1 Gilmore, Grant, The Death of Contract 102 (Columbus: Ohio State University Press, 1974).Google Scholar

2 As long as we lack “a general, coherent theory of professional behavior for lawyers,” a theory of disqualification may be beyond reach. See Schwartz, Murray L., The Professionalism and Accountability of Lawyers, 66 Calif. L. Rev. 669, 670 (1978).Google Scholar

3 ABA standards include the ABA Model Code of Professional Responsibility, or any replacement of it, and ABA formal and informal opinions.Google Scholar

4 Citations to “the Code” in this article are to the current Model Code of Professional Responsibility, in American Bar Association, Committee on Ethics and Professional Responsibility, Model Code of Professional Responsibility and Code of Judicial Conduct (Chicago: American Bar Association, as amended February 1979) [hereinafter cited as the Code].Google Scholar

5 “The Ethical Considerations are aspirational in character and represent the objectives toward which every member of the profession should strive. They constitute a body of principles upon which the lawyer can rely for guidance in many specific situations.”Id., Preliminary Statement, at 1 (footnote omitted). Because some courts and disciplinary agencies have had trouble distinguishing the aspirational standards from the mandatory ones, the aspirational standards may be eliminated if the Code is replaced. The American Bar Association Commission on Evaluation of Professional Standards, which drafted the Model Rules of Professional Conduct (the “Model Rules”) to replace the existing Code of Professional Responsibility, has recommended Model Rules that state what a lawyer must do to avoid discipline, leaving what a lawyer should do (the aspirational standard) to other sources of information. See American Bar Association, Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct iv-v (Proposed Final Draft, May 30, 1981) [hereinafter cited as Model Rules]; Kutak, Robert J., Evaluating the Proposed Model Rules of Professional Conduct, 1980 A.B.F. Res. J. 1016, 1017–19.Google Scholar

6 The Preliminary Statement to the Code states:Google Scholar

The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of fair trial, the Disciplinary Rules should be uniformly applied to all lawyers, regardless of the nature of their professional activities. The Model Code makes no attempt to prescribe either disciplinary procedures or penalties for violation of a Disciplinary Rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct. The severity of judgment against one found guilty of violating a Disciplinary Rule should be determined by the character of the offense and the attendant circumstances. An enforcing agency, in applying the Disciplinary Rules, may find interpretive guidance in the basic principles embodied in the Canons and in the objectives reflected in the Ethical Considerations. [Footnotes omitted.].Google Scholar

Code, supra note 4, at 1.Google Scholar

7 Id. at 1; American Bar Association, Standing Committee on Professional Discipline and National Center for Professional Responsibility, Model Rules for Lawyer Disciplinary Enforcement 9–10 (Chicago: American Bar Association & National Center for Professional Responsibility, Oct. 1979).Google Scholar

8 Kutak, supra note 5, at 1017–19; Model Rules iv-v.Google Scholar

9 O'Dea, Dennis M., The Lawyer-Client Relationship Reconsidered: Methods for Avoiding Conflicts of Interest, Malpractice Liabiity, and Disqualification, 48 Geo. Wash. L. Rev. 693, 699 (1980). O'Dea provides a selected bibliography drawn from this litreature. See id. at 741–44.Google Scholar

10 Schwartz, supra note 2, at 672.Google Scholar

11 See Kutak, , supra note 5, at 1017–19; Model Rules iv-v.Google Scholar

12 See Schwartz, , supra note 2, at 672.Google Scholar

13 See Fleming, Macklin, The Price of Perfect Justice: The Adverse Consequences of Current Legal Doctrine on the American Courtroom 85 (New York: Basic Books, Inc., 1974). For a discussion of conflicts of interest in criminal practice, see Note, Developments in the Law: Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1373–97 (1981) [hereinafter cited as Harvard Note]; Lowenthal, Gary T., Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939 (1978);Hyman, Steven J., Joint Representation of Multiple Defendants in a Criminal Trial: The Court's Headache, 5 Hofstra L. Rev. 315 (1977);Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 J. Crim. L. & Crim. 226 (1977);Kind-regan, Charles P., Conflict of Interest and the Lawyer in Civil Practice, 10 Val. U.L. Rev. 423 (1976);Allison, Junius L., Relationship Between the Office of Public Defender and the Assigned Counsel System, 10 Val. U.L. Rev. 399 (1976);Comment, Conflict of Interests: Multiple Defendants Represented by a Single Court-Appointed Counsel, 74 Dick. L. Rev. 241 (1970);Freedman, Monroe H., Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966).Google Scholar

14 The Code may also be used in suits for damages, in suits to recover attorneys' fees already paid, as a defense to suits by lawyers to enforce contracts for attorneys' fees, and in appeals or collateral attacks on criminal judgments. See Harvard Note, supra note 13, at 1486–1503.Google Scholar

15 E.g., the lawyer as witness, direct communication between a lawyer and the opposing client, unethical solicitation of clients. See generally Enker, Arnold N., The Rationale of the Rule That Forbids a Lawyer to Be Advocate and Witness in the Same Case, 1977 A.B.F. Res. J. 455; Note, The Advocate-Witness Rule: If Z, Then X. But Why? 52 N.Y.U. L. Rev. 1365 (1977);Brown, Harold A. & Brown, Louis M., Disqualification of the Testifying Advocate—A Firm Rule? 57 N.C.L. Rev. 597 (1979); Note, Disqualification of Counsel Under the Advocate-Witness Rule: Fair or Futile? 48 U. Cin. L. Rev. 794 (1979).Google Scholar

16 E.g., damages, reversal of judgment, denial of fees, recovery of fees, criminal prosecution, restitution. See generally Note, Sanctions for Attorney's Representation of Conflicting Interests, 57 Colum. L. Rev. 994 (1957); Harvard Note, supra note 13, at 1486–96.Google Scholar

17 The current Code replaced the ABA'S 1908 Canons of Professional Conduct in 1970.Google Scholar

18 The successor might be the Model Rules or any other ethical code adopted by the ABA in the future.Google Scholar

19 Comment, Disqualification of Counsel: Adverse Interests and Revolving Doors, 81 Colum. L. Rev. 199, 200 (1981) [hereinafter cited as Columbia Comment].Google Scholar

20 Note, Motions to Disqualify Counsel Representing an Interest Adverse to a Former Client, 57 Tex. L. Rev. 726, 727 (1979) [hereinafter cited as Texas Note].Google Scholar

21 Note, The Second Circuit and Attorney Disqualification—Silver Chrysler Steers in a New Direction, 44 Fordham L. Rev. 130, 130–31 (1975) (footnotes omitted) [hereinafter cited as Fordham Note].Google Scholar

22 See, e.g., Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 753 (2d Cir. 1975); U.S. Indus., Inc. v. Goldman, 421 F. Supp. 7, 10–11 (S.D.N.Y. 1976); Fred Weber, Inc. v. Shell Oil Co., 432 F. Supp. 694, 696 (E.D. Mo.), aff'd, 566 F.2d 602 (1977), cert, denied, 436 U.S. 905 (1978); Int'l Union, UAW V. Nat'l Caucus of Labor Comm., 466 F. Supp. 564, 567 (S.D.N.Y. 1979), aff'd, 607 F.2d 996 (2d Cir. 1979); Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 226 (2d Cir. 1977). see also Texas Note, supra note 20.Google Scholar

23 See, e.g., Hull v. Celanese Corp. 513 F.2d 568 (2d Cir. 1975); Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193 (N.D. Ohio 1976), aff'd, 573 F.2d 1310 (6th Cir. 1977), cert. denied, 435 U.S. 996 (1978). see also Texas Note, supra note 20.Google Scholar

24 Int'l Business Mach. Corp. v. Levin, 579 F.2d 271, 279–80 (3d Cir. 1978); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d at 755; Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 570 (2d Cir. 1973); Armstrong v. McAlpin (Armstrong II), 625 F.2d 433, 454 (2d Cir. 1980) (en bane) (Newman, J., dissenting), vacated on other grounds and remanded, 449 U.S. 1106 (1981) (mem.); Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978), cert, denied, 439 U.S. 955 (1978); Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193, 206 n.5 (N.D. Ohio 1976), aff'd, 573 F.2d 1310 (6th Cir. 1977), cert, denied, 435 U.S. 996 (1978); Empire Linotype School, Inc. v. United States, 143 F. Supp. 627, 632 (S.D.N.Y. 1956). See also, U.S. Indus., Inc. v. Goldman, 421 F. Supp. 7, 11 (S.D.N.Y. 1976); O'Dea, supra note 9, at 717.Google Scholar

25 See, e.g., Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 754 (2d Cir. 1975); Empire Linotype School, Inc. v. United States, 143 F. Supp. 627, 633 (S.D.N.Y. 1956). See also Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193, 207, 210 (N.D. Ohio 1976), aff'd, 573 F.2d 1310 (6th Cir. 1977), cert, denied, 435 U.S. 996 (1978).Google Scholar

26 See, e.g., Liebman, Howard M., The Changing Law of Disqualification: The Role of Presumption and Policy, 73 Nw.U.L. Rev. 996, 1025 (1979); Note, Disqualification of Attorneys for Representing Interests Adverse to Former Clients, 64 Yale L.J. 917, 923 n.35 (1955). Cf., Note, Legal Ethics—Representation of Differing Interests by Husband and Wife: Appearances of Impropriety and Unavoidable Conflicts of Interest? 52 Den. L.J. 735, 765 (1975).Google Scholar

27 See, e.g., Liebman, supra note 26, at 1032. See also Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); Empire Linotype School, Inc. v. United States, 143 F. Supp. 627, 628 (S.D.N.Y. 1956).Google Scholar

28 See, e.g., Liebman, supra note 26, at 1013, 1033; Kindregan, supra note 13, at 451.Google Scholar

29 See, e.g., Altschul v. Paine Webber, Inc., 488 F. Supp. 858, 861 (S.D.N.Y. 1980); Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193 (N.D. Ohio 1976), aff'd, 573 F.2d 1310 (6th Cir. 1977), cert, denied, 435 U.S. 996 (1978), Empire Linotype School, Inc. v. United States, 143 F. Supp. 627, 632 (S.D.N.Y. 1956); Woods v. Covington County Bank, 537 F.2d 804, 807 (5th Cir. 1976). See also, e.g., Int'l Business Mach. Corp. v. Levin, 579 F.2d 271, 282–83 (3d Cir. 1978); Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605–6 (8th Cir. 1977); Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 226–27, 232–35 (2d Cir. 1977).Google Scholar

30 See generally American Bar Association Center for Professional Discipline, Disciplinary Law and Procedure Research System, Index (5th ed. Chicago: National Center for Professional Discipline, 1981).Google Scholar

31 There are three uses of the word disqualify or its cognates in the text of the Code and one such reference in the official footnotes. In EC 1–6, the Code twice speaks of “disqualification,” meaning a mental or emotional condition making a lawyer unfit to practice law. Code, supra note 4, at 3. EC 7–12 uses “disqualified” to refer to a client's mental or legal disability to act. Id. at 33. None of these three uses in the text of the Code has anything to do with attorney disqualification for conflicts of interest in civil litigation. The sole lapse into a confusion of the word disqualify with ineligibility under the Code is in a footnote quoting from a case. In footnote 31 to DR 5–105(B), a judge speaks of an attempt to “disqualify” an attorney by calling him as a witness. Id. at 30 n.31. But in the text and comments, as well as in the portions of the footnotes actually composed by the drafters of the Code, they do not confuse disqualification and ineligibility. John F. Sutton has pointed out that the Code was not designed to set the standard for disqualification cases. Sutton, John F. Jr., How Vulnerable Is the Code of Professional Responsibility? 57 N.C.L. Rev. 497, 514–16 (1979).Google Scholar

32 The leading American and British dictionaries, as well as the leading American law dictionary, combine all three meanings under the first or only definition of disqualification. The Oxford English Dictionary's definition: “The action of disqualifying or depriving of requisite qualifications; spec, legal incapacitation; also, the fact or condition of being disqualified.” 3 Oxford English Dictionary 498 (New York: Oxford University Press, 1971). Webster's definition: “Act of disqualifying, or state of being disqualified.” Webster's New International Dictionary of the English Language 752 (2d ed. unabridged Springfield, Mass.: G. & C. Merriam Co., 1953). Black's Law Dictionary's definition of disqualify: “To divest or deprive of qualifications; to incapacitate; to render ineligible or unfit ….” Henry Campbell Black, Blacks Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern 424 (5th ed. St. Paul, Minn.: West Publishing Co., 1979).Google Scholar

33 See Luban, David, Professional Ethics: A New Code for Lawyers? Hastings Center Report, June 1980, at 13.Google Scholar

34 A disciplinary agency could presumably order disqualification, although that is not listed as a disciplinary remedy in the Model Rules for Lawyer Disciplinary Enforcement. In fact, at least some disciplinary agencies customarily wait until the litigation has ended before commencing disciplinary proceedings.Google Scholar

35 Thus the problem is that unconsciously an analogy is drawn between court-ordered disqualification and ineligibility under the Code. Such an analogy embedded in our language has been termed an insidious analogy. See David Hackett Fischer, Historian's Fallacies: Toward a Logic of Historical Thought 244–47 (New York: Harper & Row, Colophon, 1970).Google Scholar

36 See, e.g., Ill. Rev. Stats., ch. 38, § 2–8 (1979). See generally Ronkowski, Edward Jr., Uses and Misuses of Deadly Force, 28 DePaul L. Rev. 701 (1979);Sherman, Lawrence W., Execution Without Trial: Police Homicide and the Constitution, 33 Vand. L. Rev. 71 (1980).Google Scholar

37 Unless I make it clear that I am talking about more than one sense of disqualification, or unless I am quoting others, I will use disqualification to mean court-ordered disqualification.Google Scholar

38 For discussions of the defense of laches, see generally Harvard Note, supra note 13, at 1481–82; Texas Note, supra note 20, at 733, 740–43; Liebman, supra note 26, at 1016; Note, Simultaneous Representation: Transaction Resolution in the Adversary System, 28 Case W. Res. L. Rev. 86, 94 (1977); Fordham Note, supra note 21, at 137–38 n.53; Note, Unchanging Rules in Changing Times: The Canons of Ethics and Intra-Firm Conflicts of Interest, 73 Yale L.J. 1058, 1061–64 (1964). See also, e.g., Redd V. Shell Oil Co., 518 F.2d 311 (10th Cir. 1975); Emle Indus, v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973); W. E. Bassett Co. v. H. C. Cook Co., 201 F. Supp. 821 (D. Conn.), aff'd per curiam, 302 F.2d 268 (2d Cir. 1962); Empire Linotype School, Inc. v. United States, 143 F. Supp. 627 (S.D.N.Y. 1956); United States v. Standard Oil Co., 136 F. Supp. 345 (S.D.N.Y. 1955); White v. Superior Court, 98 Cal. App. 3d 51, 159 Cal. Rptr. 278 (1979); Roth., v. Roth, 84 Ill. App. 3d 240, 405 N.E.2d 851 (1980); Young v. Oak Crest Park, Inc., 75 A.D.2d 956, 428 N.Y.S.2d 69 (1980). For discussions of the defense that the movant lacks standing, see generally O'Dea, supra note 9, at 703; Harvard Note, supra note 13, at 1479–81; Sutton, supra note 31, at 514–16; Model Rules, Scope; Model Rules, Comment (on Conflict Charged by an Opposing Party) and Notes (on Conflict Raised by Opposing Party) to Rule 1.7. see also Weber, Fred, Inc. v. Shell Oil Co., 566 F.2d 602 (8th Cir. 1977), cert, denied, 436 U.S. 905 (1978); In re Gopman, 531 F.2d 262 (5th Cir. 1976); In re Yarn Processing Patent Validity Litigation, 530 F.2d 83 (5th Cir. 1976); Estates Theatres, Inc. v. Columbia Pictures Indus., 345 F. Supp. 93 (S.D.N.Y. 1972).Google Scholar

39 They have not supplied adequate theoretical backing for their assumption that the Code should usually be directly applied in disqualification cases. No amount of work on the exceptions can remove this structural defect. Fitting their arguments into the model form for an argument in Steven Toulmin's The Uses of Argument (Cambridge, England: University Press, 1958) should make clear how their argument is structured and why further backing is needed.Google Scholar

40 Sutton, supra note 31, at 514–16.Google Scholar

41 Id. at 514.Google Scholar

42 See Wolfram, Charles W., The Code of Professional Responsibility as a Measure of Attorney Liability, 30 S. C. L. Rev. 281 (1979).Google Scholar

43 Rules, Model, Scope.Google Scholar

44 See part III of this article.Google Scholar

45 See part IV of this article.Google Scholar

46 Holmes, Oliver Wendell, Ideals and Doubts, 10 Ill. L. Rev. 1, 3 (1915).Google Scholar

47 See, e.g., Church of Scientology v. McLean, 615 F.2d 691, 693 (5th Cir. 1980); Allegaert v. Perot, 565 F.2d 246, 247–48, 250 (2d Cir. 1977); Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 233–34 (2d Cir. 1977).Google Scholar

48 See, e.g., Cohen v. Hurley, 366 U.S. 117, 123–24 (1961); Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605 (8th Cir. 1977), cert, denied, 436 U.S. 905 (1978); Black v. Missouri, 492 F. Supp. 848, 859 (W.D. Mo. 1980).Google Scholar

49 See generally Note, The Inherent Power of the Judiciary to Regulate the Practice of Law—A Proposed Delineation, 60 Minn. L. Rev. 783 (1976);Comment, Separation of Powers: Who Should Control the Bar? 47 J. Urb. L. 715 (1969);Wolfram, Charles W., Barriers to Effective Public Participation in Regulation of the Legal Profession, 62 Minn. L. Rev. 619 (1978).Google Scholar

50 E.g., Harvard Note, supra note 13, at 1470–79.Google Scholar

51 Id.Google Scholar

52 Id. at 1470–71 (footnotes omitted).Google Scholar

53 Id. at 1471 n.8.Google Scholar

54 E.g., Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 757 (2d Cir. 1975).Google Scholar

55 Id. at 1471–72. See also Note, Attorney's Conflict of Interests: Representation of Interest Adverse to That of Former Client, 55 B.U.L. Rev. 61, 83 (1975) [hereinafter cited as Boston Note].Google Scholar

56 My discussions with lawyers who have been the target of disqualification motions lead me to conclude that lawyers who withdraw under pressure or settle before a hearing on a motion to disqualify are seldom investigated by a disciplinary agency. I would not, however, go as far as the author of the Texas Note, who wrote: Since the governing bar will probably not become aware of the infringement of the Code unless a party seeks, and a court acts upon, disqualification, the granting of disqualification itself becomes the essential notice of the need for disciplinary action. The Center for Professional Discipline of the American Bar Association reports that between 1974 and 1977 the number of public disciplines increased by 20%. Because the bar is becoming more sensitive to the ever-increasing demand for ethical recitude, it is likely that any disqualification of an attorney will result in some sort of investigation by a disciplinary board and some reprimand to that attorney. Texas Note, supra note 20, at 740 n.78 (citations omitted).Google Scholar

57 Even if the lawyer thinks he will probably win, he may withdraw to reduce his personal risk of being disqualified.Google Scholar

58 Of course any change in the law would also introduce a crosscutting influence: because changes in the law increase uncertainty, they increase litigation until the uncertainty is reduced through court decisions. Thus some of the expected reduction in litigation over disqualification would be temporarily offset by an increase in uncertainty. Cf., Casper, Gerhard & Posner, Richard A., A Study of the Supreme Court's Caseload, 3 J. Legal Stud. 339, 360–62 (1974).Google Scholar

59 The client may be right in so thinking. The public may also have its faith shaken in the legal system. See Black v. Missouri, 492 F. Supp. 848, 873 (W.D. Mo. 1980).Google Scholar

60 Especially when a lawyer is disqualified for representing two parties on the same side of the case or for acting as a witness, the client may be puzzled that the added expense and inefficiency is supposed to be in part for his protection. Cf. Note, Simultaneous Representation: Transaction Resolution in the Adversary System, 28 Case W. Res. L. Rev. 86, 87–88 (1977);Note, Legal Ethics—Representation of Differing Interests by Husband and Wife: Appearances of Impropriety and Unavoidable Conflicts of Interest? 52 Den. L.J. 735, 765 (1975). On the right to choose an attorney, see generally Texas Note, supra note 20, at 739–41; Liebman, supra note 26, at 999, 1029; Spiegel, Mark, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. Pa. L. Rev. 41, 127–28 (1979); Fordham Note, supra note 21, at 136, 138, 141, 151; Tucker, Edwin W., The Large Law Firm: Considerations Concerning the Modernization of the Canons of Ethics, 1965 Wis. L. Rev. 344, 349; Note, Unchanging Rules in Changing Times: The Canons of Ethics and Intra-Firm Conflicts of Interest, 73 Yale L.J. 1058, 1069–70 (1964).Google Scholar

61 See Harvard Note, supra note 13, at 1257–58, 1479. As Judge Manuel argued in his dissent to Comden v. Superior Court, 20 Cal. 3d 906, 145 Cal. Rptr. 9, 16 (1978), cert, denied, 439 U.S. 981 (1978), “the disqualification upheld herein does not preserve the attorney-client relationship, but destroys this relationship and deprives petitioners of representation of their own choosing” (citations omitted).Google Scholar

62 I am assuming that litigation increases as the range of actions subject to disqualification increases. It is possible that, if the rules were clear enough, litigation over disqualification would be rare, no matter what the range of actions open to disqualification. See also text and note at note 58 supra.Google Scholar

63 See Sutton, , supra note 31, at 515.Google Scholar

64 See authorities cited at note 15 supra.Google Scholar

65 See, e.g., Borman v. Borman, 393 N.E.2d 847 (Mass. 1979). See also Code, supra note 4, at 30 n.31.Google Scholar

66 The traditional view is that “the attorney-client relationship arises when an attorney voluntarily listens, in his professional capacity, to a client's preliminary statement of the facts.” Boston Note, supra note 55, at 67.Google Scholar

67 Without an adjudication that the representation is improper, the client (after his first attorney has withdrawn) could argue that the attorney withdrew before any tainted information was transmitted. See generally Note, First Wisconsin Trust v. First Wisconsin Corporation: The Work Product Order Subsequent to Attorney Disqualification, 65 Va. L. Rev. 973 (1979);Comment, Substitute Counsel's Access to Work Product of Disqualified Counsel, 21 Wm. & Mary L. Rev. 307 (1979);Comment, The Availability of the Work Product of a Disqualified Attorney: What Standard? 127 U. Pa. L. Rev. 1607 (1979);Comment, The Appealability of Orders Denying Motions for Disqualification of Counsel in the Federal Courts, 45 U. Chi. L. Rev. 450 (1978);Note, Attorney Disqualification and Access to Work Product: Toward a Principled Rule, 63 Cornell L. Rev. 1054 (1978);Comment, Attorney Work Product—New Counsel for Party May Be Granted Access to Pre-disqualification Work Product of Prior Counsel, 54 Notre Dame Law. 544 (1979).Google Scholar

68 Cf. Texas Note, supra note 20, at 747.Google Scholar

69 Harvard Note, supra note 13, at 1473 (footnotes omitted; emphasis added).Google Scholar

70 See Anderson, Alison Grey, Conflicts of Interest: Efficiency, Fairness and Corporate Structure, 25 U.C.L.A. L. Rev. 738 (1978).Google Scholar

71 For example, allowing disqualification in situations where the conflict is only a potential conflict is counterproductive, for the litigation of disqualification motions creates a conflict. See the discussion of the ironic conflict in text and notes at notes 56–57.Google Scholar

72 See sources cited at note 36 supra.Google Scholar

73 See Harvard Note, supra note 13, at 1473, 1497–1500. On the obligation of a judge to report lawyers to disciplinary agencies, see Code of Judicial Conduct § 3B.(3) and accompanying Commentary, in Code, supra note 4, at 63. See also DR 1–103, Code, supra note 4, at 3; Lowenschuss v. Bluhdorn, 613 F.2d 18, 21 (2d Cir. 1980), cert, denied, 449 U.S. 840 (1980).Google Scholar

74 See Steele, Eric H. & Nimmer, Raymond T., Lawyers, Clients, and Professional Regulation, 1976 A.B.F. Res. J. 917, 985 Marks, F. Raymond & Cathcart, Darlene, Discipline Within the Legal Profession: Is It Self-Regulation 1974 U. Ill. L.F. 193; Martyn, Susan R., Lawyer Competence and Lawyer Discipline: Beyond the Bar, 69 Geo. LJ. 705, 716 (1981). See also Kaufman, Andrew, The Philosophy of Effective Judicial Supervision over Litigation, 29 F.R.D. 207, 217 (1961).Google Scholar

75 Harvard Note, supra note 13, at 1473–74.Google Scholar

76 The paragraph begins: “One reason for this broader scope is the trial process itself.” Harvard Note, supra note 13, at 1475. For a discussion of the Note's argument about the trial process, see section II.D. of this article.Google Scholar

77 Harvard Note, supra note 13, at 1470–71.Google Scholar

78 Marks and Cathcart argue that wrongdoing should be irrelevant to discipline. Marks & Cathcart, supra note 74.Google Scholar

79 Rules, Model, supra note 5, at 3.Google Scholar

80 See section II.A. of this article.Google Scholar

81 Harvard Note, supra note 13, at 1475.Google Scholar

82 Two of the leading cases cited by the Harvard Note were Board of Education v. Nyquist, 590 F.2d 1241 (2d Cir. 1979), and Armstrong v. McAlpin (Armstrong II), 625 F.2d 433 (2d Cir. 1980) (en banc), vacated on other grounds and remanded, 449 U.S. 1106 (1981) (mem.). In both cases disqualification was denied because no threat of trial taint was found, but whether the conduct was ethical under bar standards was thought to be a close question.Google Scholar

83 Harvard Note, supra note 13, at 1477–79.Google Scholar

84 Selected Readings on the Law of Contracts ix. (Ass'n Am. L. Schools ed. 1931), quoted in William O. Douglas, Law Reviews and Full Disclosure, 40 Wash. L. Rev. 227 (1965).Google Scholar

85 Perhaps the sole exception is Sutton. See Sutton, supra note 31, at 514–16.Google Scholar

86 See Van Graafeiland, Ellsworth A., Lawyer's Conflict of Interest—A Judge's View (Part II), N.Y.L.J., July 20, 1977, at 1, col. 2; Armstrong v. McAlpin (Armstrong II), 625 F.2d 433, 437–38 (2d Cir. 1980) (en banc), vacated on other grounds and remanded, 449 U.S. 1106 (1981) (mem.); Altschul v. Paine Weber, Inc., 488 F. Supp. 858, 861 (S.D.N.Y. 1980); W.T. Grant Co. v. Haines, 531 F.2d 671, 677–78 (2d Cir. 1976); Lefrak v. Arabian Am. Oil Co., 527 F.2d 1136, 1138–39 (2d Cir. 1975); Allegaert v. Perot, 565 F.2d 246, 251 (2d Cir. 1977); J. P. Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1359 (2d Cir. 1975) (Gurfein, J., concurring); Soc'y for Good Will to Retarded Children v. Carey, 466 F. Supp. 722 (E.D.N.Y. 1979); Harman Drive-In Theatre, Inc. v. Warner Bros. Pictures, Inc., 239 F.2d 555, 559 (2d Cir. 1956), rehearing denied, 241 F.2d 937, cert, denied, 355 U.S. 824 (1957). See also Note, Professional Ethics—Disciplinary Rule 5–102(A)—Disqualification of Law Firms Under the Attorney-Witness Rule, 54 Tul. L. Rev. 521, 532 (1980);Note, Disqualification of the Former Government Attorney and the Affiliated Firm: Allegiance to Form Over Substance? 84 Dick. L. Rev. 669 (1980); Donald B. Hilliker, Attorney Disqualification Motions, Practical Law., Oct. 15, 1980, at 13; Comment, The Ethics of Moving to Disqualify Opposing Counsel for Conflict of Interest, 79 Duke L. J. 1310, 1316–17 (1979); Texas Note, supra note 20, at 742; Liebman, supra note 26, at 1015; Shadur, Milton I., Lawyers' Conflicts of Interest: An Overview, 1977 Chi. B. Rec. 190, 191.Google Scholar

87 See, e.g., Hilliker, supra note 86, at 13; Harvard Note, supra note 13, at 1471–73. See also Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979); Allegaert v. Perot, 565 F.2d 246, 251 (2d Cir. 1977); J. P. Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1360 (2d Cir. 1975); and authorities cited at note 86 supra.Google Scholar

88 See Steele, Eric H. & Nimmer, Raymond T., Lawyers, Clients, and Professional Regulation, 1976 A.B.F. Res. J. 917.Google Scholar

89 See Rule 10(A)(7), Model Rules for Lawyer Disciplinary Enforcement, supra note 7, at 10.Google Scholar

90 590 F.2d 1241 (1979).Google Scholar

91 625 F.2d 433 (2d Cir. 1980) (en banc), vacated on other grounds and remanded, 449 U.S. 1106 (1981) (mem.).Google Scholar

92 590 F.2d 1241, 1244 (1979).Google Scholar

93 Id. at 1247.Google Scholar

94 Id.Google Scholar

95 Id. at 1246 (citations and footnotes omitted).Google Scholar

96 531 F.2d 671, 672 (2d Cir. 1976). This language was not new to the W.T. Grant case. See Lefrak v. Arabian Am. Oil Co., 527 F.2d 1136, 1139 (2d Cir. 1975) (“there is no taint attached to counsel's representation”; “[t]here has been no taint established and no possible prejudice to the defendant”; a “conflict of interest, might if unresolved taint the trial”); Hull v. Celanese Corp., 513 F.2d 568, 572 (2d Cir. 1975) (the right to choose counsel and judicial economy “must yield, however, to considerations of ethics which run to the very integrity of our judicial process”); Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268, 271 (2d Cir. 1975) (disqualification has been found appropriate when it “posed a substantial threat to the integrity of the judicial process”); Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 575 (“nothing, not even the appearance of impropriety, is permitted to tarnish our judicial process”). See also Comden v. Superior Court, 20 Cal. 3d 906, 145 Cal. Rptr. 9, 14–16 (1978) (Manuel, J., dissenting), cert, denied, 439 U.S. 981 (1978).Google Scholar

97 See id.Google Scholar

98 Id.Google Scholar

99 Id.Google Scholar

100 590 F.2d 1241, 1247 (1979).Google Scholar

101 Id.Google Scholar

102 Id.Google Scholar

103 Id. at 1246.Google Scholar

104 Id.Google Scholar

105 Id. at 1247.Google Scholar

106 625 F.2d 433 (2d Cir. 1980) (en banc), vacated on other grounds and remanded, 449 U.S. 1106 (1981) (mem.).Google Scholar

107 A “Chinese Wall” refers to the procedures and devices used to screen a lawyer ineligible to act in a case from any knowledge of his firm's participation in that case. See generally, Comment, The Chinese Wall Defense to Law-Firm Disqualification, 128 U. Pa. L. Rev. 677 (1980); Liebman, supra note 26; Recent Cases, Disqualification—“Screening” to Rebut the Automatic Law Firm Disqualification Rule, 82 Dick. L. Rev. 625 (1978);Note, Professional Responsibility—Disqualification of Law Firm Under DR 5–105(D) Unnecessary Where Partner Who Had Formerly Been a Government Attorney Was Effectively Screened from Participation, 12 Suffolk U. L. Rev. 189 (1978);Commentary, The Disqualification Dilemma: DR 5–105(D) of the Code of Professional Responsibility, 56 Neb. L. Rev. 692 (1977); Columbia Comment, supra note 19, at 209–12.Google Scholar

108 625 F.2d 433, 437–41 (2d Cir. 1980) (en banc), vacated on other grounds and remanded, 449 U.S. 1106 (1981) (mem.). See generally Comment, The Appealability of Orders Denying Motions for Disqualification of Counsel in the Federal Courts, 45 U. Chi. L. Rev. 450 (1978);Recent Cases, Civil Procedure—Appellate Jurisdiction—Orders Denying Disqualification of Counsel on Ethical Grounds Are Not Final Decisions Subject to Immediate Review Under 28 U.S.C. § 1291, 30 Vand. L. Rev. 259 (1977).Google Scholar

109 625 F.2d at 441–42.Google Scholar

110 Id. at 442–46.Google Scholar

111 496 F.2d 800 (2d Cir. 1974) (en banc).Google Scholar

112 449 U.S. 368 (1981).Google Scholar

113 625 F.2d at 441.Google Scholar

114 449 U.S. 368.Google Scholar

115 449 U.S. 1106 (mem.).Google Scholar

116 O'Dea, supra note 9, at 710.Google Scholar

117 Robert L. Vesco also fled to Costa Rica. 625 F.2d at 435–36.Google Scholar

118 625 F.2d at 437.Google Scholar

119 Armstrong v. McAlpin (Armstrong I), 606 F.2d 28 (2d Cir. 1979), vacated, Armstrong II, 625 F.2d 433 (1980) (en banc), vacated on other grounds and remanded, 449 U.S. 1106 (1981) (mem.).Google Scholar

120 Armstrong v. McAlpin, 461 F. Supp. 622 (S.D.N.Y. 1978).CrossRefGoogle Scholar

121 The panel cited Nyquist, but did not base its decision in Armstrong I on Nyquist. Armstrong I, 606 F.2d at 32. The Second Circuit in Armstrong II (en banc) stated that, if it did not reach the merits, “the panel's opinion will nonetheless suggest that this circuit is split on the applicable standard for disqualification motions, particularly when the panel decision is read in conjunction with Board of Education v. Nyquist,“ 625 F.2d at 441.Google Scholar

122 Armstrong I, 606 F.2d at 34.Google Scholar

123 See note 121 supra.Google Scholar

124 Armstrong II, 625 F.2d at 446.CrossRefGoogle Scholar

125 Id. at 445.Google Scholar

126 See note 107 supra.Google Scholar

127 Disciplinary Rule 5–105(D) provides: “(D) If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.” Code, supra note 4, at 28. See generally Comment, The Chinese Wall Defense, supra note 107, and other authorities cited at note 107 supra.Google Scholar

128 ABA Opinion 342, reprinted in 62 A.B.A.J. 517 (1976).Google Scholar

129 See Administrative Conference of the United States, Recommendation 79–7 (Dec. 14, 1979), reprinted in Legal Times of Wash., Dec. 31, 1979, at 27. See also O'Dea, supra note 9, at 712–13.Google Scholar

130 Rules, Model, Rule 1.11 (Discussion Draft, Jan. 30, 1980).Google Scholar

131 Rules, Model, Rule 1.11.Google Scholar

132 625 F.2d at 444–46 (footnotes and citations omitted; emphasis added).Google Scholar

133 Id. at 452–54 (Newman, J., dissenting in part, concurring in part).Google Scholar

134 The closest he comes is his statement: “Courts traditionally have been most sensitive to the enforcement of standards designed to limit governmental power. They should be at least as sensitive to the enforcement of standards specifically designed to protect against the misuse of such power.”Id. at 453.Google Scholar

135 Id.Google Scholar

136 Id. at 445.Google Scholar

137 Of course, this separation was presaged in earlier cases. See, e.g., Board of Education v. Nyquist, 590 F.2d 1241 (2d Cir. 1979); W.T. Grant v. Haines, 531 F.2d 671 (2d Cir. 1976); Comden v. Superior Court, 20 Cal. 3d 906, 145 Cal. Rptr. 9, 14–16 (1978) (Manuel, J., dissenting), cert, denied, 439 U.S. 981 (1978); and text and notes at notes 94–101 supra.Google Scholar

138 Nevertheless, this analysis places perhaps too much emphasis on the efficacy of the Chinese Wall. The disputed disqualification in Armstrong was originally ordered, not because of fears that the Chinese Wall would be breached, but because of a fear that government lawyers might conduct government litigation in a way that would make them attractive to future employers. Thus the efficacy of the Chinese Wall should have played a less important role in the Armstrong II court's analysis than it did.Google Scholar

139 See, e.g., Board of Education v. Nyquist, 590 F.2d 1241, 1247–48 (2d Cir. 1979) (Mansfield, C.J., concurring).Google Scholar

140 General Mill Supply Co. v. SCA Services, Inc., 505 F. Supp. 1093, 1096 (E.D. Mich. 1981).Google Scholar

141 Greenbaum-Mountain Mortgage Co. v. Pioneer Nat'l Title Ins. Co., 421 F. Supp. 1348, 1351–52 (D.Colo. 1976).Google Scholar

142 In re Corrugated Container Antitrust Litigation, 659 F.2d 1341, 1348 (5th Cir. 1981).Google Scholar

143 590 F.2d at 1246 (footnotes and citations omitted).Google Scholar

144 625 F.2d at 444.Google Scholar

145 See, e.g., Glueck v. Jonathan Logan, Inc., 653 F.2d 746 (2d Cir. 1981); Cheng v. GAF Corp., 631 F.2d 1052 (2d Cir. 1980), vacated and remanded, 450 U.S. 903 (1981) (mem.); Yaretsky v. Blum, No. 76 Civ. 3360, slip op. (S.D.N.Y. Apr. 28, 1981). But see, e.g., Tadier v. Am. Photocopy Equip. Co., 531 F. Supp. 35 (S.D.N.Y. 1981).Google Scholar

146 Levi, Edward H., An Introduction to Legal Reasoning 2–9 (Chicago: University of Chicago Press, 1948).CrossRefGoogle Scholar

147 I have already argued that the finding in Nyquist and Armstrong II of no threat of taint is overstated. Centering the analysis unambiguously on a real likelihood of taint would perhaps be a better approach to the facts of those two cases, as well as to future ones.Google Scholar

148 Id. at 9.Google Scholar

149 Such a reduction would be more in line with the arguments expressed in part II of this article.Google Scholar

150 Greitzer & Locks v. Johns-Manville Corp., No. 81–1379, slip op. (4th Cir. Mar. 5, 1982).Google Scholar

151 Id.Google Scholar

152 531 F. Supp. 35 (S.D.N.Y. 1981).Google Scholar

153 Id. at 37. Presumably, the attorney who had alleged that the driver was negligent in the second action would have to claim that the driver was not contributorily negligent in Tadier.Google Scholar

154 631 F.2d 1052 (2d Cir. 1980).Google Scholar

155 Vacated and remanded, 450 U.S. 903 (1981) (mem.).Google Scholar

156 No. 76 Civ. 3360, slip op. (S.D.N.Y. Apr. 28, 1981).Google Scholar

157 Id. Yaretsky involved the same lawyer and law firm as in Cheng but somewhat different facts. In Yaretsky the judge stood by her interpretation of the Code and refused to allow a Chinese Wall to prevent the firm's disqualification. In that case, a class action by nursing home residents, a lawyer had switched from a legal aid office where he had actively represented plaintiffs to a private firm that represented some of the defendants. At the firm he was screened from further participation in the case and the legal aid office had withdrawn altogether. Nevertheless, in a slip opinion Judge Motley disqualified the firm, applying a traditional Code analysis:Google Scholar

The Code speaks unequivocally about the situation now facing this court in Disciplinary Rule 5–105(D): “If a lawyer is required to decline employment or withdraw from employment under a Disciplinary Rule, no partner or associate may accept or continue such employment.” Since [the individual attorney here] is clearly disqualified from representing the [defendants], application of Disciplinary Rule 5–105(D) is obvious here.Google Scholar

Although elsewhere in the opinion Judge Motley professes to be applying the trial taint test that Judge Feinberg enunciated in Nyquist, Motley's line of reasoning is contrary to Feinberg's application of the same test in Armstrong II. Disciplinary Rule 5–105(D) was also potentially applicable (or inapplicable) in Armstrong II, yet whether this Code rule had been violated was considered irrelevant by Feinberg. It is impossible to determine how much Motley's Code analysis in Yaretsky infected the rest of her opinion. She did reach the issue of the efficacy of the Chinese Wall in that case, expressing skepticism that it would effectively screen the individual attorney since his involvement in the case had been extensive and he was working in the same section of the firm as the attorneys still handling the case. She expressed concern over even inadvertent disclosures. However one reads Judge Motley's opinion, it does not fully evidence Judge Feinberg's distinction between disciplinary and disqualification standards. But, undoubtedly, to some extent she was influenced by the Court of Appeals decision in Cheng.Google Scholar

158 653 F.2d 746 (2d Cir. 1981).Google Scholar

159 This supposition is my own; Newman avoids the issue. See id. at 749–50.Google Scholar

160 Newman argues that the firm “might learn of Logan's policies or past practices bearing on the subject of Glueck's termination.”Id. From the few facts that Newman gives us, I doubt that this risk is substantial.Google Scholar

161 O'Dea, supra note 9, at 717.Google Scholar

162 Comment, Firm Disqualification Motions—Screening and Immediate Appeals as of Right: Armstrong v. McAlpin, 55 St. John's L. Rev. 346, 362 (1981).Google Scholar

163 Harvard Note, supra note 13, at 1475–76 (footnotes omitted).Google Scholar

164 Id. at 1476.Google Scholar

165 625 F.2d at 445.Google Scholar

166 Harvard Note, supra note 13, at 1475. See section II.C of this article.Google Scholar

167 625 F.2d at 443–44.Google Scholar

168 See note 31 supra.Google Scholar

169 E.g., Model Rules, Notes to Rule 1.9.Google Scholar

170 Id., Notes (on Legal Background) to Rule 1.10.Google Scholar

171 See, e.g., Liebman, supra note 26; Model Rules, Rule 1.9.Google Scholar

172 Rules, Model, Scope; Model Rules, Comment (on Conflict Charged by an Opposing Party) and Notes (on Conflict Raised by Opposing Party) to Rule 1.7.Google Scholar

173 United States v. Miller, 624 F.2d 1198 (3d Cir. 1980). See Harvard Note, supra note 13, at 1470 n.4.Google Scholar

174 Levi, supra note 146, at 9.Google Scholar