Lawyer Witness Rule, Other Concerns, Justify Disqualification

The North Carolina Court of Appeals affirmed the grant of a motion to disqualify as counsel an attorney sued for malpractice by his former client under the lawyer-as-witness rule.

The court held that the attorney could not represent either himself or a law firm co-defendant.

The defendant attorney had contended that the motion was “premature” at the pretrial stage.

The court disagreed

In this case, the trial court found Fine along with Marshall Grant would be deposed and be witnesses at trial as Plaintiff requires evidence about Fine’s wrongful conduct, suspension from the practice of law during the representation of Plaintiff, and the amounts of money invoiced and paid by Plaintiff to Defendants during Fine’s suspension. Thus, if admitted at trial, the evidence obtained during these depositions would reveal Fine’s dual role as it may not be clear to the jury whether they should take Fine’s deposition statements as proof or as an analysis of the proof. See N.C. Rev. R. Prof. Conduct 3.7, cmt. 2. Therefore, the trial court did not abuse its discretion in disqualifying Fine from representing Marshall Grant under Rule 3.7 of the Rules of Professional Conduct.

As to self-representation

A lawyer’s right to be self-represented even when the lawyer is likely to be a necessary witness notwithstanding, the question remains whether circumstances may arise permitting a court to disqualify a lawyer from appearing pro se in a particular case. North Carolina courts do not appear to have addressed this question

At least one court has suggested, however, that while the witness-advocate rule codified in Rule 3.7 does not apply to lawyers appearing pro se, the pro se lawyer may still be subject to discipline or sanctions including disqualification for abusing the role of lawyer-litigant:

Since defendants have elected to appear pro se, they must conduct themselves in their role as advocates under the same standards of conduct expected of all members of the legal profession in relation to the opposing party, the court and the public. If during the course of these proceedings, the combined role of lawyer and party is abused, the trial judge, in his discretion, may impose whatever sanctions are necessary to [e]nsure the orderly conduct of the proceedings including requiring defendants to procure independent counsel to conduct the adversarial proceedings. Farrington, 96-1486, p. 5, 687 So.2d at 1001. 5

We believe this approach is also consistent with North Carolina law.

But here

Here, while it is apparent that the trial court did rely on Rule 3.7 in part for the basis of disqualifying Fine from representing both himself and Marshall Grant, it is also clear this was not the sole basis for disqualifying Fine. In fact, the trial court’s Findings reflect the trial court’s concern was not merely that Fine may likely be a necessary witness, but rather that Fine would likely be the key witness with unique knowledge upon which both his and Marshall Grant’s liability may hinge. Further, the trial court’s Findings reflect concern about Fine’s ability to operate and advocate objectively in this tripartite role of litigant, lawyer, and key witness as illustrated by Fine’s behavior and demeanor in this case including Fine’s own acknowledgment: “he was angry about being sued by Plaintiff and therefore his filed motions may reflect his emotional feelings . . . .”

Moreover, the trial court’s Findings also demonstrate the trial court’s additional concern about the interwoven relationships at the heart of this case including the attorney-client relationship between Fine and Plaintiff, Fine’s relationship with Marshall Grant, and Marshall Grant’s role in collecting substantial fees from Plaintiff for legal work while Fine was unlicensed. Finally, undergirding all of these concerns was the trial court’s recognition of Fine’s history of wrongful conduct as found by the North Carolina State Bar including: making “misleading statements [to clients] regarding the services Fine could provide”; making “a false statement to a tribunal by holding out in case filings as an actively licensed attorney in North Carolina despite being suspend at the time”; and charging or collecting “an illegal or excessive fee in violation of Rule 1.5(a).” Indeed, the allegations against Fine in this case include allegations of the same or similar wrongful conduct in his representation of Plaintiff.

Given the litany of concerns reflected in the trial court’s Order, we cannot conclude the trial court’s exercise of its inherent authority to control proceedings— including control of the lawyers appearing before it—was arbitrary or unsupported  by reason. Thus, the trial court did not abuse its discretion in disqualifying Fine from appearing as an attorney for himself or Marshall Grant on the facts of this case. Therefore, the trial court did not err in entering its Order disqualifying Fine from appearing pro se and from representing Marshall Grant in this litigation.

(Mike Frisch)