Diamond Consortium, Inc. v. Manookian

Filing 225

MEMORANDUM OPINION AND ORDER re 183 Notice of Attorney Appearance - Pro Hac Vice filed by Brian Manookian, 184 Notice of Attorney Appearance - Pro Hac Vice filed by Brian Cummings. Defendants Brian Manookian and Brian Cummings may not appear pro hac vice in this matter. Signed by Judge Amos L. Mazzant, III on 5/31/17. (cm, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DIAMOND CONSORTIUM, INC.; DAVID
BLANK
v.
BRIAN MANOOKIAN; CUMMINGS
MANOOKIAN, PLC; THE DALLAS
MORNING NEWS, INC; BRIAN
CUMMINGS; MARK HAMMERVOLD;
HAMMERVOLD, PLC

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Civil Action No. 4:16-CV-00094
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant Brian Manookian and Brian Cummings’s Notice
of Attorney Appearance-Pro Hac Vice (Dkts. #183, #184) and Plaintiffs’ Objections to
Applications to Appear Pro Hac Vice of Attorney-Defendants Brian Manookian, Brian Cummings,
and Mark Hammervold and, in the Alternative, Motion for Clarification (Dkt. #187).
BACKGROUND
Defendant Brian Manookian (“Manookian”) and Brian Cummings (“Cummings”) are
attorneys and defendants in this case. Manookian and Cummings are represented by counsel. On
May 2, 2017, Manookian and Cummings entered a Notice of Attorney Appearance-Pro Hac Vice
(Dkts. #183, #184). On May 9, Plaintiffs filed objections to Manookian and Cummings’s notice
of appearance (Dkt. #187). On May 18, 2017, Manookian and Cummings filed a response (Dkt.
#206). On May 19, 2017, the Court held a hearing regarding the motions.
LEGAL STANDARD
“An applicant for admission pro hac vice who is a member in good standing of a state bar
may not be denied the privilege to appear except on a showing that in any legal matter, whether
before the particular district court or in another jurisdiction, he has been guilty of unethical conduct

of such a nature as to justify disbarment of a lawyer admitted generally to the bar of the court.” In
re Evans, 524 F.2d 1004, 1007 (5th Cir. 1975). However, “there is no constitutional right to hybrid
representations whereby the defendant and his attorney act as co-counsel.” United States v. Long,
597 F.3d 720, 724 (5th Cir. 2010). See also United States v. Daniels, 572 F.2d 535, 540 (5th Cir.
1978) (“The criminal defendant does not have the right, however, to a ‘hybrid representation,’
partly by counsel and partly by himself. The applicable federal statute, 28 U.S.C. s 1654, provides
that ‘parties may plead and conduct their own cases personally or by counsel . . . .’ Courts have
consistently interpreted this statute as stating a defendant’s rights in the disjunctive.”); McCulloch
v. Velez, 364 F.3d 1, 5 (1st Cir. 2004) (holding that a civil litigant “has a right to represent himself
or to be represented by an attorney, but he cannot have it both ways. There is no right to hybrid
representation in the federal courts”).
ABA Model Rule 3.7 provides “[a] lawyer shall not act as an advocate at a trial in which
the lawyer is likely to be a necessary witness.” Texas Rule of Disciplinary Conduct 3.08(a)
provides “[a] lawyer shall not accept or continue employment as an advocate before a tribunal in
a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer
is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client.”
ANALYSIS
Plaintiffs object to Manookian and Cummings appearing pro hac vice because their
appearance would result in hybrid representation and violate the disciplinary rules that indicate
that lawyers that are necessary witnesses generally should not act as advocates at trial. Plaintiffs
further allege that Manookian and Cummings lack the professional and moral character to appear
before the Court. Manookian and Cummings respond that the Court may not deny them the

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privilege to appear before the Court because they have not been guilty of unethical conduct to
justify disbarment.
Although a Court may not deny an applicant admission pro hac vice unless the applicant
engaged in conduct to justify disbarment, an applicant nonetheless may not appear before the Court
to engage in hybrid representation. Manookian and Cummings are both represented by counsel.
Manookian, Cummings, and their counsel may not act as co-counsel. Long, 597 F.3d at 724.
Further, Manookian and Cummings are defendants in the case and will be necessary fact witnesses.
Manookian and Cummings may not seek employment as advocates in the case knowing that they
. will be necessary to establish essential facts in the case.
CONCLUSION
It is therefore ORDERED that Defendants Brian Manookian and Brian Cummings may
not appear pro hac vice in this matter.
SIGNED this 31st day of May, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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