Opinion
NO. CS-99-0131-EFS
September 24, 2001
ORDER DENYING MOTION FOR CONTINUED REPRESENTATION PURSUANT TO
RPC 3.7 AND STRIKING TRIAL DATE
On September 13, 2001 the Court heard oral argument on Defendant City of Spokane's Motion for Continued Representation Pursuant to REC 3.7, (Ct. Rec. 179), and Motion to Expedite Hearing, (Ct. Rec. 176), both filed September 7, 2001. Plaintiff Qualchan Properties, Inc. (hereinafter "Qualchan") was represented by Robert A. Dunn and Richard D. Campbell. Defendant City of Spokane (hereinafter "the City") was represented by Michael M. Maurer, Michael J. Hines and Milton G. Rowland. Following this hearing, the Court advised counsel by phone that the City's RPC 3.7 motion had been denied and set a hearing on the ramifications of that ruling for Monday, September 17, 2001. At that telephonic hearing, Mr. Dunn and Mr. Maurer participated on behalf of their respective clients. After further argument by counsel, the Court adhered to it's previously announced oral decision. This order memorializes the Court's oral decision to deny the City's Motion for Continued Representation and to grant the City's Motion to Expedite Hearing.
I. Background and Procedural History
Lukins and Annis, counsel for Defendant, seeks an order from this Court permitting it to continue to represent the City. They asserted that this motion is necessary because Mr. Black, a partner at Lukins and Annis, has been named by Qualchan as one of its witnesses. (Ct. Rec. 183)
The procedural history of this case was already complicated when an unforeseeable event occurred in May, 2001 — previous counsel for the City was obliged to withdraw from representation of the City because it was named as a defendant in another case involving the City. (Ct. Recs. 151-55). With trial set in August, the City sought new counsel.
Lukins and Annis, the newly selected counsel, (Ct. Rec. 154), sought a waiver of conflict of interest from both Qualchan and the City because Qualchan had been a client of the law firm at times material to this case. (Ct. Rec. 182, Exhibit 1) . Indeed, Mr. Black allegedly drafted and negotiated a key agreement with the City: the November 24, 1992 Agreement (hereinafter: the Agreement) which constitutes the contract giving rise to this litigation. (Ct. Rec. 189, Exhibit A). The interaction of Qualchan, its employees and some of its lawyers, and the City employees is central to this case because the intent of the Parties regarding the Agreement is an issue to be decided at trial. (Ct. Rec. 133). Mr. Black's testimony is necessary because he reviewed the contract under litigation and may have given Qualchan advice on how to comply with its obligations. (Ct. Rec. 189, Exhibit A). Lukins and Annis thought that his testimony would be uncontradicted and therefore, it could take on the case if it could obtain RPC 1.9 waivers of conflict of interest from both Qualchan and the City. (Ct. Rec. 182). However, that assessment was based on the earlier deposition testimony of Mr. Black when the City sought to learn what he knew. ( Id.). At that deposition, Mr. Dunn, Qualchan's current counsel, asserted many objections on the basis of attorney-client privilege. (Ct. Rec. 189, Exhibit A). Both Qualchan and the City, through its Office of City Attorney, waived any RPC 1.9 conflict of interest with several conditions including (1) no further discovery, (2) no continuance of the trial date which was then set for mid-August, and (3) mediation. Only the third condition is relevant at the present time: mediation failed. It has become clear that Mr. Black's appearance at trial would actually take place.
Because of a scheduling conflict, the Court moved the trial date to October 1, 2001. A variety of motions were then filed by the parties including several related to Mr. Black's testimony, (Ct. Recs. 170-90).
During oral argument, the parties advised the Court that one of the City's council members was questioning the validity or legality of the waiver of the conflict of interest which had enabled the participation of Lukins and Annis on the ground that such a waiver required and had not received formal approval by the City Council. No such motion is before this Court and therefore, the Court has no briefing on the need for formal waiver of RPC 1.9 conflict of interest by the City Council as "client" and expresses no opinion thereon.
II. RPC 3.7
WASH. RULE OF PROF'L CONDUCT 3.7 (1985) provides:
A lawyer shall not act as advocate at a trial in which the lawyer or another lawyer in the same law firm is likely to be a necessary witness except where: (a) The testimony relates to an issue that is either uncontested or a formality; (b) The testimony relates to the nature and value of legal services rendered in the case; or (c) The lawyer has been called by the opposing party and the court rules that the lawyer may continue to act as an advocate; or (d) The trial judge finds disqualification of the lawyer would work a substantial hardship on the client and that the likelihood of the lawyer being a necessary witness was not reasonably foreseeable before trial.
After reviewing the facts of this case, the pleadings filed by the parties and RPC 3.7, the Court finds that none of the exceptions in RPC 3.7 apply which would permit the continued participation of Lukins and Annis in this case as counsel for the City. It is unknowable whether or not testimony elicited from Mr. Black by Mr. Dunn will be "uncontested," therefore RPC 3.7(a) does not apply. That Mr. Black would be a witness was always known. That his testimony was necessary was also always known given his role as attorney for Qualchan at times material and relevant to the issues remaining in this case; for this reason RPC 3.7(d) does not apply. There is no dispute that RPC 3.7(b) does not apply. As to RPC 3.7(c), the Court finds on this record that although Mr. Black will be called by the opposing party, continuation of Lukins and Annis implicates as yet un-briefed determinations of (1) the scope of the waiver of attorney-client privilege by Qualchan, (2) the right of Lukins and Annis to interview Mr. Black about his proposed testimony, (3) the limitations on such an interview, and (4) whether Lukins and Annis could forego cross-examination of Mr. Black. These considerations support this court's decision that RPC 3.7(c) does not provide an exception which would permit Lukins and Annis to continue as counsel for the City. The Court notes that Mr. Black's identification as a witness has existed for some long time including a substantial number of months when the City's former attorneys represented it.
III. Conclusion
It may be that both parties agreed to a waiver of the RPC 1.9 conflict of interest because they each then believed that Mr. Black's testimony would be uncontested and only after the failed mediation did they each fully realize the complications associated with his appearance as a witness. In ruling on this motion, the Court does not question the good intentions of counsel for Qualchan, the City and the City Attorneys Office or their conduct and is aware of the expense incurred by both parties since June of this year when Lukins and Annis became counsel for the City. However, Mr. Black's appearance as a witness does involve complex issues which go to the heart of RPC 3.7.
This court holds that neither RPC 3.7(a), (b), (c) or (d) provide an exception which would permit Lukins and Annis to continue as counsel for the City. The City's motion is DENIED.
The Court further orders Lukins and Annis to advise both it and counsel for Qualchan by noon, Tuesday, September 18, 2001, whether is withdrawing. If it seeks to remain as an advisor to the City while withdrawing, it must file and serve a memorandum of no more than five pages in support of that position. If Qualchan objects, counsel for Qualchan is required to respond with a similarly limited memorandum by noon Thursday, September 20, 2001. The Court will decide the issue on the submitted memoranda unless oral argument is requested. If requested, a telephonic hearing with each party limited to fifteen. minutes of oral argument will be held on Wednesday, September 26, 2001 at 9:00 a.m.
The Court further orders that the trial date of October 1, 2001, is STRICKEN. The City will promptly retain new counsel who shall substitute in for Lukins and Annis. After that Notice of Substitution is received by the Court, a new scheduling conference will be set. Accordingly,
IT IS HEREBY ORDERED:
Defendant City of Spokane's Motion for Continued Representat:on Pursuant to RPC 3.7, (Ct. Rec. 179), is DENIED.
1. Defendant City of Spokane's Motion to Expedite Hearing, (Ct. Rec. 176), is GRANTED.
2. Trial date set for October 1, 2001 is STRICKEN.
IT IS SO ORDERED. The District Court Executive is directed to enter this Order an provide copies to counsel.