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How-To: Write a Motion to Disqualify an Attorney

Background: An attorney has appeared in your civil case on behalf of your civil opponent
Problem: That attorney's representation is improper and/or unauthorized
Solution: You ask the Court to remove/disqualify the attorney from your case

I. Definitions

"the inability to perform some act due to the existence of factors rendering the performance improper or inappropriate. For instance, a judge may be disqualified from hearing a particular case because of having previously represented one of the parties involved." Source: Barron's Dictionary of Legal Terms, Steven H. Gifis, 5th Edition; © 2016

II. Legal Citations

Rule 1.010 Fla. R. Civ. P. | Scope and Title of Rules
These rules apply to all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply. The form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary. These rules shall be construed to secure the just, speedy, and inexpensive determination of every action. These rules shall be known as the Florida Rules of Civil Procedure and abbreviated as Fla.R.Civ.P.
Rule 4-1.6(a) RRTFB | Confidentiality of Information
(a) Consent Required to Reveal Information. A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

Rule 4-1.7(a) RRTFB | Conflict of Interest; Current Clients
(a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer must not represent a client if:
(1) the representation of 1 client will be directly adverse to another client; or
(2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Rule 4-1.8(a) RRTFB | Other Transactions
(b) Using Information to Disadvantage of Client. A lawyer is prohibited from using information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these rules.

Rule 4-1.9(a) RRTFB | Conflict of Interest; Former Clients
A lawyer who has formerly represented a client in a matter must not afterwards... represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent;

Rule 4-1.10(a) RRTFB | Imputation of Conflicts of Interest; General Rule
(a) Imputed Disqualification of All Lawyers in Firm. While lawyers are associated in a firm, none of them may knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so by rule 4-1.7 or 4-1.9 except as provided elsewhere...

(b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.

III. Samples

# PDF Comments
1± §1983 Case. Pro Se Filing. Duval. Perjury from a State Officer.
2✓ Partially Granted | Duval | 2013 | Attorney Filing | Whistleblower Case; Trayvon Martin Fallout; Advocate and Witness;
3- No Ruling | Duval | 2014 | Attorney Filing | Settlement stuff; Marital Stuff; Former Client; Material Witness
4✓ Substituted | Duval | 2017 | Attorney Filing | Romantic Relationship; Privileged Information; Imputed DQ;
5X Denied | Duval | 2018 | Attorney Filing | Police Officers Pension Fund; State Board; Switching Sides;
6✓ Substituted | Duval | 2019 | Attorney Filing | Tactical Advantage; Disciplinary Threats Levied
7X Denied | Duval | 2019 | Attorney Filing | Former Client; New Attorney;

IV. Templates

# Word Comments
1Duval Version | Replace all placeholder tags (eg "[plfName]" becomes "John Doe").

V. Quick Commentary

  • Standard of Review: 2-Prong Test
    1. existence of an attorney-client relationship
    2. matters are substantially similar
    "We next address the issue of the appropriate standard to apply to determine whether the Schlesinger firm should be disqualified. In conflict-of-interest cases such as this arising under the former Code of Professional Responsibility, one seeking to disqualify opposing counsel was required to show that (1) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship, and (2) the matter in which the law firm subsequently represented the interest adverse to the former client was the same or substantially related to the matter in which it represented the former client."

    - see State Farm v KAW, 575 So. 2d (Fla. 1991)

  • Conflict of Interest:
    "We are of the opinion that a lawyer represents conflicting interests, within the meaning of the Canon, when it becomes his duty, on behalf of one client, to contend for that which his duty to another client would require him to oppose."

    "a serious question of conflict of interest arose that should have been resolved by the prompt withdrawal by the respondent from the representation of the trustees and by advising the trustees to secure other attorneys to represent them."

    "an attorney may not represent conflicting interests in the same general transaction, no matter how well-meaning his motive or however slight such adverse interest may be. The rule in this respect is rigid, because it is designed not only to prevent the dishonest practitioner from fraudulent conduct but also to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent." - see State Farm v KAW, 575 So. 2d (Fla. 1991)

  • Client's Entitlement: Client's are owed confidentiality
  • Four Authorities for Judicial Disqualification: "In Florida, there are four separate expressions concerning the disqualification of trial judges, which are set forth in: (1) The Code of Judicial Conduct Canon 3-C; (2) section 38.10, Florida Statutes (1981); (3) Florida Rule of Criminal Procedure 3.230, which was adopted verbatim by this Court from a former statute, section 911.01, Florida Statutes (1967); and (4) Florida Rule of Civil Procedure 1.432."

    - see Livingston v. State, 441 So.2d 1083, 1086-87 (Fla. 1983)

    1. Canon 3-C, Florida Code of Judicial Conduct;
    2. §38.10 FS;
    3. Rule 3.230 Fla. R. Crim. P.; and
    4. Rule 1.432 Fla. R. Civ. P..
  • Download as many sample documents as you'd like
    • Contact TBD for more free samples
  • Feel free to use the templates (see Part IV - above) to help draft your 'Motion for Leave to Reply'
  • Save the final version as a PDF file.
  • File the final version in court

VI. Additional Notes

VII. Bibliography

VII. Conclusion

If your civil opponent has hired an attorney who should not be on the case then file a Motion to Disqualify the attorney.

Congratulations! You're now booked up on how to write a Motion to Disqualify an Attorney!

Please get the justice you deserve.


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