Ponte v. Sage Bank

Filing 30

MEMORANDUM AND ORDER denying 11 Motion to Disqualify Counsel. So Ordered by Chief Judge William E. Smith on 8/12/14. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
SAGE BANK,
)
)
Defendant.
)
___________________________________)
JOHN C. PONTE,

C.A. No. 14-115 S

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Pending

before

the

Court

is

Plaintiff

John

Motion to Disqualify Defendant Sage Bank’s Counsel.
11.)
I.

C.

Ponte’s
(ECF No.

For the reasons set forth below, the Motion is DENIED.
Background 1
In 2011, Sage Bank hired Ponte to serve as a Branch Manager

at its Warwick location.
memorialized

in

a

The terms of Ponte’s employment were

December

30,

2011

employment

agreement.

Ponte’s Complaint focuses on Sage Bank’s alleged breach of that
agreement.
Of critical importance to this motion, in May 2013, Ponte
learned that two of his former employees at the Warwick branch,

1

For the purposes of this motion, the facts are taken from
Plaintiff’s Complaint.

Catherine

Galliot

termination

and

and

Joseph

employment

had

discrimination

claims”) against Sage Bank.
claims in September 2013.

Laraia,

alleged
(the

wrongful

“employment

Ultimately, Sage Bank settled these
Ari Karen, an attorney who currently

represents Sage Bank in this action, also represented the bank
in settling the employment claims.
Shortly after Sage Bank settled with Galliot and Laraia,
Ponte

voluntarily

left

his

employment

at

the

bank.

In

his

Complaint, Ponte alleges that Sage Bank improperly funded the
settlements of the employment claims with funds that should have
been paid to Ponte upon his separation from the bank.
of

this

allegation,

necessary
employment

witness
claims

Ponte

to

now

testify

and

asserts
about

thus

should

that

the
be

Karen

Because

will

settlements

be

of

disqualified

a

the
from

representing Sage Bank in this case under Rhode Island Rule of
Professional Conduct 3.7.
II.

Discussion
“A party seeking disqualification of an opposing party's

counsel

bears

a

‘heavy

disqualification.’”

burden

of

proving

facts

required

for

Haffenreffer v. Coleman, C.A. No. 06-299T,

2007 WL 2972575, at *2 (D.R.I. Oct. 10, 2007) (quoting Evans v.
Artek

Sys.

Corp.,

715

F.2d

788,

792

(2d

Cir.

1983)).

In

deciding a motion to disqualify, a court must balance a “party’s
right to choose its counsel against the need to protect the
2

integrity of the judicial process,” all while recognizing that a
party

may

file

such

tactical reasons.

a

disqualification

motion

solely

for

Id.

Here, Plaintiff summarily asserts that Defendant’s counsel
is

a

necessary

witness

and

thus

must

be

disqualified.

Typically, an attorney may not act as both lawyer and witness at
trial.

Vierra v. Rhode Island Mun. Police Acad., 539 A.2d 971,

973 (R.I. 1988).

This rule is codified in Rhode Island Rule of

Professional Conduct 3.7, which provides that “[a] lawyer shall
not act as advocate at a trial in which the lawyer is likely to
be a necessary witness.”
As the party moving for disqualification, Ponte bears the
burden of demonstrating that Karen’s testimony is “relevant to
disputed, material questions of fact and that there is no other
evidence available to prove those facts.”

Carta ex rel. Estate

of Carta v. Lumbermens Mut. Cas. Co., 419 F. Supp. 2d 23, 29 (D.
Mass.

2006)

(internal

citation

and

quotation

marks

omitted).

Where an attorney’s testimony would merely be cumulative, he is
not a necessary witness.

Grossi v. Annarumo, No. C.A. NC 94-

0449, 1998 WL 726499, at *9 (R.I. Super. Oct. 8, 1998) (holding
that

attorney

was

not

necessary

witness

because

party

he

represented was capable of providing the same testimony).
The Court need not delve into whether the evidence sought
from Karen is “relevant to disputed material facts,” because
3

Ponte has failed to provide any evidence from which the Court
could conclude that Karen is the only source from which the
evidence in question could be obtained.

See Standard Quimica De

Venezuela, C.A. v. Cent. Hispano Int'l, Inc., 179 F.R.D. 64, 66
(D.P.R. 1998) (holding that party seeking disqualification must
present evidence that attorney is only individual with knowledge
sought).

Plaintiff merely posits that Karen has information

concerning the funds used to settle and pay attorney’s fees for
unrelated claims that Ponte asserts have some bearing on this
litigation.

According to Sage Bank, this same information is

available from bank employees who have knowledge “regarding the
claims, the settlement, and the accounting utilized” to fund the
settlement. 2
No. 12.)

(Def’s Opp’n to Mot. to Disqualify Counsel 11, ECF

Ponte does nothing to refute Sage Bank’s assertion.

At most, Plaintiff has raised the specter of whether Karen may
be

a

necessary

witness,

require disqualification.

but

speculation

his

high

burden

of

insufficient

to

See Paretti v. Cavalier Label Co.,

722 F. Supp. 985, 987 (S.D.N.Y. 1989).
met

is

Thus, Plaintiff has not

demonstrating

facts

proving

that

disqualification is appropriate.

2

The settlement agreements themselves would also provide
the relevant terms.
What is more, the rationale for these
agreements, and the advice given to Sage Bank by Karen may well
be protected by the attorney-client privilege.
4

III. Conclusion
For the foregoing reasons, Plaintiff’s Motion to Disqualify
Counsel is DENIED.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: August 12, 2014

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