Opinion
Civil Action No. 05-662, Section "E" (2).
June 8, 2005
OPINION ON MOTION
This is a civil rights case with pendent supplemental state law claims in which plaintiff claims that on February 20, 2004, he was wrongfully taken into custody, deprived of his right to counsel and detained by defendants, who subjected him to excessive force and failed to protect him from harm. Plaintiff's counsel of record is also his mother.
Pending before me is the motion of defendant Edwin Compass, New Orleans Police superintendent, to disqualify plaintiff's counsel from representing her son in this matter. Record Doc. No. 4. Plaintiff filed a timely opposition memorandum. Record Doc. No. 14. The motion asserts two grounds for disqualification, including (a) that plaintiff's mother is a necessary witness in this matter and cannot also serve as lawyer for plaintiff under those circumstances, and (b) that a conflict of interest requiring disqualification exists by reason of counsel's multifaceted status as witness, lawyer and plaintiff's mother. The opposition memorandum is vague as to whether plaintiff's counsel will or will not testify on behalf of her son at trial and asserts (without proof) that plaintiff has waived any possible conflict of interest.
At the request of defense counsel, oral argument was conducted on June 8, 2005. Record Doc. No. 5. Participating were: Janine C. Williams, representing plaintiff; Victor L. Papai, Jr., representing defendant. Having considered the record, the submissions of the parties and the applicable law, IT IS ORDERED that the motion is DENIED as premature at this time, subject to the conditions imposed herein and reserving to defendants the right to refile the motion at a later date, if appropriate.
The record is devoid of any evidence of the nature of any testimony plaintiff's counsel/mother might provide as a witness. Defendant relies upon the allegations in the complaint, which alleges only that plaintiff's mother was involved in a telephone conversation with an officer while her son was being detained and that he was released when she arrived at the New Orleans Police Department's First Precinct office. The complaint contains no indication that plaintiff's counsel/mother has any first-hand knowledge about the detention, use of force or other events from which plaintiff's claims actually arise. Record Doc. No. 1 (Complaint at p. 4-5). However, defense counsel argued at the hearing that counsel's involvement as alleged in the complaint indicates that she has first-hand knowledge concerning the Sixth Amendment claim asserted in the complaint.
Disqualification of counsel motions are governed by state and national ethical standards adopted by the court. Horaist v. Doctor's Hospital of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001) (citing In re Am. Airlines, Inc., 972 F.2d 602, 605 (5th Cir. 1992). The applicable rules and standards are viewed in light of both the litigant's right to counsel of his own choosing and the public interest, considering also the appearance of impropriety in general, the possibility that a specific impropriety will occur, and whether the likelihood of public suspicion from any appearance of impropriety outweighs any social interests served by the lawyer's continued representation in the case. Horaist, 255 F.3d at 266 (citing In re Dresser Indus., 972 F.2d 540, 543 (5th Cir. 1992).
The Louisiana Rules of Professional Conduct are applicable in this court. Local Rule 83.2.10E. Defendant's motion implicates two such rules. The first is Rule 1.7 concerning conflicts of interest, which provides in pertinent part as follows:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
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(2) there is a significant risk that the representation of one or more clients will be materially limited. . . . by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
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(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(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.
(emphasis added).
In this case, there is a significant risk that counsel's representation of her son in this case will be materially affected by the personal interest she has in this matter as plaintiff's mother. However, Rule 1.7(b) provides that this problem may be waived by the client, and plaintiff's counsel represented in her opposition memorandum and stated at oral argument that plaintiff desires to waive this conflict. I find that three of the four conditions for a valid waiver set out in Rule 1.7(b) quoted above are satisfied in this case. I am convinced based on the written submissions of plaintiff's counsel and her representations at oral argument that she reasonably believes she will be able to provide her son with competent and diligent representation. As discussed below, I cannot conclude at this time that her representation is otherwise prohibited by law. The representation does not involve a claim by one of plaintiff's counsel's clients against another. I also find that any appearance of impropriety in counsel's representation of her own son is slight and the social interest in permitting plaintiff to be represented by counsel of his choice outweighs any such concern.
The only requirement for valid waiver of the conflict that hasnot been satisfied at this time is the requirement in Rule 1.7(b)(4) that plaintiff's informed consent must be given in writing. Accordingly, IT IS ORDERED that no later than June 22, 2005, plaintiff must submit to the court for filing in the record, with copies to all opposing counsel, a written form of informed consent to continued representation by plaintiff's counsel in this case and waiver of any conflict of interest. Failure to comply with this order will result in an order of the court disqualifying plaintiff's counsel, without further motions or briefing.
The second Louisiana Rule of Professional Conduct implicated by defendant's motion is Rule 3.7 concerning lawyers as witnesses, which provides in pertinent part as follows:
(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless:
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(1) the testimony relates to an uncontested issue; . . . or
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(3) disqualification of the lawyer would work substantial hardship on the client.
Louisiana Rule of Professional Conduct 3.7(c) formerly provided that "[if, after undertaking employment 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 the representation until it is apparent that his testimony is or may be prejudicial to his client") (emphasis added). This section has been repealed and is not applicable in this case filed in this court on February 28, 2005.
(emphasis added).
In determining whether a lawyer is "likely to be a necessary witness" under this rule, courts have required that three elements must be established: (1) the lawyer will give evidencematerial to the determination of the issues being litigated; (2) the evidence cannot be obtained elsewhere; and (3) the testimony of the lawyer is prejudicial or potentially prejudicial to the testifying attorney's client. Crutchfield v. Ringler Associates New Orleans, Inc., 2002 WL 726646 (E.D. La.) (Shushan, M.J.) (citing Michel v. B.H. Miller, 1998 WL 42887, *3 (E.D. La.) (Sear, J.). Thus, plaintiff's counsel must be disqualified if she is likely to be a "necessary witness," butnot if she fits any of the three exceptions listed in the Rule.
It cannot be concluded on the current record that plaintiff's counsel will be a necessary witness who must be disqualified from her representation. Although defense counsel stated definitively at oral argument that plaintiff's counsel will be a witness for the defense and that he has included her name on defendant's witness list, the only indication in the record concerning the knowledge of plaintiff's counsel about the facts of the case are those alleged in the complaint. None of these appear material to determination of the issues to be litigated. Even if they are, evidence concerning the telephone conversation and her arrival at the police station as alleged in the complaint certainly can be obtained elsewhere, namely from the police officer or officers who participated in the telephone conversation or were present when she arrived at the police station. I cannot conceive on the current record how the testimony of plaintiff's counsel/mother could be adverse or prejudicial to plaintiff. All of these factors indicate that plaintiff's counsel may not be a necessary witness. Even if she were, however, Rule 3.7(a)(1) would permit her to remain as counsel if her "testimony relates to an uncontested issue." Only discovery will show if the testimony of plaintiff's counsel concerning her involvement in the telephone conversation and visit to the police station alleged in the complaint matches the testimony of the others involved in those events, so that it might be found to relate to an uncontested issue. Relevant discovery that would resolve this question has not yet been undertaken.
For all of the foregoing reasons, the motion is denied at this time as premature. However, I recognize that the case is only recently filed and the record concerning whether plaintiff's counsel will be a witness and, if so, what testimony she might provide has not yet been developed. Thus, denial of this motion is without prejudice to defendants' right, after witness disclosures have been made or after the nature of any testimony by plaintiff's counsel is determined through discovery, to refile this motion concerning plaintiff's counsel's status as a "necessary witness" and whether her testimony relates to an uncontested issue, if appropriate.