This Article contends that the successive conflict and imputed disqualification rules in combination are both bad law and bad ethics and that a different approach would be better for clients, for the adversary system, and for the profession. Part I of the Article analyzes the development of the successive conflict and the imputed disqualification doctrines. It demonstrates that two different, not always consistent, theories caused the successive conflict disqualification principles to develop erratically, resulting in a set of rules incompatible with either supporting rationale. Part II explains why the incorporation of that set of rules into the Model Rules of Professional Conduct leads to unreasonable results, demonstrates that successive conflict disqualification advances no adversary system interests, and offers alternative remedies. It suggests that the former client's disqualification gambit has become obnoxious to the reasonable operation of the civil justice system, clogging it with inappropriate disqualification motions that cause substantial individual and systemic damage. The Article concludes that courts should not hear, let alone grant, disqualification motions based on a lawyer's current opposition to a former client. It further urges the profession to withdraw those Model Rules concerned with successive conflict not only because they do not work well but also because they lack ethical justification.
Steven H. Goldberg, The Former Client's Disqualification Gambit: A Bad Move in Pursuit of an Ethical Anomaly, 72 Minn. L. Rev. 227 (1987), http://digitalcommons.pace.edu/lawfaculty/83/.