Adams v. Adams
Under the standard governing disqualification of an attorney and a law firm found in Rule 3.7(a) and (b) of the Rule of Professional Conduct for Lawyers, captioned 'Lawyer as Witness,' the first relevant inquiry is whether the attorney whose disqualification is sought is a 'necessary witness' in the matter and a necessary witness is not just someone with relevant information, but someone who has material information that no one else can provide. The trial court's decision included the following facts. Sandra Adams instituted these proceedings for the dissolution of her marriage to David Adams. The parties have assets in excess of $6.5 million. During the pendency of the litigation, the defendant advanced to the plaintiff $150,000. He requested an accounting of the funds. Legal fees expended apparently exceeded $70,000. The plaintiff was unable to given an accounting during her deposition and referred to her attorney, Richard Pober of Pullman & Comley, LLC, who apparently made all disbursements on her behalf. The plaintiff had a conservatorship imposed on her with Pober as her conservator. The defendant filed a motion to disqualify Pober claiming that the plaintiff's counsel is a 'necessary witness' who should be compelled to sit for a deposition to provide the accounting. The court denied the motion. The court took judicial notice of the fact that a firm such as Pullman & Comley, LLC, has at its disposal, accurate record keeping of fees and disbursements together with clerks or paralegals who could explain them. The defendant did not exhaust its remedies. It could depose a designated record keeper or clerk for the information requested. The disqualification of one's attorney is a drastic remedy which should be imposed sparingly and only as a last resort. The burden is on the party seeking disqualification to show that disqualification is necessary. The defendant was required to exhaust all other possible avenues of obtaining an accounting of the funds before seeking the draconian remedy of disqualification.