Ambush v. Engelberg
Civil Action No. 2015-1237
| D.D.C. | Oct 10, 2017Background
- Plaintiff Joshua Ambush sued ACCJ, its officers, and others alleging breach of a 2012 settlement and RICO violations arising from claims related to the 1972 Lod Airport massacre.
- ACCJ previously sued Ambush in related attorneys' fees litigation; Neal Sher and Charles Both represented ACCJ in that earlier case and helped negotiate the settlement.
- In the instant case Sher and Both entered appearances for the Center Defendants; Sher is also named as a co-defendant and serves as ACCJ’s General Counsel.
- Ambush moved to disqualify Sher and Both under D.C. Rules of Professional Conduct 1.7 and 1.9 (conflicts) and Rule 3.7 (advocate as necessary witness).
- Defendants oppose disqualification, asserting consent where required and urging that any witness-role concerns are premature.
- The court denied the motion without prejudice, allowing renewal if circumstances change (e.g., if Sher becomes a necessary trial witness).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conflict under D.C. Rule 1.7 (Sher as co-defendant and counsel) | Sher's dual role creates personal-interest conflicts that may adversely affect his professional judgment | Center Defendants have consented after independent advice; Sher asserts he can represent them competently | Court: plaintiff lacks standing to seek disqualification on these conflict grounds; motion denied |
| Conflict under D.C. Rule 1.9 (prior representation of Dr. Engelberg) | Sher and Both formerly represented Engelberg in related litigation; Engelberg's interests are now adverse to Center Defendants, so representation is disqualifying | Engelberg (through counsel) does not object; defendants assert any waiver/informed consent suffices | Court: no disqualification now—plaintiff lacks standing and Engelberg has not objected |
| D.C. Rule 3.7 (lawyer as necessary trial witness) | Sher likely participated in the alleged RICO scheme and settlement negotiations, so he will be a necessary witness at trial | Defendants: premature to disqualify for trial-stage advocacy; lead counsel (Schwalb) is in place | Court: plaintiff has standing on this point but Rule 3.7 applies only to trial; disqualification at this pretrial stage is premature—may be renewed before trial |
Key Cases Cited
- Palumbo v. Tele‑Commc'ns, Inc., 157 F.R.D. 129 (D.D.C. 1994) (disqualification motions committed to district court discretion)
- Groper v. Taff, 717 F.2d 1415 (D.C. Cir. 1983) (court’s supervisory role over bar; disqualification is discretionary)
- Koller By & Through Koller v. Richardson‑Merrell Inc., 737 F.2d 1038 (D.C. Cir. 1984) (disqualification warranted rarely; careful scrutiny)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Warth v. Seldin, 422 U.S. 490 (1975) (plaintiff generally must assert his own legal rights to have standing)
- Pigford v. Veneman, 355 F. Supp. 2d 148 (D.D.C. 2005) (movant must demonstrate personal injury to seek disqualification)
- Colyer v. Smith, 50 F. Supp. 2d 966 (C.D. Cal. 1999) (non‑client may have standing to seek disqualification when advocate-witness role affects access to evidence)