Cochran v. Massey

Filing 16

ORDER DENYING 14 Motion to Disqualify Counsel. Signed by Magistrate Judge Donald G. Wilkerson on 12/13/12. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DOUG COCHRAN,
Plaintiff,
v.
JAMES MASSEY,
Defendant.

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Case No. 3:12-cv-765-DRH-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion to Disqualify Plaintiff’s Attorney filed by
Defendant, James Massey, on November 26, 2012 (Doc. 14). For the reasons set forth below, the
Motion is DENIED.
The Complaint (Doc. 1) alleges that Defendant sent to Plaintiff an unsolicited facsimile
transmission in violation of Telephone Consumer Protection Act, 47 U.S.C. § 227. Plaintiff seeks
statutory damages, treble damages, and attorney fees and costs. Defendant claims that Plaintiff’s
attorney, John D. Alleman, cannot serve as Plaintiff’s attorney because he is listed as a potential
witness by Plaintiff and because he will “be required to testify on the basis of his personal
knowledge of the events giving rise to this action . . . .” Defendant offers no specific information
as to what he expects attorney Alleman to testify to as to the underlying claim in this suit, the
facsimile transmission.
In any event, Illinois’ Rules of Professional Conduct of 2010 provide that a “lawyer shall
not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless . . . the
testimony relates to the nature and value of legal services rendered in the case.” Id. Rule 3.7.
Attorney Alleman has presented an affidavit indicating that the only personal knowledge he has as

to the underlying facts of this case are through his representation of Plaintiff and that he will only
testify as to attorney fees and costs in bringing this suit. In light of attorney Alleman’s affidavit
and the nature of this suit, Defendant’s motion is without merit and must be DENIED.

DATED: December 13, 2012

DONALD G. WILKERSON
United States Magistrate Judge

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