Toward a New Standard of Attorney Disqualification

In litigation, judges often disqualify attorneys who violate American Bar Association ( aba ) disciplinary standards. Many practitioners, judges, and scholars are growing increasingly hostile to these disqualifications. In this article the author criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to aba standards for withdrawal or ineligibility to accept a case. He argues that the remedy of disqualification should only rarely be used, even when it is clear that an aba disciplinary standard has been violated. He criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to aba standards for withdrawal or ineligibility to accept a case. And he canvasses the Second Circuit's development of a new standard of disqualification—the trial taint test—as well as some recent developments that undercut that standard.