Opinion
CIVIL ACTION No. 03-3369, Section: I/5.
July 22, 2004
ORDER AND REASONS
Plaintiff, Barbara A. Jackson ("Jackson"), has filed a motion to disqualify lawyer-defendant, Herschel C. Adcock, Jr. ("Adcock"), from representing himself and his co-defendants, GE Capital Mortgage Services ("GE Capital") and Wells Fargo Home Mortgage ("Wells Fargo"). Plaintiff has also filed an amended motion to disqualify Sherrill Davidson ("Davidson"), a lawyer who works in Adcock's firm, from representing Adcock, GE Capital, and Wells Fargo.
Rec. Doc. No. 11.
Rec. Doc. No. 24. In her amended motion, plaintiff initially "asks this Court to disqualify Herschel C. Adcock, Jr., from representing GE Capital Mortgage Services and Wells Fargo Home Mortgage in this case." Rec. Doc. No. 24, p. 1. In her prayer for relief at the end of her memorandum in support, she "requests that the court issue an Order disqualifying Mr. Herschel C. Adcock, Jr., and Ms. Sherrill Davidson from participating as legal advocates in this case." The Court will assume that plaintiff's position is that she seeks to disqualify Adcock from representing his co-defendants and from representing himself.
In her amended motion, Jackson specifies that the motion to disqualify filed by her former counsel "was emphatically unauthorized by plaintiff" and that he "deliberately set out to defraud the court by filing his Motion to Disqualify based upon manifestly absurd grounds." Considering these statements by plaintiff in her pro se amended motion to disqualify, the Court considers plaintiff's initial motion to disqualify filed by her former counsel as having been withdrawn.
Rec. Doc. No. 24, p. 1.
Rec. Doc. No. 24, para. 35.
The title of the instant motion is "Plaintiff's Amended Motion to Disqualify Defendants' Counsels [sic], Mr. Herschel C. Adcock, Jr., and Ms. Sherrill Davidson." Rec. Doc. No. 24. In the motion and memorandum in support, plaintiff suggests that her former counsel, John Gaharan, "should be subject to sanctions for his intentional calculated scheme to create res judicata and violate FRCVP 11." Rec. Doc. No. 24, p. 1. In the certificate of service at the end of her memorandum, plaintiff indicates that the motion was served upon Herschel Adcock, Jr., Sherrill Davidson, and William Detweiler. There is no indication that the motion was served upon Gaharan and the basis upon which F.R.Civ.P. 11 sanctions could be imposed upon him is not evident. To the extent that plaintiff's amended motion to disqualify might be construed as a request for the imposition of Rule 11 sanctions against Gaharan, the motion shall be dismissed as it was not properly noticed.
Factual and Procedural Background
On September 18, 2002, GE Capital filed a petition in Orleans Parish Civil District Court, seeking to foreclose by executory process on a mortgage on property located at 4968 Lurline Drive in New Orleans, Louisiana. The defendants in that lawsuit were the owners of the property, Jackson, the plaintiff hereon, and Cheryl L. Fenelon ("Fenelon"), Jackson's daughter. Adcock, defendant herein, is the lawyer who represented defendant, GE Capital, in the state court lawsuit it filed against Jackson and Fenelon. Defendant, Wells Fargo, as the subservicing agent for GE Capital, entered into a modification agreement with Jackson and Fenelon after Jackson and Fenelon allegedly defaulted on the loan.On September 12, 2003, a hearing was held in the state district court on the petition filed by Jackson and Fenelon to enjoin the seizure and sale of the Lurline Drive property. The state district court denied Jackson's and Fenelon's petition for injunctive relief.
Attachment to Rec. Doc. No. 14.
Attachment to Rec. Doc. No. 14.
On September 17, 2003, plaintiff, Jackson, proceeding pro se, filed a petition for damages against Adcock, GE Capital, Wells Fargo, and Joshua Rendeno, a civil deputy sheriff, in Orleans Parish Civil District Court. On September 26, 2003, plaintiff filed an amended petition for damages against the same defendants.
Attachment to Rec. Doc. No. 1.
Attachment to Rec. Doc. No. 1.
In her amended petition, Jackson alleges that Adcock, as the attorney for GE Capital in the state court foreclosure action, fraudulently misrepresented that GE Capital had a security interest in Jackson's residence when he knew that GE Capital had sold the note on the property to Wells Fargo. Jackson also alleges that because Adcock made fraudulent misrepresentations in the foreclosure petition, plaintiff incurred damages and monetary losses. Plaintiff also states that defendants, Adcock, GE Capital, and Rondeno, committed fraud, intentional misrepresentation, and violations of the Louisiana Unfair Trade Practices Act because they falsified certain facts with respect to service by the civil deputy sheriff of the notice of seizure and their illegal attempts to have a curator appointed for Fenelon because she was an alleged absentee. Jackson contends that Adcock, GE Capital, and Wells Fargo were negligent in several respects and that they committed other torts in their attempts to foreclose on the Lurline Street mortgage. In addition to these state law claims, Jackson alleges that by Adcock's actions in the state court proceedings to foreclose on the Lurline Street property, Adcock violated the federal Fair Debt Collection Practices Act and Truth in Lending Act.
Attachment to Rec. Doc. No. 1, amended petition, para. 6.
Attachment to Rec. Doc. No. 1, amended petition, para. 16.
Attachment to Rec. Doc. No. 1, amended petition, par. 20.
Attachment to Rec. Doc. No. 1, amended petition, paras. 39-71.
Attachment to Rec. Doc. No. 1, amended petition, paras. 72-78, 99, 118-119.
On November 28, 2003, defendants, Adcock, GE Capital, Wells Fargo, and Rendeno, jointly removed this action to this court. The notice of removal was signed by Adcock and Davidson as counsel for Adcock, GE Capital, and Wells Fargo. Rendeno was represented by separate counsel.
Rendeno was dismissed with prejudice pursuant to plaintiff's motion. Rec. Doc. No. 12.
Rec. Doc. No. 1.
Rec. Doc. No. 1.
Rec. Doc. No. 1.
Disqualification of Counsel
"The proscription against an attorney serving as both an advocate and a witness in the same litigation is a long-standing ethical rule." Federal Deposit Ins. Corp. v. United States Fire Ins. Co., 50 F.3d 1304, 1311 (5th Cir. 1995). In order to assess whether counsel's disqualification is warranted, the district court must consider four relevant ethical canons: (1) the Local Rules; (2) the rules governing attorneys practicing in state courts in the jurisdiction, i.e., the Louisiana State Bar Association's Rules of Professional Conduct; (3) the American Bar Association's ("ABA's") Model Rules of Professional Conduct "the Model Rules"); and (4) the ABA's Model Code of Professional Responsibility ("the Model Code"). FDIC, 50 F.3d at 1312. As observed in SAS Overseas Consultants v. Offshore Consultants USA, Ltd., 1998 WL 676992 at *1 (E.D. La. 1998), when performing this task, the district court should not apply these rules "inflexibly." "Rather, the Court must also take into account social interests at stake, including the right of a party to its counsel of choice and an attorney's right to freely practice her profession." SAS Overseas Consultants, 1998 WL 676992 at *1 ( citing FDIC, 50 F.3d at 1314). "All of the facts particular to a case must be considered, in the context of the relevant ethical criteria and with meticulous deference to the litigant's rights." SAS Overseas Consultants, 1998 WL 676992 at *1 ( quoting FDIC, 50 F.3d at 1314).Pursuant to Local Rule 83.2E, this district has adopted the Louisiana State Bar Association Rules of Professional Conduct ("LRPC"). Rule 3.7 of the LRPC provides:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or 1.9.
LSA-R.S. 37: 4 App. Rules of Prof. Conduct, Rule 3.7 (effective Mar. 1, 2004). ABA Model Rule 3.7 is identical to the LRPC.
LRPC 1.7 and Model Rule 1.7, which concern conflicts of interest with current clients, prohibits a lawyer from representing a client if the representation involves a "concurrent conflict of interest." Despite the existence of a concurrent conflict, a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
A "concurrent conflict of interest" is present if "(1) the representation of one client will be directly adverse to another client; or (2) 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." Rule 1.7(a), LRPC and Model Rules.
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
LRPC and Model Rule 1.7.
Rule 1.9 of the LRPC and the Model Code, also identical, outline the duties of lawyers to former clients as follows:
(a) 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 interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would perform or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
DR 5-102(A) of the ABA's Model Code of Professional Responsibility, effectively superseded when the Model Rules of Professional Conduct were adopted in 1983, provided that if, after undertaking representation in contemplated or pending litigation, a lawyer learns or it is obvious that he may be called as a witness other than on behalf of his client, he may continue representation until "it is apparent that his testimony is or may be prejudicial to his client.
As explained in the ABA/BNA Lawyers' Manual on Professional Conduct:
The ABA Model Code of Professional Responsibility was originally adopted in 1969. It was amended several times, with the last amendments adopted in 1980. In August, 1983, the ABA replaced the entire Model Code with the Model Rules of Professional Conduct, which appear at page 01:101. Although some state ethics rules still follow the Model Code, the majority of states now base their ethics rules on the Model Rules.ABA, BNA Lawyers' Manual on Professional Conduct, 01:301 (ABA/BNA 1991, with inserts through Mr. 24, 2004). As stated, with respect to the lawyer-witness rules, Louisiana's RPC track the Model Rules and not the Model Code.
Model Code DR 5-102 provides that:
(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.ABA Model Code of Professional Responsibility. The "circumstances enumerated in DR 5-101(B)(1) through (4)" were:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.Model Code of Professional Responsibility.
To the extent that plaintiff seeks to disqualify Adcock from representing himself, the motion must be denied. In Farrington v. Law Firm of Sessions, Fishman, 687 So.2d 997, 1000-1002 (La. 1997), the Louisiana Supreme Court held that Rule 3.7 of the LRPC (which, as previously noted, is identical to Model Rule 3.7) does not preclude a lawyer defendant from representing himself. The Eleventh Circuit considered the lawyer witness prohibition contained in Model Rule 3.7 and in EC-10, DR 5-101, and DR 5-102 of the superseded Model Code and it concluded that "the advocate-witness rule is not applicable to the attorney pro se litigant." Duncan v. Poythress, 777 F.2d 1508, 1515 n. 21 (11th Cir. 1985).
EC-10 of the Model Code stated that:
Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment. Regardless of when the problem arises, his decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue. In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness. In making such decision, he should determine the personal or financial sacrifice of the client that may result from his refusal of employment or withdrawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.
Model Code, ABA/BNA Lawyer's Manual on Professional Responsibility 01-325.
It is also plain that the extant ethical rules do not operate to disqualify either Adcock or Davidson from acting as advocates in pretrial proceedings. LRPC 3.7 and Model Rule 3.7 state plainly that the prohibition to a lawyer acting as an advocate is limited to those circumstances where the lawyer is likely to be a "necessary witness" "at a trial" and it does not apply to pretrial proceedings. See Culebras Enter. Corp. v. Rivera-Rios, 346 F.2d 94, 101 (1st Cir. 1988) ("[I]n 1982, by adopting Rule 3.7 of the Model Rules the ABA retreated to language even narrower than its original position prohibiting a lawyer-witness only from acting as 'advocate at trial.'");Merrill Lynch Business Financial Services, Inc. v. Udell, 239 F. Supp.2d 1170, 1174 (Colo. 2003) ("Rule 3.7(a) is a prohibition is to only against acting as an 'advocate at trial.' Its purpose is to avoid jury confusion at trial. It does not automatically require that a lawyer be disqualified from pretrial activities, such as participating in strategy sessions, pretrial hearings, settlement conferences, or motions practice." (other citation omitted)). Accordingly, the Court need not now address whether Adcock must be disqualified because he is "likely to be a necessary witness" at trial.
See also Main Events Prods., LLC v. Lacy, 220 F. Supp.2d 353, 356-357 (D.N.J. 2002) ("RPC 3.7(a) is a prohibition only against acting as an 'advocate at trial.' . . . [A] number of . . . courts interpreting RPC 3.7 have concluded that an attorney who will testify at trial need not be disqualified from participating in pre-trial matters. [other citations omitted]. In light of the clear language of the Rule, Mr. English should not have been disqualified from participating in pre-trial matters. This construction of RPC 3.7 not only is in accord with the plain language of the Rule, it also is consistent with its intent. The Rule is designed to prevent a situation in which at trial a lawyer acts as an attorney and as a witness, creating the danger that the fact finder (particularly if it is a jury) may confuse what is testimony and what is argument and otherwise creating an unseemly appearance at trial. Limiting the disqualification to advocacy at trial achieves these objectives and at the same time respects a client's right to be represented generally by an attorney of his choice").
"[A] lawyer is a 'necessary' witness if his or her testimony is relevant, material and unobtainable elsewhere."World Youth Day, Inc. v. Famous Artists Merchandising Exchange, Inc., 866 F. Supp. 1297, 1302 (Colo. 1994). Assuming only for purposes of this motion that plaintiff has established that Adcock is "likely to be a necessary witness" at trial, he may act as an advocate at trial for GE Capital and Wells Fargo if his testimony "relates to an uncontested issue," his testimony "relates to the nature and value of legal services rendered in this case" or "disqualification of the lawyer would work substantial hardship on the client."
At this stage of the proceedings, this Court need not decide whether Adcock can establish that the present situation fits within the exceptions provided in LRPC and Model Rule 3.7(a).
Davidson, who is enrolled as co-counsel of record, is not disqualified from acting as an advocate at trial. As previously noted, LRPC and Model Rule 3.7(b) allow a lawyer to "act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness" unless LRPC and Model Rules 1.7 or 1.9, which concern conflicts of interest, preclude the lawyer from doing so. Rule 1.7, quoted above, indicates that notwithstanding the existence of a concurrent conflict of interest, a lawyer may represent the client if the conditions outlined therein are met including the provision of informed consent, in writing, by each client. LRPC 1.9 and Model Rule 1.9, also quoted above, allow a lawyer to represent a person whose interests are materially adverse to those of a former client of the lawyer or the lawyer's firm if the lawyer obtains informed consent, confirmed in writing, and if no client's confidences are revealed.
Notwithstanding the fact that plaintiff has failed to demonstrate that Davidson's representation of defendants, GE Capital and Wells Fargo, will violate the LRPC and Model Rule 3.7(b), GE Capital and Wells Fargo have furnished the Court with informed consent, in writing, to their representation by Davidson. Accordingly, LRPC 3.7(b) and Model Rule 3.7(b) would not require Davidson's disqualification from acting as an advocate at trial.
See Rec. Doc. Nos. 54 and 63.
Plaintiff argues that Adcock's and Davidson's disqualifications are mandated not only by Rule 3.7 of the LRPC and Model Rules, but also by Model Code 5-101 and 5-102. As stated, the ABA has replaced the Model Code with the Model Rules. Regardless, withdrawal of representation pursuant to those Model Code provisions is not warranted unless "it is apparent that [the testimony of the lawyer or a lawyer in the lawyer-witness's firm] is or may by prejudicial to [the lawyer's] client." Plaintiff suggests that Adcock's testimony will or may be prejudicial to his co-defendants, but her memorandum only intimates generally as to the prejudicial impact his testimony may have with respect to his co-defendants. Considering that neither the LRPC nor the Model Rules require disqualification, the defendants' choice of counsel will not be disturbed on the basis of nebulous allegations about prejudicial testimony relating to Model Code provisions that have been superseded.
Model Code DR 5-102, ABA/BNA Lawyer's Manual on Professional Responsibility 01-329.
To augment her argument in favor of disqualification, plaintiff cites EC-9 of the Model Code. ABA/BNA Lawyer's Manual on Professional Responsibility 01-325. EC-9 explains the rationale underlying the lawyer-witness disqualification rule; it does not contain any blanket rules against a lawyer acting as an advocate and a witness. In the Model Code, such rules were contained in the Disciplinary Rules ("DR").
In a similar vein, plaintiff contends that DR 5-105(B) and DR 5-105(D) of the Model Code compelled disqualification. DR 5-105(B) provided that a lawyer shall not continue employment of one client if his representation "will be or is likely to be adversely affected by his representation of another client, or it would be likely to involve him in representing differing interests" unless each client "consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." DR 105(D) of the Model Code extended the prohibition against multiple representation to other lawyers in the firm, stating that, "[i]f a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment." Even under the superseded Model Code, disqualification would not be warranted because plaintiff has not established that representation by Adcock or Davidson of GE Capital and Wells Fargo will adversely his representation of the other. Even if plaintiff had established such an impact, the clients have consented to the representation and, accordingly, withdrawal from representation would not have been indicated.
DR 5-105(B) of the Model Code states that "[a] lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR-105(C)."
DR 5-105(C) of the Model Code states in pertinent part that "[i]n the situations covered by [DR 5-105(B)], a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." Model Code, ABA/BNA Lawyer's Manual on Professional Responsibility 01-329.
DR 5-105(C), ABA/BNA Lawyer's Manual on Professional Responsibility 01-329.
DR 5-105(D), ABA/BNA Lawyer's Manual on Professional Responsibility 01-329-330.
Plaintiff also cites "Model Code 1.10(a)" in support of her disqualification motion. The Court can only assume that plaintiff actually intended to refer to Model Rule 1.10(a) which provides that "[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm." For reasons previously discussed, because plaintiff has not established that Adcock is prohibited from representing either himself or his co-defendants, Model Rule 1.10(a) does not prohibit Davidson from representing them.
Conclusion
For the above and foregoing reasons,IT IS ORDERED that the plaintiff's initial motion to disqualify filed on behalf of plaintiff by her former counsel (Rec. Doc. No. 11) is hereby DISMISSED; IT IS FURTHER ORDERED that plaintiff's amended motion to disqualify (Rec. Doc. No. 24) is ruled upon as follows:
(1) To the extent plaintiff seeks to disqualify Herschel C. Adcock, Jr., from representing himself either in pretrial proceedings or at trial, the motion is DENIED;
(2) To the extent plaintiff seeks to disqualify Herschel C. Adcock, Jr., and Sherrill Davidson from representing any defendant in pretrial proceedings, the motion is DENIED;
(3) To the extent plaintiff seeks to disqualify Sherrill Davidson from representing any defendant at trial, the motion is DENIED;
(4) To the extent plaintiff seeks to disqualify Herschel C. Adcock, Jr., from representing co-defendants, GE Capital Home Mortgage Services, Inc., and Wells Fargo Home Mortgage, Inc., at trial, ruling on the motion is DISMISSED WITHOUT PREJUDICE AS PREMATURE. GE Capital and Wells Fargo may be represented at trial by Davidson;
(5) To the extent plaintiff seeks Rule 11 sanctions against her former counsel, John Gaharan ( see n. 5), the motion is DENIED.