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

Third, orders granting or denying disqualification usually are not appealable until a final
judgment on the merits. This means that when disqualification is denied, the targeted
lawyer may continue the representation, but the other side can raise the issue on appeal. On
the other hand, if the motion is granted, the client represented by the now disqualified
lawyer is forced to find new counsel. If that client settles or wins the case, the disqualified
lawyer has no independent right to appeal. Only if the client loses the case can the issue be
raised on appeal.
The Relevance of the Rules of Professional Conduct
In assessing whether a lawyer should be disqualified, courts typically begin with the conflict
of interest rules in the applicable rules of professional conduct or common law. 7 If a rule of
professional conduct has been violated, disqualification commonly follows, because the
applicable professional rules derive from the lawyer’s common law duties. A few courts
impose an additional requirement, explicitly limiting disqualification to fiduciary breaches
that would “taint” the trial. 8
A more difficult situation is presented when a potential or threatened violation of the
rules appears in a case. Then, courts look to the seriousness of the potential violation and
the likelihood that it will affect the fairness of the matter before the court. Relief will be
denied unless the possibility of an injury to a party or to the fairness of the proceeding can
be shown. 9
Although disqualification motions are the most common remedy sought by clients and
former clients to redress conflicts of interest, Maritrans illustrates that other remedies,
including civil damages, fee forfeiture, dismissal of a claim or defense, and professional
discipline, also exist. 10 Each remedy has its own legal requirements, and multiple remedies
may exist for the same breach of fiduciary duty. One thing is certain: Lawyers today have to
realize that injunctive relief or disqualification may be granted to an opposing party,
involuntarily depriving them of the opportunity to represent a client, as well as exposing
them to potential tort liability, loss of compensation, and perhaps bad publicity.
Johnson v. Clark Gin Service, Inc.
2016 WL 7017267 (E.D. La.)
Nannette Jolivette BROWN, United States District Judge.
. . . This litigation arises out of an accident that occurred on September 10, 2013, at a
railroad crossing near Tchula, Mississippi. At that time, Amtrak Train No. 59, also known
as “The City of New Orleans,” collided with a tractor-trailer operated by Alvin W. Yeates, a
driver for Clark Gin. Plaintiff Brett Kern was a locomotive engineer aboard the train, and
Plaintiff Morgan was a conductor at the time of the accident. Plaintiffs Dorothy Johnson,
Vincent Dorest, Enrique Mayes, Cheryl Rainey, Kytosha Wilson, and Gene Benefield were
service crew members aboard Amtrak Train No. 59 at the time of the accident, and
Plaintiff Arnold Murphy was a passenger. . . .
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