ROBYN KATZ, Individually and as Beneficiary of the Reuben Katz Testamentary Trust, and WAYNE LAWSON, Plaintiffs
v.
DAVID TURESKY, Defendant
ORDER ON DEFENDANT'S MOTION TO DISQUALIFY JEFFREY
BENNETT, ESQ. AS PLAINTIFFS' COUNSEL
Nancy
Mills, Justice.
Procedure
Before
the court is defendant's motion to disqualify Attorney
Jeffrey Bennett as plaintiffs' counsel. M.R. Prof.
Conduct 3.7. Because the court was unable to schedule a
hearing on defendant's motion, the court requested the
parties file affidavits addressing the motion. The affidavits
were filed on November 30, 2018. For the following reasons,
the motion is granted.
Facts
In
their amended complaint, plaintiffs alleged nine causes of
action against defendant, individually and as trustee: count
I, breach of fiduciary duty; count II, negligence and
professional negligence; count III, intentional infliction of
emotional distress; count IV, negligent infliction of
emotional distress; count V, unjust enrichment and
restitution; count VI, fraud, misrepresentation, and deceit;
count VII, defamation; count VIII, malicious prosecution and
wrongful use of civil proceedings; and count IX, an
accounting of trust assets, proceeds, and records. Attorney
Bennett represented plaintiffs in three forcible entry and
detainer (FED) actions, which form the basis for several of
the factual allegations in plaintiffs' amended complaint
and for the allegations in count VIII, malicious prosecution
and wrongful use of civil proceedings. (Pis.' Am. Compl.
¶¶ 26-43, 47-450, 55, 57, 59; Turesky Aff.
¶¶ 4-10.) By order filed on November 30, 2018, the
court granted defendant's motion to dismiss count VIII of
plaintiffs' amended complaint. In addition to Attorney
Bennett's representation of plaintiff in the FED matters,
defendant alleges that Attorney Bennett is a necessary
witness who can offer testimony relevant to other allegations
in the amended complaint. (Turesky Aff. ¶¶ 11-15.)
Standard
The Law
Court has noted that motions to disqualify are "capable
of being abused for tactical purposes." Morin v. Me.
Educ. Ass'n, 2010 ME 36, ¶ 8, 993 A.2d 1097.
Disqualification is appropriate when the moving party
produces evidence that supports two findings:
First, disqualification must serve the purposes supporting
the ethical rule. A party moving to disqualify an attorney
has the burden of demonstrating more than mere speculation
that an ethics violation has occurred; she must establish in
the record that continued representation of the nonmoving
party by that party's chosen attorney results in an
affirmative violation of a particular ethical rule. Further,
even if an ethical violation is established, whether
disqualification of that attorney may be imputed to the
attorney's entire law firm depends on which ethical
violation is found to have occurred.
Second, we require a showing that continued representation by
the attorney would result in actual prejudice to the party
seeking that attorney's disqualification . . . courts
will not assume the existence of prejudice to the moving
party just by the mere fact that an ethical violation was
committed, even when that ethical violation involves
confidential communications. A mere general allegation that
the attorney has some confidential and relevant information
he gathered in the previous relationship will not support
disqualification. Rather, the moving party must point to the
specific, identifiable harm she will suffer in the litigation
by opposing counsel's continued representation. Indeed,
to allow disqualification with proof of anything less than
such actual prejudice would be to invite movants to employ
this obvious vehicle for abuse.
Morin. 2010 ME 36, ¶¶ 9-10, 993 A.2d 1097
(quotations and citations omitted).
Discussion
Defendant
relies on Rule 3.7 of the Maine Rules of Professional Conduct
for disqualification. That rule provides that a "lawyer
shall not at as advocate at a tribunal in which the lawyer is
likely to be a necessary witness unless ... disqualification
of the lawyer would work substantial hardship on the
client." M.R. Prof. Conduct 3.7(a). As discussed,
although plaintiffs' claim for malicious prosecution and
wrongful use of civil proceedings has been dismissed,
defendant argues Attorney Bennett's testimony will be
required on other issues. (Turesky Aff. ¶¶ 11-15.)
Considering
the allegations in the amended complaint and defendant's
statements in his affidavit, the court concludes that
defendant has made the necessary showing under
Morin. Attorney Bennett is a necessary witness,
particularly with regard to plaintiffs' emotional
distress and defamation claims. Defendant has identified
specific, identifiable harm he will suffer in the litigation
by opposing counsel's continued representation. If
Attorney Bennett continues his representation of plaintiffs
and is called as a witness, the trier of fact, likely a jury,
may be confused by his dual roles as advocate and witness. If
he continues his representation and does not testify,
defendant is deprived of relevant testimony.
Accordingly,
the court must balance the interest of plaintiffs, the court,
and defendant. M.R. Prof. Conduct 3.7 cmt. (4). It is
relevant that both parties could have foreseen that Attorney
Bennett would probably be a witness. Id. As
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