Disqualification of an Attorney to Prevent Disclosure of Confidential Information

The Nevada Rules of Professional Conduct generally govern the issue of attorney disqualification.[1]  In United States v. Walker River Irrigation Dist., the court recited the standards applied in considering attorney disqualification motions.  The court correctly suggests:

Disqualification is a “drastic measure which courts should hesitate to impose except when absolutely necessary[,]” Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721-22 (7th Cir. 1982), because it takes away one party’s ability to choose his own representation, and it is often a tactic used to create delay or harassment, Miller v. Alagna, 138 F.Supp.2d 1252, 1258-59 (C.D. Cal. 2000). Motions to disqualify are therefore subject to strict judicial scrutiny, Optyl Eyewear Fashion Intern. Corp. v. Style Companies, Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985), and courts have wide discretion in their rulings to further the interests of fairness to all parties, Int’l Bus. Mach. Corp. v. Levin, 579 F.2d 271,279 (3d Cir. 1978).[2]

Tribunals “have broad discretion in determining whether disqualification is required in a particular case.”[3] However, in deciding disqualification based on possible disclosure of confidential information obtained from a former client, a court must: (1) make a factual determination concerning the scope of the former representation; (2) evaluate whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters; and (3) determine whether that information is relevant to the issues raised in the present litigation.[4]

The court must make a Robbins v. Gillock, “realistic appraisal of whether confidences might have been disclosed that will be harmful to the client in the latter matter”.[5]   The court must make a factual finding regarding what actually happened.[6]

Rule 1.9(a) of the Nevada Rules of Professional Conduct provides that a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which the person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. The party seeking disqualification must establish three elements under Rule 1.9(a): (1) that it had an attorney-client relationship with the lawyer, (2) that the former matter and the current matter are substantially related, and (3) that the current representation is adverse to the party seeking disqualification.[7]

Under Nevada law, mere similarity or superficial resemblance between prior and present representation (even had there been a representation) is insufficient to justify disqualification of an attorney; rather, the focus is properly on the precise relationship between the present and former representation.[8]  Further, the burden of proving that two matters are the same or substantially related falls upon the movant.[9]

[1] See In re County of Los Angeles, 223 F. 3d 990, 995 (9th Cir. 2000); United States v. Walker River Irrigation Dist., Not Reported in F.Supp.2d, 2006 WL 618823 (D. Nev. 2006); In-N-Out Burger v. In & Out Tire & Auto, Inc., 2008 WL 2937294 (D. Nev. 2008).

[2] U.S. v. Walker River Irrigation Disk, 2006 WL 618823, *3 (emphasis added).

[3] Brown v. Eighth Judicial Dist. Court ex rel. County of Clark, 116 Nev. 1200, 1205, 14 P.3d 1266, 1269 (Nev. 2000) (citing Robbins v. Gillock, 109 Nev. 1015, 1018, 862 P.2d 1195, 1197 (1993)).

[4] Waid v. Eighth Jud. Dist. Ct., 119 P.3d 1219, 121 Nev. 605 (2005); Coles v. Arizona Charlie’s, 973 F. Supp. 971 (1997).

[5] 109 Nev. 1015, 862 P.2d 1195 (1993).

[6] Waid v. Eighth Jud. Dist. Ct., 119 P.3d 1219, 121 Nev. 605 (2005); Coles v. Arizona Charlie’s, 973 F. Supp. 971 (1997).

[7] Nevada Yellow Cab Corp. v. Eighth Judicial Dist. Court ex rel. County of Clark., 123 Nev. 44, 50, 152 P.3d 737 (2007).

[8] Waid, 119 P.3d 1219, 121 Nev. 605 (2005); Coles v. Arizona Charlie’s, 973 F. Supp. 971 (1997).

[9] Coles, 973 F.Supp. 971.



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