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HomeMy WebLinkAbout2001-3507 Civil ALBERT H. "BUCK" SHULLER, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL L. DANNER, DEFENDANT 01-3507 CIVIL TERM IN RE: MOTION OF DEFENDANT TO DISQUALIFY TURO LAW OFFICES AS COUNSEL FOR PLAINTIFF BEFORE BAYLEY, J. AND OLER. J. OPINION AND ORDER OF COURT Bayley, J., May 9, 2005:-- Plaintiff, Albert H. "Buck" Shuller, filed an amended complaint against defendant, Daniel L. Danner, seeking damages for libel. Plaintiff avers that he was an elected Township Supervisor in Penn Township, Cumberland County, Pennsylvania, and defendant was a candidate for that position in a primary election. Defendant produced a flyer which sets forth among other allegations of libel: Albert Shuller using his personal and township attorney Ron Turo attempted to bribe another supervisor with jobs for voting yes with Albert Shuller at township meetings. This offer of a bribe was given on township property. In New Matter, defendant has asserted inter alia truth as a defense. The case is close to being ready for trial. Defendant has filed a motion to disqualify Turo Law Offices as counsel for plaintiff. Ron Turo, Esquire, is representing plaintiff. The issues were brief and argued on May 4, 2005. 01-3507 CIVIL TERM Rule 3.7 of the Rules of Professional Conduct provides: (a) A lawyer shall not act as 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 or Rule 1.9. (Emphasis added.) The Comment to the Rule provides: Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer as client. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. 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. Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. . . . [p]aragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether the opposing party is likely to suffer prejudice depends on the nature of the testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified due regard must be given to the effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. . . . Whether the combination of roles involves an improper conflict of interest with respect to the client is determined by Rule 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing -2- 01-3507 CIVIL TERM party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. See Comment to Rule 1.7. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of conflict of interest, Rule 1.10 disqualifies the firm also. Ordinarily the appearance of an attorney as both advocate and witness at trial is to be strongly discountenanced by the courts. Commonwealth v. Willis, 380 Pa. Super. 555 (1988). In his brief, plaintiff states that his counsel is not only involved in relevant underlying circumstances but has represented him personally for many years. He maintains that at this stage removing his counsel would work a substantial hardship and that his choice of counsel should be paramount. He argues: [t]here would be no conflict between the testimony of the plaintiff nor that of his attorney on the very narrow and specific issue raised by the defendant. Consequently such representation is not improper and disqualification would work a great hardship on plaintiff. . . moreover as there is no conflict of interest between the plaintiff and counsel, the law firm may not be disqualified. As the prejudice to the plaintiff. . . will far outweigh any possible prejudice to defendant. . ., this court should refuse the request to disqualify Turo Law Offices. . . plaintiff's counsel believes that he could act as advocate during the trial while having another attorney take over the questioning during any portion of the trial that would require his testimony. . .. [t]hat portion of the trial would be very small, in the context of this case, essentially inconsequential. Ron Turo, Esquire, is likely to be called as a witness at trial because part of the libel claim by plaintiff involves the alleged representation by defendant that plaintiff used Turo, his personal attorney and the Township attorney, to attempt to bribe another supervisor. Turo's testimony will not likely be in conflict with his client as they claim the representation constitutes libel which means that it is untruthful. Plaintiff, through his -3- 01-3507 CIVIL TERM counsel, will advocate that no attempted bribe occurred. This is a material contested issue. On these facts, Turo's role as an advocate and a witness is not outweighed by whatever hardship disqualifying him will cause plaintiff. There is, however, no apparent conflict between plaintiff and any other attorney in Turo Law Offices which would preclude such an attorney from representing plaintiff. According, for the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of May, 2005, IT IS ORDERED: (1) Ron Turo, Esquire, is disqualified from representing plaintiff at trial. (2) The motion of defendant to disqualify Turo Law Offices from representing plaintiff at trial, IS DENIED. By the Court, Edgar B. Bayley, J. Turo Law Offices For Plaintiff Douglas G. Miller, Esquire F or Defendant :sal -4- ALBERT H. "BUCK" SHULLER, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL L. DANNER, DEFENDANT 01-3507 CIVIL TERM IN RE: MOTION OF DEFENDANT TO DISQUALIFY TURO LAW OFFICES AS COUNSEL FOR PLAINTIFF ORDER OF COURT AND NOW, this day of May, 2005, IT IS ORDERED: (1) Ron Turo, Esquire, is disqualified from representing plaintiff at trial. (2) The motion of defendant to disqualify Turo Law Offices from representing plaintiff at trial, IS DENIED. By the Court, Edgar B. Bayley, J. Turo Law Offices For Plaintiff Douglas G. Miller, Esquire F or Defendant :sal