how to oppose a recusing attorney

The attorney deponent will be told what is self-evident in privilege law: There is no blanket objection to protect attorney-client or work-product. Make your objection question-by-question and document-by-document. Make a record upon which a court can base its ruling.

Full Answer

Can a judge or prosecutor recuse themselves from a case?

Most judges and prosecutors will automatically recuse themselves if they feel there is a conflict of interest. If they do not, the defendant’s Mira Mesa criminal attorney can file a motion to have the either judge or prosecutor recused from the case and the prosecutor can file one to have the judge recused.

How do you deal with opposing attorneys?

You have to deal forcefully with opposing attorneys ... and gently with insurance commissioners who ask you to account for the way you handled a particular case. Of all these communications, perhaps none is as important as your way of stating your ideas to opposing lawyers.

What does it mean to recuse a case?

What Does Recuse Mean in Law? A recusal occurs when a judge or prosecutor would would have normally taken a case does not participate in it. This can happen if they are removed from the case due to a motion on behalf of an attorney or due to the individual’s decision.

How do you apologize to an opposing attorney?

Instead, apologize without any ifs, ands, or buts. Empathize before stating an opinion. Spend a sentence or two reflecting the reader's feelings, empathizing with how the opposing attorney might view the case, for example. Do that before launching into your own views. Writing to an opposing attorney is never easy.

What are grounds for recusal?

The Due Process clauses of the United States Constitution require judges to recuse themselves from cases in two situations: Where the judge has a financial interest in the case's outcome. Where there is otherwise a strong possibility that the judge's decision will be biased.

What is an example of a conflict of interest for an attorney?

An example would be a minor who needs representation and whose fees are being paid for by their parents. If the parents feel that they are entitled to privileged communication, or that they have the right to direct the attorney in the proceedings, this would be a conflict of interest.

What is a disqualification motion?

Disqualification motions implicate the most important duties that an attorney owes a client: the duties of confidentiality and loyalty. Under the Colorado Rules of Professional Conduct (Colorado Rules or Colo. RCP), an attorney must safeguard client confidences and secrets, subject to a few exceptions.

What is the rule about simultaneously representing two clients whose interests are adverse?

(a) A lawyer shall not, without informed written consent* from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter.

What are the two major causes of conflict of interest in law?

There are two different sets of circumstances which may constitute a concurrent conflict of interest. One is when the representation of one client would be directly adverse to the other client. [4] This occurs when the interests of one client requires the lawyer to act against the interest of his other client.

What are the rules of conflict of interest?

Under the Act, a public official has a disqualifying conflict of interest in a governmental decision if it is foreseeable that the decision will have a financial impact on his or her personal finances or other financial interests.

How do I disqualify an attorney in California?

In ruling on a motion to disqualify, the court should weigh:the party's right to counsel of choice;the attorney's interest in representing a client;the financial burden on a client of change of counsel;any tactical abuse underlying a disqualification motion; and.More items...

What is the 1.7 rule?

[1] Rule 1.7 is intended to provide clear notice of circumstances that may constitute a conflict of interest. Rule 1.7(a) sets out the limited circumstances in which representation of conflicting interests is absolutely prohibited even with the informed consent of all involved clients.

What is an Unwaivable conflict of interest?

The second general category of unwaivable conflicts involves conflict situations where a lawyer is prohibited from representing multiple clients even if the lawyer is able to provide adequate disclosure and the client is willing to consent.

Is a conflict of interest illegal?

Like other types of illegal or unethical activities, conflict of interest activities carry the risk of consequences. Federal and state laws have been set up to criminalize conflicts of interest in the public sector, and in certain circumstances, conflict of interest can result in prosecution.

Why do judges recuse themselves?

Recusals usually take place due to a conflict of interest of some type that will result in the judge or prosecutor being too biased to fairly participate in the case . Some of the top reasons a recusal may take place include: Bias or prejudice concerning the party or their attorney.

Who recused himself from the Mueller investigation?

Ever since Mueller was named as the special counsel in the Russia investigation against Trump, there has been a lot of talk about the fact that Jeff Sessions recused himself from the investigation and how that may have changed the outcome of the whole situation.

What happens if a judge knows about evidence?

If a judge knows about such evidence, it could stop her from being impartial and she should recuse herself. Similarly, if a judge was the prosecutor in a case years ago that is later appealed, she could not judge the appeal.

What is personal knowledge of disputed facts?

This is less of a problem for prosecutors, but often there is evidence uncovered during the investigation of a case that is not actually admitted in the factual record of the case or that conflicts with the evidence presented in court .

What is an economic interest in a case?

An economic interest in the case. While this is more commonly a problem for judges handling civil cases, it can still affect criminal ones as well. For example, if the prosecutor’s wife holds a lot of stock in a company being tried for fraud (which would likely result in the stock plummeting if the company is found guilty), he might be, ...

Can a defense lawyer represent more than one defendant?

The usual grounds are that a defense lawyer shouldn’t represent more than one defendant on a case . Another conflict is the defense lawyer has previously represented a co-defendant or a witness in the case. Anyone who believes their motion to recuse a judge or prosecutor was improperly denied should tell their Carmel Valley defense lawyer ...

Is it enough to try a case involving a person?

Simply trying a case involving the person or their lawyer in the past isn’t enough, there must be evidence there is actual bias or prejudice preventing them from acting fairly in the trial. A personal relationship to the party or their attorney.

Why was the subpoena served on former in-house counsel moot?

The subpoena served on former in-house counsel was moot because the requested documents had already been produced. What stands out in the opinion is a total lack of any clarity as to what the deposition was intended to accomplish or why it was necessary. Small wonder that it was quashed. Delor v.

What are permissible areas of deposition of an attorney?

The permissible areas of deposition of an attorney were spelled out in a protective order. Not only is the issue of deposing counsel often subject to an attempted protective order, it is also sometimes subject to a request that the court delineate in advance the parameters of what questions will be permissible.

What is the procedure for quashing a deposition?

The procedure is that a notice for deposition or a subpoena issues. The opponent of the notice or subpoena brings a motion to quash. The court undertakes an inquiry into the proposed scope of the deposition. More often than not, no order quashing the deposition will issue.

Does the court find the blanket assertion of the privilege to be compelling enough to quash his deposition?

The court, however, does not find the blanket assertion of the privilege to be compelling enough too quash his deposition.” (record citations omitted). Purportedly state law was applied, but then the court reasoned based entirely on federal law precedent, allowing the deposition to proceed on a claim of fraud.

Does simple possession of a law license result in blanket immunity from a deposition?

Simple possession of a law license does not result in blanket immunity from a deposition. Therefore, the motion to quash on this ground is denied. This decision does not, however, prevent Fiur from asserting the privilege, if applicable, in response to certain questions during the deposition.”. Wright v.

Is an attorney a source for discovery?

Attorneys with discoverable facts, not protected by attorney-client privilege or work product, are not exempt from being a source for discovery by virtue of their license to practice law or their employment by a party to represent them in litigation.”.

Is Rule 30 in the Federal Rules of Civil Procedure?

It is inconceivable that had the drafters of the Federal Rules of Civil Procedure, the Supreme Court or Congress intended to exempt attorneys from the provisions of Rule 30 or to otherwise limit discovery from attorneys, they would not have included a provision in Rule 30 similar to that contained in Rule 26 (b) (3).

3 attorney answers

You did not state what the motion was or who filed it. Whatever it is, you should probably be seeking counsel and not doing you seemingly are not familiar with the rules of civil procedure, but any lawyer would be. Get counsel.

Lawrence S. Rubin

In the Federal Court, as well as all state courts of which I am aware, it is mandatory that copies of motions be served on all parties. Of course, in the case of a certificate of service, it will be presumed that service was made absent information to the contrary. But, a party is deemed to know what is in the court record.

Charles Michael Tobin

How do you have a copy of this? Typically, service (after initial service and notice of the suit) is made simply through a mailing. If opposing counsel has mailed a you a copy and that is what the certificate states, then that is valid.

Anthony Bettencourt Cameron

Go to a law library and read the relevant chapters in "the law of lawyering, third edition". The best template is to go paragraph by paragraph and respond civilly to each assertion. You have a right to be heard. You have a right not to prejudiced by a short trial date or sudden withdrawal.

Christine C McCall

Unless you are on the verge of a trial -- and often, even then -- no judge will force your attorney to hang in with you. Lawyers are not slaves, hostages, or indentured servants...

What does Swisher say about deference?

“Judges should grant deference to attorneys when those attorneys invoke professional considerations, absent of course other facts suggesting that the attorney cries wolf or that granting the motion will significantly prejudice the case ,” he says.

What is the purpose of Rule 1.6?

However, Model Rule 1.6 speaks to one of the hallmark principles of American legal ethics: the duty of confidentiality. This must be considered when a lawyer moves for withdrawal. The opinion explains that when lawyers file a motion to withdraw, they “must consider how the duty of confidentiality under Rule 1.6 may limit the information ...

Can a lawyer cancel a contract if a client repudiates it?

“If a buyer repudiates a contract, the seller can cancel without judicial approval. A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay.

Can a lawyer be a professional?

A lawyer can’t be a professional unless she can get paid.”. The opinion emphasizes that the process of filing for and considering a motion to withdraw requires cooperation between lawyers and judges. “Cooperation is essential,” Murphy says. “Without it, lawyers are at risk.”. Swisher agrees.

Should a judge require disclosure of client information?

The opinion explains that a “judge should not require the disclosure of confidential client information without considering whether such information is necessary to reach a sound decision on the motion.”. If the judge needs more information to rule on the motion to withdraw, the attorney should try to persuade the court to rule on ...

Can substitute counsel be granted without professional considerations?

Many motions—particularly when substitute counsel has been identified or is otherwise readily available—are granted without the professional-considerations language, says Phoenix-based ethics expert Keith Swisher. “That said, including the professional-considerations language is permissible, as the opinion notes, and it should be attempted first before any confidential information is revealed,” he says.

Can a lawyer do a repudiation?

A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay. This reality existed before this opinion; the opinion does not change things. But it is notable that the structure of the process found in this opinion increases uncertainty for the lawyer and therefore the costs of doing business.

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.

What is worse for an attorney than getting a new big matter?

Few things are worse for an attorney than getting a new big matter, starting work on it, and then facing a motion to disqualify. At that point, the attorney is put in the awkward position of either explaining to the client why he or she should pay more money to keep the attorney, or absorbing the fees associated with defending ...

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.

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.

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 .

Can you defeat a motion without advising the client?

Attempting to defeat the motion without advising the client is not an acceptable solution. In addition, if the motion is made by a former client, attorneys should consider providing notice of a potential circumstance to their legal malpractice insurer. Such motions are sometimes followed by either a grievance or a legal malpractice claim.