Motion to Recuse or Disqualify Counsel in Nevada

Background

“Under SCR 159, which governs conflicts based on former representation, a lawyer may be disqualified from representing a client against a former client if the current representation is substantially related to the former representation. Thus, for a potentially disqualifying conflict to exist, the party seeking disqualification must establish three elements:

1. that it had an attorney-client relationship with the lawyer,
2. that the former matter and the current matter are substantially related, and
3. that the current representation is adverse to the party seeking disqualification.”

(Nevada Yellow Cab Corp. v. Dist. Ct. (2007) 123 Nev. 44, 50 citing SCR 159.)

General Information for Complaints and Motions

“Under SCR 160, the disqualification of a lawyer practicing in a firm is generally imputed to other lawyers in the firm.” (Id.)

Three-part Test to Determine Substantial Relationship

“In Waid v. District Court, [the Nevada Supreme Court] recently adopted a three-part test to determine whether two representations are substantially related. A district court presented with a disqualification motion based on a former representation should:

1. make a factual determination concerning the scope of the former representation,
2. evaluate whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters, and
3. determine whether that information is relevant to the issues raised in the present litigation.”

(Nevada Yellow Cab Corp. v. Dist. Ct., 123 Nev. 44, 52 (Nev. 2007) quoting Waid v. District Court (2005) 121 Nev. 605.)

The Court in Waid noted that “a superficial resemblance between the matters is not sufficient; "rather, the focus is properly on the precise relationship between the present and former representation.” (Id.)

Disqualification Based on Conflict of Interest

“The general rule is that only a former or current client has standing to bring a motion to disqualify counsel on the basis of a conflict of interest.” (Liapis v. Second Judicial Dist. Court of State (2012) 282 P.3d 733, 737 citing Model Rules of Prof'l Conduct R. 1.7 annot; [RPC 1.7 is identical to the model rule]; see also Great Lakes Const., Inc.,114 Cal.Rptr.3d at 307 [“Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney.”])

Standard of Review and Burdens of Proof

“When considering whether to disqualify counsel, the district [and trial] court[s] must balance the prejudices that will inure to the parties as a result of its decision.” (McGrath v. Eighth Judicial Dist. Court of State (2012) 381 P.3d 639 [internal citations omitted].)

“To prevail on such a motion, the moving party must establish a reasonable possibility that some specific impropriety occurred, as well as the likelihood that ‘public suspicion or obloquy outweighs the social interests which will be served by a lawyer's continued participation in a particular case.’” (Id.)

The Court’s Decision

“Attorney ‘[d]isqualification is an extreme remedy that will not be imposed lightly. ’ Invariably, disqualifying an attorney causes delay, increases costs, and deprives parties of the counsel of their choice. ‘Courts should, therefore, disqualify counsel with considerable reluctance and only when no other practical alternative exists.’” (Millen v. Eighth Dist. Ct. (2006) 122 Nev. 1245, 1256 [internal citations omitted].)