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Reginald A. Roberts v. Risa Vetri Ferman

September 16, 2011

REGINALD A. ROBERTS
PLAINTIFF,
v.
RISA VETRI FERMAN, ET AL. DEFENDANTS.



MEMORANDUM

AND NOW, this 16th day of September, 2011, having considered Defendants' Motion to Bifurcate or in the Alternative Disqualify Plaintiff's Counsel (Doc. 137) (hereinafter "Defs.' Mot."), Plaintiff's Opposition to the Defendants' Motion to Bifurcate the Trial or in the Alternative for Disqualification of Plaintiff's Counsel with a Cross Motion for Sanctions Against Attorney Gonzales and Christopher Boyle and to Disqualify Attorney Gonzales (Doc. 141) (hereinafter "Pl.'s Resp."), and Defendants' Omnibus Response/Reply to Plaintiff's Response in Opposition to Defendants' Motion to Re-Open Discovery (#140), Response in Opposition to Motion for Sanctions (#141) and 'Reply to Response in Opposition re: 131 Motion for Reconsideration' (#143) (Doc. 145) (hereinafter "Defs.' Reply"),*fn1 the Court finds as follows:

A. BACKGROUND*fn2

Plaintiff, Reginald Roberts, filed this civil action on October 23, 2009, against Defendants, Montgomery County and a number of County employees, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act. Plaintiff also alleged violations of his federal civil rights under 42 U.S.C. § 1983. Discovery closed on February 28, 2011, pursuant to an amended scheduling order. (Doc. 87.)

On May 4, 2011, Plaintiff moved to disqualify Defendants' counsel. (Doc. 122.) Plaintiff argued that counsel for Defendants, Christopher Boyle, Esq., Martin Coleman, Esq., and Joseph Santarone, Esq., had engaged in conduct that rendered them material witnesses. On July 20, 2011, after full briefing, this Court granted in part and denied in part Plaintiff's motion. (Doc. 130.) In its Order on Plaintiff's Motion to Disqualify Defendants' Counsel, dated July 20, 2011 (hereinafter "July 20 Order"), this Court found that "the testimony of Mr. Boyle, Mr. Coleman, and Mr. Santarone is likely to be necessary to prove some of the allegations listed in Plaintiff's First Amended Complaint," for example, Mr. Boyle, Mr. Coleman, and Mr. Santarone "are likely to have information not available through other witnesses regarding the calculation and provision of Heart and Lung Act benefits to Plaintiff." (July 20 Order at 6.) Therefore, this Court disqualified Mr. Boyle, Mr. Coleman, and Mr. Santarone from acting as advocates at trial. (Id.) The Court emphasized, however, that Mr. Boyle, Mr. Coleman, and Mr. Santarone could continue to represent the Defendants, and declined to grant Plaintiff's request to disqualify the entire firm of Marshall, Dennehey, Warner, Coleman & Goggin (hereinafter, "Marshall Dennehey"). (Id. at 7.)

B. DISCUSSION

The power of this Court to disqualify an attorney derives from the Court's inherent authority to supervise the professional conduct of attorneys appearing before it. United States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980). The Third Circuit has stated that a district court, when exercising its discretionary power: should disqualify an attorney only when it determines, on the facts of the particular case, that disqualification is an appropriate means of enforcing the applicable disciplinary rule. It should consider the ends that the disciplinary rule is designed to serve and any countervailing policies, such as permitting a litigant to retain the counsel of his choice and enabling attorneys to practice without excessive restrictions.

Miller, 624 F.2d at 1201.

As noted above, when deciding motions for disqualification, courts "must strike a delicate balance between [] competing considerations," which include "the unfettered practice of law, maintaining the integrity of the legal profession . . . the plaintiff's right to retain counsel of his or her choice [and] the opposing party's right to prepare and try a case without prejudice." Dombrowski v. Governor Mifflin Sch. Dist., No. 11-1278, 2011 WL 1884019, at *2 (E.D. Pa. May 16, 2011) (internal quotations and citations omitted), adopted by 2011 WL 1898231 (E.D. Pa. May 17, 2011).

The party moving for disqualification of opposing counsel bears the burden to clearly show that continued representation would be impermissible. Stolp v. Sollas Corp., No. 96-0723, 1997 WL 83750, at *9 (E.D. Pa. Feb. 21, 1997) (citing Cohen v. Oasin, 844 F. Supp. 1065, 1067 (E.D. Pa. 1994)).

In this district, courts apply the Pennsylvania Rules of Professional Conduct. Local R. Civ. P. 83.6 (Rule IV(B)) (2011). A court may disqualify counsel "if it determines on the facts of the particular case, that disqualification is an appropriate means of enforcing the applicable disciplinary rule, given the ends the disciplinary rule is designed to serve." Dombrowski, 2011 WL 1884019, at *3 (internal quotations and citations omitted).

Here, Defendants argue that the actions of Plaintiff's counsel, Brian Puricelli, Esq., render him a necessary witness in this case. (Defs.' Mot. 6, 15.) Defendants rely on the same authority applicable to Plaintiff's Motion to Disqualify, namely, Rule 3.7 of the Pennsylvania Rules of Professional Conduct. (Id. at 15.) Rule 3.7 of the Pennsylvania Rules of Professional Conduct provides:

Rule 3.7 Lawyer as Witness

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a ...


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