Free Order to Show Cause - District Court of Colorado - Colorado

Case 1:03-cv-02504-REB-CBS

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Filed 07/18/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02504-REB-CBS PETER HORNICK, an individual, Plaintiff, v. GARY BOYCE, and JOANNE BOYCE, individuals Defendants.

ORDER TO S HOW CAUS E

M agistrate Judge Craig B. Shaffer On July 15, 2005, the parties filed a Stipulated M otion to Vacate Trial Date. As grounds for that motion, the parties advised the District Court that " [a]n issue has arisen whether the attorneys will be witnesses"at trial and that resolution of that issue will likely require motions to disqualify. On July 15, 2005, this court received Plaintiff Hornick' Proposed Final Pre-Trial s Order in the above-captioned case. Plaintiff Hornick and Defendants Gary and Joanne Boyce have included on their respective witness lists opposing counsel as " may call"witnesses. Rule 3.7 of the Colorado Rules of Professional Conduct provides, in pertinent part, that " lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary a

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witness." A lawyer is a necessary witness if his or her testimony is relevant, material and unobtainable elsewhere. World Youth Day, Inc. v. Famous Artists Merchandising Exchange, Inc., 866 F. Supp. 1297, 1302 (D. Colo. 1994). The Colorado Supreme Court has held that service of a trial subpoena on opposing counsel is the functional equivalent of a motion to disqualify. Williams v. District Court, El Paso County, 700 P.2d 549, 555 (Colo. 1985). In Wesp v. Everson, 33 P.3d 191, 202 (Colo. 2001), the Colorado Supreme Court specifically recognized that the Williams test has been extended to civil cases and held that the issue of disqualification is raised where one party endorses opposing counsel as a witness at trial. Cf. Religious Technology Center v. F.A.C.T.Net, Inc., 945 F. Supp. 1470, 1473 (D. Colo. 1996) (holding that plaintiffs' opposition to a motion to admit defense counsel to practice pro hac vice amounted to a motion to qualify). In view of the parties'respective witness lists, it would appear that issues of disqualification have been raised and must be addressed by both sides. See also World Youth Day, Inc. v. Famous Artists Merchandising Exchange, Inc., 866 F. Supp. at 1299 (holding that the party seeking disqualification bears the burden of establishing the grounds for disqualification). I am also aware that Rule 3.7 recognizes that disqualification of counsel may not be appropriate in every case which counsel for a party is designated as a trial witness. Certainly, there is the potential for prejudice to the opposing party where trial counsel also serves as a witness. See Religious Technology Center v. F.A.C.T.Net, Inc., 945 F. Supp. at 1474. However,

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the Colorado Rules of Professional Conduct provide that an attorney may act as an advocate at trial even where he or she is likely to be a necessary witness, where " disqualification of the lawyer would work substantial hardship on the client." See Colo.R.Prof.Conduct 3.7(a)(3). The court must be mindful of the practical implications of an order disqualifying counsel. [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 case, the importance and probable tenor of the lawyer' testimony, and the probability that the lawyer' testimony will conflict s s with those of witnesses. Even if there is a 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' client. s See Colo.R.Prof.Conduct 3.7, Comment [4]. Resolution of these issues requires careful analysis by the parties and the court. According, the parties are hereby directed to show cause in writing, on or before August 10, 2006, why opposing counsel should not be disqualified pursuant to Rule 3.7 from further participation as counsel in this action. Dated this 18th day of July, 2005. BY THE COURT:

s/Craig B. Shaffer Craig B. Shaffer United States M agistrate Judge

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