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Williams v. Bezos

United States District Court, D. Maine

May 22, 2017

BRADLEY PAUL WILLIAMS, Plaintiff
v.
JEFF BEZOS, et al., Defendants BRADLEY PAUL WILLIAMS, Plaintiff
v.
BANGOR DAILY NEWS, et al., Defendants

          MEMORANDUM OF DECISION ON MOTION TO DISQUALIFY COUNSEL

          John C. Nivison, U.S. Magistrate Judge

         In the above-captioned matters, Plaintiff seeks to assert claims against several defendants arising out of the production, sale and distribution of material Plaintiff asserts is obscene, and claims resulting from statements published regarding Plaintiff's dispute with some of the defendants.

         The matters are before the Court on Plaintiff's motion to disqualify Attorney Bernard Kubetz and Eaton Peabody, the law firm with which Attorney Kubetz is affiliated. (No. 17-43, ECF No. 12; No. 17-120, ECF No. 3.) Through his motion, Plaintiff asserts that Attorney Kubetz has a conflict of interest because he has entered his appearance for both Defendants Jon Fishman and the Bangor Daily News. Plaintiff also contends disqualification is warranted because he has named Attorney Kubetz a party-defendant on his defamation claim (Case No. 17-120).

         Following a review of Plaintiff's motion and after consideration of the parties' arguments, the Court denies the motion.

         Background

         In his obscenity action, Plaintiff seeks damages and injunctive relieve against the defendants, including Defendant Fishman, for the manufacture and distribution of obscene material. (Case No. 17-43, ECF No. 1.) Attorney Kubetz is counsel for Defendant Fishman, and has filed a motion to dismiss the case. (Id., ECF No. 4.)

         In his defamation action, Plaintiff claims the defendants published defamatory statements about him in a news report describing state court proceedings between Plaintiff and Defendant Fishman. (Case No. 17-120, ECF No. 1.) In support of his defamation claim, Plaintiff alleges that Attorney Kubetz's “conflict representing both the BDN and Jon Fishman … is the reason [Plaintiff] is suing the BDN.” (Case No. 17-120, ECF No. 1 at 1, ¶ 5.) Plaintiff also asserts that Attorney Kubetz “coached” a newspaper reporter to write an inaccurate article. (Id. at 4.) Attorney Kubetz is counsel in the defamation action for the Bangor Daily News defendants, himself and his law firm, Eaton Peabody. Defendants have challenged Plaintiff's defamation claim in a motion to dismiss based on lack of jurisdiction. (Id., ECF No. 5.)

         In his motion to disqualify, Plaintiff asserts that Attorney Kubetz conspired with the Bangor Daily News to defame him because “[a] reasonable person could surmise that it is Kubetz's control over the editorial content of the BDN that has prevented the prosecution” of Defendant Fishman. (Motion at 5.) Plaintiff suggests that Attorney Kubetz played an advisory role in connection with other difficulties Plaintiff has experienced, including an arrest by municipal law enforcement that preceded the filing of one of Plaintiff's claims. (Id. at 5 - 7.)

         Plaintiff argues that at trial in the defamation case, Attorney Kubetz will have a disqualifying conflict of interest because Defendant Fishman's testimony will be harmful to the Bangor Daily News defendants. (Id. at 6.) Plaintiff also asserts that news media witnesses will provide testimony harmful to Defendant Fishman's interest at trial.

         Discussion

         Disqualification of counsel by court order “is almost never cut-and-dried.” In re Bushkin Assocs., Inc., 864 F.2d 241, 246 (1st Cir. 1989). The district court has “wide discretion” and the determination “ordinarily turns on the peculiar factual situation of the case then at hand.” Id. (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981)). Various circumstances can give rise to a need to consider a disqualification motion. By way of example, the First Circuit has observed:

It may be necessary, for instance, to assess the degree to which a lawyer's presence might taint the trial; the court's need to protect the integrity of the judicial process, enforce its rules against transgressors, and maintain public confidence in the legal profession; the litigants' interest in retaining counsel of their choosing; and the availability and relative efficiency of other sanctions.

Id. A particular concern arises when a party intends to call counsel as a witness at trial.

The principal ethical considerations to a lawyer testifying on behalf of his client regarding contested issues are that the client's case will “be presented through the testimony of an obviously interested witness who is subject to impeachment on that account; and that the advocate is, in ...

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