Taboas v. Fiddler Gonzalez Rodriguez, PSC

Filing 22

MEMORANDUM AND ORDER re 19 Motion to Disqualify Counsel. Having considered Ms. Taboas' motion (Docket No. 19), and defendant's memorandum of law in support of allowing Mr. Manzano-Yates to take plaintiff's deposition, (Docket No. 20), the Court DENIES plaintiff Taboas' motion. Signed by Judge Francisco A. Besosa on 08/09/2013. (brc)

Taboas v. Fiddler Gonzalez Rodriguez, PSC

Doc. 22

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA DEL CARMEN TABOAS,
Plaintiff,
v.

CRIMINAL NO. 13-1205 (FAB)

FIDDLER, GONZALEZ & RODRIGUEZ,
PSC,
Defendant.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before

the

Court

is

plaintiff

Maria

del

Carmen

Taboas’

(“Taboas”) motion not to allow Pedro J. Manzano-Yates, defendant
Fiddler, Gonzalez & Rodriguez, PSC’s (“FGR”) Managing Director, to
take plaintiff

Taboas’

deposition.

(Docket

No. 19.)

After

reviewing the plaintiff’s motion, id., and defendant’s memorandum
of law in support of allowing Mr. Manzano-Yates to take plaintiff’s
deposition, (Docket No. 20), the Court DENIES the plaintiff’s
motion

and

permits

Mr.

Manzano-Yates

to

take

Ms.

Taboas’

deposition.
DISCUSSION
I.

Background
On March 8, 2013, plaintiff Taboas filed a complaint against

defendant FGR, the law firm where she worked as an attorney for
over 30 years.

(See Docket No. 1.)

In her complaint, she alleges

that she was fired by FGR because of her age, in violation of the

Dockets.Justia.com

Criminal No. 13-1205 (FAB)

2

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq. and several Puerto Rico laws, and seeks damages.

Id.

During the Initial Scheduling Conference on July 24, 2013,
both

Ms.

Taboas

and

FGR

agreed

that

Mr.

Manzano-Yates

had

previously indicated to plaintiff’s counsel that he would take
plaintiff’s deposition even though he could potentially be called
to serve as a necessary witness in the case.
p. 1 & Docket No. 20 at pp. 1-2.)

(Docket No. 19 at

Indeed, at the Initial

Scheduling Conference, Mr. Manzano-Yates stated that he would be
FGR’s representative at any Rule 30(b)(6) deposition that Ms.
Taboas would want to take of the law firm.

Plaintiff Taboas had

objected in writing, on the grounds that Rule 3.7 of the Model
Rules of Professional Conduct of the American Bar Association
(“Model Rule 3.7”) precludes Mr. Manzano-Yates from acting as both
a witness and an attorney. (Docket No. 19 at p. 1.)

The Court

allowed both parties until August 2, 2013 to file simultaneous
briefs as to why Mr. Manzano-Yates should or should not be allowed
to depose Ms. Taboas. (Docket No. 18 at p. 2.)

On August 2, 2013,

plaintiff Taboas filed her motion, arguing that Model Rule 3.7 bars
an attorney-witness from acting as an advocate at trial and also
from

participating

depositions.

in

pretrial

proceedings,

(Docket No. 19 at pp. 2-3.)

including

taking

On the same date,

defendant FGR filed its memorandum of law in support of allowing
Mr. Manzano-Yates to take Ms. Taboas’ deposition. (Docket No. 20.)

Criminal No. 13-1205 (FAB)

3

Defendant FGR argues primarily that Model Rule 3.7 only prohibits
an attorney from acting as an advocate and witness during trial but
that because Mr. Manzano-Yates seeks only to participate in pretrial activities, it may be permitted.

Id. at p. 2.

The law firm

argues that Mr. Manzano-Yates’ serving as an advocate at trial
would not undermine the purpose of Model Rule 3.7.

Id.

It also

contends that it has a statutory right to select its own counsel
and that Mr. Manzano-Yates’ participation in pretrial proceedings
will not result in substantial prejudice to Ms. Taboas.

Id.

The

Court finds Ms. Taboas’ arguments unavailing and agrees with
defendant FGR.

Accordingly, the Court DENIES Ms. Taboas’ motion.

Mr. Manzano-Yates is permitted to take her deposition but he is
prohibited from participating as trial counsel in any manner, under
any circumstance, should the case proceed to trial.
II.

Model Rule 3.7
Model Rule 3.7 states that, except in certain situations, “[a]

lawyer may not act as advocate at a trial in which the lawyer is
likely to be a necessary witness.”

Hill v. Culebra Conservation

and Development Authority, 599 F.Supp.2d 88, 95 (D.P.R. 2009)
(citing Model Rule 3.7(a)(2002)).

The First Circuit Court of

Appeals has stated that Model Rule 3.7 is intended to address:

“1)

the possibility that, in addressing the jury, the lawyer will
appear

to

vouch

for

his

own

credibility;

2)

the

unfair

and

difficult situation which arises when an opposing counsel has to

Criminal No. 13-1205 (FAB)
cross-examine

a

4

lawyer-adversary

and

seek

to

impeach

his

credibility; and 3) the appearance of impropriety created, i.e.,
the likely implication that the testifying lawyer may well be
distorting the truth for the sake of his client.”

Hill, 599

F.Supp.2d at 95 (citing Culebra Enterprises Corp. v. Rivera-Rios,
846 F.2d 94, 99 (1st Cir. 1988)).

Thus, Model Rule 3.7 is

concerned only with a lawyer-witness acting as counsel during
trial.

Indeed, the First Circuit Court of Appeals has held that

these three concerns “are absent, or at least greatly reduced, when
the lawyer-witness does not act as trial counsel, even if he
performs behind-the-scenes work for the client in the same case.”
Culebra Enterprises Corp., 846 F.2d at 100.
In this case, Mr. Manzano-Yates is not seeking to serve as
trial counsel; he is seeking to take Ms. Taboas’ deposition.
The First

Circuit

Court

of

Appeals

squarely in relation to Model Rule 3.7.

has

addressed

this

issue

In applying the rule, it

has rejected a broad reading of the word “trial” to include “pretrial discovery and such services in aid of a trial as legal
research and brief-writing.”

Id. at 101.

Notably, the First

Circuit Court of Appeals has held that:
[w]e recognize that a deposition might be put in evidence
at trial showing the name of a trial witness acting in
the role of attorney at the deposition. This problem
would ordinarily be solved, however, by redacting the
attorney-witness’s name from the deposition . . . . we do
not believe that the Rule 3.7 bar against being an
‘advocate at a trial’ normally prohibits a witnessattorney from acting as counsel in pretrial discovery.

Civil No. 13-1205 (FAB)
Id. at 101, n. 9.

5

Therefore, so long as Mr. Manzano-Yates does not

act as trial counsel, the purposes of Rule 3.7 will be served.1
Accordingly, Ms. Taboas’ motion not to allow Mr. Manzano-Yates to
take her deposition based on Rule 3.7 is DENIED. Mr. Manzano-Yates
is not permitted, however, to represent defendant FGR at trial in
any

manner,

shape

or

form,

other

than

acting

as

FGR’s

representative, should this case proceed to trial.
CONCLUSION
Having considered Ms. Taboas’ motion (Docket No. 19), and
defendant’s memorandum of law in support of allowing Mr. ManzanoYates to take plaintiff’s deposition, (Docket No. 20), the Court
DENIES plaintiff Taboas’ motion.
IT IS SO ORDERED.
In San Juan, Puerto Rico, August 9, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
United States District Judge

1

Plaintiff Taboas incorrectly states that the First Circuit Court
of Appeals in Culebra Enterprises Corp., 846 F.2d at 100, did not have
the opportunity to decide if pretrial depositions were the type of
“behind-the-scenes work” that Model Rule 3.7 prohibits. (Docket No. 19
at p. 3.) Instead, she argues that “the various courts that have faced
the specific issue of whether [Model] Rule 3.7 bars an attorney-witness
from taking pretrial depositions have uniformly held that it does.” Id.
She cites several cases from district courts located in the Eighth and
Tenth Circuit Courts of Appeals for support. Id. While these cases may
be persuasive, plaintiff Taboas fails to address the binding law stated
by the First Circuit Court of Appeals in Culebra Enterprises Corp., the
very case Ms. Taboas cites, “we do not believe that . . . Rule 3.7 . . .
normally prohibits a witness-attorney from acting as counsel in pretrial
discovery.”