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CAPLAN v. FELLHEIMER EICHEN BRAVERMAN & KASKEY

February 17, 1995

MAIA CAPLAN
v.
FELLHEIMER EICHEN BRAVERMAN & KASKEY and DAVID BRAVERMAN



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 INTRODUCTION

 Before this Court is Defendants' Motion to Disqualify Plaintiff's Counsel on the basis of Pennsylvania Rule of Professional Conduct 3.7 (the Ethics Rules). The Ethics Rules have been adopted in the Eastern District of Pennsylvania pursuant to Local Rule 14(IV)(B).

 Plaintiff Maia Caplan has sued her former employer, the law firm of Fellheimer Eichen Braverman & Kaskey (the Firm) and one of its partners, David Braverman, for violations of state common law and Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e - 2000e-17 (1994), as a result of her alleged termination as an associate at the Firm.

 Defendants' Motion to disqualify is based on Caplan's Self-Executing Disclosure Statement. In that statement, William H. Ewing, Caplan's attorney, was identified as a person reasonably likely to have information that bears significantly on the claims involved in the matter. The subject of the information was an alleged conversation between Ewing and Alan Fellheimer, a shareholder in the Firm, wherein Fellheimer allegedly made admissions damaging to Defendants concerning Caplan's departure from the Firm.

 The Firm argues that both Ewing and his law firm, Connolly Epstein Chicco Foxman Engelmeyer & Ewing, must be disqualified from representing Caplan under Rule 3.7 of the Ethics Rules. That Rule states:

 
(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where:
 
(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.

 (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 [Conflict of Interest -- General Rule] or Rule 1.9 [Conflict of Interest -- Former Client].

 DISCUSSION

 Preliminarily, we hold that regardless of our decision on the likelihood of Ewing's status as a necessary witness, the language of the Rule itself, as well as cases interpreting it, do not require a lawyer to be disqualified from representing a client even if Rule 3.7 is violated. The Rule only ...


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