August 17, 2015 Top Story

Appearance of Impropriety Insufficient For Disqualification

State supreme court holds actual conflict is necessary for attorney disqualification

>Lisa R. Hasday

The appearance of impropriety standard for determining whether an attorney has a conflict of interest has been abandoned by another state. The proper standard for attorney disqualification is a showing of actual conflict, according to the Kentucky Supreme Court in Marcum v. Scorsone. Contrary to a growing trend, only a few states, including ArkansasIndiana, and West Virginia, still apply the appearance of impropriety doctrine.

The Potential Conflict

Paul Plante Jr., a shareholder of Arthrodynamic Technologies Animal Health Division, Inc. (ADT), a Kentucky veterinary products corporation, seized control of the company’s board in late 2010. Soon thereafter, the company sued two majority shareholders, alleging, among other claims, breach of fiduciary duty and misappropriation of corporate funds. The company later amended its complaint to include two additional shareholder defendants. The law firm Miller, Griffin & Marks (MGM) represented the sued individuals.

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