Greene v. Norris

Filing 166

ORDER that Respondent's 161 Motion to Disqualify Counsel is granted as follows: Mr. Braden may testify at the competency hearing and may remain at counsel table for the limited purpose of assisting Mr. Lee on the condition that he withdraw his name as counsel of record in this case. Signed by Judge Susan Webber Wright on 9/27/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

JACK GORDON GREENE
Petitioner

VS.

LARRY NORRIS
Respondent

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NO: 5:04CV00373 SWW

ORDER
This is a capital habeas proceeding under 28 U.S.C. § 2254 by Petitioner Jack Gordon
Greene (“Greene”). Before the Court is Respondent’s motion (docket entry #161), asking the
Court to prohibit Assistant Federal Defender Scott W. Braden from testifying at the competency
hearing scheduled for October 6, 2011. Alternatively, Respondent asks the Court to prohibit Mr.
Braden from acting as an advocate for Greene at the hearing. Habeas counsel1 has filed a
response (docket entry #162), and the matter is ready for decision. After careful consideration,
and for reasons that follow, Mr. Braden will be permitted to testify on the condition that he
withdraw his name as counsel of record in this case.
Respondent reports that Scott W. Braden, one of three attorneys listed as counsel of

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The Court appointed the Arkansas Federal Public Defender to represent Greene in this
case. For purposes of this order, the Court will refer to Greene’s attorneys of record--Federal
Public Defender Jenniffer Horan and Assistant Federal Public Defenders Scott W. Braden and
Joshua R. Lee--as “habeas counsel.”

record for Greene, is listed as a witness who is expected to testify at the October 6, 2011
competency hearing in this case. Respondent asserts that pursuant to Rule 3.7 of the Arkansas
Rules of Professional Conduct,2 the Court should either prohibit Mr. Braden from testifying or
disqualify him from acting as Greene’s advocate at the hearing.
In response, habeas counsel state that after carefully considering Rule 3.7, they included
Mr. Braden as a witness because his testimony is essential. Additionally, habeas counsel states
that Assistant Federal Defender Joshua R. Lee will make all arguments, objections, and witness
examinations at the hearing and that Mr. Braden will not act as an advocate for Greene. Habeas
counsel further states that Mr. Braden will be the first witness called, which will eliminate any
concern that his testimony might be influenced by other witnesses. Habeas counsel requests,
however, that Mr. Braden be permitted to remain at the counsel table in order to assist Lee with
tasks such as locating citations, finding documents, and marking exhibits.
Rule 3.7 of the Arkansas Rules of Professional Conduct provides:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
(1) the testimony relates to an uncontested issue;

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This Court has adopted the American Bar Association's Model Federal Rules of
Disciplinary Enforcement, which provide that the district court must apply the code of
professional responsibility adopted by the highest court of the state in which the district court
sits, which, in this case, is Arkansas. See Local Rule 83.5 for the Eastern & Western Districts of
Arkansas; Rule IV(B) ABA Model Federal Rules of Disciplinary Enforcement. The Arkansas
Supreme Court has adopted the American Bar Association's Model Rules of Professional
Conduct as the State’s code of professional responsibility. See In re Arkansas Bar Ass'n, 287
Ark. 495, 702 S.W.2d 326, 393 (1985).

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(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.
Respondent asserts, and the Court agrees, that none of the foregoing exceptions apply in
this case. Furthermore, the Court finds that combining the roles of advocate and witness in this
case presents a significant risk of a conflict of interest between lawyer and client. Accordingly,
the Court finds that Respondent’s motion (docket entry #161) should be and it is hereby
GRANTED as follows: Mr. Braden may testify at the competency hearing and may remain at
counsel table for the limited purpose of assisting Mr. Lee on the condition that he withdraw his
name as counsel of record in this case.
IT IS SO ORDERED THIS 27TH DAY OF SEPTEMBER, 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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