[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

clients in transactional representations outside of court. Clients, former clients, and other
judicial participants seek relief through a disqualification motion if the matter is already
pending before a court. 1
Injunctive Relief
With respect to the equitable remedy of injunctive relief, breaches of statute or common
law fiduciary duties qualify as actionable activity. Injunctive relief is an agency remedy, but
should only be granted when “there is an urgent necessity to avoid injury” and no adequate
legal remedy exists. The facts in Maritrans presented just such a case. No client should be
forced to wait until it loses all or part of its business to competitors before claiming a
remedy.
Disqualification
Like injunctive relief, disqualification prevents a lawyer or former lawyer (and that lawyer’s
current law firm) from representing another client. When granted, disqualification can
prevent harm to clients or former clients by ensuring that the case will be presented without
conflicting loyalties or improper use of confidential information. 2 We first encountered this
remedy in Merits Incentives in Chapter 6 and in Meyerhofer in Chapter 8, and we will see
repeated consideration of disqualification as a remedy in the conflict of interest cases in the
chapters that follow.
Disqualification motions originated well over a century ago as requests for court
orders, 3 addressed to the inherent power of judges to regulate the course of proceedings.
Such motions usually are addressed to trial courts, but can be raised in any court where a
conflict occurs. The motion to disqualify may be made by the lawyer’s client or former
client, but any other party to the litigation also has standing to raise the issue. Trial judges
also are empowered to raise such an issue sua sponte. 4 Although a few courts initially
thought they had no such power, litigation over the past 50 years has left no doubt that
courts can, and should, disqualify lawyers when their conduct threatens the fairness of a
judicial proceeding. 5
Although disqualification provides relief from real or serious threats of breaches of
loyalty or confidentiality, it also imposes costs on other parties to a proceeding. When a
lawyer is disqualified, the time schedule might need to be adjusted to allow the client who
has lost a lawyer time to retain new counsel. When the motion to disqualify comes from
opposing counsel or the court, clients can be deprived of their chosen lawyers without their
consent. For these reasons, courts recognize that motions to disqualify can be used to
tactical advantage by opposing parties in litigation. Courts have responded to this potential
for misuse of the court’s power in three ways.
First, courts are careful to scrutinize the facts and law offered in support of
disqualification motions. Second, courts increasingly use the doctrines of laches, estoppel,
or waiver to deny motions to disqualify when they have not been made on a timely basis. 6
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