Opinion
Case No: 2:02-CV-0039 TC
October 28, 2003
ORDER DENYING MOTION TO DISQUALIFY COUNSEL
Plaintiff moved to disqualify Robert Copier from acting as counsel for Patrick M. Brody. Plaintiff alleges "Copier is substantially involved in Brody's business and financial dealings" and that "it is likely that Copier is a necessary witness for this litigation." The "litigation" is a contempt proceeding against Brody, alleging continuing violations of an order filed January 15, 2002. Copier has appeared "for the special and limited purpose of representing Mr. Brody in the . . . motion for civil contempt against Patrick M. Brody."
Motion to Disqualify Robert Henry Copier as Counsel for Patrick M. Brody, docket no. 152, filed September 5, 2003.
Id., page 2.
Motion for Civil Contempt against Defendant Patrick M. Brody, docket no. 127, filed July 28, 2003, and Temporary Restraining Order, Order of Asset Freeze, Prohibiting Destruction of Properties and Other Relief, docket no. 8. See also Amended Motion for Civil Contempt against Defendant Patrick M. Brody, docket no. 177, filed October 17, 2003.
Entry of Special and Limited Appearance, Preliminary Response and Request for Notice of Evidentiary Hearing, docket no. 139, filed August 12, 2003.
Plaintiff relies on Utah Rule of Professional Conduct 3.7(a) in making its motion. The rule provides:
The Utah Rules of Professional Conduct apply in this Court by virtue of DUCivR 83.1-1(h).
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(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.
Plaintiff has shown that Copier is involved in matters which could be pertinent in the contempt hearing, and Copier has attempted to rebut this assertion of his factual knowledge. Thus, it may be that Copier would be a witness in the contempt proceeding. The rule would require Copier to withdraw if it is "likely" he would be a witness at the hearing, even though the hearing held earlier this month, at which Plaintiff put on proof, did not result in Copier's testimony. None of the exceptions to the rule governing Copier's decision on withdrawal seem to apply here.
Memorandum in Support of Motion to Disqualify Robert Henry Copier as Counsel for Patrick M. Brody, docket no. 153, filed September 5, 2003, pages 3-6.
Patrick M. Brody's Memorandum in Response to the SEC's Motion to Disqualify his Special Counsel, docket no. 174, filed October 15, 2003, and Memorandum in Support of Motion to Refer the Motion to Disqualify Counsel to Mediation, docket no. 158, filed September 15, 2003.
But the question on this motion is not whether Copier should withdraw because it may be likely he may be a witness; the issue is whether his disqualification should be forced in these circumstances, The ethical rule is not the ultimate governing standard.
The framework for analysis of this motion is set out in Parkinson v. Phonex Corp., 857 F. Supp. 1474 (D. Ut. 1994). Judge Sam's order, affirming Magistrate Judge Boyce's refusal to disqualify counsel, sets foundational concepts for evaluation of motions to disqualify.
First, the legal profession's ethical rules are not the standard for measure of conduct of litigation. Standards of professional conduct meant to be enforced by professional bodies cannot govern litigation because the considerations in each forum are different. Courts are not to "correct all possible ethical conflicts" because "this laudable goal cannot be attained through rulings in the course of litigation without inviting the wholesale filing of motions for tactical reasons. The result would be needless disruption and delay of litigation, thereby impairing the efficient administration of justice." Therefore, "[w]here a threat of tainting the trial does not exist . . . the litigation should proceed, the remedy for unethical conduct lying in the disciplinary machinery of the state and federal bar" In sum, violation of ethical rules "does not require disqualification as a matter of course."
857 F. Supp. at 1476, quoting Bodily v. IHC, 649 F. Supp. 468 (D. Utah 1986), quoting Armstrong v. McAlpin, 625 F.2d 433 at 444-446 (2d Cir. 1980).
Id., quoting Bodily v. IHC, 649 F. Supp. 468 (D. Utah 1986).
Second, the disqualification should only be ordered "upon a finding that presence of a particular counsel will taint the trial by affecting his or her presentation of a case." That is a fact-sensitive analysis, peculiar to each case. Among the facts Parkinson suggests are pertinent are:
Id., quoting Bottaro v. Hatton Assoc., 680 F.2d 895, 896-897 (2d Cir. 1979)
• the egregiousness of the violation;
• the presence or absence of prejudice to the other side; • whether and to what extent there has been a diminution of effectiveness of counsel; • equitable considerations, such as the hardship to the other side; and • the stage of trial proceedings.
These factors are, however, merely illustrative of the facts that may be pertinent. Each case must be examined "on its own specific facts."
Id., quoting Beck v. Board of Regents, 568 F. Supp. 1107 (D. Kan. 1983).
In Poly Software v. Su, 880 F. Supp. 1487 (D. Utah 1995), Judge Winder cited other cases to make it clear that "motions to disqualify counsel in federal proceedings are substantive motions affecting the rights of the parties [and] are decided by applying standards developed under federal law. . . . considered in light of the public interest and the litigants' rights. "
880 F. Supp. at 1490, citing Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994), quoting In re Dresser Indus. Inc., 972 F.2d 540, 543 (5th Cir. 1992).
The contempt hearing already in process is a limited proceeding and Copier has appeared only for that purpose. The hearing is before a judge, not before a jury. The effect of the possibility that Copier's testimony might be needed is hard to evaluate, as no direct evidence from Copier or Brody shows Copier's involvement. Therefore, the egregiousness of the violation is hard to quantify.
Copier's involvement in the factual setting at issue in the contempt hearing may be of substantial aid to Brody, and of little significance to Plaintiff who has apparently developed evidence from sources independent of Copier. Thus, the potential for hardship to Brody by forcing disqualification is much greater than any prejudice to Plaintiff by permitting representation and potential testimony. It does not currently appear that Copier's effectiveness is diminished; in fact, his effectiveness is probably enhanced by any factual information he may have.
ORDER
IT IS HEREBY ORDERED that the motion to disqualify counsel is DENIED.
Motion to Disqualify Robert Henry Copier as Counsel for Patrick M. Brody, docket no. 152, filed September 5, 2003.