Daniels v. Wyoming City of et al

Filing 38

ORDER disqualifying Attorney Glenda Smith from representing plaintiff Quincy Daniels. Plaintiff has 60 days from the date of this Order to obtain new counsel and have new counsel enter an appearance. Signed by Judge Susan J. Dlott. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Quincy C. Daniels,
Plaintiff,
v.
City of Wyoming, et al.
Defendants.

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Case No. 1:15-cv-507
Judge Susan J. Dlott
Order on Disqualification of Attorney
Glenda A. Smith Pursuant to Ohio Rule
of Professional Conduct 3.7

Counsel alerted the Court to a potential attorney disqualification issue during a status
conference held on March 17, 2016. Glenda A. Smith, the attorney for Plaintiff Quincy C.
Daniels, will be a testifying witness in this case. She was the sole passenger in the vehicle driven
by Daniels when Defendant Tom Riggs, a City of Wyoming police officer, initiated the traffic
stop which is the basis for this lawsuit. At the request of the Court, the parties briefed the issue
of whether Smith is disqualified from representing Daniels pursuant to Ohio Rule of Professional
Conduct 3.7.
I.

LAW AND ANALYSIS
Rule 3.7 states in relevant part as follows:
(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to
be a necessary witness unless one or more of the following applies:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered
in the case;
(3) the disqualification of the lawyer would work substantial hardship on
the client.

Ohio R. Prof. Conduct 3.7 (emphasis in the original).

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Smith is the only non-party witness to the event underlying this lawsuit. She does not
dispute that she will be a necessary witness at trial. However, she makes two arguments against
her complete disqualification as Daniels’s attorney.
First, Smith argues that her disqualification would work a substantial hardship on her
client. She asserts that it is difficult for plaintiffs to secure counsel in police misconduct cases.
She also asserts that Daniels will suffer a financial hardship if he is required to retain new
counsel. Unfortunately, Smith fails to offer objective or anecdotal evidence to support either
contention. Moreover, Ohio caselaw indicates that financial hardship ordinarily does not
constitute a substantial hardship for purposes of Rule 3.7(a)(3). See 155 N. High, Ltd. v.
Cincinnati Ins. Co., 72 Ohio St. 3d 423, 650 N.E.2d 869, 874 (1995); Rock v. Sanislo, No.
09CA0031-M, 2009 WL 5154889, at *4 (Ohio App. Dec. 30, 2009). The Court concludes that
Smith cannot avoid disqualification on the basis of a substantial hardship.
Second, Smith requests to be able to conduct pretrial activity even if she is disqualified
from representing Daniels at trial. Rule 3.7 on its face bars an attorney who is a necessary
witness only from acting as an advocate at a trial. However, the purpose of Rule 3.7 is to prevent
the trial jury from learning about an attorney’s dual role as an advocate and a witness.
Therefore, Smith will not be permitted to take or defend depositions or to participate in any
pretrial activities which carry the risk of revealing her dual role to the jury at trial.
II.

CONCLUSION
The Court holds that Attorney Glenda A. Smith is disqualified from representing Plaintiff

Quincy C. Daniels at trial, during depositions, or in any other pretrial matters which would create
a risk of disclosing Smith’s dual role of both advocate and witness to the trial jury. Daniels has
60 days from the date of this Order to secure new or additional counsel and to have the new

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counsel enter an appearance with the Court. Smith can assist Daniels with the process of
securing new counsel.
IT IS SO ORDERED.

S/Susan J. Dlott_________________
Judge Susan J. Dlott
United States District Court

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