A Necessary Witness

An interlocutory appeal of a disqualification order based on Rule of Professional Conduct 3 .7 was allowed but the order was affirmed by the North Carolina Court of Appeals.

The attorney represented herself, her partner spouse and their two-person firm in defending a claim for non-payment for office computers

Everbank subsequently filed a motion to disqualify Mrs. Hunoval as counsel for Mr. Hunoval and the Hunoval Law Firm. In its motion, Everbank claimed Mrs. Hunoval should be disqualified from acting as counsel under Rule 3.7 of the North Carolina Rules of Professional Conduct because she “is a necessary witness to this case, and she has none of the exceptions to Rule 3.7(a) . . . that would allow her to testify and serve as an advocate for all parties.” In response to Everbank’s motion, Mrs. Hunoval argued that she was not a necessary witness because her testimony was obtainable by other means. In support of her argument, she submitted an affidavit by Mr. Hunoval, in which he claimed that “[t]estimony as to any material facts in dispute could be provided by [him] as witness during the trial of this case” and Mrs. Hunoval “does not have any different or additional knowledge of any facts related to the case.”

Necessary Yes

The underlying action for which Mrs. Hunoval attempts to serve as counsel was a dispute over a lease agreement for computer and electronic equipment. Mrs. Hunoval was one of the two individuals guaranteeing the lease agreement, with the other individual being Mr. Hunoval. Mrs. Hunoval argued, and Mr. Hunoval submitted in his affidavit, that her testimony was not necessary because it was obtainable by other means through Mr. Hunoval as the other individual guaranteeing the lease agreement. However, in its motion to disqualify, Everbank argued it intended to call Mrs. Hunoval as a witness and that her testimony was necessary because “[i]t appears that [Mrs.] Hunoval’s testimony will contradict the testimony of her co-defendant, [Mr.] Hunoval . . . .” Everbank expanded upon this contention at the hearing before the trial court, arguing, “She’s denied that they breached the contract. Mathias Hunoval, her husband, sent an email to my client acknowledging the debt to both Everbank and CSI. So there’s a direct conflict right there.” Given this, the trial court’s determination that Mrs. Hunoval’s testimony was unobtainable by other means and that she was likely to be a necessary witness was supported by reason.

Substantial hardship No.

But the disqualification was too broad

There was no evidence or argument before the trial court as to why Mrs. Hunoval should be disqualified from legal representation outside of trial. The trial court’s order also does not state any reasoning behind its decision to extend Mrs. Hunoval’s disqualification to all matters in this case. We conclude this decision was an abuse of discretion and accordingly reverse.

(Mike Frisch)