An attorney may not represent a client against a former client in the “same or a substantially similar matter.” The Hawaii Rules of Professional Conduct (“HRCP”) Rule 1.9(a) Conflict of Interest: Former Client provides as follows:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interest are materially adverse to the interests of the former client unless the former client consents after consultation.
Hawaii Rules of Professional Conduct 1.9(a)(emphasis added).
Pursuant to HRCP Rule 1.10(a) Imputed Disqualification; General Rule
While lawyers are associated in a form, none of them shall knowingly represent a client when one of them practicing alone would be prohibited from doing so by rules 1.7, 1.8(c), 1.9 or 2.2.
“The objective of the disqualification rule is to ‘preserve the integrity of the adversary process,’ Evans v Artek Systems Corp., 715 F.2d 788, 791 (C.A.N.Y., 1983) citing Board of Education of the City of New York v Nyquist, 590 F.2d 1241, 1246 (2d Cir., 1979). By the same token, there are good reasons for requiring a “high standard of proof on the part of the one who seeks to disqualify his former counsel.” Id. One reason is based on the notion that a client should have the right to freely choose his counsel and the other is based on the fact that disqualification motions cause delay to the case, which is generally frowned upon. Id.
The party moving for disqualification “has the burden of establishing (1) the existence of a prior attorney-client relationship with the attorney now sought to be disqualified; and (2) that that matter involved in the prior representation is substantially related to the matters embraced within the pending suit, wherein the attorney appears on the behalf of the opposing party.” In re Jahore Inv. Co., Inc, 157 B.R. 671, 675 (D.Hawaii, 1985).
Courts in Hawaii and the Ninth Circuit have also held that if the burden is met by the moving party, then the there is a presumption that confidences were disclosed during the prior representation. Id. However, the Ninth Circuit has “sought to mitigate the harshness” of this presumption and made it rebuttable. Id. Therefore, “the Ninth Circuit requires that the evidence establish a ‘reasonable probability’ that confidential information was disclosed during the course of the prior representation.” Id. Further, “disqualification may not be warranted where the ‘professional relationship with [the former client] had been aborted before any significant work had been done. . .and before any discussions with the client other than the bare preliminaries of the representation were explored. . .'” Id. citing Trone v Smith 621, F.2d 994, 1000 (9th Cir., 1980).
As mentioned above, the moving party has a burden to show that there was a prior attorney-client relationship. Accordingly, in Davis v Wholesale Motors, Inc., the Hawaii Court of Appeals denied a Motion to Disqualify based on the failure of the moving party to show that a relationship existed. Davis v Wholesale Motors, Inc, 86 Hawaii 405, 424-425 (Hawaii.App., 1997). There was no evidence of any attorney-client relationship documented and “Nicolai [the moving party] could not remember what Lots of [attorney] did with the documents [that the attorney allegedly reviewed for the moving party], how long the meeting lasted, or approximately when during the 1970s the meeting occurred.” Id. (brackets added).