Appeals Court -- January 5, 2012
Facts: In an action between a beach association and neighboring property owner on trespass, adverse possession, vandalism and breach of fiduciary duty claims, the Superior Court entered an order disqualifying Defendant’s attorney from representing the association based on the conclusion that the attorney was a necessary witness. The court found that Defendant had raised an advice of counsel defense to the Plaintiff''s breach of fiduciary duty claim and assisted various witnesses in submitting errata sheets substantively changing their deposition testimony, thereby giving the Plaintiffs a right to call the attorney as a witness. Defendant moved for reconsideration but the judge reserved the motion since Defendant was technically without counsel. Defendant then petitioned a single justice of the Appeals Court for relief which was denied, causing Defendant to file an interlocutory appeal.
Issue: Whether the trial court can disqualify an attorney as a necessary witness without first determining if the subject of the attorney’s testimony would be prejudicial to the client or obtained by other means.
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No. Rule 3.7(a) of the Massachusetts Rules of Professional Conduct, provides, in pertinent part, that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where ... disqualification of the lawyer would work substantial hardship on the client.” Because of the severe consequence of stripping a party of chosen counsel, the court must proceed with deliberate caution to determine whether the testimony sought from the attorney would be prejudicial to his clients or whether alternate sources for this information were available. The court found that there was no indication that the judge conducted that inquiry, meaning the attorney’s disqualification was based on speculation, which is purely insufficient to serve as a basis for disqualification. Furthermore, the judge emphasized the plain language of Rule 3.7(a) which prohibits a lawyer from acting as an advocate “at a trial” and therefore does not apply to pre-trial representation.
Conclusion: After transferring the case on its own initiative from the Appeals Court, the Supreme Judicial Court concluded that the judge failed to engage a sufficiently searching review of this fact-intensive issue, vacated the disqualification order and remanded the case for a further hearing.
Note: In addition to addressing the issues of disqualification, the court described the proper use of errata sheets under Mass. R. Civ. P. 30(e). On this matter, the court adopted the majority view which allows errata sheets to be used to make any legitimate, good faith, changes to deposition testimony that enables the parties to obtain the fullest possible knowledge of the issues and facts before trial. To mitigate the potential for abuse, the court adopted remedial measures to allow the original and changed answers, as well as any reasons given for the changes, to remain part of the record for impeachment purposes; and reserved the right to reopen the deposition if the changes prove material. Any indication that an attorney has exploited the rule by facilitating the submission of errata sheets for the purpose of strategic gain and not to correct testimony, may be grounds for sanctions. (H.G.)
