was no longer at Stroock. Grace had retained Stroock for the limited purpose of preparing Dr. Seaton, an independent expert retained by Grace, for deposition and possible testimony. The Appellate Division, First Department, relying upon Cardinale v. Golinello, 43 N.Y.2d 288 (1977), held that there was an irrebuttable presumption that all the firm’s attorneys had knowledge of confidential information learned during its prior representation of Grace in the City of Enterprise litigation.