Brown v. Daniel

180 F.R.D. 298, 1998 U.S. Dist. LEXIS 12188, 1998 WL 461891
CourtDistrict Court, D. South Carolina
DecidedJuly 20, 1998
DocketCiv.A. No. 3:98-00265
StatusPublished
Cited by6 cases

This text of 180 F.R.D. 298 (Brown v. Daniel) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Daniel, 180 F.R.D. 298, 1998 U.S. Dist. LEXIS 12188, 1998 WL 461891 (D.S.C. 1998).

Opinion

MEMORANDUM OPINION AND ORDER

HADEN, District Judge.

Pending is the motion to disqualify Plaintiffs counsel and the firm of Collins & Lacy, P.C. (“Collins & Lacy”) filed by Defendants E. Bart Daniel, John M. Barton & Dale L. DuTremble.1 Pending also is Defendant Ronald L. Cobb’s motion to adopt, conform and have the benefit of joining Daniel, Barton & DuTremble’s motion to disqualify, which the Court GRANTS. After careful consideration, the Court DENIES the motion to disqualify.

I. FACTUAL BACKGROUND

Plaintiff Alva T. Brown is represented by Arthur K. Aiken of the Collins & Lacy law firm. Aiken’s senior partner, Joel W. Collins, Jr., represented Plaintiffs decedent, Luther L. Taylor, Jr., in the underlying criminal case from 1990 until Taylor’s death in March 1997. Collins first alleged prosecutorial misconduct in Taylor’s case during pretrial motions, in September 1990. Throughout the criminal case, Collins was widely quoted in newspaper articles covering the “Operation Lost Trust” prosecutions.

After Taylor’s death, Brown selected Collins & Lacy to represent her in this civil case because of the firm’s longstanding representation of Taylor. Brown has submitted an affidavit stating she understands the nature of the disqualification issue and wishes to continue with the Collins & Lacy law firm. Brown Aff., Ex. A, Pl.’s Resp.

Brown has listed Joel Collins (“Collins”) as the first witness in her ease and his wife, Rhonda P. Collins, who was a Collins & Lacy paralegal, as the second witness. Both Brown and Collins & Lacy acknowledge that Collins is precluded from appearing as an advocate in a case in which he is a witness. Accordingly, the Court DENIES the motion as moot, as it relates to disqualifying Collins for this reason.

In a footnote, Defendants similarly state Aiken “participated in the sentencing phase of Taylor’s criminal matter and could himself become a witness in this ease,” Defs.’ Mem. Supp. Disqualification at 3 n. 6. Also in a footnote, Defendants state they may call Yolanda C. Courie, partner in the Collins & Lacy firm, to testify at trial. Because Defendants do not provide any details of 1) in what manner Aiken or Courie “participated,” or 2) what material information either could pro[300]*300vide, such that he or she would “likely ... be a necessary witness” under Rule 3.7 of the South Carolina Rules of Professional Conduct, the Court DENIES the motion as it may relate to disqualifying Aiken or Courie on the basis of dual roles.

Defendants primarily argue, under Rule 3.7, Joel Collins and his firm should be disqualified because (1) there will be a confusion of the roles of advocate and witness; (2) Aiken will have to argue his partner’s credibility; (3) there is already bitter hostility between Collins and Defendants; and (4) Collins’ testimony is integral to Plaintiffs case. Secondarily, Defendants argue Collins has already been quoted widely regarding the case and, now, continues to engage in potentially prejudicial pretrial publicity.

In response, Brown argues Rule 3.7(b) specifically allows Aiken to continue as an advocate in the case, so long as Collins serves only as a witness at trial, which he will do. Plaintiff also argues disqualifying the firm would work a substantial hardship to Brown because 1) the firm is intimately familiar with the details of years of investigation and prosecution; and 2) it would be difficult for Plaintiff to find another firm who would take the ease on a contingency, the only manner in which Brown can proceed.

The Court has previously advised the parties that it was aware of Rule 3.7(b) which allows the firm to continue, but that the Court would examine the matter further, including the impact and sources of pretrial publicity. Furthermore, the Court noted that opposing counsel could address Collins’ bias on cross-examination and in arguments to the jury. Finally, the Court warned that if Collins continued to engage in pretrial publicity, it would implicate his bona fides and could result in adverse action to the detriment of the client.

II. DISCUSSION

A. Disqualification

There is little Fourth Circuit or South Carolina law analyzing disqualification of a law firm when a partner will be a necessary witness in the case. In Clinton Mills, Inc. v. Alexander & Alexander, Inc., 687 F.Supp. 226 (D.S.C.1988), the court set out the general background for a motion to disqualify:

A motion to disqualify counsel is a matter subject to the court’s general supervisory authority to ensure fairness to all who bring their case to the judiciary for resolution. Under District Court Local Rules 2.08 and 2.09(h)(i)(2),2 the South Carolina Code of Professional Responsibility establishes the ethical standards governing the practice of law in this court. It is the court’s responsibility to use its disqualification power to see that those who practice before the court adhere to the South Carolina Code.

While it is the court’s responsibility to ensure the propriety of the bar, the act of disqualifying a firm “is ordinarily not taken without a strong showing.”

Id. at 228-29 (quoting Stanwood Corp. v. Barnum, 575 F.Supp. 1250 (W.D.N.C.1983) (pre-dating the adoption of the Model Rules)). Our Court of Appeals has stated, “The drastic nature of disqualification requires that courts avoid overly-mechanical adherence to disciplinary canons at the expense of litigants’ rights freely to choose their counsel; and that they always remain mindful of the opposing possibility of misuse of disqualification motions for strategic reasons.” Shaffer v. Farm Fresh, 966 F.2d 142, 146 (4th Cir.) (addressing a motion for disqualification based on alleged conflict of interest) (citing Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976)), cert. denied, 506 U.S. 1021, 113 S.Ct. 657, 121 L.Ed.2d 583 (1992). See also Buckley v. Airshield Corp., 908 F.Supp. 299, 304 (D.Md. 1995), appeal dismissed, 86 F.3d 1175 (4th Cir.1996); Robert Woodhead, Inc. v. Datawatch Corp., 934 F.Supp. 181, 183 (E.D.N.C. 1995).

[301]*301Rule 3.7 of the South Carolina Rules of Professional Conduct states:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uneontested 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.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.3

S.C.C.P.R. Rule 3.7 (1990). South Carolina’s rule is identical to Model Rule 3.7, which is more liberal than the earlier Model Code provision. The Model Code was a bright-line rule.

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Bluebook (online)
180 F.R.D. 298, 1998 U.S. Dist. LEXIS 12188, 1998 WL 461891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-daniel-scd-1998.