Freivogel on Conflicts


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Who can make a motion to disqualify?  Is standing an issue?  Clearly, a current client of a law firm has standing to seek disqualification of that law firm in a matter in which the law firm is acting directly adverse to the client.  Likewise, a former client has standing in a matter that is substantially related to the law firm's work for the former client. 

        Whether persons who were never clients can seek disqualification depends upon the jurisdiction and the attitude of the court.  For example, in Dawson v. City of Bartlesville, 901 F. Supp. 314 (N.D. Okla. 1995), the court, in a succinct summary of the conflicting views in this area said:

In some circuits there are virtually no barriers to third-party standing to seek disqualification of opposing counsel. These courts have reasoned that attorneys are authorized to report any ethical violations committed in a case; therefore, any member of the bar aware of facts justifying a disqualification of counsel has standing, indeed is obligated, to call the matter to the attention of the court. Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984); United States v. Clarkson, 567 F.2d 270 (4th Cir. 1977) (citing Estates Theatres v. Columbia Pictures Industries, 345 F. Supp. 93 (S.D.N.Y. 1972); Brown & Williamson v. Daniel Int'l., 563 F.2d 671 (5th Cir. 1977).  In effect, this rule provides standing to virtually any attorney to move for disqualification based on any asserted ethical violation. This broad grant of standing is contrary to the intent of the Oklahoma Rules, as expressed in the official commentary. The official commentary repeatedly cautions against the invocation of the Rules by opposing parties and specifically states that the Rules do not automatically provide third-party standing to antagonists seeking enforcement of the Rules. This Court therefore declines to follow the First, Fourth and Fifth Circuits on this standing question.

        At one time, cmt. [15] to Model Rule 1.7 contemplated non-clients making motions to disqualify where doing so aided the fair or efficient administration of justice.  The "Ethics 2000" Commission and the ABA House of Delegates deleted old [15] in 2002.  A case specifically applying the older cmt. [15] standard is Bernocchi v. Forcucci, 614 S.E.2d 775 (Ga. 2005).

        In a case that did not require standing, Planning & Control, Inc. v. MTS Group, Inc., 1992 U.S. Dist. LEXIS 3004 (S.D.N.Y. 1992), the court said:

Ethical concerns dictate that other persons, especially attorneys, be permitted to raise the issue of attorney misconduct. The court believes that the general rule which restricts standing to raise a Canon 4 disqualification motion to one who is a client or former client of the challenged law firm must give way to a maxim that adequately addresses the need to ensure both clients and the general public that lawyers will act within the bounds of ethical conduct.

        Following are collections of cases requiring standing and cases not requiring standing.  We have gathered as many such cases as he could find, but we have undoubtedly missed some.  So, while this article is a good start, anyone with a standing issue should do the research.

        Cases Holding that One Claiming a Conflict of Interest Must Have Standing to Do So.  Hechavarria v. City & County of San Francisco, 2011 U.S. App. LEXIS 25526 (9th Cir. Dec. 22, 2011); Moore v. Hernandez, 2005 U.S. App. LEXIS 5474 (10th Cir. April 5, 2005) (same ruling as Chavez, following and quoting the "skepticism" language in Chavez); Chavez v. State of New Mexico, 397 F.3d 826 (10th Cir. 2005) (did not say "must," but said a motion without standing triggers court's "skepticism"); O'Connor v. Jones, 946 F.2d 1395 (8th Cir. 1991); Fisher Studio, Inc. v. Loew's Inc., 232 F.2d 199 (2d Cir. 1956) (multiple parties; disqualification granted only as to those who were former clients); In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, reh'g denied, 536 F.2d 1025 (5th Cir. 1976); In re Andry, Misc. No. 15-2487 (E.D. La. Oct. 8, 2020); Thompson v. City of Bozeman, No. 18-75-BMM-KLD (D. Mont. Oct. 30, 2020); In re CenturyLink Sales Practices & Sec. Litig., MDL No. 17-2795 (MJD/KMM) (D. Minn. June 29, 2020); Ad Astra Recovery Servs., Inc. v. Heath, No. 18-1145-JWB-ADM (D. Kan. May 22, 2020) (discussed exceptions); Hosseinzadeh v. Bellevue Park Homeowners Ass'n, No. C18-1385-JCC (W.D. Wash. June 17, 2020) (unless conflict glaring or infectious); Thompson v. City of Bozeman, No. CV 1875-BU-BMM-KLD (D. Mont. Feb. 26, 2020); State Farm Mut. Auto. Ins. Co. v. Elite Health Centers, Inc., 2019 WL 2576360 (E.D. Mich. June 24, 2019); O'Hanlon v. AccessU2 Mobile Solutions, LLC, 2018 WL 3586395 (D. Col. July 26, 2018); High 5 Games, LLC v. Marks, 2018 WL 2278103 (D.N.J. May 18, 2018); Nebraska Data Centers, LLC v. Khayet, 2018 WL 2050567 (D. Neb. April 24, 2018) (unless alleged conflict "serious"); In re Breland, 2017 WL 4685006 (S.D. Ala. Oct. 16, 2017); Ambush v. Engelberg, 2017 WL 4541344 (D.D.C. Oct. 10, 2017) (unless integrity of proceeding threatened); Keane v. Jacksonville Police Fire & Pension Bd. Of Trustees, 2017 WL 4102302 (M.D. Fla. Sept. 15, 2017) (unless "administration of justice," etc.); Tibbott v. Northern Cambria Sch. Dist., 2017 WL 2570904 (W.D. Pa. June 13, 2017) (excellent discussion of standing in Third Circuit); CWT Canada II Ltd. P’ship v. Bridges, 2017 WL 3534977 (D. Ariz. Aug. 17, 2017) (court noted exceptions not applicable here); Lani v. Schiller Kessler & Gomez, PLC, 2017 WL 938327 (W.D. Ky. March 9, 2017); Brannan v. Clinton Co. Bd. of Comm’rs, 2016 WL 6277664 (S.D. Ind. Oct. 27, 2016) (no showing that "fair and efficient administration of justice harmed"); High 5 Games, LLC v. Marks, 2018 WL 2278103 (D.N.J. May 18, 2018) (no standing for plaintiff to complain about defendants conflicting with each other); Centerboard Sec., LLC v. Benefuel, Inc., 2016 WL 3126238 (N.D. Tex. June 3, 2016); Kim v. Cellco P’ship, 2015 WL 4394056 (N.D. Ind. July 16, 2015) ("ends of justice" did not require disqualification); Sanchez v. Capital Contractors Inc., 2014 U.S. Dist. LEXIS 167162 (N.D. Cal. Dec. 2, 2014) (unless "fair resolution" of the case is "obstructed" or "threatened); In re Kennedy, 2014 Bankr. LEXIS 607 (S.D. Miss. Feb. 12, 2014); Mills v. Hausmann-McNally, S.C., 2014 U.S. Dist. LEXIS 4407 (S.D. Ind. Jan. 14, 2014) (unless "the fairness of the adversarial process is compromised”); Davis v. Living Trust of Michael J. Fitzgerald, 2013 U.S. Dist. LEXIS 6065 (D. Nev. April 29, 2013); Coates v. Brazoria County, 2012 U.S. Dist. LEXIS 90748 (S.D. Tex. June 29, 2012); United States v. Taylor, Bean & Whitaker Mort. Corp., 2012 U.S. Dist. LEXIS 42473 (N.D. Ga. March 27, 2012) (did not comply with the "fair and efficient administration of justice" exception); Switch Communications Grp. v. Ballard, 2011 U.S. Dist. LEXIS 98308 (D. Nev. Aug. 31, 2011); Andrews Farms v. Calcot, Ltd., 2010 U.S. Dist. LEXIS 111656 (E.D. Cal. Oct. 13, 2010); Kelly v. CSE Safeguard Ins. Co., 2010 U.S. Dist. LEXIS 101118 (D. Nev. Sept. 8, 2010); So v. Land Base, LLC, 2010 U.S. Dist. LEXIS 88657 (C.D. Cal. Aug. 4, 2010); Winchester v. Education Mgmt. Corp., 2010 U.S. Dist. LEXIS 60660 (W.D. Ky. June 18, 2010); Clemens v. McNamee, 2008 U.S. Dist. LEXIS 36916 (S.D. Tex. May 6, 2008) (analyzing standing in Fifth Circuit); Xcentric Ventures, LLC v. Stanley, 2007 U.S. Dist. LEXIS 55459 (D. Ariz. July 27, 2007) (odd discussion of Article III of the U.S. Constitution); Northwest Bypass Group v. U.S. Army Corps of Engineers, 488 F. Supp. 2d 22 (D.N.H.) ; Marshall v. Gravitt, 2007 U.S. Dist. LEXIS 4947 (D. Nev. Jan. 18, 2007) (unclear what court meant by standing); Doe v. Fulton-DeKalb Hosp. Auth., 2006 U.S. Dist. LEXIS 76624 (N.D. Ga. Oct. 19, 2006); Shire Laboratories Inc. v. Nostrum Pharmaceuticals, Inc., 2006 U.S. Dist. LEXIS 51043 (D.N.J. July 25, 2006); Lefkowitz v. Bank of New York, 2003 U.S. Dist. LEXIS 19520 (S.D.N.Y. Oct. 31, 2003); Raiola v. Union Bank of Switzerland, LLC, 230 F. Supp. 2d 355 (S.D.N.Y. 2002); Doe v. Lee, 178 F. Supp. 2d 1239 (M.D. Ala. 2001); Colyer v. Smith, 50 F. Supp. 2d 966 (C.D. Cal. 1999); USX Corp. v. Tieco, Inc., 929 F. Supp. 1455 (N.D. Ala. 1996); Griffen v. East Prairie School Dist., 945 F. Supp. 1251 (E.D. Mo. 1996); Dawson v. City of Bartlesville, 901 F. Supp. 314 (N.D. Okla. 1995); Gilbert v. Knoxville Int'l. Energy Exposition, 547 F. Supp. 53 (E.D. Tenn. 1982); Richardson v. Hamilton Int'l. Corp., 333 F. Supp. 1049 (E.D. Pa. 1971), aff'd 469 F.2d 1382 (3d Cir. 1972), cert. denied, 411 U.S. 986 (1973); Murchison v. Kirby, 201 F. Supp. 122 (S.D.N.Y. 1961); Lowe v. Graves, 404 So. 2d 652 (Ala. 1981); Ellico v. Hackberry Elem. School Dist. No. 3, 2012 Ariz. App. Unpub. LEXIS 961 (Ariz. App. Aug. 2, 2012); State ex rel. Romley v. Superior Court, 181 Ariz. 378, 380, 891 P.2d 246, 248 (Ariz. 1995); State v. Garaygordobil, 359 P.2d 753 (Ariz. 1961); Moreci v. Scaffold Solutions, Inc., No. A161193 (Cal. App. Unpub. 1st Dist. Sept. 27, 2021) (standing lacking; excellent discussion of exceptions to standing requirement in California, and elsewhere); Sarkis v. Angels Gun Club, 2019 WL 2754767 (Cal. App. Unpub. July 2, 2019); T-12 Three, LLC v. Turner Constr. Co., 2017 WL 87059 (Cal. App. Unpub. Jan. 10, 2017); Coldren v. Hart, King & Coldren, Inc., No. G050202 (Cal. App. July 13, 2015); Great Lakes Construction, Inc. v. Burman, 2010 Cal. App. LEXIS 1226 (Cal. Ct. App. July 27, 2010); Machado v. Superior Court, 55 Cal. Rptr. 2d 902 (Cal. App. 2007) (court allowed non-party to make motion); Dino v. Pelayo, 145 Cal. App. 4th 347 (Cal. App. 2006) (court said movant could overcome lack of standing if lawyer had fiduciary duty to non-client); DCH Health Services Corp. v. Waite, 115 Cal. Rptr. 2d 847 (Cal. App. 2002) (contradicted in Li v. Prediwave Corp., 2005 Cal. App. Unpub. LEXIS 8664 (Cal. App. Sept. 23, 2005)); McPhearson v. Michaels Co., 117 Cal. Rptr. 2d 489 (Cal. App. 2002) (standing not sole ground for reversing disqualification); Smigelski v. Kosiorek, 2012 Conn. App. LEXIS 478 (Conn. App. Oct. 23, 2012); In re Appeal of Infotechnology, Inc., 582 A.2d 215 (Del. 1990); Stopa v. Cannon, 2021 WL 5912515 (Fla. App. Dec. 15, 2021); Anderson Trucking Service, Inc. v. Gibson, 884 So. 2d 1046 (Fla. App. 2004) (or, make showing that fair administration of justice compromised); Akerman LLP v. MSP Recovery Claims, 2022 WL 697898 (Fla. App. March 9, 2022) (standing required unless  representation "call[s] into question the fair administration of justice"); Piedmont Hospital, Inc. v. Reddick, 599 S.E.2d 20 (Ga. App. 2004); Johnson v. Prime Bank, 464 S.E.2d 24 (Ga. App. 1995); Friedman v. Bhalala, 2013 Ill. App. Unpub. LEXIS 1251 (Ill. App. June 7, 2013); Schwartz v. Cortelloni, 685 N.E.2d 871 (Ill. 1997) (dictum); Lyons v. Ryan, 756 N.E.2d 396 (Ill. App. 2001); Sadler v. Creekmur, 821 N.E.2d 340 (Ill. App. 2004) (standing required to sue lawyer for having a conflict of interest); Keller v. Keller, 2020 IL App (2d) 180960 (Ill. App. Feb. 3, 2020) (odd context; read the case); National Bank of Andover, N.A. v. Aero Standard Tooling, Inc., 49 P.3d 547 (Kan. App. June 28, 2002); Harkins v. House, 2021 WL 4486503 (Ky. Sept. 30, 2021) (with the usual exceptions, but must be serious); Clapper v. Logsdon, 894 So. 2d 510 (La. App. 2005); Davis v. Poelman, 178 So.2d 306 (La. App. 1965), affirmed in part and reversed in part on other grounds 319 So. 2d 351 (La. 1975); McLachlen v. Dynatemp, Inc., 2018 WL 1256180 (Md. App. March 12, 2018) (unless non-client can show prejucice); Payne v. St. Louis Grain Corp., 562 S.W.2d 102 (Mo. App. 1977); Miller v. City of Omaha, 260 Neb. 507 (2000); Hawkes v. Lewis, 586 N.W.2d 430 (Neb. 1998);  In re Anderson, 2006 Neb. App. LEXIS 20 (Neb. App. Feb. 14, 2006); James W. Pengilly Trust v. Eighth Jud. Dist. Ct., 2013 Nev. Unpub. LEXIS 1438 (Nev. Sept. 20, 2013) (unless the conflict "impacts the non client moving party's interest in a just and lawful determination of its claims"); HSBC Bank USA, N.A. v. Santos, No. 1139, 35755/15 (N.Y. App. Div. July 16, 2020); Tekni-Plex, Inc. v. Meyer & Landis, 674 N.E.2d 663 (N.Y.), reh'g denied, 676 N.E.2d 503 (N.Y. 1996); Ellison v. Chartis Claims, Inc., 2016 WL 4099290 (N.Y. App. Div. Aug. 3, 2016); Cunningham v. Anderson, 2009 N.Y. App. Div. LEXIS 7393 (N.Y. App. Oct. 22, 2009); Hall Dickler Kent Goldstein & Wood, LLP v. McCormick, 830 N.Y.S.2d 195 (N.Y. App. 2007) (after saying standing needed, court ruled on the merits); Develop Don’t Destroy Brooklyn v. Empire State Development Corp., 816 N.Y.S.2d 424 (N.Y. App. 2006); Singh v. Friedson, 767 N.Y.S.2d 245 (N.Y. App. 2003) & 783 N.Y.S.2d 46 (N.Y. App. 2004); D'Alessandro v. Eastman Kodak Co., 765 N.Y.S.2d 286  (N.Y. App. 2003); Ogilvie v. McDonald's Corp., 742 N.Y.S.2d 897 (N.Y. App. 2002); Goldberber & Dubin, P.C. v. Hochfelder, 2011 N.Y. Misc. LEXIS 3631 (N.Y. Sup. Ct. July 21, 2011); Witschey v. Medina County Bd. of Commissioners, 862 N.E.2d 535 (Ohio App. 2006) (followed Morgan, below); Legal Aid Society of Cleveland v. W&D Partners I, LLC, 834 N.E.2d 850 (Ohio App. 2005) (member of LLC has not standing to sue former lawyer for LLC); Dawn G. v. Michael L.G., 2004 Ohio App. LEXIS 4463 (Ohio App. Sept. 17, 2004); Morgan v. North Coast Cable Co., 586 N.E.2d 88 (Ohio 1992); City of Youngstown v. Joenub, Inc., 2001 Ohio App. LEXIS 4438 (Ohio App. 2001); Lloyd v. Thornsbery, No. 2019-P-0080 (Ohio App. 11th Dist. Jan. 29, 2021); Barnett Mgm't v. Columbia Reserve Homeowners' Ass'n, No. 112922 (Ohio App. 8th Dist. Nov. 22, 2023); Cordova v. Nashville Ready Mix, Inc., No. M2018-02002-COA-R3-CV (Tenn. App. May 19, 2020); In re Middleton, 90 S.W.3d 921 (Tex. App. 2002); Jones v. Lurie, 32 S.W.3d 737 (Tex. App. 2000); Glassell v. Ellis, 956 S.W.2d 676 (Tex. App. 1997); Pioneer Natural Gas Co. v. Caraway, 562 S.W.2d 284 (Tex. Civ. App. 1978) (as to Texas, see discussion of Middleton below); Bellevue Farm Owners Ass'n v. Stevens, No. 77830-7-1 (Wash. App. May 11, 2020); Ahearn v. Ahearn, 993 P.2d 942 (Wyo. 1999); Re Great North Data Ltd., 2020 NLSC (CanLII) (S. Ct. Newf. & Lab. March 19, 2020) (In bankruptcy the debtor does not have standing).

        Murchison v. Murchison, No. B264825 (Cal. App. March 17, 2016). Divorce proceeding. Court ordered W to list the marital home for sale so that H’s share of the community debt on the property could be extinguished. W attempted to do this, but, in the meantime, had trouble making mortgage payments. W’s lawyer stepped in and purchased the property, assuming debts and liens and giving W $20,000. The lawyer documented everything in evident compliance with California Rule 3-300 (substantially similar to Mode Rule 1.8(a)). The opinion does not reflect how the sale might have been unfair to W. Nevertheless, H moved to disqualify W’s lawyer. The trial court granted the motion. In this opinion the appellate court reversed. First, and primarily, the court held that H had no standing to disqualify a lawyer who had never represented H. Recognizing an exception to the standing requirement where the lawyer’s conduct had a “continuing effect on the judicial proceedings,” the appellate court found no such effect here.

        In United States v. Rogers, 9 F.3d 1025 (2d Cir. 1993), the court said that the movant needed standing, but resolved the conflict issue on grounds other than standing.

        In Combustion Engineering Caribe, Inc. v. George P. Reintjes Co., Inc., 298 F. Supp. 2d 215 (D.P.R. 2003), the court acknowledged that standing was an issue, but ruled on the merits without expressly deciding the standing issue. 

        Cases Holding that One May Not Need Standing.  Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984); United States v. Clarkson, 567 F.2d 270 (4th Cir. 1977); Brown & Williamson Tobacco Corp. v. Lockwood-Greene Engineers, Inc., 563 F.2d 671 (5th Cir. 1977); In re Gopman, 531 F.2d 262 (5th Cir.), rehearing en banc denied, 542 F.2d 575 (5th Cir. 1976); Diagnostic Affiliates of N.E. Hou, LLC v. United Health Grp., Inc., No. 2:21-CV-00131 (S.D. Tex. Jan. 18, 2022); Hoedebecke v. City of Springfield, No. 20-cv-3057 (C.D. Ill. March 11, 2021) (if movant can show "adverse impact" on movant); Smith v. TFI Family Servs., Inc., 2018 WL 2926474 (D. Kan. June 8, 2018) (where child custody is involved); Greenfield MHP Assocs., L.P. v. Ametek, Inc., 2018 WL 538961 (S.D. Cal. Jan. 24, 2018) (odd discussion of Article III of the U.S. Constitution); Steel Workers Pension Trust v. The Renco Group, Inc., 2016 WL 3633079 (W.D. Pa. July 7, 2016) (under court's duty to ensure compliance with ethics rules); Bernhoft Law Firm, S.C. v. Pollock, 2013 U.S. Dist. LEXIS 97165 (S.D. Cal. July 11, 2013) (where lawyer has duty of confidentiality to non-client); American Family Mut. Ins. Co., Inc. v. Haslam, 2012 U.S. Dist. LEXIS 1883 (D. Col. Jan. 6, 2012) ("tend to undermine the validity of the proceedings"); O'Malley v. Novoselsky, 2011 U.S. Dist. LEXIS 66406 (N.D. Ill. June 14, 2011); Abassi v. BAE Systems Info. & Electronic Systems Integration, 2011 U.S. Dist. LEXIS 22410 (S.D. Cal. March 7, 2011); Drake v. Karahuta, 2010 U.S. Dist. LEXIS 5703 (W.D.N.Y. Jan. 25, 2010); In re CellCyte Genetic Corp. Sec. Lit., 2008 U.S. Dist. LEXIS 94761 (W.D. Wash. Nov. 20, 2008) (to “protect the integrity of the process); Simply Fit of N. Amer. v. Poyner, 2008 U.S. Dist. LEXIS 74457 (E.D.N.Y. Sept. 26, 2008); Walsh v. Consolidated Design & Engineering, Inc., 2008 U.S. Dist. LEXIS 2474 (E.D. Pa. Jan. 14, 2008); Rudzinski v. Metropolitan Life Ins. Co. v. Sharp Electronics Corp., 2007 U.S. Dist. LEXIS 79528 (N.D. Ill. Oct. 25, 2007) (no disqualification because conflict would not affect the "fair administration of justice");  Abraham v. Super Buy Tires Inc., 2007 U.S. Dist. LEXIS 2229 (S.D. Cal. Jan. 10, 2007); Jamieson v. Slater, 2006 U.S. Dist. LEXIS 86712 (D. Ariz. Nov. 27, 2006).  FMC Technologies, Inc. v. Edwards, 420 F. Supp. 2d 1153 (W.D. Wash. 2006); Robbins v. United States of America, 2006 U.S. Dist. LEXIS 6593 (D. Ariz. Feb. 14, 2006) (court ruled on merits without mentioning standing); Tyson v. Equity Title & Escrow Co., 282 F. Supp. 2d 829 (W.D. Tenn. 2003) (court "presumed" that the plaintiff had standing to move to disqualify law firm for defendant); Drag Racing Technologies, Inc. v. Universal City Studios, Inc., 2003 U.S. Dist. LEXIS 6861 (S.D.N.Y. April 24, 2003); British Int’l. Ins. Co. v. Seguros La Republica, 2002 U.S. Dist. LEXIS 19514 (S.D.N.Y. October 30, 2002); Skidmore v Warburg Dillon Read LLC, 2001 U.S. Dist. LEXIS 6101 (S.D.N.Y. 2001);  Abbott v. Kidder, Peabody & Co., Inc., 42 F. Supp. 1046 (D. Colo. 1999): Planning & Control, Inc. v. MTS Group, Inc., 1992 U.S. Dist. LEXIS 3004 (S.D.N.Y. 1992); Chapman Engineers v. Natural Gas Sales Co., 766 F. Supp. 949 (D. Kan. 1991); SMI Industries Canada, Ltd. v. Caelter Industries, Inc., 586 F. Supp. 808 (N.D.N.Y. 1984); Altschul v. Paine Webber, Inc., 488 F. Supp. 858 (S.D.N.Y. 1980); Estates Theatres, Inc. v. Columbia Pictures Industries, Inc., 345 F. Supp. 93 (S.D.N.Y. 1972); Ex parte Osbon, 888 So. 2d 1236 (Ala. 2004) (standing not discussed, even though non-client made the motion); In re Arriaga & Assocs. Wage & Hour Cases, 2022 WL 2952206 (Cal. App. Unpub. July 26, 2022) (good discussion of California cases); Dino v. Pelayo, 51 Cal. Rptr. 3d 620 (Cal. App. 2006) (court said movant could overcome lack of standing if lawyer had fiduciary duty to non-client); Li v. Prediwave Corp., 2005 Cal. App. Unpub. LEXIS 8664 (Cal. App. Sept. 23, 2005) (contradicting earlier California cases cited in prior paragraph); Zarco Supply Co. v. Bonnell, 658 So. 2d 151 (Fla. App. 1995);  Bernocchi v. Forcucci, 614 S.E.2d 775 (Ga. 2005) (applied "fair or efficient administration of justice" standard); Lavaja v. Carter, 505 N.E.2d 694 (Ill. App. 1987), appeal denied 515 N.E.2d 110; Rowen v. Le Mars Mut. Ins. Co. of Iowa, 230 N.W.2d 905 (Iowa 1975);  DeBlasio v. Stone, 2012 W. Va. LEXIS 976 (W. Va. Dec. 7, 2012). (standing not a requirement if the conflict calls "in question the fair and efficient administration of justice"); Perin v. Spurney, 2005 Ohio App. LEXIS 6112 (Ohio App. Dec. 22, 2005) (need to protect information confers standing); Henry Filters, Inc. v. Peabody Barnes, Inc., 611 N.E.2d 873 (Ohio App. 1992);  American Dredging Co. v. Philadelphia, 389 A.2d 568, 572-573 (Pa. 1978); Weber v. Lancaster Newspapers, Inc., 878 A.2d 63 (Pa. Super. 2005); Newton v. Stoneridge Apartments, 2018 WL 1773392 (Utah App. April 12, 2018) (inherent power; even "with no dog in the fight"); Eugster v. City of Spokane, 39 P.3d 380 (Wash. App. 2002); State ex rel. Morgan Stanley & Co. v. Macqueen, 416 S.E.2d. 55 (W.Va. 1992); Garlow v. Zakaib, 413 S.E.2d 112 (W. Va. 1991); Foley-Ciccantelli v. Bishop's Grove Condo. Ass'n, 2011 Wisc. LEXIS 326 (Wis. May 24, 2011).

        Subject Never Raised.  World Food Systems, Inc. v. Bid Holdings, Ltd., 2110 U.S. Dist. LEXIS 2449 (S.D.N.Y. 2001).  Plaintiff's motion to disqualify defendants' lawyer, because of conflict among defendants, granted without anyone, including the court, mentioning standing.  Likewise, in Outside the Box Innovations, LLC v. Travel Caddy, Inc., 2010 U.S. App. LEXIS 2333 (Fed. Cir. Feb. 1, 2010); Reschke v. Baldwin Transfer Co., 2007 U.S. Dist. LEXIS 52427 (E.D. Ark. July 19, 2007); Wachel v. First Colony Life Ins. Co., 2007 U.S. Dist. LEXIS 35549 (N.D. Ind. May 11, 2007); and Ferrara v. Jordache Enterprises Inc., 819 N.Y.S.2d 421 (N.Y. Misc. 2006) .  In Quality Developers v. Thorman, 31 P.3d 296 (Kan. App. 2001) the court considered the plaintiff's motion to disqualify the defendants' lawyer on the merits, and denied it without ever discussing whether the plaintiff had standing to bring it.  As in World Food, the plaintiff claimed that the lawyer was representing defendants with conflicting interests.  Similar results in Murray v. Village of Hazel Crest, 2006 U.S. Dist. LEXIS 89388 (N.D. Ill. Dec. 7, 2006); Robbins v. United States of America, 2006 U.S. Dist. LEXIS 6593 (D. Ariz. Feb. 14, 2006), and Advanced Display Systems, Inc. v. Kent State University, 2001 U.S. Dist. LEXIS 19466 (N.D. Tex. 2001).

       Reitzel v. Hale, 820 N.Y.S.2d 845 (N.Y. Misc. 2006) .  The conflicted lawyer raised the other party's standing, but the court granted the motion to disqualify without commenting on standing any further.

       Hall Dickler Kent Goldstein & Wood, LLP v. McCormick, 830 N.Y.S.2d 195 (N.Y. App. 2007).  The court said the movant needed standing, but proceeded to rule on the motion even though movant had no standing.

        Lawyer Disqualified Sua Sponte. Yost v. V.K. Truck Lines, Inc., 2006 U.S. Dist. LEXIS 3286 (D. Kan. Jan. 27, 2006); Coaker v. Geon Co., 890 F. Supp. 693 (N.D. Ohio 1995); Seifert v. Dumatic Industries, Inc., 197 A.2d 454 (Pa. 1964).

        Deleo v. Swirsky, 2002 U.S. Dist. LEXIS 8493 (N.D. Ill. May 14, 2002).  Court denied a motion to disqualify the plaintiffs' lawyer for lack of standing, but then disqualified the plaintiffs' lawyer pursuant to the “court’s inherent power to supervise the attorneys practicing before it.”

        In Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796 (N.D. Cal. 2004), the court held that the owner of an limited partnership may move to disqualify the law firm suing the limited partnership where the law firm had represented him personally but not the limited partnership.

        Interesting Texas Development.  In re Middleton, 90 S.W.3d 921 (Tex. App. 2002).  The essential facts are set forth by the court as follows:

Susan Freeman is Betty Robinson's step-daughter. According to Freeman, she and her husband and Robinson entered into a contract. Under the alleged contract, Freeman and her husband would move to Kerrville to take care of Robinson. In exchange, Robinson would pay the Freemans $ 40,000 a year; would purchase a house together with the Freemans and would pay all expenses; would give the Freemans use of her cars; and would leave them, upon her death, one-third of her estate,  her share in the jointly-owned house, and a car. According to the Freemans, Robinson, with the encouragement and assistance of Virginia Middleton, Robinson's former caretaker, did not honor the agreement.

        The Freemans sued Robinson and Middleton.  The Freemans then moved to disqualify the lawyer who attempted to represent both defendants, claiming that it was a conflict of interest to do so.  The trial court granted the motion.  The defendants sought mandamus from that ruling.  The appellate granted mandamus and reversed the trial court.

        The defendants raised the Freemans' standing to make the motion.  The appellate court noted that two appellate decisions post-dating Texas' adoption of the Model Rules required standing: Jones v. Lurie, 32 S.W.3d 737 (Tex. App. 2000); and Glassell v. Ellis, 956 S.W.2d 676 (Tex. App. 1997).  Here is where it gets interesting.  The court also noted that neither case made reference to the Texas ethics rules.  The court noted that Comment 17 to Texas Rule 1.06 (Texas' version of Model Rule 1.7) provided that opposing counsel could raise a conflict if:

. . . . the conflict is such as clearly to call in question the fair or efficient administration of justice . . . .

        The court then ducked the standing issue and decided the matter by looking at the relationship of the two defendants.  After doing so the court concluded that it did not clearly call in question the fair or efficient administration of justice.

        [Note: Texas Comment 17 to its Rule 1.06 is substantively the same as former Comment 15 to Model Rule 1.7.  We had not previously considered that comment in the standing context and cannot recall any other case that did.  We say "former" because in February 2002 the ABA House of Delegates accepted the "Ethics 2000" Commission's deletion of Comment 15.  In the meantime, until the states start considering adoption of the Ethics 2000 changes, lawyers facing a standing argument may want to consider reference to Comment 15 if it appears in rules of the state in question.]

        Judge's Standing?  In Dorsainvil v. Parker, 829 N.Y.S.2d 851 (N.Y. Misc. 2006) , the court noticed what it felt was a clear and unwaivable conflict.  He asked the parties to brief the issue of the court's standing to raise the issue.  He later, in the above opinion, disqualified the law firm without analyzing the standing issue.

        In  Emmis Operating Co. v. CBS Radio, Inc., 480 F. Supp. 2d 1111 (S.D. Ind. 2007) , using standing terminology, the court allowed a non-party to intervene to make a motion to disqualify.

        IMCO, L.L.C. v. Ford, 2011 U.S. Dist. LEXIS 124535 (N.D. Cal. Oct. 27, 2011).  The court noted the Ninth Circuit had not ruled on standing.  After discussing those cases from other jurisdictions that made exceptions to the standing requirement, the court said the moving party made no such showing in this case.

        Strict Standing Rule for Bankruptcy Litigants (posted July 18, 2018) In re Technicool Sys., Inc., 2018 WL 3429943 (5th Cir. July 16, 2018). Chapter 7 trustee sought to employ Law Firm as "special counsel" to consolidate Debtor with other related businesses and pierce the corporate veil. Debtor's owner ("Owner") objected claiming Law Firm was not a disinterested person under 11 U.S.C. § 327(a). The bankruptcy court and district court held Owner lacked standing to object. In this opinion the Fifth Circuit agreed. The court discussed the need for a strict standing requirement to prevent endless appeals in multi-party proceedings. In this case Owner could not show a direct economic harm from the appointment. In the court's words, "The order must burden his pocket before he burdens a docket." [Note: This is an amended opinion, superseding one dated June 20, 2018, and posted here on June 22, 2018. Same result, so we did not look for changes in the opinion.]

        Canada.  Green v. Affinity Financial Group Inc., 2008 CanLII 51936 (Ont. Sup. Ct. Sept. 25, 2008).  Court held that the other side can raise a conflict where the “proper administration of justice” was involved.

        Treatise.  Hazard, Hodes & Jarvis § 10.11, ns. 16 & 17.

        Law Review Articles. Alexander W. Jones, Student Commentary, Defenses to Disqualification: Fact Situations that Allow an Attorney to Avoid Disqualification for a Conflict of Interest, 27 J. Legal Prof. 195 (2002-2003); Ivy Johnson, Standing to Raise a Conflict of Interest, 23 N. Ill. L. Rev. 1 (2002); Douglas R. Richmond, The Rude Question of Standing in Attorney Disqualification Disputes, Amer. J. of Trial Adv. 17 (2001).

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