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Mansor v. JPMorgan Chase Bank, N.A.

United States District Court, D. Massachusetts

September 19, 2017




         This matter is before the court on “JPMorgan Chase Bank, N.A.'s Motion To Disqualify Keith L. Miller As Counsel For Plaintiffs And To Sequester Keith L. Miller From Depositions.” (Docket No. 458). By this motion, defendant JPMorgan Chase Bank, N.A. (“Chase”) seeks to disqualify plaintiffs' counsel, Keith L. Miller, as counsel in this matter and seeks to prevent Attorney Miller from attending any further depositions, reviewing any deposition transcripts, or discussing any deposition testimony in this matter, except with respect to his own deposition. This court issued a preliminary ruling following the argument of this motion held on July 26, 2017. Therein, the court confirmed Attorney Miller's agreement not to serve as trial counsel or to take or defend any further depositions, and allowed Attorney Miller to continue as counsel in connection with the pending pre-trial matters. (See Docket No. 481). This Memorandum and Order explains and expands this court's ruling. For the reasons detailed herein, the defendant's Motion is DENIED subject to the restrictions contained herein.


         Attorney Miller has been involved in this security fraud matter since 2009 and has litigated this case on behalf of plaintiffs since filing suit in 2012. Co-counsel for plaintiffs entered an appearance in this matter in November 2016. Attorney Miller has voluntarily agreed not to serve as counsel during trial or to conduct the examination of witnesses during depositions. However, plaintiffs have informed Chase that Attorney Miller will likely be a fact witness in this case and proffered that he would testify as to details of his conversations with several fact witnesses and the alleged perpetrators of the fraud, in particular William Wise, Jacqueline Hoegel and Kristi Hoegel. Plaintiffs, through co-counsel, assert that Attorney Miller's testimony is critical to both the preparation of their case and as a witness at trial.[1] In turn, Chase argues that if Attorney Miller is to be a critical fact witness, he must be disqualified from all pretrial activities as well as from his role as trial counsel.

         III. ANALYSIS

         Standard of Review

         “[A]ttorneys practicing in [Massachusetts] are bound by the ethical requirements embodied in the Massachusetts Rules of Professional Conduct, as incorporated in Rule 3.07 of the Rules of the Supreme Judicial Court of Massachusetts.” Cal. Ass'n of Realtors, Inc. v. PDFfiller, Inc., No. 16-11021-IT, 2017 WL 975945, at *2 (D. Mass. Mar. 13, 2017). Those Rules, with limited exceptions, prohibit attorneys from acting as advocates and witnesses in the same trial, and give guidance regarding the limited circumstances that require complete attorney disqualification. See Mass. R. Prof. Conduct 1.7, 3.7. Here, the parties have agreed that plaintiffs' counsel will not be representing the plaintiffs at trial. Therefore, the remaining issue is whether plaintiffs' counsel must also be disqualified from all pre-trial proceedings.

         In motions to disqualify counsel, “the burden [] rests on the party seeking disqualification to establish the need to interfere with the relationship.” Steinert v. Steinert, 73 Mass.App.Ct. 287, 288, 897 N.E.2d 603, 605 (2008). The court “should not lightly interrupt the relationship between a lawyer and a client.” Slade v. Ormsby, 69 Mass.App.Ct. 542, 545, 872 N.E.2d 223, 226 (2007) (quoting G.D. Mathews & Sons Corp. v. MSN Corp., 54 Mass.App.Ct. 18, 20, 763 N.E.2d 93 (2002)). “Where the need for an attorney to testify on behalf of his client arises, judges should defer to ‘the best judgment of counsel and his client, '” and “must guard against the Canons of Ethics being brandished for tactical advantage[.]” Smaland Beach Ass'n, Inc. v. Genova, 461 Mass. 214, 221, 959 N.E.2d 955, 963 (2012) (internal citations and punctuation omitted).

         Rule 3.7(a) of the Massachusetts Rules of Professional Conduct provides that a “lawyer shall not act as advocate at trial in which the lawyer is likely to be a necessary witness . . . .” Mass. R. Prof. Conduct 3.7. The rule's primary purpose is to prevent jury confusion from the combination of attorney and witness roles. Steinert, 73 Mass.App.Ct. at 291, 897 N.E.2d at 606. See also Mass. R. Prof. Conduct 3.7 cmt. 2 (“A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof”). Further, while Rule 3.7(a) disqualifies counsel from serving as an advocate at trial, “[a]ny disqualification that might extend to pretrial activities must derive from a different source.” Smaland, 461 Mass. at 226-27, 959 N.E.2d at 967. In the instant case, Chase points to Mass. R. Prof. Conduct 1.7 to support its contention that Attorney Miller should be totally disqualified from serving as plaintiff's counsel in this litigation.

         Plaintiffs Counsel's Pretrial Involvement

         The defendant contends that, pursuant to Rule 1.7, the presence of the alleged conflict of interests between the plaintiffs and Attorney Miller requires complete disqualification of Attorney Miller from the case. Rule 1.7 provides that:

[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third ...

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