UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
November 1, 1976
MILLER ELECTRIC CONSTRUCTION, INC., Plaintiff
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
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.
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.
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.
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 that later withdrawal could cause prejudice to the Defendant.
The Disciplinary Rules provide that if the counsel's withdrawal "would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel", he need not withdraw. DR 5-101(B)(4) and DR 5-102(A). Likewise, a Court would also consider the hardship caused the client before disqualifying an attorney. The Defendant's concern is that, by continued development of the case for any length of time, Mr. Nernberg's services may become so distinctive that this Court would not disqualify him because of the hardship that would be caused the Plaintiff. Mr. Nernberg could then be permitted both to remain on the case and to testify, to the detriment of Defendant's ability to impeach and cross-examine him as a witness. The Defendant therefore urges the Court to resolve any doubt now in favor of Plaintiff's counsel testifying over his continued service as trial counsel.
The Court has carefully considered the Defendant's contentions and agrees that when delay by the Court would unavoidably prejudice a party, it may have to disqualify a counsel even when it cannot determine with certainty whether that counsel ought to testify. By resolving its doubt in favor of the attorney testifying, the client will still have the opportunity to obtain effective trial counsel as well as receive the full benefit of the original attorney's testimony in his behalf. And the opposing party is afforded his full and unimpaired rights to cross-examine and impeach the attorney's testimony. But the Court also believes that when additional information may remove the doubt and waiting to acquire that information will not prejudice either party, the Court should not act prematurely.
Here, although the Complaint clearly suggests that Mr. Nernberg could offer testimony for his client, there is some question whether he will be required to testify. The testimony of Irv Kotovsky and Joseph Straus may suffice to support the Plaintiff's contentions about the contract negotiations, conversations and letter.
See DR 5-101(A)(1) & (2) and DR 5-102(A); EC 5-10.
Proper discovery should reveal what the testimony of Irv Kotovsky and Joseph Straus will likely be and may enable the Court to determine with greater certainty whether later action is necessary to protect either party.
The nature of the situation encourages counsel for both sides to conduct appropriate discovery on this matter as quickly as possible. The Plaintiff is so encouraged because he knows that the Code of Professional Responsibility and the interests of his client require him to withdraw at the earliest possible time. In addition, Ethical Consideration 5-10 states that when the question arises, the lawyer should resolve any doubts in favor of his testifying and against his continuing as an advocate. Thus, the lawyer has an affirmative duty to determine if he ought to testify and, if doubt persists, to withdraw. The Defendant is also encouraged to act promptly because he wants to avoid unnecessary expenses caused by delays that may ensue if the Plaintiff must obtain new counsel late in the proceedings. In addition, by conducting proper discovery and determining the testimony of its own witnesses without delay, Defendant can alleviate any concern, regardless of how slight that concern may be in light of this Opinion, that Mr. Nernberg may somehow acquire such a unique status in the case by his continued involvement that the Court will permit him to continue to try the case and to testify.
Postponement for a period sufficient to acquire this information will not subject either party to prejudice. The likelihood that Mr. Nernberg will acquire a unique status in the case by his involvement in discovery to develop this additional information is minimal. The Disciplinary Rules intended to create an exception to the withdrawal requirement only for "exceptional situations" in which withdrawal would be manifestly unfair to the client. See EC 5-10. Nor will the Court permit counsel to both conduct the trial of the case and testify for his client in a contested matter unless no other alternative will avoid manifest unfairness to the client.
The Court therefore concludes that Defendant's Motion for Disqualification of Plaintiff's Counsel is premature and it will be denied without prejudice to renew the Motion should further developments so warrant.
An appropriate Order will be entered.
Daniel J. Snyder, Jr. / UNITED STATES DISTRICT JUDGE
ORDER OF COURT
AND NOW, to-wit, this 1st of November, 1976, after due consideration of the arguments presented by counsel and for the reasons set forth in the Opinion filed simultaneously herewith,
IT IS HEREBY ORDERED that the Defendant's Motion for Disqualification of Plaintiff's Counsel be and the same is hereby denied.
Daniel J. Snyder, Jr. / UNITED STATES DISTRICT JUDGE