Dawaji v. Kohlhoss et al

Filing 33

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 11/27/2013. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NAJAH DAWAJI,
Plaintiff,
v.
SUNNEY KOHLHOSS and
MORAD ASKAR,
Defendants.

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No. 13 CV 6404
Magistrate Judge Young B. Kim

November 27, 2013

MEMORANDUM OPINION and ORDER
Morad Askar sought a divorce from his wife, Najah Dawaji, in 2009. After
the marriage was terminated, Askar retained attorney Sunney Kohlhoss and
Dawaji retained attorney Joel Brodsky to represent them during the financial and
child custody phases of their divorce proceeding.

Related to those proceedings,

Askar filed a petition for indirect criminal contempt against Dawaji. His attorney
served as the special prosecutor to prosecute the contempt petition. After Brodsky
and Kohlhoss negotiated a resolution of the financial and custody matters, Kohlhoss
dismissed the contempt petition.

Shortly thereafter, Dawaji, by her attorney

Brodsky, brought this action under 42 U.S.C. § 1983 against Askar and Kohlhoss,
alleging that their pursuit of the contempt petition deprived Dawaji of various
constitutional rights.

Defendants now move to disqualify Brodsky from

representing Dawaji in this matter on the ground that he is a key witness to the
most salient facts of the case and will be a necessary witness at trial. This court

denies the motion as premature and cautions Dawaji that she should consider
retaining substitute or a second counsel for the following reasons:
Facts
In 2009, Morad Askar filed a petition for dissolution of his marriage to Najah
Dawaji. (R. 1, Compl. at ¶ 11.) In 2011, the state court presiding over the divorce
proceeding terminated the marriage and granted the parties joint custody of their
two minor children, with Dawaji as the residential parent. (Id. at ¶ 12.) The court
also set for trial the remaining issues of child support, maintenance, the
distribution of property, and other financial matters. (Id. at ¶¶ 12, 13.) Shortly
thereafter, the court entered a Joint Parenting Agreement and Custody Judgment
(“JPA”) to govern the joint custody arrangement. (Id. at ¶ 17.)
Both parties retained new counsel before litigating the financial matters. In
May 2012, Askar retained Kohlhoss, and in January 2013, Dawaji retained
Brodsky. (Id. at ¶ 18; see also R. 14, Defs.’ Mot. at 3.) In April 2013, Kohlhoss filed
a petition for indirect criminal contempt against Dawaji alleging a failure to comply
with certain terms of the JPA. (R. 14, Defs.’ Mot., Ex. K.) The following month, the
presiding judge appointed Kohlhoss as a special prosecutor to prosecute the
contempt petition. (Id., Ex. N.) Brodsky was successful in moving for a substitution
of judge for adjudication of the contempt petition but was unsuccessful in moving to
dismiss the petition. (Id., Exs. P and S.) On July 24, 2013, the same day that
Dawaji’s motion to dismiss the contempt petition was denied, the parties negotiated
a settlement of the financial and custody matters and withdrawal of the contempt

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petition. The following day the parties appeared for a hearing where they presented
the terms of an agreed order resolving all remaining financial and custody matters.
(Id., Ex. T.) At the hearing, the parties also informed the court that Askar had
agreed to withdraw his contempt petition. (Id. at 19.) On August 6, 2013, the
parties submitted an agreed order consistent with these terms and on August 21,
2013, the presiding state court dismissed the contempt petition. (Id., Exs. U and V.)
Dawaji then filed this Section 1983 suit alleging that Defendants’ pursuit of
the criminal contempt petition violated her constitutional rights because they
intimidated her into accepting a grossly unfair divorce settlement. (R. 1, Compl. at
¶¶ 32-33.) Defendants seek to disqualify Brodsky from serving as counsel in this
case.

(R. 14.)

They argue that Brodsky was centrally involved in all of the

negotiations and discussions concerning the divorce settlement and the contempt
petition, as well as all of the representations to the state court judges adjudicating
those matters, and that Brodsky would likely be called as a witness at trial to
testify. They also argue in their reply brief that Brodsky’s cross-examination of
Defendants regarding conversations he had with either or both of them would
create an “unsworn witness” problem, meaning that even if he did not testify, his
questioning of Defendants’ recollection of conversations to which he had been a
party might be perceived by the trier of fact as testimony as opposed to advocacy.

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Analysis
This court looks to the American Bar Association’s Model Rules of
Professional Conduct (“ABA Model Rules”) to rule on the motion to disqualify. This
court adopted the ABA Model Rules as its rules of professional conduct except
where they are inconsistent with the Rules of Professional Conduct in the state in
which the lawyer’s principal office is located, in which case “any lawyer admitted to
practice in Illinois is governed by the Illinois Rules of Professional Conduct.” See
L.R. 83.50 (effective June 2011); Walton v. Diamond, No. 12 C 4493, 2012 WL
6587723, at *1 (N.D. Ill. Dec. 14, 2012). The relevant rule in this case is ABA Model
Rule 3.7(a), entitled “Lawyer as Witness,” which states as follows:
(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; (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.
ABA Model Rule 3.7. This rule is identical to Illinois Rule of Professional Conduct
3.7. See Ill. R. Prof’’l Conduct 3.7.
“[T]he prohibition against a lawyer serving as an advocate at trial and
testifying as a witness in the same matter is aimed at eliminating confusion about
the lawyer’s role.”

Ellen J. Bennett, et al., ANNOTATED MODEL RULES OF

PROFESSIONAL CONDUCT 373 (7th ed. 2011). A trier of fact could be confused
by an attorney-witness because a “witness is required to testify on the basis of
personal knowledge, while an advocate is expected to explain and comment on
evidence given by others. It may not be clear whether a statement by an advocate-

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witness should be taken as proof or as an analysis of the proof.” ABA Model Rule
3.7, comment 2. This confusion could prejudice either party—the attorney-witness
may be perceived to be biased in favor of his or her client, or, conversely, might be
perceived as unquestionably trustworthy because he or she is an officer of the court.
In either case, an attorney serving in both roles “is apt to be a poor witness, a poor
advocate, or both.” Gusman v. Unisys Corp., 986 F.2d 1146, 1148 (7th Cir. 1993).
In their motion to disqualify, Defendants question Dawaji’s ability to
establish her claims without extensive testimony from Brodsky because he
represented and advised her during the settlement negotiations and for all
representations to the state court judges about those settlements. Dawaji counters
that she need not call Brodsky to prove her case because she intends to rely on
documentary evidence and testimony from other witnesses. Regardless, Defendants
claim that they are likely to call Brodsky to prove that Dawaji accepted the
settlement because she believed that she would be unable to obtain better terms for
child support and maintenance, not because she felt coerced into doing so.
ABA Model Rule 3.7 requires that Defendants show that Brodsky’s testimony
is necessary, meaning that it would be “unobtainable elsewhere.” Bennett, supra
at 4, at 376.

This is a high hurdle, because when “one party argues that an

opponent’s attorney is a necessary witness and moves to disqualify that attorney . . .
courts view the opponent’s asserted need to call the attorney more skeptically and
must be concerned about the possibility that the motion to disqualify is an abusive

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tactic to hurt the opponent’s ability to pursue his case.” Harter v. University of
Indianapolis, 5 F.Supp.2d 657, 663 (S.D. Ind. 1998).
At this point in the litigation, this court finds that it is too early to anticipate
the testimony or proof likely to be offered by any of the parties. Even if Brodsky’s
testimony can be deemed to be necessary at trial, ABA Model Rule 3.7 does not
empower this court to disqualify him at this time. See ABA Model Rule 3.7 (“A
lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a
necessary witness”) (emphasis added). As compared to Local Rule 83.53.7(c)─which
governed the issue of a lawyer serving as a witness prior to the adoption of the ABA
Model Rules─ABA Rule 3.7 is more permissive during the pre-trial phase. The
prior rule stated that “‘nothing in this rule shall be deemed to prohibit a lawyer
barred from acting as an advocate in a trial or evidentiary proceedings from
handling other phases of the litigation.’” Mercury Vapor Processing Techs., Inc. v.
Village of Riverdale, 545 F.Supp.2d 783, 789 (N.D. Ill. 2008) (quoting Local Rule
83.53.7). In Mercury, the court denied as premature a motion to disqualify brought
before discovery, finding that “even if [the attorney] later becomes a witness at trial
or in an evidentiary proceeding, he is not prohibited from conducting discovery,
drafting motions, or serving in some other capacity at this stage in the litigation.”
Id. Thus, this court concludes that even if Brodsky later becomes a witness at trial,
he is not prohibited from representing Dawaji at this time.
For the sake of completeness, this court also addresses Defendants’ theory of
the “unsworn witness” problem. This problem arises when an attorney could be

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perceived as testifying when questioning or cross-examining a witness about a
conversation to which he or she was a party. In this case, if Brodsky questions
Defendants’ recollections of the settlement negotiations that resulted in the
dismissal of the contempt petition, his prompts could be perceived as testimony
about his personal recollections of those negotiations. However, Defendants did not
advance this argument in their opening brief, so it is considered waived here. See
Williams v. O'Leary, 55 F.3d 320, 323 n.4 (7th Cir. 1995) (“We do not ordinarily
consider arguments raised for the first time in a reply brief.”). “The reason for this
rule of waiver is that a reply brief containing new theories deprives the respondent
of an opportunity to brief those new issues.” Wright v. United States, 139 F.3d 551,
552 (7th Cir. 1998). Dawaji has not had an opportunity to argue how the “unsworn
witness” rule interacts with the applicable ABA rules. Also, because this court
cannot predict whether this case will proceed to trial, or whether Brodsky’s
conversations with Defendants will be at issue at trial, it is premature to weigh the
“unsworn witness” concerns.
Dawaji should, however, consider whether to keep Brodsky as her counsel in
this case. Even though the court is not removing Brodsky as her counsel at this
time, the downside to having Brodsky prosecute this case on her behalf may be
great in the long run if the case survives Defendants’ motion to dismiss.

His

potential testimony as a deponent or trial witness could detract from her claim. For
example, if Brodsky represents her during discovery and offers deposition testimony
to substantiate Dawaji’s alleged feelings of intimidation or coercion, the testimony

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would be subject to impeachment for bias due to Brodsky’s dual role. See Sicher v.
Merrill Lynch & Co., Inc., No. 09 C 1825, 2009 WL 4894658, at *2 (N.D. Ill. Dec. 11,
2009). A “lawyer-witness, given his partiality as an advocate, may actually cause
the jury to skeptically disregard the facts to which he avers as a witness.” Id.
(citing United States v. Morris, 714 F.2d 669, 671 (7th Cir. 1983)). Additionally,
Defendants point out that Brodsky has a financial stake in the case arising from
Dawaji’s pursuit of attorneys’ fees in this case. The fee arrangement is not grounds
for disqualification under ABA Model Rule 3.7, but it could be another basis for
impeaching Brodsky’s testimony if he is called as a witness. This court cautions
Dawaji that the longer Brodsky serves as counsel in this case, the more persuasive
the inference of bias will be.
This court trusts that Brodsky will heed his ethical obligation under ABA
Model Rule 1.4 and the companion Illinois rule regarding communication to his
client.

The comment to that rule states that “[a] lawyer may not withhold

information to serve the lawyer’s own interest.” ABA Model Rule 1.4, comment 7.
Defendants allege that Brodsky was Dawaji’s advisor when she accepted the
settlement terms she now attacks as grossly unfair.

They further allege that

Brodsky failed to inform the state court judge presiding over the divorce proceeding
that Dawaji’s acceptance of the settlement terms was coerced. If facts supportive of
a legal malpractice case against Brodsky develop, this court reminds Brodsky that
ABA Model Rule 1.4 requires attorneys to engage in fulsome client-lawyer
communications.

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Returning to the issue at hand, this court has no choice but to deny
Defendants’ motion as premature because “[d]isqualification is a drastic measure
that the courts should impose only when absolutely necessary,” Livers v. Wu, 6
F.Supp.2d 921, 925 (N.D. Ill. 1998), and because ABA Model Rule 3.7 does not limit
the choice of counsel for pre-trial proceedings. Dawaji may be reluctant to hire new
counsel, but if she chooses to have Brodsky represent her despite the concerns
articulated above, she does so at her own peril. If the case proceeds to trial and
Brodsky’s testimony is found to be necessary, Dawaji will not be permitted to argue
that she would be unfairly prejudiced by Brodsky’s disqualification on the eve of
trial.
Conclusion
For the foregoing reasons, the motion to disqualify Dawaji’s counsel is denied
without prejudice.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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