Opinion
Civil Action CV-21-72
07-20-2023
JAMIE PACHECO, Plaintiff v. LIBBY, O'BRIEN, KINGSLEY and CHAMPION LLC, and GENE LIBBY, ESQ. Defendants
ORDER ON MOTION TO DISQUALIFY
HAROLD STEWART, II JUSTICE
The matter before the court is defendants Gene Libby, Esq. and Libby, O'Brien, Kingsley and Champion LLC's Motion to Disqualify Jeffrey Bennett, Esq. and the firm Legal Ease, LLC, P.A. from further representation of plaintiff Jamie Pacheco. For the following reasons, the motion is granted.
Background
Plaintiff Jamie Pacheco divorced her ex-husband, Kevin Pacheco, in 2015. In the divorce proceedings, defendants Gene Libby, Esq. and the law firm of Libby, O'Brien, Kingsley and Champion LLC, represented Mr. Pacheco. Ms. Pacheco also filed for protection orders against Mr. Pacheco in 2015, alleging severe domestic abuse during the marriage. Jeffrey Bennett, Esq. and his law firm, Legal Ease, LLC, P.A., represented Ms, Pacheco in the divorce proceeding and sought the protection orders on her behalf.
Ms. Pacheco's mental and emotional health were an important issue in the divorce proceeding. Ms. Pacheco had been seeing Sandra Falsey for counseling services for time periods relevant to the divorce proceeding. Attorney Bennett voluntarily produced to Attorney Libby's predecessor documents which he represented were a full copy of Ms. Falsey's therapy notes, with one redaction. (Ex. H 616:2-25, 617:1-3.) This redaction contained highly sensitive personal information that Attorney Bennett believed would be harmful to his client, and would violate the protection order, if it were to get into the hands of Mr. Pacheco. (Id. 601:11-25, 602:1-18.)
During the divorce proceeding, Attorney Libby served a trial subpoena on Ms. Falsey without notifying Attorney Bennett. (Id. 601:16-17.) The subpoena required Ms. Falsey to testify at a hearing involving a post-nuptial agreement that was at issue in the divorce. (Ex. I at 1.) The subpoena also required Ms. Falsey to produce "Your entire file regarding Jamie Pacheco from 2011 to the date of Jamie Pacheco's most recent therapy appointment, including, but not limited to, all correspondence and emails between you and any attorney representing Jamie Pacheco." (Id. at 3.)
Ms. Falsey was scheduled to testify at 2:30 at a hearing on November 7, 2018, (Ex. A 160:21-24.) The fact that Ms. Falsey would be testifying was discussed at the hearing on November 6, 2018. (Idl) Ms. Falsey did not actually testify on November 7. (Ex. H 610: 4-10.) After this hearing, Ms. Falsey turned over her full counseling records, which contained notes from 4 days not previously produced by Attorney Bennett and an unredacted copy of the counseling notes that Attorney Bennett had redacted in his original production. (Ex. H 611:25, 612:1-4, 602:1-4.)
Upon learning that this sensitive information had been produced, Attorney Bennett moved for a mistrial and to disqualify Attorney Libby in the divorce proceeding. (Ex. H 601:11 -16.) Both motions were denied. Ms. Pacheco has since filed this lawsuit against Attorney Libby and his firm, seeking damages for Abuse of Process, Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress based on Attorney Libby obtaining the unredacted copy of Ms. Falsey's therapy notes and publishing it to Mr. Pacheco.
Attorney Bennett represents Ms. Pacheco in this lawsuit, as he did in the underlying divorce. Defendants have moved to disqualify Attorney Bennett on the grounds that he is likely to be a necessary witness in this case. Attorney Bennett disputes that he is likely to be a necessary witness and opposes the motion.
Standard
Trial courts are given a highly deferential standard of review on motions to disqualify. Estate of Markheim v. Markheim, 2008 ME 138, ¶ 27, 957 A.2d 56. However, motions for disqualification must be addressed cautiously, considering that such motions are "capable of being abused for tactical purposes, and . .. [courts are] justifiably wary of this type of strategic maneuvering." Casco N. Bank v. JBI Assocs., 667 A.2d 856, 859 (Me. 1995). If ordered in the wrong circumstances, disqualification could give a party a "brief, tactical advantage," which would subvert the purpose of the rules of professional conduct such orders are meant to serve. Id.
To guard against abuse of the process, the Law Court has held that disqualification is only appropriate where the moving party produces evidence that supports two findings. First, the disqualification must serve the purposes supporting the ethical rules. Morin v. Me. Educ. Ass 'n, 2010 ME 36, ¶ 9, 993 A.2d 1097. The party moving to disqualify the opposing party's attorney must prove "more than mere speculation that an ethics violation has occurred; she must establish in the record that continued representation of the nonmoving party by that party's chosen attorney results in an affirmative violation of a particular ethical rule." Id. If an ethical violation is established, whether disqualification is imputed to the attorney's entire firm depends on which violation is found to have occurred. Id.
Second, the Law Court requires a showing of actual prejudice to the party seeking disqualification that would result from continued representation by the attorney. Id. ¶ 10. Actual prejudice is not assumed from the existence of an ethical violation. Id.
The Law Court requires that any court order disqualifying an attorney contain express findings of an ethical violation and the resulting prejudice. Id. ¶ 11. In the absence of such findings, the Law Court will only uphold an order of disqualification if the violation and prejudice are sufficiently obvious from the record. Id.
Discussion
Defendants seeks the disqualification of Attorney Bennett and his firm, Legal-Ease, on the grounds that he is a necessary witness under M.R. Prof. Conduct 3.7. Rule 3.7 provides:
(a) A lawyer shall not act as advocate at a tribunal 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.
The rule further provides that a lawyer may advocate in a tribunal where another lawyer from that lawyer's firm is likely to be called by a witness, unless doing so violates Rule 1.7 or Rule 1.9.
Rule 1.7 deals with conflicts of interest concerning current clients. Rule 1.9 deals with duties to former clients. Neither Rule is implicated here.
The party seeking disqualification must prove that the lawyer's testimony is necessary in its case. Bank of Me. v. Associated Grocers of Me.,Ho. BCD-CV-14-16, 2016 Me. Bus. &Consumer LEXIS 12, at *3 (Feb. 10,2016). "The requirement for the lawyer's testimony to be necessary means that the party moving to disqualify must show that the lawyer's testimony is relevant, material and unobtainable from other sources." M.R. Prof. Conduct 3.7, Reporter's Notes.
On the question of prejudice, it is important to consider the purpose of Rule 3.7. Allowing a lawyer to advocate in front of a tribunal where he or she is likely to testify may confuse the factfinder by blurring the line being the lawyer's advocate and witness roles. See M.R. Prof. Conduct 3.7 cmt. 1. The comments to Rule 3.7 explain:
The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
M.R. Prof. Conduct 3.7 cmt. 2. Further:
Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on whether it is a bench, jury trial, or other proceeding the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness.
M.R. Prof. Conduct 3.7 cmt. 4.
Defendants argue that Attorney Bennett's testimony will be needed to address the potential waiver of privilege, his knowledge of the counseling pages missing from the first production, and strategies associated with producing those documents, all of which they argue are essential for their defense. Attorney Bennett responds that any of this testimony, even if relevant, is protected by attorney client privilege. Further, Attorney Bennett argues that the issue in this case has nothing to do with the missing pages. Attorney Bennett argues that the case only concerns Attorney Libby's acquisition of an unredacted copy of Ms. Falsey's therapy notes.
Attorney Bennett has not argued that his firm should not be disqualified if the court decides to disqualify him. To the contrary, Attorney Bennett has argued his entire firm is involved in this case in various ways. The court has seen no evidence that Attorney Bennett can be distinguished from Legal Ease in this case. If Attorney Bennett is disqualified, his firm must be disqualified too.
In the court's view, Attorney Bennett is likely to be a necessary witness. Based on the record before the court, Attorney Bennett's testimony is likely to be needed on the following topics:
1.) Whether the attorney-client privilege was waived by Attorney Bennett's voluntary production of Ms. Falsey's notes to Attorney Libby's predecessor counsel;
2.) Flow and why Attorney Bennett redacted the initial production;
3.) Whether Attorney Bennett put opposing counsel on notice of the redactions, and if so, how;
4.) The significance of the redacted information to Ms. Pacheco;
5.) What steps Attorney Bennett would have taken to preserve confidentiality if he had known that Attorney Libby subpoenaed Ms. Falsey;
6.) Why Attorney Bennett did not take steps to preserve confidentiality after the fact that Ms. Falsey would be testifying was mentioned on November 7,2018
While Ms. Pacheco could also testify to the effect the alleged disclosure had on her, Attorney Bennett's impressions of the importance of this redaction are still relevant, both as evidence of Ms. Pacheco's damages and to affirm or impeach Ms. Pacheco's credibility on that issue if she chooses to testify.
No other witness is as directly connected to these questions of fact as Attorney Bennett, and his testimony cannot be obtained from other sources. The fact that Ms. Pacheco may choose not to call Attorney Bennett to testify to these matters does make them irrelevant to the case, nor does it deprive the defense of the right to call Attorney Bennett to testify to these matters which are relevant, material and unobtainable from other sources.
The risk of prejudice in allowing Attorney Bennett to continue as Ms. Pacheco's attorney is substantial. Attorney Bennett is intimately connected to the facts underlying this case, and deeply personally invested as well. At the hearing before this court on June 8, 2023, Attorney Bennett demonstrated the danger of allowing the roles of advocate and witness to mix, as explained in comment 2 to Rule 3.7. Attorney Bennett would seamlessly shift between advocating for his client's position and recounting the events underlying this case from his own personal knowledge. While the court may be in a better position to separate the advocacy from the testimony, the fact that Ms. Pacheco has demanded a jury trial, as is her right, creates a greater risk of prejudice to the defense. The court is concerned that a jury will not be able to determine when Attorney Bennett is offering proof or analysis of the proof. The court finds that Attorney Bennett's continued representation of Ms. Pacheco is highly likely to confuse the jury.
The court finds that the other factors discussed in comment 4 to Rule 3.7 weigh in favor of disqualification. First, the court finds that that Attorney Bennett's testimony is likely to be one of a few central witnesses, and therefore very important to the case. The tenor of the testimony is likely to be adverse and confrontational and has the potential to be emotionally charged. Further, based on the representations Attorney Bennett has made in the hearing, his court filings, and previous hearings during the divorce proceedings, it is highly likely that Attorney Bennett's testimony will conflict with other testimony, particularly the testimony of Attorney Libby. While the fact that Attorney Libby is also an attorney mitigates the potential for prejudice somewhat, the fact that Attorney Bennett would be acting as an advocate as well as a witness still presents too great a risk of prejudice.
Attorney Bennett argues that the hardship to Ms. Pacheco outweighs any prejudice to opposing counsel or the tribunal. Attorney Bennett argues that if he is disqualified, it will be difficult for Ms. Pacheco to find another attorney due to the reluctance of attorneys in the State of Maine to sue other attorneys. Attorney Bennett has not produced any evidence of this general reluctance to sue other attorneys, so the court is uncertain whether it can take Attorney Bennett's argument into account. Regardless, the court is not convinced that the prejudice to Ms. Pacheco would be severe enough to outweigh the prejudice to the tribunal and the opposing party. In fact, Attorney Bennett's continued representation actually disadvantages his client in some ways, as he is in a position to give potentially compelling testimony about the importance of the redactions to Ms. Pacheco and other matters. The court can and will accommodate Ms. Pacheco as she searches for a new attorney. However, the fact that Ms. Pacheco may have some difficulty finding a new attorney is not sufficient hardship to allow an ethical violation, which seems very likely to occur if Attorney Bennett is not disqualified. After balancing the factors, the court finds that Attorney Bennett and Legal Ease must be disqualified.
To summarize, the reason that Attorney Bennett and his firm must be disqualified is fairly straightforward. This lawsuit is based on a series of events in which Attorney Bennett was not only an active participant, but one of the principal actors. It involves the allegedly illegal circumvention of protections he tried to establish for his client. Attorney Bennett has personal knowledge of much of the information relevant to this lawsuit, as it is fundamentally a case about his own interactions with Attorney Libby in a prior case. This creates an intolerable risk of confusion between the witness and advocate roles for the factfinder. As such, the court has no choice but to disqualify him.
The entry is
Defendants Gene Libby, Esq. and Libby, O'Brien, Kingsley and Champion LLC's Motion to Disqualify Attorney Jeffrey Bennett, Esq. and the firm Legal Ease, LLC, P.A. is hereby GRANTED.
The Clerk is directed to enter this order into the docket by reference pursuant to M.R.Civ.P. 79(a).