Katz v. Turesky

          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 ...