*1 704 Supreme As the Court
captain’s authority.2
explained,
has
COMPANY,
MILL SUPPLY
GENERAL
Rotenberg and Milton
Manual
Roten-
sea,
gone
Ever since men have
berg, Plaintiffs-Appellants,
of master
seaman has
relationship
different from that of em-
entirely
v.
lives of
employee
on land. The
ployer
Dorr,
SERVICES,
INC., Hale and
safety
and crew as well as
passengers
Defendants-Appellees.
to the
ship
cargo
are entrusted
81-1352.
every
No.
Every
master’s care.
one and
He
thing depend on him.
must command
Appeals,
Court of
United States
obey. Authority
must
can-
and the crew
Sixth Circuit.
These are actualities
not be divided.
recognized.
always
which the law has
28,
July
1982.
Argued
Co., NLRB, Steamship
v.
Southern
U.S.
Decided Dec.
1982.
886, 890,
31, 38,
sertion, which, forfeit- for Ebner emolu- any part wages
ed “all or
ments which he has then earned.” recognize do not as a
U.S.C. 701. We § desertion,
justification except perhaps circumstanc- extraordinary
under most
es, brought an illness which was never captain’s attention. We therefore af-
firm the decision below that Ebner is not wages transporta-
entitled to unearned
tion costs.
AFFIRMED.
captain
being
acknowledge
early
worse before
“starvefd]
case which con-
2. We
Although
justifica-
they got
provisions
at 441.
it is
back....”
Id.
sidered insufficient
Forteviot,
captain’s
respond
possible
failure to
Defendants also
because
did
coerce
testimony
false
because
Plaintiffs General
needed favorable testimony
Mill,
from General Mill
Rotenbergs
Manuel
Rotenberg and Milton
[sic]
support
Rotenberg in
SCA’s claims. Mr.
prior
Donnelly
action and
said
tо cause
them to otherwise unlawfully
and im-
were not interested in proving
properly assist Defendant SCA and Hale
General Mill liable to SCA and that they
& Dorr in their litigation against Lucky.
pursue
would not
recovery on the Third
After Plaintiffs
Mill,
General
Party Complaint
Manuel
if General Mill and the
[sic]
*4
Rotenberg and
Rotenberg
Milton
Rotenbergs
had been
testified as Defendants want-
served in the State of Michigan with a
ed and if General Mill and the Roten-
Summons and Third Party Complaint in
bergs used their
paper
influence with
action,
the prior
I
long
had a
distance
mills to secure from them testimony fa-
telephone
(between
conversation
Michi-
vorable to SCA about the quantity of bad
gan
Massachusetts)
and
with James C.
quality
I
Lucky paper.
concluded that
Donnelly,
Dorr,
Jr. of Defendant Hale &
Hale
SCA and
& Dorr were attempting
the substance of which follows.
I told
to make my clients commit and suborn
Mr. Donnelly that I could not understand
that,
perjury and said
my
while
clients
why
my
Defendants had sued
clients in
could not
litigation,
afford the cost of
I
place
first
because my clients seemed
did not believe
that
would lie or
hurt,
to know facts that would
help,
not
encourage others to lie in order to avoid
in its litigation
Lucky.
SCA
with
I asked
litigation.
Mr. Donnelly if anything could be done to
I had two other conversations with De-
dispose of the Third Party Complaint be-
fendant Hale & Dorr about
the same
my
cause
clients could not afford to be in
subject, one with Mr. Donnelly in Illinois
the midst of complex, expensive litigation
in early February, 1976 and the other
large
with two
corporations, Defendant
with Jerome P. Facher in Massachusetts
and Lucky.
response
SCA
In
to Mr. Don-
March,
in late
1976.
nelly’s inquiry,
that,
I
Donnelly
told Mr.
give
affidavit does not
the date of the
according
clients,
my
quality
described,
conversation
but the
sug-
context
most,
all,
if not
of the paper
Lucky
that
gests it was
early
1976.
had furnished to
satisfactory
SCA was
It will be thought
in-
affidavit
my clients
paper
mills months
formation must have been essential to avert
before SCA terminated performance of
a summary judgment, or else Mr. Garratt
its contract
Lucky.
Mr. Donnelly
would not have divulged it. The affidavit
said that
initially
SCA
had no inclination
itself shows that no one but the adversary
to sue General Mill but that
it had been
counsel could testify to the conversation
done for strategic reasons.
Donnelly
Mr.
described,
Garratt,
besides Mr.
and the like-
said that
they were really pushing the
lihood the adversary would confirm Mr.
against
lawsuit
Lucky and the
defense
Garratt’s account
not be
very
could
rated
Lucky’s
against SCA,
lawsuit
rather than
high.
the Third Party Complaint,
and that
18, 1980,
hoped
Party
January
the Third
counsel for
Complaint
SCA
join
jointly
would make
Mill
counsel for Hale Dorr
moved to
nip
General
SCA to
in the bud Lucky’s
against
disqualify
claim
firm
Garratt and his then
to blame Lucky
problems
that arose
participation
further
in the case.
during the course of the
affidavit,
contract. Mr. They pointed
out that
witness in the case
sitions still to come obtain admissions
Garratt was an essential
called;
ought
who
without
the evi-
principals
that would make out his
surely
he wоuld
it would
fail.
give,
prove
dence
it
might
and he
also
Hale & Dorr’s
relied on the ABA Code of Profession-
They
general
litigation.
conduct of the former
5-101(B),
DR
and DR 5-
Responsibility,
al
not, however, stipulate that
He could
102(A) which read as follows:
counsel, he would
testify.
reinstated as
(B)
lawyer
accept employ-
A
shall not
likely
We do not think it at all
contemplated
pending litiga-
ment in
or
counsel for General Mill would
independent
he
that he or
tion if
knows
obvious
letting
go
feel safe in
the case
to submis-
ought
in his firm
to be called as
lawyer
sion,
divulged
use of the material
witness, except
that he
undertake
affidavit;
really prose-
if Mr. Garratt
employment
and he or a
in his
the case in the manner or manners he
cuted
may testify:
firm
in,
asks us to believe
his zeal for his client
(1) If
testimony
solely
will relate
grave suspicion. Certainly
would fall under
an uncontested matter.
supposition
of the district court that he
(2) If the
will relate
to a
is far
testimony
solely
was an essential witness
indeed from
matter of
and there is no rea-
formality
being
clearly
shown to be
erroneous.
son to believe that substantial evidence
There is in the record evidence to show
opposition
will be offered in
to the testi-
prejudice
that would befall General Mill
mony.
if the
Rotenbergs
(3) If the
will relate
testimony
solely to
we
says,
made to stick. Mr. Garratt
*5
legal
the nature and value of
services
true,
experienced
he is
take as
and
by
rendered in the case
the
or his
lawyer
expert in the customs and law of the waste
firm to the client.
Also,
scrap paper
and
trade.
he has lived
matter,
(4) As to
if
any
refusal would through
previous litigation
from its in-
work a substantial
on the client
in
ception
memory,
and has
or at his
of
because
the distinctive value of the
finger tips, knowledge of the case no one
or
lawyer
par-
his firm as counsel in the
duplicate.
else could
The complication of
ticular case.
to,
only by
the former case is testified
not
DR 5-102
generated,
by
the fees it
but also
affidavit
If,
(A)
after
in
undertaking employment
Molcham, Esquire,
repre-
of Richard
who
S.
contemplated
litigation,
a law-
pending
Lucky,
sented
and who also states that no
learns,
yer
or it is obvious that he or a one could
this
successfully prosecute
lawyer
ought
in his firm
to be called as a
Babcock,
except Mr. Garratt or Bret
Es-
S.
client,
witness on behalf of his
he shall
Peoria, Illinois,
quire, of
who was co-counsel
withdraw from the conduct of the trial
in
Rotenberg,
the Illinois case. Mr.
one of
firm,
any,
and his
shall not continue
plaintiffs, deposes
that awareness that
trial,
representation
except
in the
that he Mr.
was available was essential to
Garratt
may
representation
continue the
and he
present
his decision to start the
action: that
or a lawyer
may testify
in his firm
value;”
his services are of “distinctive
circumstances
enumerated
in DR 5-
“irreparable
General Mill would suffer
dis-
101(B)(1)
(4).
through
advantage
great
and
hardship by disqualifi-
cation;”
argument
Before us in oral
Mill does not
Garratt
General
maintained it was not essential to the case
other resources
employ
cash or
an-
Jr.,
testify
might
attorney.
Joseph
Hardig,
that he
at all. He
make out a other
L.
Es-
quire,
practicing Michigan
lawyer,
cause of action
trial
process
for abuse
and
(broken
he estimates 247 hours of work
prosecution
any
says
malicious
use of his
detail)
lawyer
own
since he did not
for a new
to become
testimony, particularly
down
try
Hale
with Mr.
in readiness to
read
counter-affidavits of
& Dorr
even
contradicting
subject
the es-
the case and this is not
to offset for
principals
expressly
still
work Mr. Garratt would
parts
might
depo- preparatory
sential
of his own. He
Conversely,
opposing
witness.
coun-
do,
the new man to
just
have to
also
handicapped
challenging
sel
even, if
ever could. We deal
anyone
come
credibility
lawyer
when the
evidentiary hearing
with the absence of an
later;
judge
appears
also
as an advocаte
here that no district
we note
case. An advocate who becomes a wit-
this
any consistency
disbelieve
could
unseemly
ness is in the
and ineffective
it,
still refuse
any
evidence or
arguing
credibility.
his own
express
position
find
hearing.
We do not
accord
an advocate and of a witness
judge
such
The roles of
any
in the words of
indication
inconsistent;
function of an advo-
disbelieve
are
that he or she did
about the case
argue
cate is to advance or
the case
of this evidence.
another, while that of a witness is to
allowed
Boyle originally
Patricia J.
objectively.
state facts
both
Gar
disqualified
the motion
for reconsideration was al-
opinion.”
firm
La
The reason
ratt and his
“bench
ter,
leged
newly
attention Me
discovered evidence that
having had called to her
Jaffe,
Baking Company,
legal
had once done
work for
v. ITT Continental
Snider
lamed
Cir.1976),
dropped
had
as the result of
(6th
appeal
on a new
SCA and
revoked that
but reaffirmed the
part
firm
ration of Mr. Garratt from his former
personally.
of Mr.
disqualification
part.
The re-
appeal
which moots the
the court-
passed
The case afterwards
argued
issues not mooted and
maining
Gilmore,
of District
Horace W.
room
I,
Judges
whether
this court are as follows:
disqualification
who reconsidered the
deciding
erred in
to dis-
Boyle and Gilmore
firm. He
that no one contested Mr.
says
a
without
qualify
party
disqualification.
Garratt’s
Besides the Code
II,
hearing;
testimonial
conducting
a
above,
Ethical
prоvision cited
he considered
Judge Boyle
according
erred in not
whether
5-9 of the
of Profes-
Consideration
Code
indispensible na-
weight
sufficient
to the
Responsibility
sional
which reads:
had ren-
ture of the services Mr. Garratt
in this
plaintiffs
is called
and would render to
Occasionally
lawyer
EC 5-9
dered
case,
plaintiffs
particular
in a
case wheth-
as well as
upon
decide
cause;
III,
if
will
even
disqualification
he will be a witness or an advocate.
If
er
witness,
was it error
proper,
he
was
disqualification
is both counsel and
itself, leaving
the “trial”
for in- not to limit it to
easily impeachable
becomes more
post-
pretrial
free to act in
and thus
be a less effective Mr. Garratt
may
terest
conferences,
appearance in this court. Save for
prior
pretrial
matters such as
trial
hearing” on the dis-
evidentiary
the “full
etc.? Whether
discovery, depositions,
motion, nothing but “limited
any,
qualification
if
and asso-
present partners,
Garratt’s
ciates,
proceedings” had been even start-
disqualified
discovery
be
will doubtless
may
decided,
of the case.
It was
nothing
disposition
ed towards
have to be
express-
disqualification
warrant us in
motion had
present record would
obvious
It
effectiveness to sidetrack the
opinion
respect
proved
thereto.
its
ing any
merits,
regard
We conclude
remains for the trial court.
lawsuit
with re-
so meant or not. The motion it-
there was no reversible error
whether
frivolous,
self,
substantially
was not
three issues we have to
if not
spect
fol-
concluded thenceforward not
reasons for this conclusion
founded. We
decide. Our
interlocutory appeals from de-
low.
to entertain
Obviously,
motions.
disqualification
nial of
it, we
if our attention had been directed to
I
evidentiary hearing
an
would have said
I, supra,
do not think Melamed
can
We
every
not occur on
such motion.
need
evidentiary
fairly be read to demand
that now.
say
hearing
on all
motions.
disqualifi
We think a decision for
the circumstanс-
required
This court
one in
without an
case,
adequately
cation is
founded
es of that
711
themselves,
with re-
II
not in conflict
and
show,
impossible
It
to
corded facts.
next
that there
conclude
was no
Garratt;
therefore,
to Mr.
if
any prejudice
error or abuse of discretion in the decision
The
adversary.
it was to his
any,
there was
disqualify.
determining
In
our standard
disturbing
material in the affi-
most
factual
review,
Judge Boyle
we note that
at first
indispensibili-
was as to Mr. Garratt’s
davits
took the view she had discretion to some
client,
the client
injury
ty to the
least,
at
when the
degree,
disqualify
cause.
In the
disqualification
expressly
require,
ABA’s
did not
so
Code
most of this material was
things,
nature of
thought
provision
she
it made
inadequate
the
peculiar knowledge
appellants.
in the
safeguard
integrity
judicial proc
of the
Dorr,
party, appellees, Hale &
moving
The
support
ess. There is some
for that view.
opposing
could have offered no
offered and
on an evi-
affidavits.
If
had insisted
Gurfein, Judge, concurring, in J.P. Fo
See
the affi-
hearing to cross-examine
dentiary
Vanderbilt,
Co. v.
likely to occur when one counsel undertakes many day age In suits this and the real impeach the credibility opposing coun- subject litigation standing sel in his and capacity attempt of witness. Such to impeach necessarily reputation. occur in the Forensic combat about stand- suppositious “evidentiary hearing” will and reputation and is fiercer and more em- occur in the jury ultimate trial of this case bittered, people’s reputation, because and if Mr. Judge Boyle Garratt conducts it. them, charges against even unfounded now regards certain, this to impeach need they go. follow them wherever When the out, so do we. As Judge Boyle points an developing, person common law was a process abuse of suit involves always prior a reputation a clouded could travel a few kind, action of some prior counsel in the afresh, hundred miles start life action will always knowledge more cleansed of all stain mere distance. Mr. about it than else anyone and be the one only is not a witness and counsel. aggrieved by abuse, most the supposed just He is also in a realistic and not therefore the most indispensable witness in sense, figurative party interest as much the new precisely, action. This is and in its is, as Hale Dorr one standing whose form, guard most acute the situation to reputation just as much at stake. against which the canon was written. dockets, days In these of crowded settle- But there is more to it than this. There suits, plea ment of civil like bargains in is a original wise maxim whose author the cases, courts, criminal are much desired writer does not know: “When you shoot at cannot force part which them. It is must kill him.” Mutatis mutan- duty king you attorney an owes the court to consider dis, though we would assign royalty full carefully all opportunities of settlement and Dorr, status to Hale & Mr. Garratt in his client, on them report objectively to the in opposition affidavit to the motion for objective with a fair and recommendation summary judgment shooting at a king. acceptance whether would be in the client’s He was making charges against Hale & This duty, interest. in Mr. crime, Dorr that amounted to charging a at situation, Garratt’s would have extraordina- portion least in the says while he he con- ry difficulty performing. аttempt sidered himself faced with an hope likewise Courts counsel civil suborn perjury, conclusion he disin- cooperate discovery cases will so it can genuously admitted in argument, oral no proceed day supervision day court would (But admit in evidence. ef. 56(e), They hope the court. will stip- Fed.R.Civ.P. which limits use of affi- counsel davit summary judgment matter on to ulate all facts not in dispute, the end that statements which would be proving admissible in time will not be wasted such facts. *9 roles, Hope for an in Mr. Gar- ratt’s confusion of if is this from he allowed to it, prejudice him, into position hope against ratt’s would be a faint indeed. continue in his favor. (b) stake in Here Defendants’ the issue. whole, On the we that as
much is made the wish in an conclude com- expressed the pared to interests of other party, interoffice & Dorr the Hale communication discussed, presently public that— interest, interest of the Hale & Dorr in- This is a cru- disqualification [the motion] notice, justifies cludes that little or has it, cial motion if we whole win or weight against of the allowance mo- case will turn around. tion. Dorr Probably, suggests, this Hale & (c) now turn
hopes We to the interests of the gain advantage, a decisive one out plaintiffs. The proportion all to its that canon allows an disadvantage attorney to disqualifi- accept employment would inure failure if— from to win cation. Unfortunately, largely courts are matter, (4) As to refusal if would dependent on attorneys opposing parties work a substantial on the hardship client report unethical conduct. Otherwise of the because distinctive value of the they would never learn of it. But such or his firm par- as counsel reports unlikely are to be made if no “turn ticular case. around” just expected. a minor benefit is This is the most issue difficult Thus, if weigh per we the motive as se be since dealt with the affidavit material adding disqualifi- a weighty against reason we strongly supports must take as true so cation, we cut off information the court thought its reality. Boyle that Fortunately needs. the canon authorizes us hardship just any hardship, meant not consider the client of the attor- injury resulting one from “distinctive value” and ney to be and this or less disqualified, more something meant turn other than moving party subsumes the interest mere cost due added to a new counsel hav- to inflict injury, as distinct issue. We can ing to time to facts take learn the assume, grant if the of the motion sus- disqualified case the predecessor already tained, benefit, will perhaps Hale & Dorr be thought, too, knew. She relieved liability altogether. But this could would in his self own interest if, indispensable
could occur attor- e.g., preparation remain close association with ney were disbarred for misconduct a of knowledge the case and use his wholly matter. grievance unrelated help former new This case counsel. idea committee not be deterred pushed very challeng- cannot be far without seeking if disbarment the facts warranted affidavit, credibility Hardig bеcause erring attorney indispens- were which she in a position neither nor we are able to some client. And so here. to do. There may be some merit to the idea that think, however, hard handicapped Hale & will Dorr’s counsel ship (4) situation covered by subparagraph in cross-examining impeaching is one where the team come lawyer-client is, as a witness the fact he he upon unexpectedly situa be, also an allowed advocate tion, against actually neither did
case. See Ethical Consideration 5-9. nor have safeguarded could themselves. Elec- quotes Gilmore International think for a We do not it was meant Flanzer, Corporation tronics v. 527 F.2d possible disqualification where a dilemma (2d Cir.1975). They might, arose, years yet was visible before it say, prejudice jury against them. parties right increasing help on went major does not seem this could be a factor. lawyer. dependence upon less client Juries some stupid pleasеs law, are not as as it non fit ancient maxim of the volenti people believe, and it ujuria injury be that A is not applies. self-inflicted clever cross-examiner could turn Mr. Gar- a hardship. *10 explored pretrial the matter in and dis- brought note that had Gen SCA Illinois suit as previous inescapable,
eral Mill into The conclusion seems covery. 1976. early defendant in Gener party therefore, third that General Mill was in no anxi- no counterclaimed. introduced al Mill SCA liability. By its own far the ety about its claims on General support evidence to $250,000, largest part surely, and nothing against General Mill and recovered it, spent was or incurred possibly all of $82,000, Mill recovered af Mill. General liability against a offensively, to establish Ap of firmed the United States Court The Circuit states SCA. Seventh Circuit, 18,1979, May peals for the Seventh $900,000 about was claimed. Had this been order. Mill in unpublished in an General recovered, problem, would have no but we $250,000 of curred in that suit a cost $82,000,a recovery only disappoint- was fees, negative have a net counsel and now fruit, surely, of the investment made. in that suit that Mr. Garratt worth. was conversation, proved, es- telephone knowledge so indis special obtained the process, of perfect tablishes a abuse any Mill. Whether pensable to General conclusion from if Mr. Garratt’s especially $250,000 unpaid owed is not stat accepted. Mr. Garratt therefore it is also ed, It is an intri attorney. nor to what road, 1976 that down the early knew from that much possibility but unverified guing get disposed could the Illinois suit after he owing to Mr. Garratt. unpaid of it is of, might would or be an abuse of there counsel; he had Mr. was not sole Garratt in which he would be an indis- process suit Babcock, Peoria, Illinois, co-counsel, Mr. ethics was pensable witness. The canon of $250,000 lawyer, part effect, knew, he and the client both paid or owed to him. This account known, require it would or should have will incomplete and doubtless very they him to withdraw. Yet continued yet of much which hаs not subject inquiry, enlarge actions to the described joint their occurred, present in the suit. Mr. helpless dependence, condition of Gar- 17,1979, The Garratt affidavit of October the files and the know-how on having ratt motion of opposition filed in to the process case would de- which the abuse summary judg- and Hale & Dorr for SCA they turn to the United States pend. Now with Mr. conversation telephone ment. “Yes, say effect: District Court Dorr described Donnelly of Hale & would nev- we know that the canons judge, we must take excerpt already quoted, which represent General er allow true, February seems to have occurred suit, process and also be Mill in an abuse affidavit, is not fixed in the 1976. Its date anything But can’t do you its star witness. been, context indi- as it should have but its us, because, was down the knowing what another one referred to preceded cates it road, deliberate action we creat- by our own later, It seems to February dated 1976. Mr. Garratt is indis- ed a situation where frоm the have followed after and resulted Mill and his withdrawal pensable to General Rotenbergs. process upon service of So, judge, you’ll just have to hardship. from this conversation Mr. Garratt knew swallow it.” that— * * * But, to the ABA’s n. 13 to according was not party complaint The third duty expect- a state they quoting filed because Canon Dorr] [Hale it, they to be a money ed to recover on because when the need plainest withdraw is not, needed favor- did but because well in advance. The was known witness * * said testimony Donnelly able *. Mr. indefensible if it be absurd and canon would proving were not Gen- interested dependence when compliance excused * * *. eral Mill liable to SCA been created in on the had the client knowledge dependence that the face evidence to himself knew of no enforcement to frustrate the would be used his clients liable to and if after prove is cer- “hardship” The term of the canon. any he had telephone cоnversation interpretation, of rational tainly capable he could have any, doubt if there existed meaning alleged situation the victim of to disqualify, fails to reveal that will knowingly has not caused and tip the Accordingly, scales. the disqualifi- *11 not reasonably could foresee. Should it cation must be sustained. meaning
have the it attached to above not imaginary colloquy, courts would Ill proceed follow it but would as Gur- major The question third before us is suggests, negative fein Had the net supra. disqualification whether the extends to all $250,000paid worth been created and the or phases litigation only or to the actual defending incurred in a suit forced on Gen- trial. Judge Gilmore made it clear he ex- eral Mill in an of not offen- process, abuse case, but, tended it to the entire according counterclaim, in sively a we have a would plaintiffs, belatedly, to he noticed and never more hardship excep- like the one the to, gave proper effect the actual language tion was meant to correct. of the canon involved. It is not for to say proper respect us what 5-101(B) speaks the DR the involved ethical to decision rule would have a lawyer accept of in required plaintiffs employment to do. “con Probably they templated or originally many options. pending litigation, had of them then know One expend $250,000 ing have he may the be called as a witness.” liberal DR 5-102(A) in committed to the counterclaim such a deals with the case anof attorney gone, fashion that the money already accepted when Mr. who has employment and Garratt was not left to be the “ought both indis- thereafter that learns he pensable necessary wit- as a on of called witness behalf his client.” remaining phase ness in the 5-102(A) ultimate of is only It DR in speaks that terms General the Mill versus We litigation. of “from withdrawing the conduct of the collaborator, know of the of existence one trial.” The text of these aрpear canons in Babcock, who shares knowledge is, our statement case. If there generated phase, conduct of the earlier plaintiffs’ argument implies, a difference in why explained. he is not available is not degree disqualification, of it becomes relevant whether Mr. Garratt learned of the We have also considered the doubtless cause of his or before after high arguments minded on behalf de- accepted employment. he know by We his fendants, plaintiffs that will suffer injury October 1979 affidavit that he was in employing capaci- from Mr. Garratt in both possession of all the his facts as to essential Though ties. is speculative, may this well ity as a February witness 1976. do true, II, be supra, Melamed teaches us not think he this late can heard at date client, that age, juris, full sui argue accepted he employment before sophisticated, and instructed as to ethi- February 5-101(B) 1976 and DR therefore involved, problems right cal has the full 5-102(A) governs. and not is the that оne objections might waive whatever he voice. doubt, however, In case there should be brothers, Rotenberg affidavits, by their we are the opinion also of that the word waiver, have executed such a we do “trial” in the latter could not point think further consideration of the meant in plaintiffs the limited sense attri required. us is says, bute to it. The ABA 5-10— EC conclusions, Summarizing our are Regardless arises, of when the problem the public that interest in the safe- proper to be governed by decision is the same guarding of judicial strongly business com- basic considerations. disqualification, alleged mands By Unabridged a “trial” Webster’s is: plaintiffs is not of overcoming * * * weight light circumstances in 2. formal examination of the incurred, which it was a weighing compe- matter in issue a cause before a injuries the other benefits and to befall tent purpose tribunal for determin- parties or not disqualify determining decision such issue: mode of * * actual conduct prior fact in a of law *. ured. Here the of a сourt question of the lawsuit. par- subject from time the case is the The most proceedings b. All foresee try their cases in court acute evils we would from failure to ties are called enforce in this joined time when the canon instance would from the issue period, pretrial occur in the the one time of final determination. time and con- money the most unlikely the ABA intended is therefore sumed in civil cases. every- could retain control jury the literal “trial” before the thing but is, however, nothing There the orders shielding himself from awareness merely by appealed barring from *12 necessary that be a witness until he would large the assistance that is in his rendering retained. after he was We power to new trial counsel. think our decision “law of the should be case” until Norell, In Norman Inc. v. Federated performed is finding by the fact function Inc., Stores, 127 Department F.Supp. 450 findings of the jury verdict or court after a Tenney (S.D.N.Y.1978), Judge barred a law order bench trial. A revised will mean- himself, yer-exeсutive representing from necessary partici- while be to deal with the witness, cir necessary when under also Mr. pation present in the trial of Garratt’s strongly appealing for a con cumstances associates, if the client partners or desires rule, limited the bar to the actual trary but their We have no evi- participation. had to the suggestion by He referred only. trial and, us argument dence or before on this Gurfein, supra, judges that Judge federal therefore, opinion. express no required apply were not to the ABA Canons statutes, if were noted the literally as decisions af- Accordingly, the below are fact much position noted, that the exception firmed the with se, party that of a appearing pro proceedings resembled cause is for further remanded involved, opinion. the interests show this analyzed consistent with ing disqualification that this limited better ENGEL, Judge, concurring in Circuit protected the various interests he had part. part dissenting regard this disрosition balance. We judge, discretion within the sound of a trial Were that I not convinced Mr. Garratt Judge Boyle the regarded note that that he should foreseen would be of Mr. discovery deposition by very shortly after the called as a witness Dorr, the Donnelly party of Hale & other conversation, I I 1976 believe telephone conversation, with telephone the famed to reverse District might have voted the horror, his possible, more than she did that on the basis a convinc- outright Court as in the trial. We participation public substantial has been case of Judges Gil arguendo Boyle out, sume that bringing made the case within the ex- more, 5-101(B)(4). decided to had dis having disqualify, I ception agree of DR however, proceedings cretion to determine what the that under the cir- majority, think apply. would should be disqualification precluded cumstances Mr. Garratt abusing far from their discretion in the activities at trial. participating were from to the whole applying this instance in рart majority I with that disagree case. appears, ambiguously, albeit opinion which participating “tri- preclude Fed.R.Civ.P. the ultimate Mr. Garratt Under the other than the phases litigation to the al” as a seamless web is connected recognized Judge Gilmore pro- at trial itself. pretrial of issues ascertainment require balancing motions discovery disqualification particularly ceedings, parties, prejudice confu- of “the potential even the depositions. possible Not judicial process so as profession, or the exclu- jury would be averted sion of the 5-102 within the apply 5-101 and DR only. jury “trial” The sion from the underlying rationales.” Gen excerpts limits of their depositions, hear very likely Services, Co., v. et al. fig- Supply eral read, in Mill from them
717 al., C79-73053, (E.D.Mich. mem. at 9 op. distorting et the truth would be no different 28, January 1981). policies applica for from their consideration the veracity of tion of the rules were considered Boyle witness. As indicated in opinion, Second Circuit in International Electronics her the trial judge pow retains the Flanzer, (2d v. Corp. regulate F.2d er to discovery to minimize Mr. Cir.1975): Garratt’s overt involvement in the case. justification disqual- The ultimate for the is implicit employment of a rule, Wigmore’s ification [Professor] disposition balancing disqualifi- test that view, public might was that think judicial cation motions is a matter of discre- the lawyer distorting is the truth for tion. While the client’s consent to repre- argument the sake of his client. Another sentation who will be a lawyer- certainly per witness cannot act as a se bar credibility witness will vouch for his own disqualification, judgment the client’s summing jury—a to the up powerful concerning who will most vigorously rep- credibility. own support means normally resent his interests must be given argument that such tactic to the judicial great system deference in a obviously detriment of his client defeats truth-finding upon advocacy. based *13 argument But that it unfair itself. is dilemma, Boyle’s my resolution of in to the has It is opponent some merit. opinion, respects best these rights without difficult, indeed, to a cross-examine wit- doing Accord, violence to the rule. Norell who an adversary ness is also counsel Dept. Inc., v. Federated F.Supp. Stores fact, concerning par- matters more (S.D.N.Y.1978). 130-31 ticularly, impeaching on matters his cred- With respect evidentiary whether an within ibility, propriety the bounds and hearing required, is I concur the majori- in courtesy professional colleagues, owed to ty’s holding that it is not. The record has Comm, Accord, (emphasis added). ABA on been satisfactorily developed for a decision Ethics and Responsibility, Professional For- agree as now stands. I that Melamed’s mal Op. (1975). No. 339 requirements regard in that have ade- Boyle’s
I conclude last deci quately met. I do not read I Melamed as sion, pretrial insofar as it dealt with activi invariably requiring a full-blown evidentia- ties, a practical was most sensitive and solu hearing. I ry Finally, do not share the tion a very difficult problem majority’s apрrehension any further Garratt’s client.1 Because Mr. hearing contest, be “mudslinging” would acting would not be during certainly an advocate that factor should have trial, he would not placed posi any be in a bearing hearing on whether such a tion arguing credibility in his summa should should not be held. The attorneys tion a jury. Opposing be counsel would remain at all times bound in their conduct free to cross-examine him vigorously professional to the rules of conduct and can the jury evaluation whether Garratt was expected be to abide them. trial 1. While the issue of Mr. Gar- ABA Model Rules of Professional Conduct present ap- (1982). change ratt’s firm is not before us in this Another is included rule peal, interesting Boyle 3.7(a)(3), it is to note that which allows to remain permitted participation by also as trial counsel where there is a substantial partners proposed showing Garratt’s trial. The even without of “distinc- value,” adopt requirement Model Rules of tive which Professional Conduct is a of DR 5- apрroach. 101(B)(4). 3.7(b) provides: similar Rule yet adopted, proposed While not as rules lawyer may A act as advocate in a trial guidance important offer some as to how lawyer’s which another in the firm courts handle such issues future. likely pre- to be called as a witness unless changes appear, my opinion in rule 3.7 doing cluded from so Rule 1.7 [conflict least, greater recogni- at consistent with a lawyer’s between clients or with own inter- importance judg- tion of the own client’s present or Rule 1.9 between est] [conflict concerning rep- ment his choice of counsel past client and client]. resent him. seasoned, and I have judge exceptionally ability to main- in his confidence
complete events. I also court in all orderly
tain an majority join myself
find unable respec- in its characterization
opinion lawyers the law firms or reputations
tive language dispute
involved in this nor comment on the can be construed to lawsuit itself. merits of the
underlying UNION, UNITED
INTERNATIONAL AEROSPACE,
AUTOMOBILE, AGRI AND IMPLEMENT CULTURAL AMERICA, Plaintiff- OF
WORKERS
Appellee,
v. CORPORATION,
DANA
Defendant-Appellant.
No. 80-3458. Appeals, Court of
United States Circuit.
Sixth 18, 1982.
Argued Oct. Jan. 1983.
Decided (argued), Hayward,
Richard Walinski Cramer, Straub, & John Walinski Cooper, Ohio, Ar- Czarnecki, Toledo, Siegel, Allen Plotkin, Kahn, Kinter, Wash- ent, Fox, D.C., defendant-appellant. ington, Green, & Nusb- Lackey Lackey, B. Gerald Ohio, Torzewski, Toledo, John aum, Joan Detroit, Mich., Page, Fillion, R. Leonard