Lands will be a necessary witness. His testimony regarding the substance of the conversation in conference with Officer Vicchiarelli and Assistant Prosecutor Donovan is the primary evidence in this case. Plaintiff needs Mr. Lands' testimony to establish any unlawfulness in Defendant's pursuit of the probable cause hearing. As the complaint presently stands, it is hard to imagine how Plaintiff's claim can succeed without Mr. Lands' testimony.
Plaintiff's second contention, that the attorney-witness rule only operates once the trial has commenced, misstates the scope of RPC 3.7. Because the language of RPC 3.7 on its face prohibits an attorney from acting in dual capacities at trial, Plaintiff argues that Mr. Lands should be allowed to continue to serve as Plaintiff's attorney prior to the trial. Though this argument is based upon a reasonable construction of the language of RPC 3.7, close examination of the case law and policies regarding the attorney-witness rule reveal that the attorney-witness rule begins to operate as soon as either attorney realizes that a possible conflict may arise.
Plaintiff cites State v. Tanksley, 245 N.J. Super. 390, 585 A.2d 973 (App. Div. 1991), and United States v. Fogel, 901 F.2d 23 (4th Cir. 1990) in support of his construction of RPC 3.7; Plaintiff's interpretation of both cases as applied to RPC 3.7 is incorrect. Both Tanksley and Fogel hold that an advocate's competence as a witness is not as a matter of law impaired by his appearance as an advocate at trial. Although both cases involve attorneys who acted both as witness and counsel at trial, neither case reaches the question of whether or not the attorney's choice to continue as advocate was ethical; both Tanksley and Fogel are concerned only with the admissibility of evidence offered by an advocate.
I know of no case in which the New Jersey Supreme Court directly addresses the question of whether the attorney-witness rule in its most recent incarnation (RPC 3.7) operates only at the trial stage.
Historically, New Jersey Courts have consistently held that the rule begins to operate as soon as the attorney knows or believes that he will be a witness at trial. See In the Matter of Cadillac V8-6-4 Class Action, 93 N.J. 412 (1983)(construing New Jersey DR 5-101 and DR 5-102).
The attorney-witness takes effect before an attorney decides to accept employment from a client. Once an attorney recognizes that he is "likely" to be a witness in litigation, he must choose whether he will proceed as advocate or witness; he may not choose both. Id., at 440. See Also United States v. Prantil, 764 F.2d 548, 553 (9th Cir. 1985).
Finally, a party may inadvertently waive the right to move for disqualification if that party fails to move in a timely manner. Alexander v. Primerica Holdings Inc., No.CIV.A. 89-5151, 1993 WL 179111, at *17 (D.N.J. 1993). Courts encourage litigants to move to disqualify as soon as they recognize ethical conflicts; this practice discourages strategic procedural behavior and mitigates the amount of time and money spent before applying ethical rules of conduct. Defendant's motion to disqualify Mr. Lands is timely.
If the attorney-witness rule operated only at the trial stage of litigation as Plaintiff suggests, the policies inherent in RPC 3.7 would be defeated. An attorney facing disqualification at the trial stage might be too anxious to settle a dispute before trial. Conversely, opposing counsel, armed with the knowledge that opposing counsel faces disqualification, might be unwilling to accept an otherwise attractive settlement offer. Finally, allowing an attorney who will testify to continue as advocate up to the time of a trial would put me in the compromising position of choosing whether to force the advocate's client to start over with a new attorney on the eve of trial, to bar testimony necessary to decide the merits of the case, or to abrogate my duty to apply RPC 3.7. Such procedural distortions raise the specter of the "appearance of impropriety" and the possibility of strategic procedural behavior to the detriment of reaching the merits of the case. Early application of the attorney-witness rule is necessary for the smooth operation of adversarial adjudication.
In summary, Mr. Lands is "likely to be a necessary witness" in pending litigation. Assistant Prosecutor Donovan has already denied Plaintiff's version of the conversation in her deposition; Mr. Lands is Plaintiff's only witness to give his version of the conversation held in the conference room. Unless one of the three exceptions to RPC 3.7 applies here, Mr. Lands should be presently disqualified from Freeman v. Vicchiarelli.
B. Plaintiff meets none of the three exceptions to RPC 3.7.
RPC 3.7 provides three exceptions to the rule barring an attorney from serving dual roles at trial. The first two exceptions may be disposed of quickly. RPC 3.7(a)(1) provides that an attorney is exempt from the attorney-witness rule if his testimony relates to an "uncontested issue." In the present case, Mr. Lands' testimony is vigorously contested. RPC 3.7(a)(2) exempts testimony that pertains only to the "nature and value of legal services" from the attorney-witness rule; Mr. Lands' testimony pertains directly to the factual dispute in this case. Finally, RPC 3.7(a)(3) allows an attorney to continue in dual roles if disqualification would cause "substantial hardship." Plaintiff's claim of "substantial hardship" merits closer attention.
Plaintiff contends that disqualification of Mr. Lands constitutes a "substantial hardship" because Plaintiff will have difficulty finding substitute counsel if Mr. Lands is disqualified. Plaintiff asserts that although his claim has merit, any recovery in this action is likely to be small; Plaintiff argues that difficulty in finding an attorney to replace Mr. Lands rises to the level of "substantial hardship."
Defendant argues that the "substantial hardship" exception does not apply to timely motions to disqualify. Defendant has moved to disqualify before significant attorney's expenses have been incurred, and before significant discovery has occurred. Defendant argues that dismissal of Mr. Lands at this time will not unduly prejudice Plaintiff in his attempt to prepare his case for trial. I agree.
I know of no case in which the New Jersey Supreme Court has articulated the "substantial hardship" exception to RPC 3.7; I must turn for guidance to two cases articulating hardship exceptions to other conflict provisions of the RPC. Both the New Jersey Supreme Court and the United States District Court for the District of New Jersey have articulated a "substantial hardship" standard for analysis in connection with RPC 1.7 and 1.9. RPC 1.7 and 1.9 are both conflict of interest provisions prohibiting an attorney from representing adverse interests. Neither rule contains an explicit "substantial hardship" provision in its language. Nevertheless, in the interests of justice, both courts have found it necessary to avoid mechanical application of these rules by considering the "client's interest in choice of counsel" alongside violations of the ethics rules. In considering the "client's interest," both courts look to the amount of time and money invested by the client in his counsel, as well as to the proximity of the trial in determining whether disqualification of counsel would unduly prejudice the client. In my opinion, the same standard applies to the "substantial hardship" exception to RPC 3.7. Plaintiff's difficulty in finding alternative counsel does not, in itself constitute "substantial hardship."
In Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 536 A.2d 243, (1988), the New Jersey Supreme Court denied a motion to disqualify counsel despite counsel's violation of the conflict provisions in RPC 1.7 and 1.9. The court held that the rules of ethics should not be applied automatically; the client's interests in choice of counsel must be balanced against the need to uphold high standards of ethical conduct. Id. at 218. The court focused on two considerations in denying the motion to disqualify: 1) counsel had expended a great deal of time in preparation prior to the motion to disqualify (over 1800 hours); and 2) the proximity of the trial date would make it extremely difficult for another attorney to familiarize himself with the issues of the case in time for the trial. Id. at 218-219. The Dewey court emphasized that "only in extreme circumstances should a client's right to counsel of his or her choice outweigh the need to maintain the highest standards of the profession." Id. at 220.
Similarly, the United States District Court for the District of New Jersey denied a motion to disqualify counsel for violations of RPC 1.7 and 1.9 in Alexander v. Primerica Holdings Inc., No.CIV.A. 89-5151, 1993 WL 179111 (D.N.J. 1993). The reason given for denying the motion to disqualify in Alexander was plaintiff's bad faith in moving for disqualification. Because opposing counsel waited until the trial was imminent before moving for disqualification, that court found that the significant investment of time and money by Primerica in their counsel, Dewey Ballantine, and the likelihood that finding substitute counsel would cause significant delay supported the inference that Alexander moved to disqualify for strategic purposes. Id. at 20. Though the reasoning in each of these cases was slightly different, the principle was the same. Both found that there are unusual circumstances in which normal application of the ethical rules would result in substantive injustice. Both cases involved situations in which opposing counsel moved for disqualification after a long delay, and in which the expenditure of resources and proximity of the trial date unduly prejudiced the client of the attorney in violation. These same considerations inform my analysis of "substantial hardship" for the purposes of RPC 3.7(a)(3).
In the present action, Defendant's motion to disqualify Mr. Lands is timely. Defendant moved to disqualify counsel one month after the complaint was filed. Plaintiff has made a good faith effort to secure alternate counsel, and has been unsuccessful (Plaintiff claims to have phoned 14 attorneys, and Mr. Lands has contacted 3 attorneys). Nevertheless, difficulty in finding substitute counsel, by itself, does not rise to the level of "substantial hardship" articulated above.
In summary, Mr. Lands is a "necessary witness" for his client, and none of the three exceptions to RPC 3.7 apply.
C. Mr. Lands may not continue as counsel in this case by offering to disqualify himself as a witness.
At oral argument, Mr. Lands offered to stipulate that he would not testify at trial if he would be permitted to continue as advocate in this case. Although Mr. Lands admitted that withdrawing his testimony would weaken Plaintiff's case, Mr. Lands claimed that Plaintiff had consented to withdrawing Mr. Lands' testimony.
Regardless of Plaintiff's consent, Mr. Lands may not disqualify himself as a witness to avoid the application of the attorney-witness rule. Under the present complaint, Mr. Lands is a necessary witness for Plaintiff. Because allowing Mr. Lands to disqualify himself as a witness would substantially weaken his client's claim and would pervert the fact-finding process, I hold that Mr. Lands can not waive his ethical obligations under RPC 3.7 by withdrawing his testimony. I hold that Mr. Lands is disqualified from continuing as an advocate in this case.
The attorney-witness rule requires the disqualification of an attorney in a case in which that attorney will be a "necessary witness." The primary purpose of the attorney-witness rule is protecting the interests of the client. Advisory Committee on Professional Ethics, Opinion No. 630, 124 N.J.L.J. 906, 926. If the case may be "handled by any competent lawyer . . . it is appropriate for [the attorney-witness] to withdraw." Id. at 926, quoting Advisory Committee on Professional Ethics Opinion No. 233, 95 N.J.L.J. 206 (1972). Even when there is a question as to the materiality of the lawyer's testimony to the client's case, "doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate." Advisory Committee on professional Ethics, Opinion No. 233, 95 N.J.L.J. 206-207, (1972) quoting ABA Model Code of Professional Responsibility EC 5-10.
Permitting an attorney to stay in a case by foregoing testimony necessary to his client's claim is tantamount to allowing an attorney to knowingly provide his client with less than the best advocacy. By concealing important, admissible evidence from the fact finder, such an attorney would be hurting his client. The withdrawal of "necessary" testimony would also inhibit the court from viewing all of the evidence necessary to reach a just decision.
The attorney-witness rule, designed to protect the client and to maintain the integrity of the fact-finding process, can not lead to such an incongruous result. Although I have considerable leeway to allow civil litigants to structure their cases as they see fit, I am not free to allow attorneys to violate their ethical responsibilities.
As the complaint presently reads, Mr. Lands possesses information vital to his client's claim. The complaint mentions Mr. Lands fourteen times. Plaintiff's claims of abuse of process and of the infringement of his constitutional rights arise out of statements allegedly made to Mr. Lands during a conference with Defendant and Assistant Prosecutor Donovan; as stated above, Plaintiff can give no direct testimony as to what transpired at the conference. Assistant Prosecutor Donovan has already given deposed testimony denying that she and Defendant offered Plaintiff a quid pro quo. Mr. Lands is Plaintiff's key witness.
Mr. Lands conceded at oral argument that withdrawing himself as a witness would weaken his client's case. He offered no convincing explanation as to how Plaintiff could succeed without his testimony. Although Mr. Lands stated that his client would prefer to forego Mr. Lands' testimony rather than see Mr. Lands be disqualified, Mr. Lands can not waive his ethical responsibility topresent all evidence relevant to deciding this case. Plaintiff may search for new counsel, or may continue in this action pro se. Plaintiff may not, however, try to force this court to abridge its duty to uphold rules of ethical conduct by threatening to quit his claim if denied his first choice of counsel.
Finally, Mr. Lands' assertion that disqualifying him from the present case will mean that criminal defense counsel will never be able to represent their clients in civil cases is without merit. Motions to disqualify counsel are necessarily fact-specific. It is far from certain that other allegations of civil rights abuses in the process of criminal adjudication will arise only in circumstances that are factually similar to the circumstances of this case. Even if criminal defense attorneys are occasionally barred from representing their clients in some civil disputes, the imperatives of upholding the ethical rules in this instance outweigh Plaintiff's right to choice of counsel.
In summary, Mr. Lands can not avoid disqualification under RPC 3.7 by withdrawing himself as a witness. Because Mr. Lands' testimony is crucial to the success of his client's case, he is disqualified from serving as an advocate in Freeman v. Vicchiarelli, Civil Action No. 93-479. Defendant's motion to disqualify is GRANTED.
While I have found that disqualification of Mr. Lands at this time will not cause Plaintiff "substantial hardship," I recognize that proceeding pro se might be difficult for Plaintiff. To mitigate any possible adverse effects as a result of this ruling, I will stay all discovery and motion practice in this case until September 10, 1993 to allow Plaintiff enough time to secure alternate counsel.
An appropriate order shall enter this date.
JOEL B. ROSEN, United States Magistrate Judge