Dunn v. Palmira Golf & Country Club, Inc. et al

Filing 43

OPINION AND ORDER GRANTING 22 Motion to Disqualify Counsel. The Court ORDERS that Attorney Jeffrey Grant Brown is disqualified from representing Plaintiff at trial or at any future depositions, and will set this matter for a status hearing by separate order to determine whether he needs to withdraw entirely from the case at this time and how discovery should proceed. Signed by Magistrate Judge John E Martin on 10/9/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GLEN DUNN,
Plaintiff,
v.
PALMIRA GOLF & COUNTRY CLUB,
INC., and PALMIRA, LLC,
Defendants.

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CAUSE NO.: 2:17-CV-324-JEM

OPINION AND ORDER
This matter is before the Court on a Motion to Disqualify Plaintiff’s Attorney [DE 22], filed
by Defendants on April 26, 2018. Plaintiff filed a response on May 18, 2018, and on June 1, 2018,
Defendants filed a reply.
I.

Background
Plaintiff’s Complaint seeks compensation for injuries he suffered on a golf course owned and

operated by Defendants. There were two witnesses to the accident that caused the injuries, one of
them the attorney who is now serving as counsel for Plaintiff. Defendants argue that he should be
disqualified from continued representation of Plaintiff because of his role as an occurrence witness
in the case.
The parties have consented to have this case assigned to a United States Magistrate Judge
to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore,
this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
II.

Analysis
The Court of Appeals for the Seventh Circuit has cautioned that disqualification is a

prophylactic device employed to protect the attorney-client relationship and is a “drastic measure
which courts should hesitate to impose except when absolutely necessary.” Cromley v. Bd. of Ed.

of Lockport Twp. High Sch. Dist. 205, 17 F.3d 1059, 1066 (7th Cir. 1994) (quoting Freeman v. Chi.
Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982)); see also Owen v. Wangerin, 985 F.2d
312, 317 (7th Cir. 1993). Motions to disqualify “should be viewed with extreme caution for they can
be misused as techniques of harassment.” Freeman, 689 F.2d at 722. However, “the Seventh Circuit
has instructed courts to resolve doubts in favor of disqualification.” Exterior Sys., Inc. v. Noble
Composites, Inc., 175 F. Supp. 2d 1112, 1115 (N.D. Ind. 2001) (citing United States v. Goot, 894
F.2d 231, 235 (7th Cir. 1990)). A district court possesses “broad discretion” in determining whether
disqualification is required in a particular case. Cardenas v. Benter Farms, No. IP 98-1067-C T/G,
2001 WL 292576, at *1 (S.D. Ind. Feb. 7, 2001) (quoting Whiting Corp. v. White Mach. Corp., 567
F.2d 713, 715 (7th Cir. 1977)). The party seeking disqualification bears the burden of showing facts
requiring disqualification. Id.
The Local Rules of this Court provide that the Rules of Professional Conduct as adopted by
the Indiana Supreme Court, along with the Standards for Professional Conduct adopted by the
Seventh Circuit, provide the standard of conduct for those practicing in this court. See N.D. Ind.
Local Rule 83-5(e). Defendants move to disqualify Attorney Brown pursuant to Indiana Rule of
Professional Conduct 3.71(a), which provides:
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.
Ind. R. Prof. Cond. 3.7(a). “In determining whether to disqualify counsel, a court is directed by Rule
3.7 to conduct a balancing between the interests of the client and those interests of the opposing

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party.” Hutchinson v. Spanierman, 190 F.3d 815, 828 (7th Cir. 1999) (discussing the commentary
to Indiana Rule of Professional Conduct 3.7). Especially if it occurs later in the case, disqualification
can have “‘immediate, severe, and often irreparable ... consequences’ for the party and disqualified
attorney [because] [d]isqualifying a lawyer immediately deprives the losing party from the
‘representation of his choice’ and disrupts the litigation.” Watkins v. Trans Union, LLC, 869 F.3d
514, 519 (7th Cir. 2017) (quoting Freeman, 689 F.2d at 719). The primary consideration of Rule 3.7
is whether the lawyer is a “necessary witness.” Knowledge A-Z, Inc. v. Sentry Ins., 857 N.E.2d 411,
418 (Ind. Ct. App. 2007). When the attorney’s testimony is “relevant, material, and unobtainable
elsewhere,” the rule’s necessity requirement is met. Borom v. Town of Merrillville, No. 2:07 CV 98,
2007 WL 1797639, at *2 (N.D. Ind. June 19, 2007) (quoting Stewart v. Bank of Am. N.A., 203
F.R.D. 585, 586 (M.D. Ga. 2001); citing Carta ex. rel. Estate of Carta v. Lumbermens Mut. Cas.
Co., 419 F. Supp. 2d 23, 29 (D. Mass. 2006); Macheca Transp. Co. v. Philadelphia Indem. Ins. Co.,
463 F.3d 827, 833 (8th Cir. 2006). The Court must weigh the client’s interest in continued
representation against the risk of prejudice to the opposing party. Hutchinson, 190 F.3d at 828.
The parties agree that Attorney Brown is one of only two occurrence witnesses to the
incident which forms the basis for the complaint. Plaintiff allegedly slipped while descending
wooden steps at the golf course. There were two other people there, Attorney Brown and one other
person playing golf with them. Plaintiff argues that because there was one other person present when
he was injured, Attorney Brown is not a necessary witness. Plaintiff also argues that Defendants
cannot meet their burden of showing that Attorney Brown’s testimony is relevant and cannot be
obtained elsewhere because Defendants do not know what Attorney Brown’s testimony would be.
Although Defendants requested a deposition of Attorney Brown, it has not been held. Defendants

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argue that a determination of the relevance of Attorney Brown’s testimony can be made without
knowing exactly what his testimony will be. They argue that Attorney Brown’s testimony is
necessary since there were only two people present when Plaintiff allegedly fell, so his perspective
on the incident was unique. This is not a situation where there were a number of witnesses to the
occurrence which is alleged to give rise to liability, with multiple people who could give testimony
about what happened from different vantage points: in this case, there were only two other people
present who saw what happened, from different perspectives. Plaintiff does not argue that Attorney
Brown’s testimony would not be relevant, or that it would be completely cumulative of the other
witness; he simply argues that Defendants cannot meet their burden of showing his testimony is
necessary since they do not yet know what it would be - since the attorney has not sat for a personal
deposition in his client’s case. “However, the likelihood that an attorney is a necessary witness does
not require certain proof that the attorney will be a witness.” Borom, 2007 WL 1797639, at *2.
It is apparent that Attorney Brown is a necessary witness, giving testimony related to the
very contested issue that is at the center of the case from a unique perspective. As the Seventh
Circuit has pointed out, “[t]he comment accompanying Rule 3.7 cautions that, when an attorney fails
to comply with this Rule, ‘[i]t may not be clear whether a statement by an advocate-witness should
be taken as proof or as an analysis of the proof.’” Cerros v. Steel Techs., Inc., 398 F.3d 944, 955 (7th
Cir. 2005). That concern is particularly relevant here, where the attorney was an eyewitness of the
event and has his own memories of how the event occurred, opinions that are likely to intrude upon
his advocacy. Furthermore, Plaintiff does not argue that the disqualification of Attorney Brown
would work substantial hardship on the client, and the exceptions to disqualification do not apply
in this case.

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Defendants argue that Attorney Brown should be disqualified not only from acting at trial
but also from representing Plaintiff in pretrial proceedings. At this point in the proceedings, Attorney
Brown has obviously been participating in discovery, including depositions. Some courts addressing
similar situations have concluded that complete disqualification from the time of the motion is
appropriate, see, e.g., Freeman v. Vicchiarelli, 827 F. Supp. 300, 304 (D.N.J. 1993) (“If the
attorney-witness rule operated only at the trial stage of litigation as Plaintiff suggests, the policies
inherent in RPC 3.7 would be defeated. . . . Early application of the attorney-witness rule is
necessary for the smooth operation of adversarial adjudication.”); while others have concluded that
counsel disqualified under Rule 3.7 “are not precluded from doing legal research, formulating
discovery, preparing pleadings, writing briefs, and lending their antitrust (or other) expertise to the
preparations for trial of this case; [but] [t]aking depositions and arguing pre-trial motions in court
are another matter” because “[w]here the questioner personally knows many details and facts about
a case, . . . there is the danger that deposition questions will become testimony.” Mass. Sch. of Law
at Andover, Inc. v. Am. Bar Ass’n, 872 F. Supp. 1346, 1380-81 (E.D. Pa. 1994).
In this case, it is obviously inappropriate for Attorney Brown to serve as the attorney at his
own deposition, which should proceed as soon as reasonably feasible, and his personal knowledge
of the events at the core of this case disqualify him from taking any additional depositions or arguing
any motions in Court. The Court will set this matter for a status hearing on discovery and attorney
representation by separate order.

III.

Conclusion

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For the foregoing reasons, the Court hereby GRANTS the Motion to Disqualify Plaintiff’s
Attorney [DE 22]. The Court ORDERS that Attorney Jeffrey Grant Brown is disqualified from
representing Plaintiff at trial or at any future depositions, and will set this matter for a status hearing
by separate order to determine whether he needs to withdraw entirely from the case at this time and
how discovery should proceed.
SO ORDERED this 9th day of October, 2018.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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