how to disqualify an attorney as a witness indiana

The court held that a trial court should grant a motion to disqualify an expert witness, if the moving party can demonstrate that “the adversary had a confidential relationship with the expert; and the adversary disclosed confidential information to the expert that is relevant to the current litigation.”

Full Answer

What should an attorney do after receiving a motion to disqualify?

 · Rule 3.7 - Lawyer as Witness (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless : (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.

How to disqualify a lawyer with a conflict of interest?

 · The opposing party filed a motion to disqualify that attorney due to her participation as a witness in the case. The trial court granted the motion based on Rule of Professional Conduct 3.7. That Rule provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony ...

Do you have to report an impaired judge in Indiana?

The defendant municipality moved to disqualify premised upon DR 5-102 (b) on the ground that testimony was necessary on the issue of whether the plaintiff’s alleged damages were the result of the defendants’ actions or the attorney’s advice. The Second Department affirmed the Supreme Court’s denial of the defendants’ motion and noted ...

When is disqualification of a party’s attorney an extreme remedy?

 · By far the majority of successful motions to disqualify are brought on the basis of a conflict of interest with a former or concurrent client or imputation, but attorneys should also …

How to avoid motion to disqualify?

Two important pre-motion strategies are effective. First, identify and resolve potential conflicts, including both multiple and successive representations, before undertaking a representation or hiring a lateral.

Why do courts differ on how they address motions to disqualify?

Courts differ on how they address motions to disqualify, especially because such motions are at times simply a litigation tactic by an opposing party in search of a strategic advantage.3 Additionally, courts are usually reluctant to interfere with a client’s choice of counsel unless the conflict is real and there are few options other than to grant disqualification.4

What is the best defense to a motion to disqualify?

Where a conflict exists, an effective written consent is the best defense to a motion to disqualify. Second, take effective steps to mitigate, if not eliminate, risks that a former client’s confidences and secrets might be accessible to attorneys working on a matter involving the former client. Increasingly, courts nationwide have recognized ...

Can a client make a successful case for disqualifying an attorney?

Attorneys should be aware, however, that clients can make a successful case for disqualifying attorneys who had a greatly invested role with the organizational client or where the playbook knowledge is uniquely and particularly relevant to the new representation .

What is the duty of loyalty in a disqualifying former client?

Typically, a former client seeking to disqualify a former attorney from representing an opposing party must identify specific, cogent information that the attorney possesses and show that the information is confidential and implicates the duty of loyalty.

Can a former client be disqualified from representing an opposing party?

This comment makes clear that attorneys are permitted, under some circumstances, to engage in representations that are adverse to a former client. Possessing “general knowledge” about a client may not, by itself, be enough for disqualification. Typically, a former client seeking to disqualify a former attorney from representing an opposing party must identify specific, cogent information that the attorney possesses and show that the information is confidential and implicates the duty of loyalty.

What does a former client say about an attorney?

Frequently, a former client accuses the attorney of having “insider information” regarding the client that does not rise to the level of a client confidence. Indeed, even if the attorney does not possess any direct information regarding the present lawsuit or transaction, the client may say that the attorney understands how the client thinks and acts. The attorney may know the client’s bottom line for settlement or how the client prefers to approach litigation. This is often referred to as “playbook knowledge”—the attorney knows the client’s paths and approaches.

When is it necessary to disqualify an expert witness?

Disqualifying the opponent’s expert witness is often necessary when the case demands progress and additional assistance. However, doing so may be complicated and difficult depending on various factors such as a credible individual with extensive years of experience and knowledge.

How to remove an expert witness?

To remove an expert witness during the initial states of a case, it is important to validly disqualify him or her within voir dire with objections or motions filed by the opposing lawyer early. This process often requires specific knowledge of reliable testing methods as applied to various pieces of evidence or knowing if the expert is a relevant professional for the field of study.

What happens if you don't follow the correct procedure in a medical malpractice case in Florida?

If those in the case do not follow the correct procedure, the expert witness could be disqualified, and the case may be thrown out.

Why are experts disqualified?

However, sometimes these professionals are disqualified because they have bias with the other party, a conflict of interest or a bias with ...

How can excluding a witness increase the success of a trial?

It is possible to increase the success of a trial for criminal cases or with civil claims by excluding a witness that has little relevance or who uses unreliable testing methods. By excluding the witness’ testimony, the opposing legal team is able to remove any connection of that specific professional from the case and increase strategy implementation.

Can you keep an expert witness?

No matter how qualified the expert witness appears for a certain case, disqualification happens in more than half of the cases depending on either criminal or civil processes. When the profession is no longer a designated expert witness, it is still possible to keep him or her to help find and assess a new expert witness to help the case.

What is the effect of a judge's public manifestation of approval of invidious discrimination on any basis?

[1] A judge's public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge's membership in an organization that practices invidious discrimination creates the perception that the judge's impartiality is impaired.

What is the principle of an independent, fair, and impartial judiciary?

The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society.

What is a permissive rule?

Where a Rule contains a permissive term, such as “may” or “should,” the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion.

How many Canons are there in the Code of Judicial Conduct?

[1] The Code of Judicial Conduct consists of four Canons, numbered Rules under each Canon, and Comments that generally follow and explain each Rule. Scope and Terminology sections provide additional guidance in interpreting and applying the Code. An Application section establishes when the various Rules apply to a judge or judicial candidate.

What is the Code of Judicial Conduct?

[3] The Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates.

What is Rule 3.7?

RULE 3.7: Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities

What is the obligation of a judge?

[1] Taking action to address known misconduct is a judge's obligation. Paragraphs (A) and (B) impose an obligation on the judge to report to the appropriate disciplinary authority the known misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known misconduct among one's judicial colleagues or members of the legal profession undermines a judge's responsibility to participate in efforts to ensure public respect for the justice system. This Rule limits the reporting obligation to those offenses that an independent judiciary must vigorously endeavor to prevent.

What is the first step in disqualifying a lawyer?

First, the issue of standing must be considered. A party bringing a motion to disqualify a lawyer in litigation should be involved in and affected by the conflict of interest. In other words, the lawyer sought to be conflicted out of the case must have represented you or your entity.

What is the basis for a motion to disqualify opposing counsel?

The basis for a motion to disqualify opposing counsel is generally that a conflict of interest exists because that attorney has previously represented the client, and as a result of that representation gained confidential information which could be used to harm the former client’s interests in the case.

Do you have to prove causation and damages in a malpractice claim?

As to any potential legal malpractice claim, such a claim would still require proof of both causation and damages, since a conflict of interest is still just another form of negligence or conduct below the standard of care. So a client would still have to establish causation and damages even after a successful motion to disqualify.

Does a motion to disqualify opposing counsel give rise to a malpractice claim?

The effect of the granting of a motion to disqualify opposing counsel does not necessarily give rise to a legal malpractice claim , although it might. The initial effect is, of course, to eliminate the adversary’s counsel of choice in the case and force them to obtain new counsel.

Can a lawyer sue a former client?

Surely, lawyers are not strictly prohibited from ever suing a former client on behalf of a new client, but if there is a substantial relationship between the first representation and the issues in the litigation, the Courts will likely presume that confidential information was obtained and disqualify the lawyers.

Can you disqualify a lawyer on the other side?

A person will generally not be successful in disqualifying a lawyer on the other side just because that lawyer has a conflict of interest in representing the party on the other side and some third party.

Do lawyers jump ship?

Lawyers are “jumping ship” all the time these days. Such instances raise serious conflicts of interest questions that should be carefully explored by a qualified expert. And those fact patterns almost inevitably lead to motions in the litigation to disqualify the lawyers.

What was defendant James saying when he called Plaintiff's counsel?

Defendant James was saying that he would be calling Plaintiff’s counsel as witnesses to testify about the circumstances under which they had asked another witness to sign an affidavit. That witness later disavowed his affidavit, which was highly supportive of Plaintiff’s case, and it turned out that he had been unable to read it before signing it.

When is testimony necessary?

A lawyer’s testimony is “necessary” when it is "relevant, material, and unobtainable by other means.". Op. ¶ 17. Since there were other persons who had been present at the signing of the affidavit, that testimony was "obtainable through other means," so the Defendant’s lawyers were not required to step aside.

What is Rule 3.7?

Rule 3.7 deals with a lawyer’s ability to continue as litigation counsel if he may be called as a witness. It says: A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue, (2) the testimony relates to the nature and value ...

2 attorney answers

I'm licensed in California although I tend to agree. If you're representing yourself, you might not have presented the salient facts to the judge in a manner that the judge could rule in your favor. Great advice by learned counsel on this forum. A consultation with a family law lawyer licensed in your state ought to answer your questions.

Hillary Johns

You didn't come out and say so, but it sounds to me like you are appearing and representing yourself pro se.