Opinion
CAUSE NO. IP98-1067-C-T/G
February 7, 2001.
Entry Regarding Motion Of Defendants Curtis Benter And Sarah Benter To Disqualify Legal Services Organization As Counsel In This Case
The Benters move for the disqualification of Legal Services Organization, Inc. ("LSO") as Plaintiffs' counsel in the instant case.
Though this entry is being made available to the public on the court's web site, it is not intended for publication either electronically or in paper form. Under the law of the case doctrine, it is presumed that the ruling or rulings in this entry will govern throughout the litigation before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). It should be noted, however, that this district judge's decision has no precedential authority and, therefore, is not binding on other courts, other judges in this district, or even other cases before this district judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); Old Republic Ins. Co. v. Chuhak Tecson, P.C., 84 F.3d 998, 1003 (7th Cir. 1996) ("decisions by district judges do not have the force of precedent"); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995) ("District court decisions have no weight as precedents, no authority.").
Background
On August 4, 1998, Plaintiffs filed their Complaint, alleging claims under the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. § 1801 et seq., the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the Federal Insurance Contributions Act ("FICA"), 26 U.S.C. § 3101 et seq., and state law. The Benters moved for summary judgment, and on September 19, 2000, the court made its Entry on Motions for Summary Judgment, wherein the Benters' motion was granted in part. Thereafter, on December 1, 2000, the Benters filed their motion seeking to disqualify LSO pursuant to Rules 3.7(b) and 1.7 of the Rules of Professional Conduct. The Benters argue that the testimony of the LSO representatives present at the Knights Inn on August 7 and 8, 1996, is material. In its Entry, the court wrote that:
There are genuine issues of fact as to whether the Plaintiffs agreed that their pay was correct, whether the Cardenas and Pacheco workers are still owed for unpaid minimum wages, whether the family representatives told Mr. Benter that they wanted one check per family, whether they agreed and intended to settle their dispute over wages with the Benters, and whether Eulalia Cardenas was cognizant of the conditions placed on the Benters' check that it was payment for "labor in full".
(Entry at 27 n. 9.) The Benters also claim there is an issue of fact as to whether Curtis Benter gave Eulalia Cardenas money as a good will gesture to help her with bus fare.
According to the Benters' Answer to Interrogatory Number 17, the LSO representatives suggested payment of that money and witnessed that payment. The Benters argue that all of these factual issues relate to damages and some relate to the Benters' liability.
Analysis
Disqualification is a "drastic measure that courts should impose only when absolutely necessary." Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993) (citations omitted). Motions to disqualify "should be viewed with extreme caution for they can be misused as techniques of harassment." Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721-22 (7th Cir. 1982). The party seeking disqualification bears the burden of showing facts requiring disqualification. See Bogosian v. Bd. of Educ. of Cmty. Unit Sch. Dist. 200, 95 F. Supp.2d 874, 875 (N.D. Ill. 2000). "[T]he district court possesses broad discretion in determining whether disqualification is required in a particular case. . . ." Whiting Corp. v. White Mach. Corp., 567 F.2d 713, 715 (7th Cir. 1977) (quotation omitted).
Rule 3.7(b) of the Rules of Professional Conduct provides in pertinent part that "[a] lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9." R. PRO. COND. 3.7(b). The commentary to Rule 3.7 expresses the concern about a lawyer as witness as follows:
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.
R. PRO. COND. 3.7 comment.
The Plaintiffs' argument that Rule 3.7(b) is inapplicable to the trial testimony of former members of LSO is persuasive. The Second Circuit addressed a similar disciplinary rule in International Electronics Corporation v. Flanzer, 527 F.2d 1288, 1294 (2nd Cir. 1975). The rule at issue in Flanzer required a lawyer to withdraw where the lawyer learns or it becomes obvious that the lawyer or "a lawyer in his firm ought to be called as a witness." See id. at 1292 n. 9. The court denied a motion to disqualify counsel, reasoning that the rule did not specifically prohibit a lawyer from acting as trial counsel where a former law partner may be a witness. See Flanzer, 527 F.2d at 1294. The court noted that the thrust of the rule was to the contrary: "or a lawyer in his firm." Id. The court also reasoned that the ethical considerations underlying the rule prohibiting a party's trial counsel from testifying as a witness were not implicated where a former partner may be a witness. See id. The ethical considerations were that the public might believe the lawyer was distorting the truth for his or her client and the lawyer would vouch for his own credibility in closing argument. See id. (citing 6 WIGMORE ON EVIDENCE § 1911 (3d ed. 1940)). That latter consideration is like that expressed in the comment to Rule 3.7 of the Rules of Professional Conduct.
Like the disciplinary rule in Flanzer, the language of Rule 3.7 does not specifically apply to a situation in which a former member (whether attorney or non-attorney) of a law firm (LSO is treated like any other law firm) is likely to be called as a witness at trial. Rather, the rule speaks to "another lawyer in the lawyer's firm". Similarly, the ethical considerations justifying a lawyer's disqualification where the lawyer will testify as a witness are not implicated here where a former LSO employee may testify at trial. Further, the former LSO representatives will not have any opportunity to vouch for their own credibility in closing argument; that argument will be made by current counsel. The only concern would be that former LSO representatives would distort their testimony to benefit the Plaintiffs — present LSO clients and LSO clients at the time when the former representatives were associated with LSO. The Benters, however, have made no showing that the former representatives would distort their testimony, and, of course, the Benters may avail themselves of cross-examination to impeach the former LSO representatives. See S R, Inc. v. Unlimited Fin., Inc., 625 F. Supp. 1033, 1036-37 (S.D. Ohio 1985) (holding likelihood that former partner of plaintiff's counsel would testify as key witness did not require disqualification of plaintiff's counsel and noting that vigorous cross-examination would be available to impeach former partner). Following these persuasive authorities, the court concludes that Rule 3.7(b) is inapplicable where former representatives of LSO may testify at trial.
Even assuming that Rule 3.7(b) would be applicable, the Benters still have not shown that disqualification of Plaintiffs' counsel is necessary. Because Rule 1.9 regarding a conflict of interest involving a former client is inapplicable here, the court's consideration is limited to Rule 1.7(b), which provides in pertinent part:
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected, and
(2) the client consents after consultation.
R. PRO. COND. 1.7(b). The Benters had not shown such a material limitation on LSO's representation of the Plaintiffs. Therefore, Rule 1.7(b) does not require LSO's disqualification.
Rule 1.7(a) prohibits representation of opposing parties in litigation. See comment, R. PRO. COND. 1.7. It therefore appears inapplicable in the instant case, and the court understands the Benters to rely on Rule 1.7(b) only.
Moreover, counsel of record for the Plaintiffs states in his affidavit that he reasonably believes the representation will not be adversely affected (Pls.' Resp. Defs.' Mot. Disqualify, Ex. B., Aff. Roderick E. Bohannan, ¶ 11), and all Plaintiffs but for Maria Pacheco, Isabel Pacheco, Deysdi Pacheco, and Mario Pacheco have submitted their own affidavits in which they state that, after consultation, they consent to LSO's continued representation. (Pls.' Affidavits, attached to Pls.' Surreply Defs.' Mot. Disqualify; see also Pls.' Resp. Defs.' Mot. Disqualify, Ex. B, Bohannan Aff. ¶¶ 13-16). The Benters argue that the court must decide whether counsel's belief that his representation will not be adversely affected is a reasonable belief. Given that there has been no showing that LSO's responsibilities, if any, to the Benters or the former LSO representatives who may testify or Plaintiffs' counsel's own interests limit counsel's representation of Plaintiffs, the court finds that counsel's belief is reasonable.
Thus, these aforementioned Plaintiffs have not waived any conflict of interest which may exist. See R. PRO. COND. 1.7 comment ("When more than one client is involved, the question of conflict must be resolved as to each client.") Of course, because the Benters have not shown a material limitation on LSO's representation of any Plaintiff, the lack of affidavits from these Plaintiffs is inconsequential.
The Benters argue that this case presents two "ethical problems." First, if LSO asserts any privilege as against documents sought by the Benters' subpoena duces tecum for written materials concerning the events of August 7-9, 1996, LSO's role as witness conflicts with its role as counsel, thus prejudicing the Benters. Second, the Benters anticipate that the testimony of the former LSO representatives will be favorable to the Benters and will then argue that the Plaintiffs and their counsel pursued this case despite what LSO's own representatives suggested, witnessed, and testified to.
As for the former problem, the Plaintiffs indicate that their representation by LSO commenced on August 8, 1996, (Defs.' Reply Pls.' Resp. Mot. Disqualify, Ex. A, Letter from Steve Shoup to Timothy Vrana of Jan. 16, 2001) so it seems that the LSO representatives were involved in events on August 8-9, 1996, only because of LSO's legal representation of the Plaintiffs. To put it differently, LSO's role as witness is derived from LSO's role as counsel. Thus, the attorney-client privilege may be available to the Plaintiffs in response to the subpoena. Of course, the Benters may testify about things that did or did not occur during the events of August 8-9, as may the Plaintiffs. Thus, the testimony of the former LSO representatives present on those days would seem to be cumulative of testimony provided by the Benters and/or the Plaintiffs. The Plaintiffs' right to select the counsel of their choice outweighs the latter ethical concern raised by the Benters. If the anticipated testimony of the former representatives is favorable to the Benters, then the Benters may argue that the Plaintiffs and their counsel pursued this litigation despite what the representatives suggested, witnessed and testified to. It is difficult to comprehend how the Benters are thereby prejudiced.
The court notes that Exhibit A attached to the Benters' reply brief indicates that none of the documents sought by the subpoena duces tecum pre-date August 8, 1996. (Defs.' Reply, Ex. A.)
In reaching this conclusion, the court does not and need not decide whether the testimony of the former LSO representatives will be favorable or harmful to the Benters.
The Plaintiffs argue that the motion to disqualify obviously was a tool of harassment because of its late nature after some claims survived summary judgment, but the Benters have represented that they waited to make the motion until they believed it was truly necessary — until it was determined through summary judgment that the former LSO representatives were witnesses to material facts. To be sure, motions to disqualify opposing party's counsel "can be misused as techniques of harassment." Freeman v. Chicago Musical Inst. Co., 689 F.2d 715, 721-22 (7th Cir. 1982). The court is not critical of the timing of the Benters' motion, though. It was appropriate to wait until after the summary judgment issues were resolved so that they would know whether the matters about which the former LSO representatives can testify would be a part of the trial. There is no indication that the motion was made in bad faith.
Given the court's conclusion that Rules 3.7(b) and 1.7(b) do not require the disqualification of Plaintiffs' counsel, the court need not consider whether equitable grounds exist for denying the Benters' motion.
Conclusion
For the foregoing reasons, the Benters' motion to disqualify LSO as Plaintiffs' counsel is DENIED.
ALL OF WHICH IS ORDERED this 7th day of February 2001.