United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN UNITED STATES DISTRICT COURT
matter is before the Court on a Motion to Disqualify
Plaintiff's Attorney [DE 22], filed by Defendants on
April 26, 2018. Plaintiff filed a response on May 18, 2018,
and on June 1, 2018, Defendants filed a reply.
Complaint seeks compensation for injuries he suffered on a
golf course owned and operated by Defendants. There were two
witnesses to the accident that caused the injuries, one of
them the attorney who is now serving as counsel for
Plaintiff. Defendants argue that he should be disqualified
from continued representation of Plaintiff because of his
role as an occurrence witness in the case.
parties have consented to have this case assigned to a United
States Magistrate Judge to conduct all further proceedings
and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case
pursuant to 28 U.S.C. § 636(c).
Court of Appeals for the Seventh Circuit has cautioned that
disqualification is a prophylactic device employed to protect
the attorney-client relationship and is a “drastic
measure which courts should hesitate to impose except when
absolutely necessary.” Cromley v. Bd. of Ed. of
Lockport Twp. High Sch. Dist. 205, 17 F.3d 1059, 1066
(7th Cir. 1994) (quoting Freeman v. Chi. Musical
Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982));
see also Owen v. Wangerin, 985 F.2d 312, 317 (7th
Cir. 1993). Motions to disqualify “should be viewed
with extreme caution for they can be misused as techniques of
harassment.” Freeman, 689 F.2d at 722.
However, “the Seventh Circuit has instructed courts to
resolve doubts in favor of disqualification.”
Exterior Sys., Inc. v. Noble Composites,
Inc., 175 F.Supp.2d 1112, 1115 (N.D. Ind. 2001) (citing
United States v. Goot, 894 F.2d 231, 235 (7th Cir.
1990)). A district court possesses “broad
discretion” in determining whether disqualification is
required in a particular case. Cardenas v. Benter
Farms, No. IP 98-1067-C T/G, 2001 WL 292576, at *1 (S.D.
Ind. Feb. 7, 2001) (quoting Whiting Corp. v. White Mach.
Corp., 567 F.2d 713, 715 (7th Cir. 1977)). The party
seeking disqualification bears the burden of showing facts
requiring disqualification. Id.
Local Rules of this Court provide that the Rules of
Professional Conduct as adopted by the Indiana Supreme Court,
along with the Standards for Professional Conduct adopted by
the Seventh Circuit, provide the standard of conduct for
those practicing in this court. See N.D. Ind. Local
Rule 83-5(e). Defendants move to disqualify Attorney Brown
pursuant to Indiana Rule of Professional Conduct 3.71(a),
A lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a necessary witness unless:
(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.
Prof. Cond. 3.7(a). “In determining whether to
disqualify counsel, a court is directed by Rule 3.7 to
conduct a balancing between the interests of the client and
those interests of the opposing party.” Hutchinson
v. Spanierman, 190 F.3d 815, 828 (7th Cir. 1999)
(discussing the commentary to Indiana Rule of Professional
Conduct 3.7). Especially if it occurs later in the case,
disqualification can have “‘immediate, severe,
and often irreparable ... consequences' for the party and
disqualified attorney [because] [d]isqualifying a lawyer
immediately deprives the losing party from the
‘representation of his choice' and disrupts the
litigation.” Watkins v. Trans Union, LLC, 869
F.3d 514, 519 (7th Cir. 2017) (quoting Freeman, 689
F.2d at 719). The primary consideration of Rule 3.7 is
whether the lawyer is a “necessary witness.”
Knowledge A-Z, Inc. v. Sentry Ins., 857 N.E.2d 411,
418 (Ind.Ct.App. 2007). When the attorney's testimony is
“relevant, material, and unobtainable elsewhere,
” the rule's necessity requirement is met.
Borom v. Town of Merrillville, No. 2:07 CV 98, 2007
WL 1797639, at *2 (N.D. Ind. June 19, 2007) (quoting
Stewart v. Bank of Am. N.A., 203 F.R.D. 585, 586
(M.D. Ga. 2001); citing Carta ex. rel. Estate of Carta v.
Lumbermens Mut. Cas. Co., 419 F.Supp.2d 23, 29 (D. Mass.
2006); Macheca Transp. Co. v. Philadelphia Indem. Ins.
Co., 463 F.3d 827, 833 (8th Cir. 2006). The Court must
weigh the client's interest in continued representation
against the risk of prejudice to the opposing party.
Hutchinson, 190 F.3d at 828.
parties agree that Attorney Brown is one of only two
occurrence witnesses to the incident which forms the basis
for the complaint. Plaintiff allegedly slipped while
descending wooden steps at the golf course. There were two
other people there, Attorney Brown and one other person
playing golf with them. Plaintiff argues that because there
was one other person present when he was injured, Attorney
Brown is not a necessary witness. Plaintiff also argues that
Defendants cannot meet their burden of showing that Attorney
Brown's testimony is relevant and cannot be obtained
elsewhere because Defendants do not know what Attorney
Brown's testimony would be. Although Defendants requested
a deposition of Attorney Brown, it has not been held.
Defendants argue that a determination of the relevance of
Attorney Brown's testimony can be made without knowing
exactly what his testimony will be. They argue that Attorney
Brown's testimony is necessary since there were only two
people present when Plaintiff allegedly fell, so his
perspective on the incident was unique. This is not a
situation where there were a number of witnesses to the
occurrence which is alleged to give rise to liability, with
multiple people who could give testimony about what happened
from different vantage points: in this case, there were only
two other people present who saw what happened, from
different perspectives. Plaintiff does not argue that
Attorney Brown's testimony would not be relevant, or that
it would be completely cumulative of the other witness; ...