Practice point: Dismissal of a complaint as a sanction is a penalty aimed to punish misconduct by a party to a litigation. However, as with any sanction, dismissal
of a complaint must be appropriate to the conduct it aims to punish. As dismissal of
a complaint deprives a litigant of a determination on the merits
of a claim, it is so severe that it is generally warranted only in the most
egregious of circumstances.
While disqualifying counsel is a lesser penalty than dismissal, it carries with it the serious consequence that a party is
deprived of the right to be represented by its choice of counsel,
warranting a broader inquiry about whether it is an appropriate sanction
for the offending conduct. While the right to counsel of choice is
not absolute and may be overridden where necessary, it is a valued
right and any restrictions must be carefully scrutinized.
Disqualification often turns on whether the conduct complained of
results in actual, or a reasonable probability of unauthorized
disclosure of confidential information.
Student note: The Appellate Division expressly rejected the argument that there are circumstances where a counsel's
conduct is so egregious that a court should impose the most severe
sanctions, even in the absence of actual prejudice.
Case: Roberts v. Corwin, NY Slip Op 04562 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: The doctrine of res judicata.
