Bell v. Oklahoma City City of et al
ORDER denying without prejudice 35 Plaintiff's Motion to Bar Defense Counsel's Attempt to Call Plaintiff's Counsel Professor Brian M. McCall as a Witness. Signed by Honorable Timothy D. DeGiusti on 7/28/17. (ml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CITY OF OKLAHOMA CITY, et al.,
Case No. CIV-16-1084-D
Before the Court is Plaintiff’s Motion to Bar Defense Counsel’s Attempt to Call
Plaintiff’s Counsel Professor Brian M. McCall as a Witness [Doc. No. 35]. The relief
sought by Plaintiff’s Motion is either an order excluding attorney Brian McCall as a trial
witness or an order authorizing him to serve as a trial advocate even if Defendant City of
Oklahoma City (the “City”) calls him to testify. Plaintiff has filed the instant Motion in
anticipation of a future motion by the City to disqualify Mr. McCall as trial counsel.
Defendants have responded in opposition to the Motion. The City and Defendant James
Brown, through municipal counsel, oppose the Motion in all respects. The individual
defendants other than Mr. Brown, who are police officers with separate representation, take
no position regarding disqualification of Mr. McCall but state the Motion is premature.
The Motion is fully briefed and at issue.
Plaintiff is represented in this case by three attorneys: Brenda Barnes, an attorney
from the University of Oklahoma (“OU”) Legal Clinic; Mr. McCall, a professor at the OU
Law Center admitted to practice pro hac vice in this case; and James M. Bendell, a
nonresident attorney also admitted pro hac vice. Ms. Barnes commenced the action for
Plaintiff and moved for pro hac vice admission of the other attorneys. Only Messrs.
McCall and Bendell appeared as counsel for Plaintiff in the Joint Status Report and
Discovery Plan, or at the scheduling conference on March 6, 2017. Under the Scheduling
Order, the deadline for Defendants to disclose their fact witnesses and exhibits is
November 3, 2017, and the deadline to complete discovery is December 6, 2017.
However, the City’s attorney has stated an intention to name Mr. McCall as a trial witness,
and Plaintiff seeks a determination early in the case of Mr. McCall’s ability to serve as trial
Plaintiff bases her Motion on written communications between Mr. McCall and
Assistant Municipal Counselor Richard C. Smith (copies of which are attached as exhibits
to the Motion) that reflect a disagreement concerning whether Mr. McCall is a necessary
fact witness for the City’s defense of the case. Mr. McCall admits he had some personal
involvement in events related to the subject of Plaintiff’s Complaint, which was the
performance of a “Black Mass” at the Civic Center Music Hall in Oklahoma City on
September 21, 2014. Mr. McCall attests that he was an event coordinator for a protest or
prayer assembly earlier that day, but he was not present at the time of Plaintiff’s arrest for
allegedly protesting or praying outside the performance. See McCall Aff. [Doc. No. 35]
at 11-12, ¶¶ 3-4.
The parties agree that any disqualification of Mr. McCall from serving as Plaintiff’s
attorney at trial is governed by Rule 3.7 of the Oklahoma Rules of Professional Conduct,
which this Court has adopted. See LCvR83.6(b). Rule 3.7(a) provides: “A lawyer shall
not act as an advocate at a trial in which the lawyer is likely to be a necessary witness”
except in limited circumstances, including where “the testimony relates to an uncontested
issue” or where “disqualification of the lawyer would work substantial hardship on the
client.” Okla. Stat. tit. 5, ch. 1, app. 3-A, R. 3.7(a). Plaintiff contends Mr. McCall is not
a “necessary witness” because his personal knowledge concerns facts that are not relevant
to the trial issues or could be presented in a different way, either through another witness
or by a stipulation of the parties. Alternatively, Plaintiff contends the exceptions are
satisfied here, in that Mr. McCall’s testimony would relate to an uncontested issue and his
disqualification would cause substantial hardship to Plaintiff because he is serving pro
bono and previously represented Plaintiff in the criminal case related to her arrest.
The City disagrees, arguing that Mr. McCall “was a participant in the City’s planned
response to a constitutionally protected activity,” referring to the Black Mass, and that he
personally communicated with municipal employees regarding plans for the event. See
Def. City’s Resp. Br. [Doc. No. 37] at 2 (footnote omitted) & Ex. 2 [Doc. No. 37-2] at 7-8.
The City’s position is that Mr. McCall is a necessary witness to defend against Plaintiff’s
claim of municipal liability under 42 U.S.C. § 1983, which is based on allegations that the
City had an official policy of arresting and bringing false charges against protestors who
opposed the Black Mass and engaged in prayer. See Compl. [Doc. No. 1], ¶¶ 101-04.
The City’s position regarding Plaintiff’s alternative proposal that Mr. McCall be allowed
to testify and serve as a trial advocate is unclear; the City seems to argue this circumstance
could be addressed by appropriate jury instructions. See Def. City’s Resp. Br. [Doc.
No. 37] at 4.
Rule 3.7 prohibits a lawyer from serving a dual role in the trial of a case as both an
advocate and a witness except in specific circumstances. See Okla. Stat. tit. 5, ch. 1,
app. 3-A, r. 3.7, cmt. 3; see also Jensen v. Poindexter, 352 P.3d 1201, 1206 (Okla. 2015);
Crussel v. Kirk, 894 P.2d 1116, 1120 (Okla. 1995). The advocate-witness rule “protects
the integrity of the judicial process by: (1) eliminating the possibility that the lawyer will
not be an objective witness, (2) reducing the risk that the finder of fact may confuse the
roles of witness and advocate, and (3) promoting public confidence in a fair judicial
system.” Jensen, 352 P.3d at 1206; see Crussel, 894 P.2d at 1120. Where an attorney of
record for a party is a necessary trial witness, the attorney can continue as co-counsel and
represent the party in other aspects of the proceeding so long as the attorney takes “the
necessary prophylactic measures, all consistent with the rationale of Rule 3.7, to insulate
himself from the role of trial advocate.” Crussel, 894 P.2d at 1120; see Jensen, 352 P.3d
at 1206. Unwilling to limit Mr. McCall’s role in this case, Plaintiff seeks a determination,
first, that he is not a “necessary witness” for the City’s defense.
The advocate-witness rule is common in American jurisprudence, as are related
policies of protecting a litigant’s right to his choice of counsel and preventing motions to
disqualify counsel from being used as tactical weapons in litigation. See Jensen, 352 P.3d
at 1205; Okla. Stat. tit. 5, ch. 1, app. 3-A, Scope (“the purpose of the Rules can be subverted
when they are invoked by opposing parties as procedural weapons”). Consistent with
these policies, courts have narrowly defined the term “necessary witness” for purposes of
the advocate-witness rule to mean a witness with knowledge of facts “to which he will be
the only one available to testify.” See Macheca Transp. Co. v. Philadelphia Indem. Ins.
Co., 463 F.3d 827, 833 (8th Cir. 2006) (internal quotation omitted). It is not enough, for
example, that a party’s attorney had direct communications with the opposing party that
are relevant to a claim or defense. “Testimony may be relevant and even highly useful,
but still not strictly necessary.” Id.; see also Mercury Vapor Processing Techs., Inc. v.
Village of Riverdale, 545 F. Supp. 2d 783, 789 (N.D. Ill. 2008) (disqualification depends,
in part, on “whether other witnesses would be able to testify to the same matters”).
In this case, the parties do not sufficiently address in their briefs whether this stricter
“necessary witness” standard is met. The City’s arguments in particular show only that
Mr. McCall’s testimony would be relevant and useful to the City’s defense. Assuming
this is true, it is insufficient to make Mr. McCall a necessary witness and disqualify him as
a trial advocate. Because this case is in early stages of discovery, however, the Court finds
that it would be premature to make a determination at this point whether the City should
be precluded from calling Mr. McCall as trial witness. See Mercury Vapor, 545 F. Supp.
2d at 789 (early in a case, “[i]t is entirely conjuectural what claims, if any, will proceed to
trial, let alone whether [an attorney] will be called as a [necessary] witness”).
Further, if it is established that Mr. McCall has information to which only he can
testify and thus he is a necessary witness, Plaintiff would bear the burden “to avoid
disqualification due to substantial hardship” by demonstrating that “her interests in
retaining [Mr. McCall] outweigh those of the tribunal and the opposing party in
disqualifying [Mr. McCall].” Jensen, 352 P.3d at 1206. This balancing of interests must
be done with the purposes of the advocate-witness rule in mind:
Whether the tribunal is likely to be misled or the opposing party is likely to
suffer prejudice depends on the nature of the case, the importance and
probable tenor of the lawyer’s testimony, and the probability that the
lawyer’s testimony will conflict with that of other witnesses. Even if there
is risk of such prejudice, in determining whether the lawyer should be
disqualified due regard must be given to the effect of disqualification on the
Okla. Stat. tit. 5, ch. 1, app. 3-A, r. 3.7, cmt. 4. The parties do not adequately address these
considerations in their briefs to permit a reasoned determination of whether Mr. McCall’s
disqualification as trial counsel would cause substantial hardship to Plaintiff.
“Disqualification of a lawyer-witness is very circumstance specific, and often these
circumstances are not fully revealed until the case progresses.” Mercury Vapor, 545 F.
Supp. 2d at 789 (internal quotation omitted). Here, the Court finds that the question of
whether Mr. McCall should be allowed to serve as both an advocate and a witness simply
cannot be resolved at this stage of the case.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Bar Defense Counsel’s
Attempt to Call Plaintiff’s Counsel Professor Brian M. McCall as a Witness [Doc. No. 35]
is DENIED without prejudice to a future motion by any party, as appropriate to the
circumstances, to determine Mr. McCall’s role in the trial of this case.
IT IS SO ORDERED this 28th day of July, 2017.
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