Foot-Dragging Fatal to Motions to Disqualify Counsel

Two cases decided in late August 2018 serve to emphasize that disqualification of opposing counsel, when appropriate, must be sought expeditiously or else it will be waived. The United States District Court for the Eastern District of Pennsylvania denied a motion to disqualify counsel in a copyright case, noting a ten-month delay:

Courts look at the length of time that lapsed between when the party requesting disqualification learned about the basis for disqualification and when it moved for disqualification. … Here by waiting at least ten months before they filed their disqualification motion, Defendants have waived the remedy of disqualification.

Kashi v. McGraw-Hill Global Education Holdings, No. 17-1818 at *5 (D. Pa. Aug 27, 2018). Likewise, a Texas court of appeals denied a motion to disqualify in a construction dispute, noting a nine-month delay. See In re Waterstone Owners Assoc., Inc., No. 03-18-00352-CV at n.10 (Ct. App. Tx. 3d Dist. Aug. 23, 2018).

Louisiana courts have repeatedly held that a party seeking to disqualify a lawyer must do so timely or else waive the right to seek disqualification later. See, e.g., Barre v. St. Martin, 636 So. 2d 1061, 1063-1064 (La. Ct. App. 5th Cir. 1994) (reasoning that failure to object timely tacitly waives a party’s right to seek disqualification); Brasseaux. v. Girouard, 214 So. 2d 401, 409 (La. Ct. App. 3d Cir. 1968) (reasoning that allowing a tardy objection would allow disqualification to be used as a “purely dilatory or obstructive tactic”); Lalande v. Index Geophyscial Survey Corp., 336 So. 2d 1054, 1057 (La. Ct. App. 3d Cir. 1976) (citing Brasseaux and noting that a late-moving party “may expressly or tacitly waive his objection” by delay). For example, one court denied disqualification because the moving party waited eight months to seek disqualification. See Corbello v. Iowa Prod. Co., 787 So. 2d 596 (La. Ct. App. 3d Cir. 2001). The court held that “disqualification could be used as an obstructive tactic and, therefore, the right to urge disqualification of an opposing counsel may be waived by the failure to raise the issue early in the proceedings.” Id. at 599; see also Walker, 817 So. 2d at 63 (denying disqualification and noting that the “State waited seven months in one matter and thirteen months in the other matter before taking action to disqualify Vidrine ….”).

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