Brooks v. Caswell et al

Filing 40

OPINION and ORDER - Brook's Motion 22 to Disqualify Seidl as counsel for Defendants is DENIED. DATED this 12th day of March, 2015, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

GRETCHEN BROOKS, an individual,

Case No.: 3:14-cv-1232-AC

Plaintiff,

OPINION AND ORDER

v.
HARLON RIP CASWELL, an individual,
RIP CASWELL SCULPTURES, INC., an
Oregon corporation d/b/a CASWELL
GALLERY, an Oregon assumed business
name, CASWELL PROPERTIES, INC.,
a Washington limited liability company,
and DOES 1-5,
Defendants.
___________________________________
ACOSTA, Magistrate Judge:
Introduction
Plaintiff Gretchen Brooks (“Brooks”) seeks an order from the court disqualifying Michael
R. Seidl (“Seidl”) from continuing to represent defendants Harlon Rip Caswell (“Caswell”); Rip

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Caswell Sculptures, Inc. d/b/a as Caswell Gallery (“RCS”); and Caswell Properties (“CP”)
(collectively “Defendants”) in this action. Brooks argues Seidl’s prior representation of Defendants
in two prior lawsuits, and his expected participation as a witness in this trial, necessitates his
disqualification under Oregon Rules of Professional Conduct (“Rules”) 1.7 and 3.7, and the
“unsworn witness” rule.
The court finds Brooks has failed to present evidence Siedl’s testimony is or may be
prejudicial to Defendants and, therefore, has failed to meet the high standard necessary to
successfully support her motion for disqualification.

Consequently, Brooks’s motion for

disqualification is denied.
Preliminary Evidentiary Issues
Defendants offer pages from the deposition transcript of Laura Walker (“Walker”), Brooks’s
counsel in the underlying litigation, taken on February 16, 2015. The cover page of the Walker
deposition identifies the case for which the deposition was taken and the party being deposed. A
signature page from the court reporter is not included. Defendant also offers pages from a second
deposition, which is identified by a tab, and an index provided to the court but not filed in this action.
Neither the cover page nor a signature page is provided. The first page of the second deposition
indicates it is an unedited, non-certified rough draft transcript and specifically provides: “This rough
draft may NOT be quoted from in any pleadings or used in court to quote from, or for any other
purpose, or may not be filed with any court and may not be distributed to any other party.” It is
impossible to tell who is being deposed, the case for which the deposition was taken, or the parties
participating in the deposition.
Defendants’ deposition excerpts are not properly authenticated. “The requirement of
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authentication * * * as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” FED. R. EVID. 901(a).
The Ninth Circuit has instructed that a deposition, or extract therefrom, is properly authenticated
when the name of the deponent and the action for which the deposition was taken are identified and
the reporter’s certification that the deposition is a true record of the testimony of the deponent is
included. Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir. 2002). This is generally
accomplished by providing the cover page of the deposition as well as the reporter’s certification to
each deposition extract submitted. Id.
Brooks has offered, and properly authenticated, excerpts from the same depositions.
Accordingly, Defendants’ deposition transcripts are properly authenticated through Brooks’s
submissions and will be considered by the court. Orr, 285 F.3d at 776 (“[W]hen a document has
been authenticated by a party, the requirement of authenticity is satisfied as to that document with
regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder
disputing its authenticity.”)
Background
I. Brooks Lititgation
In January 2011, Brooks filed suit against Defendants seeking to recover amounts she
provided Caswell to further his sculpture business (“Brooks Litigation”). Defendants hired Seidl to
defend them in the action and Seidl associated Phil Nelson as co-counsel. (Hahs Decl. dated Feb.
23, 2015 (“Hahs 2015 Decl.”) ¶ 7; Seidl Decl. ¶1.) Following a trial, which clarified but did not
resolve all of the issues, the parties entered in to a settlement agreement on September 21, 2011 (the
“Agreement”). (Monson Decl. ¶¶ 3, 4.)
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Brooks’s counsel, Jon Monson (“Monson”) and Walker, initiated the settlement discussions
by presenting a lengthy and complex settlement proposal to Seidl and Caswell the morning of August
29, 2011.1 (Seidl Decl. ¶ 4.) Seidl asked Walker to forward the proposal to Andrew Hahs, an
attorney retained in November 20092 by Caswell to represent his business interests. (Seidl Decl. ¶
4; Walker Dep. 50:18-51:83; Caswell Decl. ¶ 2.)
The terms of the Agreement were negotiated on August 29 and 30, 2011.4 (Seidl Decl. ¶¶
4-5; Hahs Decl. ¶¶ 12,15.) ) Seidl and Hahs represented Defendants in the negotiations and divided
responsibilities, with Seidl taking the lead on “litigation-related items,” and Hahs handling the
business and transactional aspects, including the Note. (Hahs 2015 Decl. ¶ 3; Seidl Decl. ¶¶ 4,7.)
Monson, Walker, Seidl, and Caswell were present for both days of the settlement negotiations, while
Hahs attended the second day only. (Monson Decl. ¶ 6; Hahs 2015 Decl. ¶ 15; Seidl Decl. ¶¶ 4 -7.)
Walker remembers discussions about the terms of the Note during the two-day settlement
negotiations:
The promissory note under 5(c), I recall there were lots of discussions about the note,
but, again, I don’t know if it was this particular day or the next day in terms of dollar
amount, the payment schedule, the guarantees. Under paragraph C it refers to
guarantees, which were not ultimately included in the settlement. So I don’t recall
if that was something that the parties said no at that particular meeting or at some

1

The deposition of Caswell was scheduled to occur on August 29, 2011. (Walker Dep. 52:1517; Monson Dep. 23:10-16.)
2

In a previous declaration, Hahs represents Caswell initially retained him in November 2010.
(Hahs Decl. dated Dec. 11, 2014 (“Hahs 2014 Decl.”) ¶ 2.)
3

The declarations referenced herein are exhibits to the Fite Declaration filed on March 9,

2015.
4

Monson incorrectly identified the two-day period as August 28 and 29, 2011, in his
declaration. (Monson Decl. ¶ 5.)
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later date. But I’m sure there were discussions about the note at some point in time.
(Walker Dep. 62:21-63:5.) She considered Seidl to be the lead negotiator with Hahs taking the lead
on the documents. (Walker Dep. 73:9-16.) However, she could not remember who negotiated the
specific terms of the Note. (Walker Dep. 73:17-74:16; 77:4-78:12.)
Monson remembers Seidl objecting to the identification of Caswell’s new entity, rather than
RCS, as the maker of the Note based on Caswell’s desire to keep a bright line between his new and
old corporations, and that change being accepted. (Monson Dep. 32:15-35:14.) He is confident
additional negotiations occurred with regard to the terms of the Note, collateral and security
agreement, but is not sure what day those discussions took place or who said what. (Monson Dep.
46:6-48:16.) He does remember Seidl raising the “sole-remedy” concept with regard to the Note on
August 29, 2011, but is unable to explain why the August 30, 2011, term sheet did not reflect this.
(Monson Dep. 55:1-56:10.)
The term sheet distributed by Monson at the close of negotiations memorialized the core
terms of the Agreement. (Hahs 2015 Decl. ¶16.) Hahs represented Defendants’ interest in drafting,
fine tuning, and finalizing the Agreement and related documents, working directly with Monson and
Walker, and seeking direction from Seidl on litigation aspects only. (Hahs 2015 Decl. ¶ 17; Walker
Dep. 90:18-91:18.)
Pursuant to the terms of the Agreement, Caswell executed a Non-Recourse Promissory Note
as President of RCS in the amount of $650,000 payable to Brooks in monthly installments over a
seven-year term (the “Note”). (Hahs 2014 Decl. Ex. B.) The Note was secured by a security interest
in various sculpture molds (the “Molds”) and reproduction rights as described by the Agreement.
(Hahs 2014 Decl. Ex. B at 1.) The Note specifically provided it is:
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NON-RECOURSE against RCS, its officers, directors, shareholders or employees,
except for the collateral specified in the Settlement Agreement as set forth therein.
Brooks shall look only to such collateral for satisfaction and payment of any sums
due under the terms of this note in the event of any default by RCS.
(Hahs 2014 Decl. Ex. B at 2.) Seidl made no representations with regard to the value of the
collateral. (Seidl Decl. ¶ 12.)
II. Ferris Litigation
In July 2011, Seidl filed a lawsuit on behalf of Defendants against Kimball H. Ferris, the
attorney representing Defendants from October 2005 through November 2009 (“Ferris Litigation”).
(Hahs 2014 Decl. Ex. A at 4.) Defendants alleged claims for legal malpractice, negligence, and
breach of fiduciary duty based on conduct during, and failure to properly document, the funding
arrangement between Brooks and Defendants which resulted in the Brooks Litigation, and sought
damages relating to the liabilities incurred by Defendants in connection with the Brooks Litigation.
(Hahs 2014 Decl. Ex. A at 4.) Once the terms of the Agreement were solidified, Seidl identified the
Note, which he valued at $650,000, as part of the economic damages suffered by Defendants. (Fite
Decl. dated February 2, 2015 (“First Fite Decl.”) Ex. 1 at 13, Ex. 2 at 3.)
Under the terms of the Agreement, Brooks was awarded an interest in the Ferris Litigation.
(Hahs 2014 Decl. Ex. A at 15.) Defendants gave Brooks a legal right to twenty-five percent of the
net proceeds of the Ferris Litigation. (Hahs 2014 Decl. Ex. A at 15.) In late June, 2012, Brooks was
deposed in the Ferris Litigation. (Compl. ¶ 23.) The parties settled the Ferris Litigation in early
August 2012 and Brooks received her share of the settlement. (Compl. ¶25; Answer ¶ 25.)
III. Default on Note
On August 3, 2012, Walker emailed a notice of default on the Note to Seidl. (Hahs 2014

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Decl. Ex. D; First Fite Decl. Ex. 4 at 2.) Walker indicated RCS had not paid the $4,000 due under
the Note on August 2, 2012. (Hahs 2014 Decl. Ex. D; First Fite Decl. Ex. 4 at 2.) In response, Hahs
advised Walker that RCS would not be making the August payment and Brooks was free to exercise
her rights to the collateral. (Hahs 2014 Decl. Ex. E at 1; First Fite Decl. Ex. 4 at 1.) On October
4, 2012, Hahs informed Walker of Caswell’s intent to move the sculpture molds he owned from the
Parks foundry, where they were stored, to another location, and leave the Molds securing the Note
at Parks. (Hahs 2014 Decl. Ex. F at 1.) He recommended Brooks contact Parks to arrange payment
for future storage fees. Hahs represented:
Rip has received no interest in castings from the molds in which Gretchen has the
security interest and he believes they have little value. However, as a one-time offer,
Rip is willing to pay Gretchen $10,000 to release her security interest in all the
molds. Let me know in the next seven days if she is interested in this offer. If not,
Rip will proceed to unload the molds and leave them at Parks. We can then finalize
the surrender agreement.
(Hahs 2014 Decl. Ex. F at 1; First Fite Decl. Ex. 5.) On April 8, 2013, Brooks rejected the offer, and
Walker and Hahs cooperated in preparing a collateral surrender agreement. (Hahs 2014 Decl. Exs.
G, H; First Fite Decl. Ex. 4 at 5.) Caswell currently represents the total retail value of the
reproductions which could be made from the Molds at $24,981,450, but that “the value of the molds
is entirely dependent upon the owner’s desire and ability to cast, market, and sell the reproductions
in the right business circumstances.” (Caswell Decl. ¶ 9.)
IV. Current Litigation
Brooks filed this action on July 31, 2014, asserting claims for fraud, negligent
misrepresentation, breach of contract, breach of the duty of good faith and fair dealing, conversion,
and elder financial abuse based on allegations Caswell never intended to pay the Note and entered

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into the Agreement for the purpose of obtaining Brooks’s cooperation in the Ferris Litigation (the
“Complaint”). Seidl is once again representing Defendants.
In a letter to Seidl dated August 11, 2014, Brooks’s raised concerns regarding Seidl’s ability
to represents Defendants in this action, stating “[b]ecause it appears that you have extensive personal
knowledge of the discussions, you may need to evaluate your ability to represent Mr. Caswell
consistent with ORPC 3.7” (Fite Decl. dated March 4, 2015 (“Second Fite Decl.”) Ex. 4 at 2.)
Brooks requested Seidl’s availability for the taking of his deposition in early January 2015, but then
decided to postpone the deposition until April, 2015. (Seidl. Decl. ¶ 18.)
Legal Standard
The decision to grant a motion for disqualification of counsel is within the sound discretion
of the district court. Gas-A-Tron of Az. v. Union Oil Co., 534 F.2d 1322, 1325 (9th Cir. 1976). In
exercising that discretion, the district court faces several competing tensions. On the one hand, the
Ninth Circuit has counseled:
It must be remembered that the attorney in such situations as this does not have the
shelter enjoyed by a defendant whose adversary must meet a burden of proof. Where
conflict of interest or abuse of professional confidence is asserted, the right of an
attorney freely to practice his profession must, in the public interest, give way in
cases of doubt.
Chugach Elec. Ass’n v. U.S. Dist. Ct., 370 F.3d 441, 444 (9th Cir. 1996) (granting writ of mandamus
directing the disqualification of attorney who previously represented opposing party in another
matter, where there was a likelihood that private matters learned during the prior representation
could be used in a manner adverse to the former client.) On the other hand, a motion to disqualify
current counsel is subject to “particularly strict judicial scrutiny” because of the potential for “misuse
of [state ethical] rules for tactical purposes.” Optyl Eyewear Fashion Int’l Corp. v. Style Cos., Ltd.,
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760 F.2d 1045, 1050 (9th Cir. 1985)(quoting Rice v. Baron, 456 F. Supp. 1361, 1370 (S.D.N.Y.
1978)). The competing interests involved in a conflict of interest case require the court to strike a
delicate balance that prevents unreasonable restrictions on an attorney’s ability to practice law while
nonetheless upholding the system’s integrity requiring a high standard of proof on the party moving
to disqualify substitute counsel. Smith v. Cole, No CV 05-372-AS, 2006 WL 1207966, at *1-*2 (D.
Or. March 2, 2006). Any doubts must be resolved in favor of disqualification. Id. The federal
courts apply state law in determining matters of attorney disqualification. In re County of Los
Angeles, 223 F.3d 990, 995 (9th Cir. 2000).
Discussion
Brooks moves to disqualify Seidl from representing Defendants based on a conflict of
interest. Brooks contends Seidl will have to testify on behalf of Defendants regarding Caswell’s
intent and performance of the Agreement. Brooks represents she will call Seidl as an adverse
witness to testify with regard to the allegation of damages in the Ferris Litigation and the
representations made during the negotiation of the Agreement, which may very likely contradict
Caswell’s testimony. Finally, Brooks asserts that even if Seidl does not testify, his participation in
the trial with be prejudicial to her in light of Seidl’s ability to inject first-hand knowledge at the trial
without swearing under oath or being subject to cross-examination.
I. Rule 3.7
The Rules provide:
(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be
a witness on behalf of the lawyer’s client unless:
(1) the testimony relates to an uncontested issue;

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(2) the testimony relates to the nature and value of legal services rendered in
the case;
(3) disqualification of the lawyer would work a substantial hardship on the
client; or
(4) the lawyer is appearing pro se.
(b) A lawyer may act as an advocate in a trial in which another lawyer in the
lawyer’s firm is likely to be called as a witness on behalf of the lawyer’s client.
(c) If, after undertaking employment in contemplated or pending litigation, a
lawyer learns or it is obvious that the lawyer or a member of the lawyer’s firm may
be called as a witness other than on behalf of the lawyer’s client, the lawyer may
continue the representation until it is apparent that the lawyer’s or firm
member’s testimony is or may be prejudicial to the lawyer’s client.
OR. R. PROF’L CONDUCT 3.7 (2014).
A. Rule 3.7(a)
Rule 3.7(a) applies when a lawyer is likely to be called as a witness on behalf of his client.
Seidl states he does not anticipate calling himself as a witness at trial in that he has no unique or
relevant admissible evidence that can not be provided by other witnesses or documents. (Seidl Decl.
¶¶ 14, 15.) Additionally, Caswell represents he has “expressly consented to Mr. Seidl not being
called as a witness on my behalf at trial.” (Caswell Decl. ¶ 16.) In light of these representations, a
likelihood Seidl will be called to testify on behalf of Defendants does not exist. Accordingly,
disqualification under Rule 3.7(a) is not warranted.
B. Rule 3.7(c)
Rule 3.7(c) prevents a lawyer from representing a client after the lawyer learns he may be
called as a witness on behalf of another party. The lawyer must discontinue representation when it
becomes apparent his testimony is or may be prejudicial to his client. The relevant issues to be

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decided by the court are: (1) whether the lawyer will testify; and (2) whether the lawyer’s testimony
is or may be prejudicial to his client.
Seidl argues because others are available to testify with regard to the settlement negotiations,
he is not a “necessary” witness and, therefore, disqualification is inappropriate. The cases on which
Seidl relies apply a slightly different version of Rule 3.7 found in the American Bar Association
Model Rules of Professional Conduct (“Model Rules”) which provides, in pertinent part:
(a) A lawyer shall not act as an 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.
The Model Rules clearly put the necessity of a particular witness at issue, while the Rules do not.
Accordingly, the question of whether Seidl is a necessary witness is not relevant here.
Similarly, Brooks’s reliance on In Re Kluge, 335 Or. 326 (2003) is misplaced. In Kluge, “the
accused worked both as the general manager and as legal counsel” for Tel-Ad, the entity accused of
discrimination and wrongful termination. Id. at 329. In fact, Kluge directly supervised Fischer, the
deaf employee who filed the underlying action. Id. In support of his wrongful termination claim,
Fischer alleged Kluge “threatened to fire him if he pursued an employment discrimination claim”
and Kluge did, in fact, terminate Fischer’s employment when he learned Fischer planned to pursue
his claim. Id. at 329-330. Kluge represented Tel-Ad in the discrimination action, and continued to
do so after Fischer advised Kluge he intended to call Kluge as a witness. Id. at 330.
The court found Kluge violated Disciplinary Rule 5-102(C), which mirrors Rule 3.7(c), by
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continuing to represent Tel-Ad after it became evident he would be called as a witness by Fischer
and it was likely his testimony would be prejudicial to Tel-Ad. The court explained:
We determine that, from the outset of the case, the accused learned and it was
obvious that he would be called as a witness in Fischer’s case against Tel-Ad. As
Fischer’s direct supervisor, the accused represented Tel-Ad in negotiating Fischer’s
employment terms and played a central role in the events leading to Fischer’s action
against Tel-Ad. In his complaint against Tel-Ad, Fischer confirmed that the accused
likely would be a material witness in the case because he alleged specific acts of
wrongdoing by the accused in Tel-Ad’s behalf to support his claim. Fischer’s lawyer
also repeatedly notified the accused that the accused would be called as a witness and
she introduced the accused’s written notes and a recorded teletypwrier (TTY)
conversation between Fischer and the accused as evidence in the case.
We also determine that, from the outset of the case, it was apparent that the
accused’s testimony in Fischer’s behalf would have been at least potentially
prejudicial to Tel-Ad. As a principal actor in the events underlying Fisher’s claim
against Tel-Ad, the accused would have been called to testify as to the decision to
terminated Fisher’s interpreter service and the circumstances under which Fischer’s
employment at Tel-Ad ended. The facts surrounding those events were both disputed
and material to Fischer’s claim. Further, because Fischer alleged specific acts of
wrongdoing by the accused in Tel-Ad’s behalf, and because the accused consistently
has maintained that Tel-Ad approved of his actions, it is likely that the accused’s
testimony would have been adverse to Tel-Ad.
Id. at 337-38.
The court relied on Kluge’s position as an employee of Tel-Ad, and his involvement in
Fischer’s employment and termination in this capacity, in finding Kluge’s continued representation
of Tel-As violated the disciplinary rule. This is clear from the court’s references to Kluge as
“Fischer’s direct supervisor” and as “a principal actor in the events underlying Fischer’s claim
against Tel-Ad.” Additionally, the court relied on Fischer’s allegations of “specific acts of
wrongdoing by the accused in Tel-Ad’s behalf” to support his claim as a factor in finding Kluge
would likely be a material witness and that his testimony would have been adverse to Tel-Ad.
Here, Seidl is not an employee of Defendants and has not engaged in any conduct in that
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capacity. He acted only as Defendants’ counsel in the prior actions. Further, Brooks has not alleged
any acts of wrongdoing against Seidl. This facts in this case are easily distinguishable from the facts
relied on by the court in Kluge. Consequently, the analysis and holding enunciated in Kluge do not
control the issues before the court.
1. Inconsistent Valuation of the Notes/Molds
Brooks represents she intends to call Seidl to testify regarding the “value of the molds to Mr.
Caswell, as well as how Mr. Caswell valued the note obligation.” (Pl.’s Mot. to Disqualify Seidl as
Counsel for Defs (“Pl.’s Mot.”) at 9.) Brooks argues Seidl’s representation the Note had a value of
$650,000 in the Ferris Litigation is directly contrary to Defendants’ current position the value of the
Note is much less than $650,000 due to the non-recourse provisions. Brooks intends to use this
testimony to prove the non-recourse provisions were fraudulently induced.
a. Seidl’s Representations in the Ferris Litigation
In a letter to defense counsel in the Ferris Litigation dated March 7, 2012, Siedl identified
a $650,000 promissory note executed by Caswell to Brooks as a portion of Defendants’ liquidated
economic damages. (First Fite Decl. Ex. 2 at 3.) In the proposed amended complaint to be filed in
the Ferris Litigation, dated April 5, 2012,5 Seidl represented that under the Agreement, “Caswell
Sculptures would pay Brooks $650,000 under a promissory note secured by the molds for the
sculptures created with the use of Brooks’s loan advances.” (First Fite Decl. Ex. 1 at 13.) Seidl
accurately characterized Defendants’ obligation to Brooks under the terms of the Note and
Agreement. He did not “value” the Note or the Molds, but merely summarized Defendants’ existing
5

In a declaration dated June 26, 2012, Seidl informed the state court he elected to not file the
third amended complaint to avoid a postponement of the current trial date. (First Fite Decl. Ex. 1
at 1-2.)
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obligations to Brooks, which is consistent with the terms of the Note and Agreement.
b. Inconsistent Testimony
Brooks represents Defendants’ current position is that the value of the Note is much less than
$650,000. Brooks does not cite to any statement or allegation that would support this statement. It
appears Brooks construes Caswell’s offer to, in effect, purchase the rights to the Molds for $10,000
from Brooks after RCS defaulted on the Note as evidence the Note has little, if any, value. Brooks
then argues this position is inconsistent when considered in conjunction with Seidl’s valuation of
the Note at $650,000.
Caswell explains in his declaration he made the offer based on his understanding Brooks was
not sure she wanted to take possession of the Molds and was interested in an offer from Caswell.
(Caswell Decl. ¶ 6.) Caswell then made an offer based on what he could afford to pay at that time.
(Caswell Decl. ¶ 6.) He then explained if Brooks accepted possession and ownership of the Molds,
she would be entitled to make reproductions from the Molds. (Caswell Decl. ¶ 8.) He estimated the
total retail value of the sculptures producible from the Molds at $24,981,450, noting the value of the
Molds were contingent on the owner’s use of them. (Caswell Decl. ¶ 9.) This evidence established
Caswell valued the Molds at anywhere from $10,000, based on his financial status at the time of the
offer, to nearly $25,000,000, based on the retail value of sculptures an interested and able owner
could produce from the Molds. Any “valuation” of the Note at $650,000 by Seidl in the Ferris
Litigation falls within this range and, therefore, could be viewed as consistent with Caswell’s
testimony. Furthermore, Seidl’s “valuation” of the Note in the Ferris Litigation occurred prior to
Defendants’ default on the Note. Any inconsistencies between his “valuations” in March and April
of 2012, while Defendants were current with their payments on the Note, and Caswell’s offer
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purchase the Molds for $10,000 in October 2012, is distinguishable based on the default on the Note
in August 2012.
c. Valuation of Note/Molds
Caswell is available to testify at trial and is the proper party to provide testimony on the value
of the Molds to him and future owners of the Molds, as well as how he valued the obligation of the
Note. Brooks has presented no evidence Seidl has independent knowledge of the valuation of the
Molds or Notes. In fact, Siedl represents he made no representations regarding the value of the
Molds. Furthermore, any conversation between Seidl and Caswell regarding Caswell’s valuation
of the Molds and Note would be subject to the attorney-client privilege and, therefore, inadmissible.
2. Settlement Negotiations
Brooks also intends to call both Caswell and Seidl to “testify regarding Caswell’s intent
during negotiations, and how that intent was communicated to Brooks.” (Pl.’s Mot. at 10.) She
speculates:
[i]t is very likely that Caswell’s testimony regarding the Settlement Agreement and
settlement negotiations could conflict with Mr. Seidl’s. For example, whereas
Caswell could testify that he intended provisions of the Settlement Agreement to
mean one thing, Mr. Seidl could testify that he represented a different intent in
communications with opposing counsel. Mr. Seidl’s conflicting testimony would
then create a conflict with his client by putting Caswell’s credibility at issue.
(Pl.’s Mot. at 10.) She then surmises that “[f]urther discovery in this case may reveal additional
evidence that places Mr. Seidl’s testimony adverse to Caswell’s. (Pl.’s Mot. at 11.)
a. Inconsistent Testimony
Brooks represents she believes Seidl’s testimony describing the settlement negotiations will
very likely differ from that offered by Caswell. Brooks’s supposition that Seidl’s testimony would

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contradict Caswell’s is not supported by the record. Brooks has not deposed Seidl and is, therefore,
unable to establish Seidl’s testimony may be prejudicial to Caswell. See Carta v. Lumbermens Mut.
Cas. Co., 419 F. Supp. 2d 23, 29 (D. Mass. 2006) (speculation on what counsel’s testimony might
entail provides insufficient basis to disqualify counsel).
b. Caswell’s Intent
Brooks also seeks to elicit testimony regarding Caswell’s intent from Seidl. Seidl would be
privy to Caswell’s intent only through communications with his client, which are protected by the
attorney-client privilege. Additionally, to the extent Brooks seeks testimony regarding Seidl’s intent
during the settlement negotiations, evidence of Siedl’s intent is not representative of Caswell’s
intent. In other words, even if Seidl’s intent was different from Caswell’s intent, they are testifying
about their own states of mind which will not result in a contradiction and not put Caswell’s
credibility at issue.
3. Conclusion
Based on the record currently before the court, Brooks has failed to present evidence Seidl’s
expected testimony is or may be prejudicial to Defendants. Brooks has not deposed Seidl and is
merely speculating on what his testimony might entail. To the extent she has supported expected
testimony with evidence, such testimony is not inconsistent with Caswell’s expected testimony.
Consequently, Brooks has failed to meet the high standard required to disqualify Seidl under Rule
3.7(c).
C. Rule 1.7
Brooks asserts Seidl’s continued representation of Defendants violates Rule 1.7(a) which
provides, in pertinent part:
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a lawyer shall not represent a client if the representation involves a current conflict
of interest. A current conflict of interest exists if:
***
(2) there is a significant risk that the representation of one or more clients
will be materially limited by the lawyer’s responsibilities to another client a former
client or a third person ro by a person interest of the lawyer.
Brooks argues that a violation of Rule 3.7(c) is also a violation of Rule 1.7(a). The court has found
Brooks has failed to present evidence Seidl’s expected testimony is or may be prejudicial to
Defendants and, accordingly, has failed to establish a violation of Rule 3.7(c). This finding also
defeats Brooks’s motion for disqualification under Rule 1.7(a).
II. Unsworn Witness
A lawyer with first-hand knowledge of an event to be explored at trial may be disqualified
even if he will not be a witness at trial. U. S. v. Evanson, 584 F.3d 904, 909 (10th Cir. 2009). Here,
Brooks unequivocally states she intends to call Seidl as a witness a trial, making the unsworn witness
rule inapposite.
Even if Seidl was not expected to testify, the court is not convinced the unsworn witness rule
applies to civil proceedings. In Evanson, the Tenth Circuit considered a criminal defendant’s right
to representation under the Sixth Amendment. The court explained the “unsworn witness problem”
arises when an:
attorney might convey “first-hand knowledge of the events without having to swear
an oath or be subject to cross examination.” An attorney providing “unsworn
testimony” is not at odds with his client – there is no conflict of interest. Rather, “the
detriment is to the government, since the defendant gains an unfair advantage, and
to the court, since the factfinding process is impaired.”
Id. (quoting U.S. v. Locascio, 6 F.3d 924, 933-34 (2nd Cir. 1993))(internal citations omitted). The
court reasoned that Rule 3.7 “cannot supplant constitutional standards” and that “such a rule cannot
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define the scope of a defendant’s Sixth Amendment rights.” Evanson, 584 F.3d at 910.
True, rules of professional conduct are relevant in the sense that a court’s authority
to disqualify counsel stems in part from its interest in “ensuring that criminal trials
are conducted within the ethical standards of the profession.” But it does not follow
that the Sixth Amendment requires courts to identify a strict violation of an
applicable ethical rule before disqualifying counsel.
Id. (quoting Wheat v. U. S., 486 U.S. 153, 160 (1988))(internal citations omitted).
Evanson, and the cases cited therein address a criminal defendant’s right to counsel under
the Sixth Amendment. Brooks has not cited to, and the court has not found, any cases relying on the
unsworn witness rule in a civil proceeding, where the court is not required to consider the Rules of
Professional Conduct in the context of a criminal defendant’s rights under the Sixth Amendment.
Brooks’s reliance on Chapman Eng’rs, Inc. v. Nat. Gas Sales Co., Inc., 766 F. Supp. 949 (D. Kan.
1991) is misplaced. In Chapman, the court discussed one of the rationales for Model Rule 3.7 – to
prevent jury confusion over the separate roles of an advocate and a witness – and quoted comments
to the Model Rules. Id. at 957. The court clearly was not considering the interaction between Rule
3.7 and the Sixth Amendment, the context in which the unsworn witness rule applies. Accordingly,
in light of the clear reliance on the Sixth Amendment right to counsel in a criminal proceeding in the
cases applying the unsworn witness rule, and the absence of any precedent applying the rule to civil
cases, the court finds the unsworn witness rule is not applicable here.
Even assuming the unsworn witness rule applies to civil proceedings, Seidl does not have
unique first-hand knowledge justifying disqualification. Brooks argues Seidl’s first-hand knowledge
of the settlement negotiations will allow him to “communicate his approval of Caswell’s testimony
through his opening and closing statements, and through the questioning of the witnesses.” (Pl.’s
Mot. at 11.) Seidl is not the only one who attended the settlement negotiations. Brooks has the
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knowledge of Walker and Monson, as well as the expected testimony of Caswell and Hahs, and the
documentary evidence to assist her in understanding what occurred during settlement negotiations.
All counsel will come into trial with a substantially similar understanding of the settlement
negotiations. Seidl will, of course, have information provided to him by Caswell, but Brooks will
provide information to her own counsel not necessarily available to Seidl. All of the attorneys will
question witnesses with knowledge unique to them and will frame their opening and closings
statements to the jury to provide the evidence in the light most favorable to their clients. As in any
trial, the court will be able to prevent Seidl from discussing facts known only to him, and not
disclosed to Brooks or offered at trial, in his opening and closing statements. The unsworn witness
rule does not require disqualification in this instance.
Conclusion
Brooks’s motion (#22) to disqualify Seidl as counsel for Defendants is DENIED.
DATED this 12th day of March , 2015.

/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge

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