Tennessee Bank & Trust v. Lowery et al

Filing 126

MEMORANDUM AND ORDER: The Joint Motion to Disqualify Plaintiff's Counsel 111 is DENIED WITHOUT PREJUDICE. Signed by District Judge Aleta A. Trauger on 10/11/2012. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TENNESSEE BANK & TRUST, a wholly owned )
division of Farmers Bank & Trust Company, an
)
Arkansas state bank,
)
)
Plaintiff,
)
)
v.
)
)
MARION EDWIN LOWERY, et al.,
)
)
Defendants.
)

Civil No. 3:11-0984
Judge Trauger

MEMORANDUM and ORDER
The defendants have filed a Joint Motion to Disqualify Plaintiff’s counsel, Gary Jiles
And His Law Firm, Millar, Jiles and Cullipher, LLP (Docket No. 111), to which the plaintiff has
responded in opposition (Docket No. 118).
ANALYSIS
Although a district court possesses inherent authority to disqualify an attorney to aid the
fair administration of justice, it is not to use this remedy lightly; that is, courts must remain
sensitive to the parties’ choice of counsel and weigh that interest against the public’s interest in
fair judicial process. See Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224 (6th
Cir. 1988); Cavender v. U.S. Express Enters., Inc., 191 F.Supp.2d 962, 965 (E.D. Tenn. 2002)
(describing motions to disqualify as being “very sensitive” and as requiring the court to
“exercise judgment with an eye toward upholding the highest ethical standards of the profession,
protecting the interest of the litigants in being represented by the attorney of their choosing, . . .

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and the overriding societal interests in the integrity of the judicial process.”)
The standard for professional conduct of lawyers practicing before this court incorporates
the Tennessee Rules of Professional Conduct. Local Rule 83.01(e)(4). Rule 3.7 of the
Tennessee Rules of Professional Conduct provides 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 except where:
(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.

Tennessee Supreme Court Rule 8, Rule of Professional Conduct 3.7. “For a lawyer to be a
necessary witness, his testimony must be relevant, material, and unobtainable elsewhere.”
Rothberg v. Cincinnati Ins. Co., No. 1:06-cv-111, 2008 WL 2401190, at *2 (E.D. Tenn. June 11,
2008); see also Nat’l Res. Def. Council v. Cnty. of Dickson, Tenn., No. 3:08-cv-0229, 2010 WL
5300871, at *3 (M.D. Tenn. Dec. 20, 2010). Accordingly, an attorney is a “necessary witness”
for purposes of Rule 3.7(a) “only if ‘there are things to which he will be the only one available to
testify.’”
In bringing a motion to disqualify, the movant bears “the burden of proving that opposing
counsel should be disqualified.” McKinney v. McMeans, 147 F.Supp.2d 898, 900 (W.D. Tenn.
2001) (citing Bartech Indus. v. Int’l Baking Co., 910 F.Supp. 388, 392 (E.D. Tenn. 1996)). The
defendants have failed to carry the burden of establishing that Mr. Jiles is likely to be a
necessary witness to a contested issue. For these reasons, the Joint Motion to Disqualify is
DENIED WITHOUT PREJUDICE.
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The plaintiff is FOREWARNED that, should it become apparent at a later time that Mr.
Jiles is, in fact, a necessary witness in this case, the court will not hesitate to disqualify him and
his firm at that time, which has the potential to create more prejudice to the plaintiff, should the
court so rule.
It is so ORDERED.
ENTER this 11th day of October 2012.

________________________________
ALETA A. TRAUGER
U.S. District Judge

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