Practice point: Where a party seeks to disqualify its adversary's counsel during litigation, courts consider when the challenged interests
became materially adverse in order to determine if the party could have moved at
an earlier time. If the moving party was aware, or should have
been aware, of the facts underlying an alleged conflict of interest for
an extended period of time before bringing the motion, that party may be
found to have waived any objection to the representation. What is more, if the moving party knew of the alleged conflict of
interest well before making the motion, it may be inferred that the
motion was made merely to secure a tactical advantage.
Student note: The party
seeking to disqualify a law firm or an attorney bears the burden to show
sufficient proof to warrant such a determination. Whether to disqualify an attorney is a matter which lies within the sound discretion of the court.
Case: Hele Asset, LLC v. S.S.E. Realty Assoc., NY Slip Op 03061 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Affidavits, and hearsay in opposition to summary judgment.
