John F. Sutton, Jr.*
The profession is indebted to The Texas Center for Legal Ethics and Professionalism and to the Julius Glickman Research Chair in Business and Professional Ethics for providing this opportunity, with The Review of Litigation, to explore the problems of conflicts of interest. These problems are among our most inescapable and disconcerting areas of professional responsibility.
The focus of The Review of Litigation naturally is on conflicting interests in litigation, which have high visibility from many disqualification decisions. Transactional lawyers, however, also face similar conflicting interest issues, covered by the same disciplinary rules.
This introduction is an overview of three basic systems for controlling conflicting interests: disciplinary sanctions, procedural sanctions, and personal ethics. The premise of this introduction is that these systems are not functioning satisfactorily, largely due to the failure to establish separate standards for disciplinary, procedural, and ethical purposes. The early confusion was in separating ethics and law. Now the main confusion is between the appropriate uses of procedural disqualification standards and disciplinary standards.
Emphasis is on the conflicts between former and current clients because in that setting are the most troublesome disqualification standards. There are, of course, other equally important issues of conflicting interests, particularly among present clients1 and between lawyer and client.2 These conflicting interest issues arise in office practice as well as in litigation.
I. Standards Governing Conflicting Interests: Ethics or Law?3
Is the lawyer confronted with a conflicting interest problem to be guided by "ethics"-by the lawyer's own sense of right and wrong and of loyalty to present and former clients and to the judicial system? By the locally enforceable law of professional discipline? By a court's procedural disqualification standards? By liability standards of tort, fiduciary, and contract law? In other words, by enforceable law or by personal ethics?
A careful lawyer will be guided by all of those controls, legal and ethical. A sense of morality or ethics helps avoid questionable entanglements. When enforceable legal standards leave room for the exercise of personal discretion, personal ethics should guide the lawyer.
II. Conflicting Interests Standards: Disciplinary and Procedural
A pressing but inadequately probed issue is the extent to which legal standards for conflicting interests should vary according to the remedy being sought. A single standard cannot be effective and fair as a hortatory guide to personal ethics, a quasi-penal law punishing lawyers by disbarment or other penalty, a procedural disqualification rule, and a tort or fiduciary standard for the recovery of damages by an injured person.
Each remedy serves particular policy interests. A procedural remedy should safeguard prompt, fair trials. A motion to disqualify invokes a primary concern whether disqualification will be just and fair to each party. Fairness of the trial, not fault of the lawyer, is the key.
The comprehensive disciplinary systems4 of the states are designed to determine whether a lawyer has violated disciplinary law and, if so, the proper punishment. Disqualification motions are not a part of that disciplinary process. The appropriate action for a court, upon learning during a disqualification hearing of a violation of disciplinary standards, is to notify the disciplinary authority, which should then determine fault and punishment. Appropriate action does not include use of disqualification as punishment.5 Rather, disqualification serves to guard against prejudicial or unfair trials. Most courts have eschewed giving extradisciplinary effect to disciplinary law6-except, unfortunately, when making procedural decisions in disqualification hearings.
Most courts, having failed to adopt specific disqualification rules, have filled the gap by using disciplinary standards as makeshift procedural rules. Often, the disciplinary standard is applied mechanically,7 word for word, without regard to its appropriateness as a procedural remedy. This incongruous use results in part from the inapt attitude that the role of disqualification is to enforce disciplinary rules.8 Sometimes, courts seek to avoid the charge of misuse of a disciplinary rule by stating that it is being used only as a "guideline."9 "Guideline" use is appropriate, of course, but requires analysis of the usefulness of a rule's underlying policies in achieving a fair trial, rather than a mechanical verbatim application.10
III. History of Formalized Ethical and Disciplinary Standards
The 1908 Canons of Professional Ethics of the American Bar Association (ABA) originally were statements of "ethics," or hortatory appeals to conscience. They were designed to give lawyers good ideas regarding commendable professional conduct. Comparable ethical guidelines for lawyers are the ABA Lawyers Pledge of Professionalism, the ABA Lawyers Creed of Professionalism, and the Texas Lawyers Creed-A Mandate for Professionalism.
Courts soon began using the hortatory 1908 Canons as if they were disciplinary standards for grievance proceedings. Later, specific rules were added to those Canons, resulting in a confusing mix of general admonitions and disciplinary standards. Because the many vague generalities failed to give fair notice, lawyers often were punished on an essentially standardless, ad hoc basis. In 1965 ABA
President Lewis Powell appointed a committee to prepare new rules with precise disciplinary standards. The resulting Code of Professional Responsibility was adopted by the ABA in 1969."
In drafting the Model Code, the committee sought to follow five basic principles:
(1) Disciplinary rules (the DRs) should be worded with specificity, giving fair notice to the lawyers of the specific conduct that could result in discipline.
(2) Disciplinary rules are not rules of strict liability and normally contain scienter standards. Disciplinary proceedings are quasipenal, and usually personal fault should be an element. An innocent lawyer should not be disciplined. Not all the DRs in the Model Code met this standard, but typically each turns on unreasonable conduct, lack of good faith belief, or knowing misconduct. Thus, the standard applies only if the lawyer "knows or should know" or, "knows or it is obvious."12
(3) Disciplinary rules are designed primarily to protect clients and secondarily to maintain the legal profession as a viable, reliable part of the legal system.
(4) Disciplinary rules should not be intermixed with ethical statements, nor should statements of ethics be discarded. Therefore, the Model Code's "Disciplinary Rules" were disciplinary standards, and ethical guidance appeared in the "Ethical Considerations."
(5) No disciplinary rule should be so severe that bar associations and courts would be reluctant to enforce it. Disciplinary standards should not penalize petty, de minimis breaches of propriety. Disciplinary standards cannot realistically cover every nuance reached by a sound sense of personal morality and ethics.
These basic principles vary widely from policies that would be appropriate for disqualification standards. Nevertheless, and to our surprise, courts began using the disciplinary standards as substitute procedural rules.13 Many courts then found that the Model Code's disciplinary standards did not work well as procedural rules and complained that the DRs were deficient. For example, the Model Code had no rule containing the useful procedural standard of "substantially related matter," because the Model Code penalized a lawyer who knowingly revealed or used a client's confidences'4-a standard more appropriate for punishment of lawyers.
Particularly unanticipated was the use of Canon 9 of the Model Code in disqualification decisions.15 Many courts said that Canon 9 requires a lawyer to avoid even the "appearance of impropriety.'6 Not so.17 Neither Canon 9 nor its DRs required a lawyer to avoid the appearance of impropriety. Such a requirement would have violated the drafting principle of specificity in disciplinary standards. Courts have retreated from that misuse of Canon 9.28 "Appearance of impropriety" is not a rule in the ABA Model Rules of Professional Conduct (Model Rules).
The ABA Model Code has been replaced by the ABA Model Rules. A desire for new rules arose from the difficulty in using the Model Code disciplinary rules as procedural rules. This may explain the amorphous nature of the Model Rules, with rules containing unenforceable ethical guidance,19 disciplinary standards, procedural standards,20 as well as something else.21
In 1990, Texas replaced its Code of Professional Responsibility with the Texas Disciplinary Rules of Professional Conduct (Texas DRs),22 a version of the ABA Model Rules. "Disciplinary" was added to the Texas title23 to stress that these rules are only disciplinary, not procedural or liability, standards.
Unlike the ABA Model Rules, the black-letter rules in the Texas DRs contain only disciplinary standards. The Texas DRs-adopted by the Texas Supreme Court-expressly advise courts not to use the black-letter rules as procedural standards.24 The Texas DRs contain scienter standards so as to punish a lawyer only for intentional, careless, or negligent misconduct. The Texas black-letter rules, more specific than the ABA Model Rules, give fairer notice to lawyers. More ethical guidance25 appears in the Comments.
IV Conflicting Interests: Defects in the Texas Disciplinary Standards
Several Texas DRs contain disciplinary rules for conflicting interests. A lawyer is exposed to disbarment for representing a client with interests conflicting with another client,26 a former client,27 or the lawyer herself.28 But amendments are needed.
For example, can Texas DR 1.06 be reconciled with Texas DR 1.07?29 Texas DR 1.06, the general rule, requires consent only for waiver of a conflict? Texas DR 1.07 is limited to the intermediary role and requires written consent before the lawyer can serve as intermediary.31 Confusion results from the statement in Texas DR 1.07(d) that the rule applies to "potentially conflicting interests,"32 while Texas DR 1.06 ostensibly applies to both actual and potential conflicts.33
Furthermore, if L represents two professional football players in team negotiations and "salary caps" prevent each player from obtaining the benefits he desires unless the other player takes less than he desires, is L representing conflicting interests in violation of Texas DR 1.06(b)? Is consent unavailable under Texas DR 1.06(c) because L knows the representation of one materially affects the representation of the other? Is Texas DR 1.07 inapplicable because the situation involves an actual conflict rather than a potential conflict of interests?
Texas DR 1.07 should apply to actually, not potentially, conflicting interests. Service in the unusual role of "intermediary" is needed for clients with actually conflicting interests.34
Another defect is the overlap between subparagraphs (a)(2) and (a)(3) of Texas DR 1.09.35 That overlap and the potential for misuse in disqualification cases of the disciplinary standard of Texas DR 1.09(a)(2) suggests one of the two provisions should be eliminated, but which one? Some courts have held that a lawyer may be disqualified under either subdivision.36 Subdivision (a)(2), with the cross-reference to Texas DR 1.05, is the better disciplinary standard,37 yet retaining the "substantially related matter" of subparagraph (a)(3) would minimize harm from use of Texas DR 1.09 as a disqualification rule in civil cases.38
V Conflicting Interests: Appropriate Disqualification Standards
Six basic underlying public policies should guide the development of procedural disqualification standards:
First, the goal of a procedural disqualification standard is a fair adjustment of the rights and interests of all parties in the litigation, not the punishment of an erring lawyer Punishment of a lawyer is not a valid issue. If disciplinary standards are violated, a court should inform disciplinary authorities.39 At the stage in litigation when a movant seeks disqualification of the opponent's lawyer, a court's primary concern is to decide the motion fairly to each litigant.40 Fairness to a movant requires safeguarding the movant's "confidences," reasonably defined, while fairness to the lawyer's present client requires elimination of ill-founded assumptions of danger to confidences coupled with recognition of reasonable alternatives to disqualification. Justice is the concern of a court; punishment of an erring lawyer is the concern of disciplinary authorities.
Second, a procedural standard should be precise and specific. Specificity enables a lawyer to make a reasonably accurate decision whether disqualification will result from acceptance of the new employment. Timely recognition by a lawyer of probable disqualification aids both client and lawyer. Conversely, an imprecise disqualification standard is unfair to both litigants and lawyers.
Often the new employment is offered by one who presently is represented by the lawyer in other matters, or who formerly was represented by the lawyer, and the lawyer likely feels obligated to accept the employment if possible. The client often desires to employ only this lawyer, not just any lawyer. A client's selection of counsel is unreasonably frustrated by vague disqualification standards that discourage acceptance of employment.
Third, disqualification is a harsh remedy41 depriving one party of access to the advocate of that party choice. Most courts recognize that disqualification is a harsh remedy, or at least pay lipservice to that truism. Disqualification is harsh because a motion to disqualify easily can be used improperly to harass an opponent,42 to run up the opponent's expenses, to force a financially weaker opponent to accept an unfavorable settlement, or to deprive the opponent of representation by a particularly skillful advocate. It is harsh because it deprives one litigant of the lawyer of his choice43 and because the termination takes place not at the outset of the employment but later when harm to client from disqualification is inevitable. Often extensive services have been rendered and the substitution of new counsel results in delay and additional expense.44
Disqualification rules can be abused by clients. A powerful corporation could hire every competent lawyer in the community or in the relevant specialty.45 A party could discuss a matter with a lawyer, ostensibly seeking a lawyer but actually seeking to make the lawyer unemployable by the opposition. Also, restrictive rules limit mobility of lawyers.46
Fourth, procedural remedies less harsh than disqualification should be available to the trial court whenever they will safeguard the fairness and justice of the proceedings.47
Even if a movant proves a prima facie case for procedural disqualification, the standards should give a trial court discretion to use a less harsh remedy affording reasonable protection. Lesser remedies might include screening the lawyer or prohibiting participation by the lawyer prior to appeal. Screening should be appropriate whenever trial counsel in a multistate law firm appears unlikely to obtain confidential information from other firm members. Adequate protection might be provided by use of a rebuttable presumption of shared confidences49 or, stated differently, by permitting an affirmative defense that the particular lawyer did not participate in the earlier matter and received no confidences.50 The rebuttal, or a defense of showing that no confidences were received, is particularly appealing when the former corporate client's motion to disqualify is based on a lawyer's representation not of the movant but of an affiliated corporation.51
The remedy of screening should not be limited by provisions of a Texas DR. Furthermore, an unnecessary delay by a movant in raising the issue of conflicting interests should result in denial of the motion.52
Fifth, a lawyers loyalty to a former client protects, first, the client interest in confidentiality, and, second, the client interest in the lawyer s work product. 53
Appropriate disqualification standards require identification of the specific interests deserving protection. As to a former client, these interests rarely, if ever, include more than protection of confidences and of the work product formerly provided by the lawyer.
Finally, disqualification standards protecting former clients should include a precise formulation of the "substantially related matter" test, together with a second test to protect the work product by the lawyer in the prior employment.
To protect confidentiality interests, procedural rules should disregard disciplinary standards and concentrate on the common law standard54 disqualifying a lawyer who appears against the former client in the same or a "substantially related matter."55 NCNB Texas National Bank v. Coker, 56 following the common law standard, required a movant to sustain the burden of proving a prior attorneyclient relationship"7 "in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary."58 The key is the close relationship between the relevant facts in the two relationships.
The "substantially related matter" test is not sufficiently precise.59 The Coker language helpfully narrows the concept. The "substantially related matter" test should require, as proof that the relationship is "substantial," nothing more than the delineation of the specific facts, issues, and causes of action involved in each representation.60
The "confidences" being protected should be defined with precision.61 To some courts, it means "relevant privileged information."62 "Confidences" should not be defined by reference to the expanded concept of "confidences" in Texas DR 1.05.63 That expansion was influenced by a concept underlying DR 4-101 of the Model Code that a lawyer should be disciplined for gossiping about his client.64 Defining "confidences" within the meaning of the "substantially related matter" test as broadly as in Texas DR 1.05 would play havoc with small town practitioners and with lawyers practicing tight specialties such as admiralty or patents.bs
One confidentiality interest of a former client is, however, not well-protected by the "substantially related matter" test. Even though the "matters" involved in the two representations have no factual relationship, a specific fact given to the lawyer in confidence by the former client might be highly useful to the adverse party in the present, unrelated litigation. A second disqualification standard, not an expansion of the "substantially related matter" test, is needed. Islander East Rental Program v Lake Placid Vacation Corp.6 sets a standard: the movant is required to identify the confidences that may be jeopardized.67 Identification of the confidences can be restricted to an in camera hearing68 if necessary.
Protection must exist not only for the former client's confidentiality interests, but also for the product or benefits previously received from the former lawyer.69 This interest usually will be protected by the "substantially related matter" standard. When it is not, the procedural standard should permit an evidentiary hearing, with the movant to prove the probable adverse impact of the lawyer's present representation upon the prior work for the movant.70
A recurring difficulty with Texas disqualification standards" is traceable to the Texas Supreme Court's apprehension that it is "injudicious for this court to employ a rule of disqualification that could not be reconciled with the Texas Rules of Professional Conduct."72 The concerns appropriately should be whether the disqualification rule furthers the public interest in fair trials, and whether trial and appellate judges are referring probable disciplinary violations by counsel to the General Counsel of the State Bar of Texas.73
VI. Conflicting Interests: Fifth Circuit Disqualification Standards74
Two companion foundation decisions in the Fifth Circuit are In re Dresser Industries75 and In re American Airlines, Inc.76 In Dresser Industries the court announced that a disqualification motion is "governed by the ethical rules announced by the national profession in the light of the public interest and the litigants' rights."77 The considerations are "whether a conflict has (1) the appearance of impropriety in general, or (2) a possibility that a specific impropriety will occur, and (3) the likelihood of public suspicion from the impropriety outweighs any social interests which will be served by the lawyer's continued participation in the case."78 In using national standards, the court considered the ABA Model Rules, the Model Code, and the ALl Restatement (Third) of the Law Governing Lawyers, but also considered the Local Rules of the Southern District of Texas, and the Texas DRs.
In American Airlines the court insisted that disqualification is a proper method for enforcing ethical standards.79 The court opined that lawyers have little incentive to file disciplinary complaints and that "unless a conflict is addressed by courts upon a motion for disqualification, it may not be addressed at all."so The court brushed by Texas DR 1.06's comment 17 offering the guidance that fair and efficient administration of justice is the proper test when opposing counsel raises the issue.8' The court squarely rejected the "taint" test regarding appropriateness of disqualification,82 and stated no formula to alleviate the harshness of disqualification or to ensure that disqualification is fair to all. The court rejected the contention that the Texas DRs are not to be literally applied in disqualification cases.83 Recognizing the "substantially related matter" test, the court stated that "the sole issue is whether these prior representations are substantially related to the present case."54
While recognizing that the current codes deleted the "appearance of impropriety" language, the court in American Airlines found that the old "appearance of impropriety" interests are carried forward in a new "loyalty" element,85 found not in the Texas DRs themselves but in the writings of commentators and in comments.sb "[B]ecause the substantial relationship test is concerned with both a lawyer's duty of confidentiality and his duty of loyalty, a lawyer who has given advice in a substantially related matter must be disqualified, whether or not he has gained confidences."87 Actual fairness of the trial was not the test.ss The court seemed oblivious to the harm done to disqualification procedures by using a broad, formless concept of loyalty rather than limiting the duty of loyalty to a former client to the particular matters handled for that client. The court even refused to exclude publicly available information from the "confidences" protected by the substantially related test.89
Thus, the Fifth Circuit still relies on the unnecessary, paternalistic "appearance of impropriety" as a ground for disqualification.90 It uses an imprecise, sweeping concept of "loyalty" as a ground for granting a former client's disqualification motion, and it embraces an elastic concept of "confidences." Even more startling, the Fifth Circuit gives trial judges an inconsistent set of mixed standards to muddle through.91
While properly insisting that a federal standard-rather than each state's version of the Model Rules of Professional Conduct or equivalent-be used for disqualification, the court in American Airlines developed no federal standard but instead used a mishmash of ethical and disciplinary standards.92 The lack of uniformity between the Fifth Circuit "ethical" disqualification standards and the Texas disqualification standards means that a lawyer's initial determination whether disqualification will result is a guess whether the case will end up in state or federal court.
The disarray in the Fifth Circuit disqualification standards is demonstrated by this statement in FDIC v United States Fire Insurance Co.:93
When reviewing the disqualification of an attorney, we must "consider the motion governed by the ethical rules announced by the national profession in the light of the public interest and the litigant's rights." Id. The norms embodied in the Model Rules and the Model Code are relevant to our inquiry, "as the national standards utilized by this circuit in ruling on disqualification motions." American Airlines, 972 F.2d at 610. Additionally, consideration of the Texas Rules is also necessary, because they govern attorneys practicing in Texas generally, and because the Northern District Rules contain language virtually identical to the state canon. By consulting these four sets of governing rules, we must weigh the need for the disqualification of the FDIC's counsel in reference to the relevant affirmative defenses raised by U.S. Fire. Unfortunately, the rules do not enunciate a common standard. The Northern District Rules, the Texas Rules, the Model Rules, and the Model Code delineate dissimilar, arguably contradictory, rules for dealing with lawyer-witnesses. Therefore, we must weigh the relative merits of each of the various competing disqualification rules as we proceed through each successive step of our analysis.9
Does that "standard" serve the important goal of discouraging the filing of specious disqualification motions? The Fifth Circuit disqualification standard is almost poetic in expressing judicial concern for society, but in practice it is unfathomable froth.95
VII. Conclusion of Introductory Remarks
Courts have not developed good disqualification procedures in civil cases, particularly when disqualification is sought by former clients. The disqualification standards of the Fifth Circuit lack precision, ignore the difficulties their vagueness creates for lawyers and trial judges, and focus more on punishing erring lawyers than on guarding fairness to litigants, and give scant consideration to the use of less harsh remedies.
Until better disqualification procedures are developed in federal courts, the observation by Justice Scalia in another context will be apropos to disqualifications:
Thus, yet another complexity is added to an increasingly Byzantine system of justice that devotes more and more of its energy to sideshows and less and less to the merits of the case.96
1. For an interesting and careful evaluation of the advantages and disadvantages to clients of joint representation, see Teresa Stanton Collett, The Promise and Peril of Multiple Representation, 16 REV. LITIG. 567 (1997).
2. Lawyer-client conflicts frequently arise when a lawyer testifies in a lawsuit she is handling. The existence of a conflict may depend on whether her testimony would have been less confusing to the jury and thus more effective for the client if she were not also the advocate. See generally Robert P. Schuwerk & John F. Sutton, Jr., A Guide To the Texas Disciplinary Rules of Professional Conduct, 27A Hous. L. REv. 316-21 (1990). Cf. Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 42325 (Tex. 1996) (finding that attorney's testimony did not "ipso facto transform him into Anderson's trial counsel").
3. I like the saying posted on a colleague's door: "Gravity is not just a good idea, it is the law." Ethics are a good idea, but disciplinary standards are law.
4. See, e.g., TEX. R. DISCIPLINARY P. (effective May 1, 1992).
5. See Bottaro v. Hatton Assocs., 680 F.2d 895, 896-97 (2d Cir. 1982) ("Where a threat of tainting the trial does not exist, therefore, the litigation should proceed, the remedy for unethical conduct lying in the disciplinary machinery of the state and federal bar.").
6. Thus, a violation of a disciplinary rule is not a basis for suppression of evidence. See, e.g., State v. Baker, 931 S.W.2d 232, 237 (Tenn. Crim. App. 1996).
7. But see Herr v. Union Local 306, 943 F. Supp. 292, 294 (S.D.N.Y. 1996) ("Further, the Code should `not be mechanically applied when disqualification is raised in litigation."') (quoting StS Hotel Ventures v. 777 S.H. Corp., 508 N.E.2d 647 (N.Y. 1987).
8. See, e.g., In re American Airlines, Inc., 972 F.2d 605, 609-11 (5th Cir. 1992) (en banc), cert. denied sub nom Northwest Airlines, Inc. v. American Airlines, 507 U.S. 912 (1993).
9. E.g., Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex. 1996); Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990); see Ayres v. Canales, 790 S.W.2d 554, 556 n.2 (Tex. 1990).
10. Often, a comment to a Texas Disciplinary Rule is a useful guideline. See, e.g., TEx. DISCIPLINARY R. PROF L CONDUCT 3.08 cmts. 9, 10; id.1.06 cmt. 17; id. 1.15 cmt. 3.
11. After dismissal of an abortive antitrust lawsuit against the ABA for promulgating the Code of Professional Responsibility, the title was changed to Model Code of Professional Responsibility so as to stress it was merely a suggested disciplinary code for the states.
12. See, e.g, MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 7-102 (1980) (dealing with representation of a client within the bounds of the law). The "it is obvious" provision troubled some courts. That provision was intended to indicate that the facts are so clear to an impartial observer that the existence of a fact issue is highly unlikely.
13. See Armstrong v. McAlpin, 625 F.2d 433, 446 n.26 (2d Cir. 1980) (en banc) ("The Reporter for the ABA Committee that drafted the Code of Professional Responsibility recently noted that the Code's Disciplinary Rules were drafted for use in disciplinary proceedings and were not intended to be used as rules governing disqualification motions. Sutton, How Vulnerable Is the Code of Professional Responsibility, 57 N.C.L.REv. 497, 514-16 (1979)." (emphasis added)), vacated on other grounds, 499 U.S. 1106 (1981).
14. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 4-101 under which a lawyer also could be disciplined for using or revealing a very limited class of information, or "secrets," in addition to information revealed in confidential communications.
15. Some courts rested decisions entirely on Canon 9. See, e.g., In re Corrugated Container Antitrust Litig., 659 F.2d 1341, 1345 (5th Cir. 1981) ("[O]ur focus is on Canon 9 only"). The better approach is that Canon 9 (or the "appearance of impropriety") "should not be used promiscuously as a convenient tool for disqualification when the facts simply do not fit within the rubric of other specific ethical and disciplinary rules." International Elecs. Corp. v. Flanzer, 527 F.2d 1288,1295 (2d Cir. 1975); accord, Board of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). 16. See NCNB Texas Nat'l Bank v. Coker, 765 S.W.2d 398, 399 (Tex. 1989) ("Canon 9 of the Texas Code of Professional Responsibility mandates that lawyers, through the exercise of their personal, professional and ethical judgment, avoid any activity that might give rise to an appearance of impropriety.").
17. The heading of Canon 9 read, "A Lawyer Should Avoid Even the Appearance of Professional Impropriety." MODEL CODE OF PROFESSIONAL RESPONSIBILITY Canon 9 (emphasis added). Canons were worded in hortatory terms and described in the CPR's Preliminary Statement as "statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession." Id. Preliminary Statement. Only the DRs were enforceable, and a Canon "required" nothing. While
DR 9-101 bore the title, "Avoiding Even the Appearance of Impropriety," the Rule contained three specific parts, and none required a lawyer to avoid the appearance of impropriety. Id DR 9-101.
18. See, e.g., FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1315 (Sth Cir. 1995) ("Moreover, both courts and commentators generally have rejected the mere appearance of impropriety as a rationale for the lawyer-witness rule"); NCNB Texas Nat'l Bank v. Coker, 765 S.W.2d 398, 399 ("In this day of merging law firms and consolidating businesses, however, to allow Canon 9, or Canon 4, or a combination of both, to dictate a complete bar to any representation of a former client would not be practical."). But see In re American Airlines, Inc., 972 F.2d 605, 609-11 (5th Cir. 1992) (en banc) (imposing a disqualification standard that encompasses concerns for the appearance of impropriety), cert. denied sub nom Northwest Airlines, Inc. v. American Airlines, Inc., 507 U.S. 912 (1993).
19. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 6.1 ("Voluntary Pro Bono Publico Service").
20. See, id 1.10 ("Imputed Disqualification: General Rule").
21. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary
agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. Id Scope, Par 1 1, 6.
22. TEX. DISCIPLINARY R. PROF'L CONDUCT (1994), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. (Vernon Supp. 1997) (STATE BAR RULES art. X, 9).
23. The clarifying addition was suggested at a meeting of the Board of Directors of the State Bar of Texas.
24. Likewise, these rules are not designed to be standards for procedural decisions. Furthermore, the purpose of these rules can be abused when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.
TEX. DISCIPLINARY R. PROF'L CONDUCT preamble: scope 15 (1989) (emphasis added).
25. A remark by Will Rogers is apropos: "I don't think you can make a lawyer honest by an act of the legislature. You've got to work on his conscience-and his lack of conscience is what makes him a lawyer." BRYAN B. STERLING, THE BEST OF WILL ROGERS 213 (1979).
26. See TEX. DISCIPLINARY R. PROF'L CONDUCT 1.06 (general rule on conflicts of interest); id.1.07 (lawyer as intermediary); see also id. 1.12 (organization as client); id. 1.13 (public interest activities); id. 2.02 (evaluation for use by third parties). 27. See id 1.09 (1991) (former client conflicts); id 1.10 (1989) (successive government and private employment); id. 1.08(c) (prohibited transactions). 28. See id. 1.06 (general rule on conflicts of interest); id 1.08 (1991) (prohibited transactions); see also id 3.08 (1994) (lawyer as witness). 29. ABA Model Rule 2.2 is the counterpart to Texas DR 1.07, which both regulate conflicting interests. Texas DR 1.07 appears with other conflicting interest rules in "Client-Lawyer Relationship."
30. TEX. DISCIPLINARY R. PROF'L CONDUCT 1.06 (1989). 31. Id. 1.07.
32. Id. The Texas limitation to potentially conflicting interests originated in Model Rule 2.2. MODEL RULES OF PROFESSIONAL CONDUCT Rule 2.2 cmt. 1. 33. TEX. DISCIPLINARY R. PROF'L CONDUCT 1.06 (1989).
34. Should Texas DR 1.06(c) be amended to require that any representation of actually conflicting interests be handled as an intermediary in conformity with Texas DR 1.07?
35. TEX. DISCIPLINARY R. PROF'L CONDUCT 1.09 (1991); see Schuwerk & Sutton, supra note 2, at 152.
36. See Islander East Rental Program v. Ferguson, 917 F. Supp. 504, 508-10 (S.D. Tex. 1996) (holding that under the Fifth Circuit's "federal standards" a lawyer can be disqualified on the basis of either subdivision). 37. See Schuwerk & Sutton, supra note 2, at 152-53.
38. Use of disciplinary standards as procedural standards is unlikely in criminal cases, where disqualification turns primarily on constitutional issues and the fairness of the trial. See generally United States v. Gallegos, 108 F.3d 1272 (lOth Cir. 1997); Bucuvalas v. United States, 98 F.3d 652 (Ist Cir. 1996); Purser v. State, 902 S.W.2d 641 (Tex. App.-El Paso 1995, no pet.); see also Brown v. State, 921 S.W.2d 227, 230 (Tex. Crim. App. 1996) (en banc) ("[V]iolation of a disciplinary rule does not require a reversal unless a defendant can show the disciplinary rule violation affected his substantial rights or deprived him of a fair trial."); Clarke v. State, 928 S.W.2d 709, 722 (Tex. App.-Fort Worth 1996) ("Despite recent civil cases that have disqualified attorneys or firms from representing a client due to conflicts of interests, in criminal cases, '[a] trial court may not disqualify a district attorney or his staff on the basis of a conflict of interest that does not rise to the level of a due process violation."') (quoting State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994) (orig. proceeding)).
39. In Brown, the court suggested that the appellant file a complaint with the state bar association. In Purser, a district attorney had testified in rebuttal, allegedly in violation of a Texas DR. Id. at 649. The court said, "Purported ethical violations by a prosecutor should be dealt with by the administrative procedures specifically established to deal with such conduct." Id
40. In Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121 (N.D. Ohio 1990) the court denied the motion to disqualify after first finding that the law firm had violated a disciplinary rule, saying, "Having established that Jones, Day has violated DR 5-105(c), the court must now determine whether disqualification is appropriate in this case .... Other agencies are established to deal directly with that conduct, and there may be times when the sanctions of those agencies may be more appropriate than disqualification in the case before the court." Id at 1126. But see In re Corrugated Container Antitrust Litig., 659 F.2d 1341,1348 (Sth Cir. 1981) ("Our cases indicate that disqualification is a matter of ethical, not legal, considerations.").
41. See Owen v. Wangerin, 985 F.2d 312,317 (7th Cir.1993) ("[D]isqualification is a `drastic measure which courts should hesitate to impose except when absolutely necessary."') (quoting Freeman v. Chicago Musical Instrument Co., 689 F.2d 715 (7th Cir. 1982)); Arkla Energy Resources v. Jones, 762 S.W.2d 694, 695 (Tex. App.-Texarkana 1988) ("Disqualification of an attorney is a harsh remedy. It should only be applied judiciously and with caution because it can be used as an instrument of harassment.").
42. See Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1576-77 (Fed. Cir. 1984) ("[J]udges must exercise caution not to paint with a broad brush stroke under the misguided belief that coming down on the side of disqualification raises the standard of legal ethics and the public's respect. The opposite effects are just as likely-encouragement of vexatious tactics and increased cynicism by the public."); accord Carlyle Towers Condominium Ass'n v. Crossland Sav., 944 F. Supp. 341, 345 (DN.J. 1996); cf NCNB Texas Nat'l Bank v. Coker, 765 S.W.2d 398, 399 ("However, to prevent a motion to disqualify counsel from being used as a dilatory tactic, trial courts must strictly adhere to an exacting standard when considering such motions.").
43. See FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1316 (5th Cir. 1995) ("A disqualification inquiry, particularly when instigated by an opponent, presents a palpable risk of unfairly denying a party the counsel of his choosing."); First Interregional Advisors Corp. v. Wolff, 956 F. Supp. 480, 489 (S.D.N.Y. 1997) ("Motions to disqualify opposing counsel are viewed with disfavor because they impinge on a party's right to employ the counsel of its choice."); Chatham Holdings, Inc. v. Resolution Trust Corp., 1996 WL 751052, at *3 (N.D. Tex. 1996) (emphasizing the need for flexible application to avoid abridging the right to choice of counsel). 44. See Bass Pub. Ltd. Co. v. Promus Cos., 1994 WL 9680, at *5 (S.DN.Y. 1994).
45. See Casco Northern Bank v. JBI Assocs., Ltd., 667 A.2d 856, 861 (Me. 1995). 46. The merging of law firms and the movement of lawyers from one firm to another is greatly affected by the attitudes taken by various courts toward disqualification motions. See Amon Burton, Migratory Lawyers and Imputed Conflicts of Interest, 16 REV. LInG. 665 (1997); David Hricik, Uncertainty, Confusion, and Despair: Ethics and Large-Firm Practice in Texas, 16 REV. LmG. 705 (1997). 47. In Guillen v. City of Chicago, 956 F. Supp. 1416 (N.D. III. 1997), the court denied disqualification and suggested that means less drastic than disqualification could protect the parties. Id. at 1424. Cf Dyll v. Adams, 1997 WL 222918, at *3 (N.D. Tex. 1997) (declining to disqualify counsel because the ethical violation can be cured by less drastic means).
48. For an apt criticism of the use in today's world of an "irrebuttable" presumption of shared confidences among lawyers in a firm, see David Hricik, Uncertainty, Confusion, and Despair: Ethics and Large-Firm Practice in Texas, supra note 46, at 711.
49. In Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466 (Tex. 1994), the Texas Supreme Court recognized a rebuttable presumption in a case involving a migratory nonlawyer employee. Id. at 467.
50. See In re Corrugated Container Antitrust Litig., 659 F.2d 1341, 1346 (5th Cir. 1981) (recognizing that the irrebuttable presumption that knowledge of one lawyer is imputed to the entire firm "may be unduly harsh in some circumstances"). Harshness is avoided, however, if that presumption is a true rebuttable (or Thayer) presumption, shifting the burden of going forward with evidence that the lawyer in question did not represent movant and did not receive any confidential information. See Cook v. City
of Columbia Heights, 945 F. Supp. 183, 187 (D. Minn. 1996) (ruling that even though the lawyer's present representation is substantially related to the representation by the prior law firm, the presumption that the lawyer received confidences from the lawyers in the prior firm may be rebutted); Carbo Ceramics, Inc. v. Norton-Alcoa Proppants, 155 F.R.D. 158, 162-63 (N.D. Tex. 1994) (remarking that although the "presumption" that a lawyer obtained confidences while employed by the firm which represented movant is "irrebuttable," the presumption that a migrating lawyer shared confidences with the new law firm is rebuttable, for "an irrebuttable presumption of imputed knowledge is unduly harsh!"); see also Manning v. Waring, Cox, James, Sklar and Allen, 849 F.2d 222, 224-25 (6th Cir. 1988).
The "irrebuttable" presumption of shared knowledge is not applied to lawyers in a prosecutor's or other governmental office. See In re Grand Jury Investigation of Targets, 918 F. Supp. 1374, 1378 (S.D. Cal. 1996). 51. There actually is no attorney-client relationship with a movant whose affiliated corporation is not its alter ego. Baxter Diagnostics, Inc. v. AVL Scientific Corp., 798 F. Supp. 612, 616 n.3 (C.D. Cal. 1992). This is reason enough to permit a defense that no confidential information of the movant passed to the lawyer. Courts tend, however, to treat the corporate affiliates as one entity for purposes of determining attorney-client relationship. See, e.g., id.; Teradyne, Inc. v. Hewlett-Packard Co., 1991 WL 239940, at *5 (N.D. Cal. 1991); Hartford Accident and Indem. Co. v. RJR Nabisco, Inc., 721 F. Supp. 534, 540 (S.D.N.Y. 1989); see also Ronald D. Rotunda, Conflicts Problems When Representing Members of Corporate Families, 72 NOTRE DAME L. REv. 655, 687 (1997) ("There should not be a per se rule that assumes-for purposes of conflicts of interest-that the corporate veil should always be pierced."). 52. See Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1990). 53. A suggestion that loyalty to a former client covers additional interests seems to result from a confusion with the loyalty due to a present client. See text accompanying note 87.
54. TC. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953) is an early case stating the common law "substantially related matter" test. Id. at 268. Earlier cases with similar holdings include Barreda Corp. v. Ballenger, 116 S.W.2d 442, 448 (Tex. Civ. App.-Beaumont 1938) (referring to "matters so closely related to those of his client or former client as in effect to be a part thereof"); Ferguson v. Alexander, 122 S.W.2d 1079, 1080-81 (Tex. Civ. App.-Dallas 1939) (finding the two matters "disconnected").
55. Courts commonly refer to the "substantially related matter" test as an "irrebuttable presumption." See, e.g., Islander East Rental Program v. Ferguson, 917 F. Supp. 504, 510 (S.D. Tex. 1996) (citing In re Corrugated Container Antitrust Litig., 659 F.2d 1341, 1346 (5th Cir. 1981)). A so-called irrebuttable presumption is, however, a substantive rule of law, not a "presumption." The "substantially related matter" test is a prophylactic rule obviating the need for the movant to disclose confidences the lawyer obtained in order to prove that confidences needing protection do exist. See Griffith v. Taylor, 937 P.2d 297, 301 (Alaska 1997). 56. 765 S.W.2d 398 (Tex. 1989).
57. The important requirement of proof of a prior attorney-client relationship recognizes that a lawyer's obligations run only to his client. See Cole v. Ruidoso Munic. Sch., 43 F.3d 1373, 1384-85 (lOth Cir. 1994). There are, of course, difficulties in identifying clients, as in the insurer-insured situations and when a parent employs lawyers to represent a minor child. See generally Nancy J. Moore, Ethical Issues in Third Party Payment: Beyond the Insurance Defense Paradigm, 16 REV. LITIG. 585 (1997).
A defendant who had a joint defense with codefendants in a prior matter may have an attorney-client privilege as to communications with another codefendant's lawyer. Should this suffice in lieu of an attorney-client relationship? Cf Wilson P. Abraham Constr. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (Sth Cir. 1977) (holding that where exchange of information is for limited purpose of aiding common cause, attorney owes fiduciary duty to codefendants). When two codefendants have been represented by one lawyer, however, in subsequent litigation between the former
codefendants there may be no confidences to protect. See Bass Pub. Ltd. Co. v. Promus Co., 1994 WL 9680, at *6 (S.D.N.Y. 1994). Should disqualification be denied? Cf. Western Continental Operating Co. v. Natural Gas Corp., 261 Cal. Rptr. 100, 105-06 (Cal. Ct. App. 1989). See also James M. Fischer, The Attorney-Client Privilege Meets the Common Interest Arrangement: Protecting Confidences While Exchanging Information for Mutual Gain, 16 REV. LITIG. 631 (1997). The debatable holding in National Medical Enterprises v. Godbey, 924 S.W.2d 123 (Tex. 1996) (disqualifying a law firm at the request of one who was not a former client of the law firm) can be supported on the "joint defense" theory. The opposing law firm's attorney, at NME's expense, had represented not NME but NME's former employee in a substantially related matter. Id. at 124. The lawyer had received confidences from NME at meetings pursuant to a joint defense agreement. The lawyer's fiduciary duty to respect the codefendant's confidences constituted the relationship supporting disqualification. 58. 765 S.W.2d at 400 (emphasis added).
59. Some commentators suggest that "substantially related matter" should be defined precisely with regard to the facts of the discrete situations and not encompass broad generalities such as general business practices or attitudes toward litigation, which would virtually prohibit litigation against a former client. Schuwerk & Sutton, supra note 2, at 150-53; see also Robert F. Housman, The Ethical Obligations of a Lawyer in a Political Campaign, 26 U. MEM. L. REV. 3, 39 (1995) (noting that the substantially related test is "one of the two most confused questions that is addressed when purported conflicts involving former clients are at issue") (quoting [Conflicts of Interest] 51 LAWS. MAN. ON PROF. CONDUCT 101 (ABA/BNA) (1995)). 60. See Islander East Rental Program, 917 F. Supp. at 510; see also Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1320 (7th Cir. 1978), cert. denied, 439 U.S. 955 (1978) (suggesting that the test requires determination of the scope of the former representation and the likelihood that confidences were given to the lawyer in that representation that are relevant to the current litigation).
61. Should anything be included in "confidences" beyond the information given to the lawyer by the client in a privileged communication? The definition must not be so broad that it is unreasonably difficult for the lawyer to litigate ever again against a former client, yet the client must be protected from adverse use of important information necessarily furnished to the lawyer in the representation, unless it is known to a substantial number of other persons, is of public record, cf Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1569-70 (5th Cir. 1989), is available to the lawyer's present client from sources other than the lawyer, see Guzewicz v. Eberle, 953 F. Supp. 108, 111-12 (E.D. Pa. 1997), or is discoverable, see Metropolitan Life Ins. Co. v. Syntek Finance Corp., 881 S.W.2d 319, 321 (Tex. 1994). 62. See Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983); Pastor v. Trans World Airlines, Inc., 951 F. Supp. 27, 31 (E.D.N.Y. 1996); In re Maritima Aragua, S.A., 847 F. Supp. 1177, 1182 (S.D.N.Y. 1994).
63. Analysis of Texas DR 1.05 shows the incongruity of using it for anything other than discipline. While the definition in Texas DR 1.05(a) of "confidential information" is broad, Texas DR 1.05(b) penalizes lawyers only for knowingly using or revealing the information, a use quite different from using that definition as the controlling factor in the "substantially related matter" prophylactic test. But cf Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 834 (Tex. 1994) ("[A]ny information relating to a case should be considered confidential: the Disciplinary Rules define `confidential information' to encompass even unprivileged client information."). 64. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 4-101 (1980). 65. See Hewlett-Packard Co. v. Nu-Kote Int'l, Inc., 1995 WL 110558 at *5 (N.D. Cal. 1995) ("[P]reventing HP from having their choice of counsel in the matter in suit would be unduly prejudicial. A party is entitled to rely on the services of counsel of its choice. Choice of counsel is especially important in the patent field .... There are only a limited number of attorneys who work in this specialized field.").
66. 917 F. Supp. 504 (S.D. Tex. 1996).
67. Id. at 510. Islander East Rental Program held that a movant seeking to protect a confidentiality interest not within the scope of a "substantially related matter" must identify the disclosures made to the former lawyer during the earlier representation and must demonstrate that disclosure of those confidences are jeopardized by the current representation. Id. The decision is sound as a matter of principle, even though the court relied on Texas DR 1.09(a)(2), a reliance probably required by Fifth Circuit decisions.
See also Hunkins v. Lake Placid Vacation Corp., 508 N.Y.S.2d 335, 338 (App. Div. 1986) (stating that where there is no substantial relationship, the movant must factually demonstrate that the lawyer gained relevant confidential information of value to the present opponent).
68. Cf Decora Inc. v. DW Wallcovering, Inc., 899 F. Supp. 132, 138 (S.D.N.Y. 1995) (approving use of an in camera hearing when the device of a rebuttable presumption is permissible).
69. See Schuwerk & Sutton, supra note 2, at 148. 70. See Abkco Indus. v. Lennon, 377 N.Y.S.2d 362, 369 (Sup. Ct. 1975) (declaring that disqualification "can only be sustained upon a finding that the attorney's activities in the pending case would impinge on the interests of the former client that he had once been retained to advance or protect").
71. For a thorough review of the Texas decisions regarding disqualification of the advocate-witness and disqualification on behalf of a former client, see Justice John Cornyn, Conflict of Interest-Recent Developments in the Texas Supreme Court, 16 REV. LITIG. 515 (1997).
72. See, e.g., Ayres v. Canales, 790 S.W.2d 554, 557 n.2 (Tex. 1990).
73. If a disqualification standard is the same as the disciplinary standard, is a judge, upon granting a disqualification motion, ethically and legally obligated to refer the matter to the disciplinary authorities?
Canon 3(D)(2) of the Texas Code of Judicial Conduct provides that a judge who has "knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action." TEX. CODE JUD. CONDUCT, Canon 3(D)(2) (1974), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G, app. B (Vernon Supp. 1997) (emphasis added). In In re J.B.K., 931 S.W.2d 581 (Tex. App.-EI Paso 1996), the court held that Canon 3(D)(2) is mandatory, but added: "[T]his court makes no findings of fact as to the above allegation of impropriety, nor should any fact findings be implied. Nonetheless, . . . we order that Barbara Dorris, Clerk of this Court, forward a copy of this opinion to the Office of the General Counsel, State Bar of Texas, for investigation and any action it deems warranted." Id. at 585.
Most judges are lawyers subject to Texas DR 8.03(a). TEx. DISCIPLINARY R. PROF'L CONDUCT 8.03(a) (1989) (mandating that lawyers disclose to the disciplinary authority conduct that raises a substantial question about a lawyer's fitness or honesty). The duty of a judge under Texas DR 8.03 to report misconduct may exceed the duty of a litigant's lawyers because the confidentiality exception in DR 8.03(d)(1) rarely applies to a judge. Id. 8.03(d)(1). Aside from an enforceable duty to report violations, a judge, like others, may inform the disciplinary authorities based on a personal sense of ethics.
74. For a very thoughtful analysis of the views expressed in Fifth Circuit decisions and of the difficulties caused to sophisticated law firms by disqualification motions, see Ted Schneyer, Nostalgia in the Fifth Circuit: Holding the Line on Litigation Conflicts Through Federal Common Law, 16 REV. LITIG. 537 (1997). 75. 972 F.2d 540 (5th Cir. 1992). In Dresser Industries, a lawyer who concurrently appeared for Dresser and against Dresser in different lawsuits was held disqualified. Id. at 546.
76. 972 F.2d 605 (5th Cir. 1992), cert. denied sub nom Northwest Airlines, Inc. v. American Airlines, Inc., 507 U.S. 912 (1993).
77. Dresser Indus., 972 F. 2d at 543.
78. Id. at 544.
80. Id. The court did not comment upon the legal duties of judges and lawyers to report disciplinary violations or upon the ethics of reporting violations, even if not required by law to do so.
81. "Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with great caution, however, for it can be misused as a technique of harassment." Tex. Disciplinary R. Prof 1 Conduct 1.06 cmt 17 (crossreferenced in Comment 8 to Texas DR 1.09).
82. The "taint" test is simply a way to ascertain whether the trial will be fair to all litigants if the motion to disqualify is not granted. See James M. Fischer, NonClient Standing to Move to Disqualify Counsel for Conflicts of Interest, 8 PROF. LAW., May 1997, at 1, 7 ("[T]he `avoiding taint' interest suggests that only ethical lapses which raise a significant or plausible risk of actually interfering with the fair and efficient administration of justice should confer standing.").
If the movant will not be prejudiced, harmed, tainted, or treated unfairly by denying the motion, disqualification should not be granted. See Bottaro v. Hatton Assocs., 680 F.2d 895, 896-97 (2d Cir. 1982); Board of Educ. v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979); cf. Ayres v. Canales, 790 S.W.2d 554, 558 (Tex. 1990) (holding that the trial court abused its discretion by disqualifying without any showing
of harm or prejudice).
83. 972 F.2d at 616. The court stated that Texas DR 1.09(a) provides "two distinct grounds for disqualification." Id. at 615. Actually, the Rule provides no ground for disqualification but two grounds for disciplinary action. 84. Id. at 614.
85. Id. at 618 ("[W]e read our cases involving Canon 9 as protecting the same interest in loyalty now explicitly provided for under the Rules."). 86. Id.
87. Id. at 619. Is the court correct only if the present representation impinges on the former advice? As to a former client, should loyalty cover more than protection of confidences and work product? 88. See 972 F.2d at 619. 89. Id at 620.
90. Dresser Industries apparently continued the test, taken from Woods v. Covington County Bank, 537 F.2d 804, 812-13 (5th Cir. 1976), whether "the likelihood of public suspicion from the impropriety outweighs any social interests which will be served by the lawyer's continued participation in the case." 972 F.2d at 544.
91. The great confusion created by the "national standards" approach of the Fifth Circuit is sharply delineated in David Hricik, Uncertainty, Confusion, and Despair: Ethics and Large-Firm Practice in Texas, supra note 46 at 717. 92. The Fifth Circuit does not stand alone. Concurring in the unassailable premise that in federal courts, motions to disqualify should be governed by federal law, the Tenth Circuit in Cole v. Ruidoso Municipal School, 43 F.3d 1373, 1383 (lOth Cir. 1994), failed to promulgate a precise, predictable procedural standard and instead adopted the mixture of "ethical rules" suggested by American Airlines. The Tenth Circuit also uses an expansive concept of what is "substantially related." Id. at 1384. 93. 50 F.3d 1304 (Sth Cir. 1995). FDIC is an advocate-witness disqualification case, rather than one involving conflicts among present and former clients.
94. 50 F.3d. at 1312.
95. Suppose, for comparison, that FED. R. CIv. P. II (Signing of Pleadings, Motions, and Other Papers) were eliminated (on the theory that it covered a matter of "ethics"), and that: (1) in the future, frivolous pleadings would be regulated by "national ethical standards," (2) these ethical standards, regardless of consistency, include Model Rule 3.1; Model Code DR 7-102(A)(1) and (2); 170 of the Restatement of the Law Governing Lawyers; but not, however, to the exclusion of consideration of state and local rules such as Texas DRs 3.01 and 3.02; 11 4 of the Fifth Circuit Plan Under the Criminal Justice Act for Representation on Appeal; and Rules AT-4 and AT5 of the Local Rules of the United States District Court for the Western District of Texas, and (3) these "national ethical standards" are to be considered in view of, first, a lawyer's loyalty to the client; second, the possible appearance of impropriety; and, third, the weight to be given to the likelihood of public suspicion arising from the appearance of impropriety, as opposed to the weight to be given to any social interests which might be served by the lawyer's questioned conduct. Would that supposed new standard be unthinkably imprecise?
96. Edmundson v. Leeville Concrete Co., 500 U.S. 614, 645 (1991) (Scalia, J., dissenting).
* Professor of Law, and the A.W. Walker, Jr. Centennial Chair in Law Emeritus, University of Texas School of Law.…