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Levesque v. Lilley

Superior Court of Maine, Cumberland

January 3, 2017

PAUL LEVESQUE, et al, Plaintiffs
v.
DANIEL G. LILLEY, ESQ., et al, Defendants

          ORDER

          Thomas D. Warren, Justice

          Before the court is a motion by defendants to disqualify Attorney John Flynn from representing plaintiffs Paul and Ida Levesque on the only remaining issue in the case - the amended counterclaim by defendant Daniel G. Lilley Law Offices P.A for quantum meruit and/or unjust enrichment seeking to collect its share of the contingent fee obtained after a settlement of plaintiffs Paul and Ida Levesque's claim against Central Maine Medical Center.

         The relevant procedural background is set forth in the court's order dated September 2, 2016 and is incorporated in this order by reference.

         The Lilley Law Office's motion to disqualify is based on Rule 3.7(a) of the Maine Rules of Professional Conduct, which provides as follows:

(a) A lawyer shall not act as advocate at a tribunal in which the lawyer is likely to be a necessary witness unless:
(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.

         It is evident that Attorney Flynn would be a necessary witness at trial. Although the Levesques argue that his testimony would be limited to the nature and value of his services so as to fall within the exception in Rule 3.7(a)(2), there is room for dispute on that score. Broadly speaking, Flynn's anticipated testimony would concern the nature and value of his own legal services, both when he was working for the Lilley Office and subsequently when he represented the Levesques after leaving the Lilley Office, and could also concern the nature and value of legal services performed by the Lilley Office apart from Flynn's involvement.[1]

         On the other hand, given that the sole remaining issue in the case involves the respective contributions of the Lilley Office and of Flynn to the Levesques' recovery from Central Maine Medical Center - an issue which may well turn on the credibility of Flynn and other lawyers who may be called as witnesses - Flynn's potential testimony does not fall comfortably within the Rule 3.7(a)(2) exception. For instance, the Levesques may seek to introduce evidence of alleged mismanagement of the Levesques' medical malpractice claim by the Lilley Office before Flynn became involved, and the Lilley Office may seek to introduce evidence of alleged mismanagement of the Levesques' medical malpractice claim by Flynn after the Levesques ceased to be represented by the Lilley Office.[2] Whether Flynn's potential testimony on those issues would fall within the Rule 3.7(a)(2) exception is an exceedingly close question.

         At the same time, both the court and the parties have recognized that Flynn is the real party in interest in opposing the Lilley Law Office's counterclaim. See September 2, 2016 order at 8; Motion to Disqualify at 4 n.l; Opposition to Motion to Disqualify at 4. Thus, although the Levesques are nominally the defendants on the counterclaim, Flynn will in fact retain for his own benefit any portion of the $90, 000 attorneys fee in his escrow account that is not awarded to the Lilley Law Office on its counterclaim.

         In their opposition to the motion to disqualify, the Levesques argue that if the motion to disqualify is granted, Flynn would move to intervene as the real party in interest. On the present state of the record, the court cannot see any reason why that motion would not be granted.[3] If Flynn intervened, moreover, he would be entitled to represent himself pursuant to Me. Const. Art 1, § 20 and 4 M.R.S. § 860. Although the court has not found any Maine cases on point, federal courts and courts in other jurisdictions have ruled that a lawyer's right to represent himself or herself trumps the "disqualification of lawyer as witness" rule. See, e.g., Duncan v. Poythress, 777 F.2d 1508, 1515 n.21 (11th Cir. 1985); Premium Products v. Pro Performance Sports LLC, 997 F.Supp.2d 433, 436 (E.D. Va. 2014); Gorovitz v. Planning Board of Nantucket, 475 N.E.2d 377, 379-80 (Mass. 1985); Farrington v. Law Firm of Sessions, Fishman, 687 So.2d 997, 999-1000 (La. 1997). Alternatively, Flynn could choose to be represented by counsel if he intervened, but that would be his decision to make.

         Because Flynn could intervene as the real party in interest, the Levesques argue that disqualification would serve no purpose other than to prejudice the Levesques - against whom the counterclaim is nominally brought - by requiring them to hire counsel. While the Levesques may be required to remain in this case as nominal parties, [4] the court sees no reason why they would be required to hire counsel or be represented by counsel. As a practical matter, the Levesques do not stand to lose or gain anything regardless of the outcome of the Lilley Law Office's claims for quantum meruit and unjust enrichment.[5]

         Given all of the above, the court concludes that whether defendants' motion should be granted - and whether there is any point in going through the procedure of disqualifying Flynn but allowing him to intervene as the real party in interest - depends on whether the counterclaim will be tried to a jury or to the court. Comment [2] to Maine Rule 3.7 demonstrates that a primary purpose of the Rule is to avoid confusion by the trier of fact between a lawyer's role as advocate and his role as a fact witness. Such confusion is far more likely to occur in a jury trial than in a ...


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