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Motions to Disqualify
If an
impermissible conflict becomes apparent only after the lawyer
has taken on the matter, and if consent by the affected clients
will not solve the problem, then the lawyer must withdraw. If
the lawyer does not voluntarily withdraw, then opposing counsel
may file a Motion to Disqualify.
In recent years, some litigators have found that a motion to
disqualify the opposing lawyers for conflict of interest is
an effective stall tactic. Thus, judges have begun to view motions
to disqualify with some suspicion. In response, Virginia courts
place a high and substantial burden on a party moving for disqualification,
pointing to the possibility of misuse of disqualification motions
for strategic reasons. The moving party filing a Motion to Disqualify
must pass a two-step test, requiring that more than an ethics
violation be shown. The moving party must show: 1) a "clear
violation" of the Virginia Rules, and 2) that the alleged conduct
will call in to question the integrity of the underlying proceedings.
The threshold question in a Motion to Disqualify is whether
the moving party can show a "clear violation" of the Virginia
Rules. Once a clear violation has been established, the moving
party must show how the integrity of the underlying proceeding
would be compromised if the lawyer were permitted to continue
representation.
The second question is whether the alleged ethical impropriety
will prejudice or somehow "taint" the proceedings. The moving
party bears the substantial burden of demonstrating specifically
how and as to what issues in the action the prejudice exists
or is likely to occur.
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