DQ Cases of the Week: Lawyers as Witnesses and Private Attorneys General
March 8, 2015
The DQ case of the week is actually two federal cases, one from Massachusetts and another from Illinois. The first involves the lawyer-as-witness prohibition. SeeModel Rules of Prof’l Conduct R. 3.7. The plaintiff, who happened to be a lawyer, was busy taking depositions of the various witnesses in his case. The defendants moved to disqualify him and to limit his ability to take future depositions. The plaintiff responded with two defenses. First, he argued that he was a party, not a lawyer, in these proceedings and therefore Rule 3.7 did not apply to him. The court disagreed because, although the plaintiff was indeed a party and was even represented by his law partner, plaintiff himself had entered a notice of appearance as “additional counsel of record.” For plaintiff’s second defense, he argued that, even if Rule 3.7 applied, it would require disqualification only at trial, not during pretrial proceedings (including depositions). The court agreed and correctly noted the primary modern justification for the rule against lawyers-as-witnesses: “The primary purpose of this rule is ‘to prevent the jury as fact finder from becoming confused by the combination of the roles of attorney and witness.'” (quoting Smaland Beach Ass’n, Inc. v. Genova, 959 N.E.2d 955, 962 (Mass. 2012)). As the comments to the Massachusetts and Model Rules note, moreover, “[a] witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” Model Rule 3.7 cmt. 2. But this case has a twist:
Defendants acknowledge that Rule 3.7(a) generally does not foreclose a witness-advocate’s participation prior to trial. They argue, however, that [plaintiff]’s participation as counsel in video depositions, which may be played for the jury at trial, will have the same injurious effect as would his participation at trial. Defendants emphasize that deponents questioned by [plaintiff] sometimes answered questions about [plaintiff]’s activities using first- or second-person pronouns (“we,” “you”) rather than the third person (“he,” “[plaintiff]”). Defendants argue that, upon hearing these answers, the jury would necessarily understand that [plaintiff] was the deposing counsel, creating a risk of confusion and prejudice.The court agrees that these portions of the depositions, if played at trial, would risk creating jury confusion and would constitute a violation of Rule 3.7(a).
. . .
Although the court agreed that playing video depositions for the jury might create the same or similar mischief that Rule 3.7 seeks to prevent, the court disagreed that the disqualification remedy was necessary. Instead, the court offered a narrower remedy: “should this case proceed to trial, the court will entertain a timely filed motion in limine seeking an order excluding particular portions of the relevant depositions or requiring other corrective measures to avoid the potential for jury confusion,” and although the “court will not issue an order prohibiting [plaintiff] from taking additional depositions,” plaintiff is now “on notice that any portion of such depositions that risk creating jury confusion if played at trial may be redacted or deemed inadmissible by the court at a later date.”
. . .
The full order is available here: Neelon v. Krueger, No. 12-CV-11198-IT, 2015 WL 874420 (D. Mass. Mar. 2, 2015).
The second case of the week involves (in essence if not in name) private attorneys general. See, e.g., David B. Wilkins, Rethinking the Public-Private Distinction in Legal Ethics: The Case of “Substitute” Attorneys General, 2010 Mich. St. L. Rev. 423. In this case, the City of Chicago decided to sue several large pharma companies “for their alleged violations of the Chicago Municipal Code and state law in connection with their marketing of opioids.” To pursue the matter, the City had retained “the law firm of Cohen Milstein Sellers & Toll, PLLC . . . to represent [the City] in an investigation and litigation of potential claims regarding fraudulent marketing of opioid drugs,” and agreed that the Cohen firm “will be paid on a contingent fee basis, only upon a recovery in the Opioid Matter.” The Cohen firm first attempted to issue investigative subpoenas, but when the pharma companies objected to this delegation of authority to a private law firm, the City itself reissued the subpoenas. When Cohen later brought suit on behalf of the City against the pharma companies, the companies moved for Cohen’s disqualification on due process (and other) grounds, arguing that “Cohen’s pecuniary interest in the outcome of this litigation disqualifies the firm from working on this case.”
. . .
In denying the motion for disqualification, the court sided with “[a] number of courts [holding] that government entities may hire outside counsel on a contingent-fee basis if there are certain safeguards in place.” To withstand scrutiny, the case must be civil in nature (not criminal) and the “following limitations should be expressly set forth in any contingent fee agreement between [the public] office and private counsel: (1) that the Office of the Attorney General will retain complete control over the course and conduct of the case; (2) that, in a similar vein, the Office of the Attorney General retains a veto power over any decisions made by outside counsel; and (3) that a senior member of the Attorney General’s staff must be personally involved in all stages of the litigation.” Rhode Island v. Lead Indus., 951 A.2d 428, 477 (R.I. 2008). (See also Merck Sharp & Dohme Corp v. Conway, 947 F. Supp. 2d 733 (E.D. Ky. 2013) and County of Santa Clara v. Super. Ct., 235 P.3d 21 (Cal. 2010), which both required similar elements.) Because the City’s agreement with Cohen was in compliance with these elements, the court refused to disqualify the firm.