Helena Country Club v. Brocato
2017 Ark. 152
| Ark. | 2017Background
- Brocato sued Helena Country Club (the Club) for breach of an oral contract and ADTPA violations, seeking ~$11,505 plus punitive damages; the Club counterclaimed alleging unauthorized work and fraud.
- Club’s lawyer Charles E. Halpert Jr. filed the Club’s answer and counterclaim; Brocato later indicated he intended to call Halpert as a trial witness regarding an alleged statement by Halpert about refusing payment.
- The Club moved to exclude the alleged statement as settlement negotiation evidence under Ark. R. Evid. 408 and argued its admission could require Halpert’s disqualification.
- A telephone hearing was held (untranscribed); the circuit court then sua sponte disqualified Halpert, finding his potential testimony imminent and a conflict present.
- The Club appealed interlocutorily, arguing the court erred by treating an unproven settlement statement as a basis to call counsel as a witness and by disqualifying Halpert without applying the Weigel test.
- The Arkansas Supreme Court remanded to settle the record because no transcript exists of the contested hearing, preventing review of whether the court abused its discretion in disqualifying counsel.
Issues
| Issue | Brocato's Argument | Club's Argument | Held |
|---|---|---|---|
| Admissibility of alleged statement (Rule 408) | Statement not made during settlement or, if it was, admissible to show intent/bias (non-Rule 408 purpose) | Statement was made during settlement talks and is barred by Rule 408 | Not decided on merits — record incomplete; remanded to settle record |
| Whether counsel may be called as witness (Model Rule 3.7 / Weigel test) | Halpert likely a necessary witness (board member, involved in decision) and testimony material | Calling counsel was a tactical invention; disqualification improper absent proof and Weigel analysis | Not decided on merits — remanded to settle record |
| Circuit court’s sua sponte disqualification procedure | Implicitly: court can act to protect the process if testimony imminent | Club: disqualification was summary, without evidence or application of Weigel; infringes right to chosen counsel | Not decided — remanded because no transcript of hearing to assess abuse of discretion |
| Duty to create record for contested matters (Admin Order No. 4) | N/A (party did not dispute need for record) | N/A | Court held failure to record was error; remanded to settle the record per Administrative Order No. 4 and Ark. R. App. P. 6(b) |
Key Cases Cited
- Weigel v. Farmers Ins. Co., 356 Ark. 617 (adopted three-part test for calling counsel as witness: materiality, unavailability elsewhere, prejudice)
- Craig v. Carrigo, 340 Ark. 624 (disqualification is drastic and reviewed for abuse of discretion)
- Burnette v. Morgan, 303 Ark. 150 (disqualification interferes with client’s choice of counsel; used to caution restraint)
- Robinson v. State, 353 Ark. 372 (circuit courts must create verbatim records of contested hearings; failure hampers appellate review)