Ambush v. Engelberg
282 F. Supp. 3d 58
D.C. Cir.2017Background
- Plaintiff Joshua Ambush sues several defendants (the "Center Defendants") alleging breach of a prior settlement and RICO violations arising from efforts to obtain compensation for victims of the 1972 Lod Airport massacre.
- ACCJ previously sued Ambush in related "Attorneys' Fees Litigation," resolved by a 2012 settlement that involved ACCJ, Michael Engelberg, and Eliezer Perr; Sher and Both represented ACCJ in that earlier matter.
- In the current suit, Neal Sher is both a co-defendant and has entered an appearance as counsel for the Center Defendants; Charles Both also entered an appearance for the Center Defendants.
- Ambush moved to disqualify Sher and Both under D.C. Rules of Professional Conduct 1.7 and 1.9 (conflicts of interest) and Rule 3.7 (advocate-witness rule), arguing Sher’s dual role and prior representation of Engelberg create disqualifying conflicts and that Sher is likely a necessary witness.
- The Center Defendants and Engelberg (through counsel) say they consent to Sher/Both’s continued representation and represent that Sher believes he can competently represent them; lead counsel Schwalb is separately retained.
- The court denied the motion without prejudice: it found Ambush lacks standing to pursue disqualification on conflict grounds at this stage, but granted standing on the advocate-witness issue while holding Rule 3.7 applies only at trial and the advocate-witness argument is premature until trial approaches.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sher/Both must be disqualified for conflicts under D.C. Rule 1.7 (current conflicts) and 1.9 (former-client adversity) | Sher's dual role as co-defendant and counsel creates personal conflicts; Sher/Both formerly represented Engelberg and matters are substantially related, so they should be disqualified | Center Defendants obtained informed consent; Engelberg does not object; Sher reasonably believes he can competently represent clients | Denied for lack of standing to seek disqualification on conflict grounds at this stage; alleged conflicts do not yet infect the litigation |
| Whether a non-client (Ambush) has standing to move to disqualify opposing counsel on conflict grounds | Ambush asserts the alleged conflicts so infect the case that his right to a fair adjudication is endangered, giving him standing | Courts are reluctant to allow non-clients to disqualify counsel absent personal injury or exceptional circumstances; here no such showing | Ambush lacks standing to pursue conflict-based disqualification absent a showing that the ethical breach threatens his trial rights |
| Whether Sher should be disqualified under D.C. Rule 3.7 because he is likely a necessary trial witness | Sher was allegedly involved in the RICO conspiracy and settlement negotiations, so he will be a necessary witness and cannot also act as trial counsel | Sher may be a witness, but Rule 3.7 governs only advocacy at trial; counsel may participate in pretrial matters; motion is premature before trial | Ambush has standing on this ground, but disqualification is premature because Rule 3.7 applies to trial; Ambush may renew the motion if trial becomes likely and Sher is a necessary witness |
| Whether Sher’s prior disbarment requires disqualification | Prior disbarment indicates unfitness to represent | Sher is currently admitted to this Court and disclosed prior disbarment on his application | Court declines to disqualify based on prior disbarment alone |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete injury that is traceable and redressable)
- Warth v. Seldin, 422 U.S. 490 (1975) (plaintiff generally must assert his own legal rights to have standing)
- Koller By & Through Koller v. Richardson-Merrell Inc., 737 F.2d 1038 (D.C. Cir. 1984) (disqualification is rare and requires strong showing of prejudice)
- Pigford v. Veneman, 355 F. Supp. 2d 148 (D.D.C. 2005) (movant must demonstrate personal standing to pursue disqualification)
- Colyer v. Smith, 50 F. Supp. 2d 966 (C.D. Cal. 1999) (non-client may have standing to seek disqualification where counsel-as-witness would affect access to evidence or orderly trial)