| STATE OF XXX OF XXX Appellant vs. XXX PIERCE Respondent | IN THE COURT OF COMMON PLEAS TENTH JUDICIAL CIRCUIT CASE NO.: XXX MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY |
Plaintiff hereby moves this Honorable Court to disqualify Respondent’s Counsel, Mr. Richard McDuff (hereinafter “McDuff”) on the grounds of Conflict of Interest and breach of the Duty of Loyalty to one’s clients; and states as follows:
FACTS
This case involves the conflict of interest created by the Respondent’s counsel.
The dispute between Appellant and Respondent began in Case No.XXX, where the Respondent challenged the Will of the deceased in the aforesaid case. The Respondent hired McDuff to represent him in the said action. Ultimately, the Court in the said Case held in favor of the Respondent, which Judgment the Appellant appeals at this Honorable Court.
However, the concern that forms the basis of this Motion is that upon Appellant’s information and belief, McDuff is also the attorney for Appellant’s landlord. This creates a conflict of interest, which impedes access to justice. The conflict of interest is more pronounced considering the fact that Appellant has another case pending at the instant Court (Case No. ___), which case involves theft of Appellant’s items from the said landlord’s property. Interestingly, the Respondent herein is also party to the said case. The foregoing therefore create a serious case of conflict of interest that needs McDuff’s disqualification. .
ARGUMENTS
- McDuff’s representation of the Respondent creates a Conflict of Interest.
According to Rule 1.7 of the South Carolina Rules of Professional Conduct, a lawyer should avoid all situations of conflict of interest. The said Section states in pertinent part that: “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” (Emphasis added). A conflict of interest arises where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” See S.c. R. Prof’l. Cond. 1.7(a)(2).
“The danger of an attorney’s conflict of interest is that the attorney may forego efforts he would ordinarily undertake on behalf of one client, in order that the other client may not thereby be harmed.” XXX. “[D]efense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem.” Holloway v. Arkansas, 435 U.S. 475, 485-86 (1978) (citation and internal quotation marks omitted).
Besides, when an actual conflict of interest exists, prejudice is presumed. XXX.
Complainant submits that McDuff doubled up as the lawyer for the Respondent in the aforesaid Probate Case; and the lawyer for Appellant’s landlord. It is instrumental to note that as attorney for Appellant’s landlord, McDuff influenced Appellant’s former employees to cease working for employee and to steal and/or facilitate the theft of Appellant’s property (See Case No. ____). It follows; therefore, McDuff’s representation poses a situation of conflict of interest and the Attorney should withdraw from the case.
- McDuff’s representation breached the Duty of Loyalty
“When an actual conflict of interest exists, [C]ounsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties.” XXX.
Appellant avers that as much as causes of actions against attorneys are limited in attorney-client relationships, this position was changed by the Supreme Court of XXX. In XXX, the Court held that the duty of loyalty may be extended to third parties if the attorney attorney performs his obligations under the representation, for estate planning and to provide for beneficiaries. In htat regard, it is worth noting that the purpose of the attorney-client relationship requirement is “to ensure the inviolability of the attorney’s duty of loyalty to the client.” XXX.
Generally, a lawyer owes a duty to provide competent representation, and loyalty is “an essential element in the lawyer’s relationship with a client.” See XXX (“Inherent in the Sixth Amendment right to counsel is the right to reasonably competent counsel and the right to counsel’s undivided loyalty.”). Thus, when a lawyer is unable to fully and competently represent a defendant’s interests, an actual conflict of interest exists and a lawyer “breaches the duty of loyalty, perhaps the most basic of counsel’s duties.” XXXX.
In the instant case, the duty of loyalty extended to Appellant because Appellant is a beneficiary of the deceased’s estate. See Fabian. It follows; therefore, the conflict of interest breached McDuff’s duty of loyalty, which Appellant is entitled to as beneficiary of the deceased’s estate. See XXX.
CONCLUSION
For the foregoing reasons and for such other reasons as the Court finds to be good and sufficient cause, Attorney McDuff should be disqualified from the case.
Respectfully submitted:
XXX
Dated: __________
CERTIFICATE OF MAILING
I, [ENTER NAME], certified on this ______day of ________ XXX, I deposited a true copy of the above to the Defendant by placing the documents with prepaid postage in the XXX mailbox address.
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