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MILLER ELEC. CONSTR., INC. v. DEVINE LIGHTING CO.

November 1, 1976

MILLER ELECTRIC CONSTRUCTION, INC., Plaintiff
v.
DEVINE LIGHTING COMPANY, INC., Defendant



The opinion of the court was delivered by: SNYDER

 Disciplinary Rules 5-101 and 5-102 of the Code of Professional Responsibility *fn1" require a lawyer to refuse employment or, if he has already accepted employment, to withdraw from the conduct of a trial when it is known or obvious that he or a member of his firm ought to testify for his client. This Court is here confronted with Defendant's Motion for Disqualification of Plaintiff's Counsel on the alleged basis that such counsel will be required to testify. *fn2" Premature action by the Court could erroneously deprive a party of his choice of counsel. On the other hand, delay by the Court could result in considerable prejudice to both parties. *fn3"

 The Defendant contends that it is obvious from the face of the complaint that Mr. Nernberg, Miller Electric's counsel, ought to testify for his client. Miller Electric claims damages in this action for breach of contract by Devine Lighting. *fn4" This contract was negotiated in part between Richard Miller as President of Miller Electric and Irv Kotovsky, a Pittsburgh Representative of Devine Lighting. Further arrangements were then made by both oral and written communications between Mr. Nernberg and Joseph Straus, another Devine Lighting Representative. Specifically, Miller Electric averred that a "contract" was prepared "in accordance with the telephone conversation by Maurice A. Nernberg, Jr. as attorney for [Miller Electric] and Mr. Joseph Straus as representative of Devine Lighting." (Complaint, at 4, para. 17). This "prepared contract" was sent to Devine Lighting in the form of a letter, a copy of which was included in the Complaint as Exhibit A, which was written on Mr. Nernberg's legal stationery and stated:

 
"Dear Mr. Strauss:
 
This letter is being forwarded to you pursuant to conversations between this office, as counsel for Miller Electric Construction Company, and your local manufacturer's representative.
 
It is our understanding that you have agreed to submit a sample of the fixture outlined in the aforementioned drawing for approval by the engineers on behalf of the owner, Allegheny County Hospital Development Authority. This sample is to be received by Miller Electric Construction Company on or before December 19, 1975. Miller Electric Construction Company is to thereafter submit the sample to the engineers for approval. Immediately upon receiving approval, Miller Electric Construction Company does agree, if such approval is received on or before January 15, 1976, to issue a firm order to your company to supply those fixtures required by the shop drawings.
 
You are . . . agreeing and guaranteeing . . . that if you receive a firm order from Miller Electric Construction Company or or before January 15, 1976, that you will have the fixtures completed and delivered to the job site no later than April 1, 1976.
 
This letter is intended to be an agreement made by Maurice A. Nernberg, Jr. on behalf of Miller Electric Construction Company for it, and you are to sign a copy of this letter agreement and return the same . . . .
 
Very truly yours,
 
NERNBERG & NERNBERG
 
By: Maurice A. Nernberg, Jr.
 
Maurice A. Nernberg, Jr. Attorney and on behalf of Miller Electric Construction Company."

 In its Answer, the Defendant denied the existence of a contract and did not admit that the letter in question was genuine. The Defendant argues that Mr. Nernberg is therefore involved in a disputed matter of fundamental importance to the case, and that he obviously ought to testify about the contract negotiations, about the conversations with Mr. Straus and the agreement to submit a sample indicated in the letter, and about the genuineness and meaning of the letter.

 At this point in the proceedings, even before any discovery has been conducted, the Court is not able to determine, although it seems most likely, that Plaintiff's counsel might be required to testify in the interest of his client and ...


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