[Cite as Reo v. Univ. Hosp. Health Sys., 2019-Ohio-1411.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


 ANTHONY DOMENIC REO, et al.,                               :   OPINION

                  Plaintiffs-Appellants,                    :
                                                                CASE NO. 2018-L-110
         - vs -                                             :

 UNIVERSITY HOSPITALS                                       :
 HEALTH SYSTEMS,
                                                            :
                  Defendant-Appellee.


 Civil Appeal from the Painesville Municipal Court, Case No. 2018 CVF 01021.

 Judgment: Affirmed.


 Bryan Anthony Reo, Reo Law LLC, P. O. Box 5100, Mentor, OH 44061 (For Plaintiffs-
 Appellants).

 John Farrington Garswood, IV, Dreyfuss Williams, 1801 East Ninth Street, Suite 1110,
 Cleveland, OH 44114 (For Defendant-Appellee).



MARY JANE TRAPP, J.

        {¶1}      Appellants, Anthony Domenic Reo and Stefani Rossi Reo, appeal the

judgment of the Painesville Municipal Court denying their motion to set aside a

magistrate’s order disqualifying their attorney, Bryan Anthony Reo, from representing

them in their civil case against appellee, University Hospitals Health Systems, on the

grounds he is a necessary witness. After a careful review of the record and pertinent law,

we affirm.
                     Substantive History and Procedural Background

        {¶2}    Anthony Domenic Reo (“Mr. Reo”) and Stefani Rossi Reo (“Mrs. Reo”)

(collectively, the “Reos”) filed a complaint in the Painesville Municipal Court alleging

University Hospitals Health System (“University Hospitals”) violated the Telephone

Consumer Protection Act, the Consumer Sales Practices Act, and the Telephone

Solicitation Sales Act.1

        {¶3}    Attorney Bryan Anthony Reo (“Attorney Reo”) filed the complaint on behalf

of the Reos. Mr. Reo is Attorney Reo’s father, and Mrs. Reo is Attorney Reo’s spouse.

        {¶4}    The matter relates to University Hospitals’ attempts to collect $36 relating

to medical services Mrs. Reo received at a University Hospitals urgent care facility in Lake

County.

        {¶5}    The complaint alleges Attorney Reo accompanied Mrs. Reo to the facility.

Attorney Reo paid for Mrs. Reo’s medical services and had conversations with University

Hospitals’ personnel regarding a discount. He provided his name and contact information

and listed himself as the responsible party for the bill. He also engaged in and recorded

several subsequent telephone conversations with University Hospitals’ representatives

during their attempts to collect the disputed debt.

        {¶6}    After filing an answer, University Hospitals filed a motion to disqualify

Attorney Reo as counsel for the Reos pursuant to Prof.Cond.R. 3.7 on the grounds he is

a necessary witness in the case.

        {¶7}    The Reos filed a brief in opposition, and the trial court issued a notice setting

the matter for a “non-oral hearing.”


1. While the first paragraph of the Reos’ complaint references the Telephone Solicitation Sales Act, the
Reos do not actually assert a claim for relief under that statute.


                                                   2
        {¶8}    The magistrate subsequently issued an order granting University Hospitals’

motion and disqualifying Attorney Reo.        The Reos filed a motion to set aside the

magistrate’s order, which the trial court denied.

        {¶9}    The Reos now appeal, asserting the following five assignments of error for

our review:

        {¶10} “[1.] The trial court committed prejudicial error in disqualifying counsel from

representing a spouse in a civil action on the basis the attorney is a ‘necessary trial

witness’ per Ohio Rule of Professional Conduct 3.7, when a spouse is not even a

permissible witness due to spousal privilege, spousal incompetency, and confidential

marital communications.

        {¶11} “[2.] The trial court committed prejudicial error in applying Ohio Rule of

Professional Conduct 3.7 in an overly broad manner such that Appellant/Plaintiff Stefani

Rossi Reo’s attorney, Bryan Anthony Reo, was disqualified from the entire case, when

the application of the rule is to be very narrow and is limited to serving as counsel at the

actual trial.

        {¶12} “[3.] The trial court committed prejudicial error in completely failing to

conduct an evidentiary hearing into whether or not plaintiffs/appellants would be

prejudiced by the disqualification of their choice of counsel.

        {¶13} “[4.]   The trial court erred in not properly applying Rule of Evidence

901(B)(5) when the court accepted Defendant/Appellee’s assertion that it must call

Plaintiff/Appellant’s Counsel as a witness to authenticate his own voice on a recording,

because the relevant rule of evidence provides that anybody familiar with Counsel’s voice

on the phone can testify that the voice is that of Counsel.




                                              3
       {¶14} “[5.]    The trial court committed prejudicial error in finding that

Plaintiff/Appellant’s Counsel was a necessary witness and should be disqualified when

the matter is an uncontested one because Appellee admits it recorded the phone calls in

dispute, and thus there is nothing unique or specific for Appellant’s Counsel to testify

about because the matter is uncontested and other individuals or entities have the same

knowledge regarding the circumstances of the calls and the content of the calls.”

                                       Jurisdiction

       {¶15} Initially, we note an order disqualifying an attorney from representing a client

in a civil case is a final, appealable order pursuant to R.C. 2505.02(B)(4). Douglass v.

Priddy, 11th Dist. Geauga No. 2013-G-3172, 2014-Ohio-2881, ¶15, citing Westfall v.

Cross, 144 Ohio App.3d 211, 218–219 (7th Dist.2001).

                                   Standard of Review

       {¶16} A trial court’s decision on a motion to disqualify counsel is reviewed for an

abuse of discretion. 155 N. High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423 (1995),

syllabus. An abuse of discretion is the trial court’s “failure to exercise sound, reasonable,

and legal decision-making.” Douglass at ¶16, quoting State v. Beechler, 2d Dist. Clark

No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

                                    Law and Analysis

       {¶17} Trial courts have the inherent power to disqualify an attorney from acting as

counsel in a case when the attorney cannot or will not comply with the Ohio Rules of

Professional Conduct and when such action is necessary to protect the dignity and

authority of the court. Fordeley v. Fordeley, 11th Dist. Trumbull No. 2014-T-0079, 2015-

Ohio-2610, ¶25, citing Horen v. City of Toledo Public School Dist., 174 Ohio App.3d 317,




                                             4
2007-Ohio-6883, ¶21 (6th Dist.). “However, because of the potential use of the advocate-

witness rule for abuse, disqualification ‘is a drastic measure which should not be imposed

unless absolutely necessary.’” Id., quoting Waliszewski v. Caravona Builders, Inc., 127

Ohio App.3d 429, 433 (9th Dist.1998). It is therefore important for the trial court to follow

the proper procedures in determining whether disqualification is necessary. Id., citing

Brown v. Spectrum Networks, Inc., 180 Ohio App.3d 99, 2008-Ohio-6687, ¶11 (1st Dist.).

       {¶18} Prof.Cond.R. 3.7(a), entitled “Lawyer as Witness,” states “[a] lawyer shall

not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.”

The rule lists three exceptions: “(1) the testimony relates to an uncontested issue; (2) the

testimony relates to the nature and value of legal services rendered in the case; or (3) the

disqualification of the lawyer would work substantial hardship on the client.” (Emphasis

in original.)

       {¶19} As the Supreme Court of Ohio has recognized, “[t]he roles of an advocate

and of a witness are inconsistent; the function of an advocate is to advance or argue the

cause of another, while that of a witness is to state facts objectively.” Mentor Lagoons,

Inc. v. Rubin, 31 Ohio St.3d 256, 257 (1987), citing former EC 5-9.

       {¶20} Prof.Cond.R. 3.7 was adopted because “[c]ombining the roles of advocate

and witness can prejudice the tribunal and the opposing party and can also involve a

conflict of interest between the lawyer and client.” Id. at Official Comment 1. For example,

“the trier of fact may be confused or misled by a lawyer serving as both advocate and

witness.” Id. at Official Comment 2. In addition, “the combination of roles may prejudice

that party’s rights in the litigation.” Id. This is so because “[a] witness is required to testify

on the basis of personal knowledge, while an advocate is expected to explain and




                                                5
comment on evidence given by others.” Id. When the roles are combined, “[i]t may not

be clear whether a statement by an advocate-witness should be taken as proof or as

analysis of the proof.” Id.

        {¶21} Prof.Cond.R. 3.7 replaced former disciplinary rules DR 5-101(B) and DR 5-

102(A) and (B) under the former Code of Professional Responsibility, effective February

1, 2007.     See Brown, at ¶13.          Because Prof.Cond.R. 3.7 is similar to the former

disciplinary rules, the prior case law is pertinent in analyzing its application. See Id.

        {¶22} “When a trial court reviews a motion for disqualification under Prof.Cond.R.

3.7, the court must: (1) determine whether the attorney’s testimony is admissible and, if

so, (2) determine if disqualification is necessary and whether any of the exceptions to

Prof.Cond.R. 3.7 are applicable.” Fordeley at ¶31, quoting McCormick v. Maiden, 6th

Dist. Erie No. E-12-072, 2014-Ohio-1896, ¶11.2

        {¶23} “The burden of proving disqualification necessarily falls upon the moving

party.” Id., quoting McCormick at ¶11. “The burden of proving one of the exceptions to

Prof.Cond.R. 3.7 applies is upon the attorney seeking to claim the exception.” Id., quoting

McCormick at ¶11.

        {¶24} We will address the Reos’ assignments of error out of order and in

combination for ease of discussion.




2. The Supreme Court of Ohio developed the original version of this test in Mentor Lagoons, supra, at 260.



                                                    6
                                         Evidentiary Hearing

        {¶25} In their third assignment of error, the Reos argue the trial court abused its

discretion by holding a “non-oral hearing” on University Hospitals’ motion to disqualify

Attorney Reo rather than an “evidentiary hearing.”3

        {¶26} The Reos cite the Tenth District’s decision in Breeding v. Herberger, 81

Ohio App.3d 419 (10th Dist.1992), where the court, in a different context, defined three

types of hearings: (1) an “evidentiary hearing” where “evidence is adduced and a ‘trial’ is

conducted upon a preliminary issue,” (2) an “oral hearing” where “no evidence is adduced,

but only arguments of counsel are presented,” and (3) “a more recent creation * * *

referred to as a ‘nonoral hearing,’” in which the matter is “determined by the court upon

written argument and evidence * * *, without appearance of either party at an oral hearing.”

Id. at 423.

        {¶27} Essentially, the Reos argue the trial court was required to hold an in-person

hearing involving a formal presentation of evidence rather than determining the matter

based on the parties’ written submissions.

        {¶28} Prof.Cond.R. 3.7(a) is silent regarding whether an “evidentiary hearing” is

required on a motion for disqualification.               In Mentor Lagoons, supra, however, the

Supreme Court of Ohio reversed a trial court’s disqualification of counsel on the grounds

the trial court did not hold “a hearing or other presentation of evidence.” (Emphasis

added.) Id. at 256.




3. Despite arguing the trial court’s failure to hold an “evidentiary hearing” was error, the Reos urge this
court to reverse Attorney Reo’s disqualification outright rather than ordering the trial court to hold such a
hearing.


                                                     7
       {¶29} The only instance in which the Supreme Court of Ohio has held an in-person

“evidentiary hearing” is required involved the disqualification of an attorney who left one

firm and joined a firm representing an opposing party. See Dayton Bar Assn. v. Parisi,

131 Ohio St.3d 345, 2012-Ohio-879, ¶15, citing Kala v. Aluminum Smelting & Refining

Co., Inc., 81 Ohio St.3d 1 (1998), syllabus. The Supreme Court of Ohio has specifically

acknowledged it has never held a court must hold an evidentiary hearing on every motion

for disqualification. Id.

       {¶30} While some of our prior decisions regarding motions for disqualification

have referenced an “evidentiary hearing,” our main concern was whether the trial court

possessed sufficient evidence to consider the required factors. See, e.g., Williams v.

White, 11th Dist. Portage No. 2001-P-0072, 2002 WL 818883, *3 (Apr. 30, 2002)

(reversing a trial court’s disqualification order because of “an absence of a sufficient

evidentiary basis”); Mentor Lagoons, Inc. v. Teague, 11th Dist. Lake No. 13-016, 1989

WL 62317, *3 (June 9, 1989) (reversing a trial court’s sua sponte order disqualifying

counsel because “the trial court had insufficient evidence before it to order the

disqualification”); Mentor Lagoons, Inc. v. Webb, 11th Dist. Lake No. 11-110, 1986 WL

10593, *2 (Sept. 26, 1986) (trial court erred by disqualifying counsel because it “had no

evidence before it”).

       {¶31} This view is consistent with those of our sister districts that have considered

the issue. See, e.g., Brown, supra, at ¶18 (an “evidentiary hearing” can be “an oral

hearing, where evidence is properly submitted to and admitted by the court,” or “a paper

hearing, so long as there is sufficient evidence before the court”); Hall v. Tucker, 169 Ohio

App.3d 520, 2006-Ohio-5895, ¶23 (4th Dist.) (an “oral hearing” may not be necessary as




                                             8
long as the parties “submit sufficient evidence for the court to make the necessary

determinations in a paper hearing”); Shawnee Assoc., L.P. v. Shawnee Hills, 5th Dist.

Delaware No. 07CAE050022, 2008-Ohio-461, ¶5-7, 35 (trial court did not abuse its

discretion in not holding an “evidentiary hearing” where the parties submitted memoranda

and evidentiary material); McCormick, supra, at ¶22 (“evidentiary hearing” not necessary

where the parties submitted memoranda with evidentiary material); Landzberg v. 10630

Berea Road, Inc., 8th Dist. Cuyahoga No. 79574, 2002 WL 449719, *5 (Mar. 14, 2002),

citing University Carnegie Medical Partners Assn. v. Weiss & Kramer, Inc., 8th Dist.

Cuyahoga No. 65422, 1994 WL 285006 (June 23, 1994) (“an oral hearing is not required”

where “the trial court had before it sufficient evidence to determine that the exceptions *

* * do not apply”); In re E.M.J., 9th Dist. Medina No. 15CA0098-M, 2017-Ohio-1090, ¶18-

19 (trial court did not abuse its discretion by not holding a “full evidentiary hearing” given

“the record the court had before it”); Luce v. Alcox, 10th Dist. Franklin No. 04AP-1250,

2005-Ohio-3373, ¶6, 8 (trial court did not abuse its discretion in not holding an “evidentiary

hearing” but case is remanded because no evidence was officially presented).

       {¶32} In support of their assertion the trial court was required to hold an

“evidentiary hearing,” the Reos cite the Eighth District’s decision in Ross v. Ross, 94 Ohio

App.3d 123 (8th Dist.1994). In Ross, the trial court summarily granted a motion to

disqualify counsel without holding a hearing of any kind. Id. at 126. The Eighth District

reversed, concluding “it is reversible error for the trial court to summarily disqualify an

attorney solely on a paper allegation without a hearing.” Id. at 130.

       {¶33} The Reos fail to acknowledge the Eighth District later clarified its position in

Landzberg, supra, where it noted “while the Ross court did mandate that a hearing be




                                              9
conducted, it did not mandate the manner in which that hearing was to be conducted.”

Id. at *5.

        {¶34} Accordingly, the case law establishes that while a trial court is required to

hold a hearing to consider whether a lawyer should be disqualified under Prof.Cond.R.

3.7, no particular type of hearing is required. See Brown, supra, at ¶18. Instead, it must

be clear the trial court had sufficient evidence before it to make the necessary

determinations under Prof.Cond.R. 3.7. See Id.

        {¶35} In the present matter, University Hospitals filed a motion to disqualify

Attorney Reo containing a detailed memorandum stating with particularity the grounds

upon which the motion was brought, addressing each element under Prof.Cond.R. 3.7(a),

and presenting legal argument with authorities.       The Reos filed a detailed brief in

opposition containing its own legal argument and authorities. Following the magistrate’s

granting of the motion to disqualify, the Reos filed a detailed motion to set aside the

magistrate’s order.

        {¶36} The trial court had sufficient evidence before it to make the required

determinations under Prof.Cond.R. 3.7(a). See Shawnee Assoc., L.P., supra, at ¶5-7, 35

(submission of memoranda and evidentiary material sufficient); McCormick, supra, at ¶22

(same).

        {¶37} The trial court did not abuse its discretion by holding a “non-oral hearing”

on University Hospitals’ motion to disqualify Attorney Reo. The Reos’ third assignment

of error is without merit.




                                            10
                                       Admissibility

         {¶38} In their first assignment of error, the Reos argue Attorney Reo is not a

“permissible witness” due to “spousal privilege, spousal incompetency, and confidential

marital communications” in relation to Mrs. Reo.

         {¶39} Evid.R. 402 states “[a]ll relevant evidence is admissible, except as

otherwise provided by the Constitution of the United States, by the Constitution of the

State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of

the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme

Court of Ohio. Evidence which is not relevant is not admissible.”

         {¶40} Evid.R. 501 states “[t]he privilege of a witness, person, state or political

subdivision thereof shall be governed by the statute enacted by the General Assembly or

by principles of common law as interpreted by the courts of this state in light of reason

and experience.”

         {¶41} Two Ohio statutes address the spousal communication privilege. R.C.

2945.42 governs issues of privilege is criminal cases, while R.C. 2317.02 controls in civil

cases. State v. Vanhoy, 3d Dist. Henry No. 7-2000-01, 2000 WL 799096, *2 (June 22,

2000).

         {¶42} Since the underlying matter between the Reos and University Hospitals is

a civil matter, only R.C 2317.02(D) potentially applies, which provides “[t]he following

persons shall not testify in certain respects: * * * Husband or wife, concerning any

communication made by one to the other, or an act done by either in the presence of the

other, during coverture, unless communication was made, or act done, in the known




                                             11
presence or hearing of a third person competent to be a witness; and such rule is the

same if the marital relation has ceased to exist[.]”

       {¶43} To be privileged, the communication at issue must be “confidential.” State

v. Rahman, 23 Ohio St.3d 146, 149 (1986). In addition, “[p]rivileges are to be construed

narrowly because they impede the search for truth and contravene the principle that the

public has a right to everyone’s evidence.” State v. Perez, 124 Ohio St.3d 122, 2009-

Ohio-6179, ¶121.

       {¶44} The Reos argue University Hospitals is attempting to “compel” Attorney Reo

to testify against Mrs. Reo regarding matters privately discussed between them as

husband and wife. The Reos have not described the matters to which they refer or

established such matters are confidential.

       {¶45} University Hospitals’ motion for disqualification indicates it intends to seek

testimony from Attorney Reo regarding (1) “alleged in-person communications at the

hospital,” (2) “telephone calls with representatives” of University Hospitals, (3) “physical

evidence of alleged recordings,” and (4) “alleged promises” University Hospitals made to

Attorney Reo. None of these matters implicates spousal communications.

       {¶46} Further, the spousal privilege obviously does not apply to Attorney Reo’s

conversations with his father, Mr. Reo.

       {¶47} In the event University Hospitals seeks evidence implicating confidential

spousal communication at some point in the future, Attorney Reo has an adequate

remedy pursuant to Civ.R. 45(C)(3)(b) (“On timely motion, the court * * * shall quash or

modify the subpoena, or order appearance or production only under specified conditions,

if the subpoena does any of the following: * * * Requires disclosure of privileged or




                                             12
otherwise protected matter and no exception or waiver applies”). Therefore, spousal

privilege does not render Attorney Reo’s testimony inadmissible.

       {¶48} Spousal privilege and spousal incompetency are distinct legal concepts.

See State v. Savage, 30 Ohio St.3d 1, 3 (1987). Spousal incompetency is governed by

Evid.R. 601(B), which states “[e]very person is competent to be a witness except: * * *

[a] spouse testifying against the other spouse charged with a crime except when either of

the following applies: (1) a crime against the testifying spouse or a child of either spouse

is charged; [or] (2) the testifying spouse elects to testify.”

       {¶49} By its own terms, Evid.R. 601(B) relates exclusively to criminal matters and

is therefore not applicable in this case. Therefore, Attorney Reo is not an incompetent

witness.

       {¶50} The trial court did not abuse its discretion in finding Attorney Reo’s

testimony to be admissible. The Reos’ first assignment of error is without merit.

                                          Necessity

       {¶51} Within their fourth and fifth assignments of error, the Reos argue Attorney

Reo is not a necessary witness.

       {¶52} A necessary witness under Prof.Cond.R. 3.7 is one whose testimony is

unobtainable through other trial witnesses. Holbrook v. Benson, 5th Dist. Stark No.

2013CA00045, 2013-Ohio-5307, ¶13, citing Popa Land Co., Ltd. v. Fragnoli, 9th Dist.

Medina No. 08CA0062–M, 2009-Ohio-1299, ¶15. Testimony may be relevant and even

highly useful but still not strictly necessary. Id., citing Akron v. Carter, 190 Ohio App.3d

420, 2010-Ohio-5462, ¶19 (9th Dist.). A finding of necessity takes into account such

factors as the “significance of the matters, weight of the testimony and availability of other




                                              13
evidence.” Id., quoting Akron at ¶19. “A party’s mere declaration of an intention to call

opposing counsel as a witness is an insufficient basis for disqualification even if that

counsel could give relevant testimony.” Id., quoting Akron at ¶19.

       {¶53} The Reos claim University Hospitals’ “primary reason” for seeking to

disqualify Attorney Reo is because only Attorney Reo can authenticate the recordings of

the telephone calls with University Hospitals and his voice on those recordings.

According to the Reos, Attorney Reo’s testimony is not necessary for authentication

purposes because of Ohio’s liberal standards for authentication of evidence under Evid.R.

901(A) and (B)(5).

       {¶54} To the extent the Reos intend to introduce the recorded telephone calls,

Attorney Reo’s testimony is likely necessary foundational evidence. See State v. Nixon,

11th Dist. Portage No. 2013-P-0098, 2014-Ohio-4303, ¶33, quoting State v. Tyler, 196

Ohio App.3d 443, 2011-Ohio-3937, ¶25 (4th Dist.) (“the proponent must present

foundational evidence that is sufficient to constitute a rational basis for a jury to decide

that the primary evidence is what the proponent claims it to be”).

       {¶55} However, University Hospitals is not seeking Attorney Reo’s testimony

solely for authentication purposes. Rather, University Hospitals asserts Attorney Reo’s

testimony is necessary for the Reos to prove their case.

       {¶56} Attorney Reo argues “there is nothing unique or special in regards to the

factual knowledge” he possesses “that is not capable of being elicited via other means.”

This is not accurate. Attorney Reo’s personal involvement with University Hospitals forms

the entire basis of the Reos’ causes of action.




                                            14
       {¶57} According to the Reos’ own complaint, Attorney Reo personally engaged in

all of the following acts: (1) he accompanied Mrs. Reo to the facility, (2) he paid for Mrs.

Reo’s medical services, (3) he had conversations with University Hospitals’ personnel

regarding a discount, (4) he provided his name and contact information, (5) he listed

himself as the responsible party for the bill, (6) he had at least three separate telephone

conversations with University Hospitals’ representatives regarding the alleged debt, (7)

he recorded the telephone conversations, and (8) he further communicated with

University Hospitals’ representatives in response to letters Mrs. Reo received regarding

the alleged debt.

       {¶58} The Reos’ claims under the Telephone Consumer Protection Act (“TCPA”)

arose from telephone calls initiated by University Hospitals despite alleged “do not call”

requests. Attorney Reo is the person who allegedly made the “do not call” requests. He

is also the person who engaged in subsequent telephone conversations with University

Hospitals that allegedly constitute violations of the TCPA.

       {¶59} Similarly, the Reos’ claims under the Consumer Sales Practices Act

(“CSPA”) arose from University Hospitals’ efforts to collect a debt that was allegedly

already paid. Attorney Reo is the person who paid for Mrs. Reo’s medical services as the

responsible party.   He is also the person with whom University Hospitals allegedly

discussed the $36 discount—the same amount it later tried to collect—as well as the

person who engaged in subsequent telephone conversations with University Hospitals

that allegedly constitute violations of the CSPA.

       {¶60} By virtue of the complaint, Attorney Reo made himself a necessary witness

in the case. He should have anticipated that University Hospitals would file a motion to




                                            15
disqualify him as counsel, and he should not be heard to complain about something of

his own creation.

       {¶61} Attorney Reo’s involvement is analogous to the attorney in 155 N. High,

Ltd., supra. In that case, a fire destroyed an insured building. Id. at 424. The insured

immediately called its attorney, who began regularly communicating with the insurance

company. Id. The insured eventually sued the insurance company for bad faith in

handling its insurance claim. Id.

       {¶62} The insured’s attorney filed the suit on its behalf and served as lead trial

counsel. Id. at 425. At trial, the insured’s attorney testified at length regarding his many

conversations and contacts with the insurance company. Id. After the trial court entered

judgment in favor of the insured, the insurance company appealed, arguing the trial court

erred by allowing the insured’s attorney to testify. Id.

       {¶63} In considering the “necessity” element, the Supreme Court of Ohio held the

testimony of the insured’s attorney was clearly necessary because he (1) “had personal

knowledge regarding the alleged acts of bad-faith claims handling,” (2) “was an active

participant in dealings and negotiations beginning shortly after the fire and continuing up

to the time the lawsuit was filed,” and (3) “testified to conversations and actions taken by

the insurance company.” Id. at 428. Thus, the Supreme Court of Ohio concluded the

testimony of the insured’s attorney “was necessary to prove his client's claims.” Id. See

Popa Land, supra, at ¶16-17 (attorney found to be a necessary witness where he played

integral role in the negotiation, preparation, and execution of the settlement agreement

that formed the basis of his clients’ underlying lawsuit).




                                             16
       {¶64} Therefore, just like the attorney in 155 N. High, Ltd., supra, whose testimony

was necessary to prove an insured’s bad faith claim against its insurance company,

Attorney Reo’s testimony is necessary to prove the Reos’ consumer claims against

University Hospitals.

       {¶65} The trial court did not abuse its discretion in finding Attorney Reo’s

testimony to be necessary. Those portions of the Reos’ fourth and fifth assignments of

error addressing necessity are without merit.

                                       Exceptions

       {¶66} Since we have determined Attorney Reo’s testimony is admissible and

necessary, the next required inquiry under Prof.Cond.R. 3.7 is whether any of the

exceptions apply. Fordeley, supra, at ¶31, quoting McCormick, supra, at ¶11. The

potentially applicable exceptions in this case are whether the “testimony relates to an

uncontested issue,” or whether “the disqualification of the lawyer would work substantial

hardship on the client.” Prof.Cond.R. 3.7(a)(1) and (3).

                                     1. Uncontested

       {¶67} Within their fifth assignment of error, the Reos argue the underlying matter

is uncontested. Specifically, the Reos list the following “uncontested” issues: (1) the date

Mrs. Reo received the medical services, (2) the nature of the medical services Mrs. Reo

received, and (3) the recorded telephone calls and the circumstances surrounding them.

       {¶68} While the first two issues may be uncontested, they are also not particularly

relevant to the Reos’ consumer claims against University Hospitals.

       {¶69} With respect to the telephone calls, we disagree this issue is uncontested.

Since the parties have not yet engaged in discovery, it is premature to determine whether




                                            17
University Hospitals contests the contents of the recorded telephone calls. However, all

other facts and circumstances underlying the telephone calls are highly contested. The

Reos assert University Hospitals’ telephone calls violate both the TCPA and the CSPA,

while University Hospitals obviously asserts the contrary.

       {¶70} In addition, the Reos’ CSPA claims originates from Attorney Reo’s

conversations with University Hospitals regarding an alleged $36 discount. In its answer,

University Hospitals specifically denies the existence of a discount. As such, this is also

a contested issue.

       {¶71} Attorney Reo’s proposed testimony will relate to the heart of the allegations

underlying the Reos’ claims for relief, which University Hospitals is vigorously contesting.

See Hillman v. Kosnik, 10th Dist. Franklin No. 05AP-122, 2005-Ohio-4679, ¶13 (holding

an attorney’s testimony went “to the heart of the allegations underlying appellants’ causes

of action, which are being vigorously contested” in a case involving whether a doctor

made fraudulent statements to the attorney and his wife while treating their son).

       {¶72} Based on the foregoing, the Reos cannot establish the “uncontested matter”

exception under Prof.Cond.R. 307(a)(1).

                                2. Substantial Hardship

       {¶73} Within their fourth assignment of error, the Reos argue Attorney Reo’s

disqualification would work “substantial hardship” on them.

       {¶74} Evaluation of what constitutes a substantial hardship involves the weighing

of the interests of the client against those of the tribunal and the opposing party.

Prof.Cond.R. 3.7(a)(3) at Official Comment 4. “Whether the tribunal is likely to be misled

or the opposing party is likely to suffer prejudice depends on the nature of the case, the




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importance and probable tenor of the lawyer's testimony, and the probability that the

lawyer’s testimony will conflict with that of other witnesses. Even if there is risk of such

prejudice, in determining whether the lawyer should be disqualified, due regard must be

given to the effect of disqualification on the lawyer’s client.” Id.

       {¶75} First, the Reos argue Attorney Reo’s disqualification would work a

substantial hardship because he is an “expert consumer protection attorney” whose legal

services are “clearly of distinctive value.” While both parties’ briefs contain discussion as

to whether Attorney Reo’s legal services are of “distinctive value,” this language is from

a prior disciplinary rule. See former DR 5-101(B)(4) (stating a lawyer may be both witness

and advocate if “refusal would work a substantial hardship on the client because of the

distinctive value of the lawyer or the firm as counsel in the particular case”) (Emphasis

added.)

       {¶76} Prof.Cond.R. 3.7 unambiguously states that the relevant inquiry is whether

“the disqualification * * * would work substantial hardship on the client.” (Emphasis in

original.) Popa Land, supra, at ¶20. Therefore, we need not consider whether Attorney

Reo brings a “distinctive value” to the Reos’ case. See Id. (declining to incorporate the

“distinctive value” concept into Prof.Cond.R. 3.7(a)(3)).

       {¶77} Second, the Reos argue Attorney Reo’s disqualification would work a

substantial hardship on Mrs. Reo because he has a working knowledge of Mrs. Reo’s

primary language of Brazilian Portuguese.

       {¶78} The Reos fail to cite any legal authority in support of this position. However,

based on the circumstances of this case, it seems unlikely a purported language barrier

would create a substantial hardship for Mrs. Reo. First, Mrs. Reo’s participation in the




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case is likely to be limited, since, as demonstrated above, Attorney Reo’s personal

involvement with University Hospitals forms the basis for the Reos’ claims. Second, to

the extent Mrs. Reo’s participation is necessary, Attorney Reo, as her husband, remains

free to assist in her communications with her new counsel.

       {¶79} Besides, our sister districts have held even disqualification of an attorney

representing a family member does not constitute substantial hardship. See Horen v.

City of Toledo Public School Dist., 174 Ohio App.3d 317, 2007–Ohio–6883, ¶28 (6th

Dist.), citing Hillman, supra, at ¶13.

       {¶80} Further, the Reos have not established Mr. Reo would face substantial

hardship from Attorney Reo’s disqualification.

       {¶81} Based on the foregoing, the Reos have not established the “substantial

hardship” exception under Prof.Cond.R. 3.7(a)(3).

       {¶82} The trial court did not abuse its discretion in finding Attorney Reo did not

establish the applicability of any of the exceptions in Prof.Cond.R. 3.7. As such, the

remainder of the Reos’ fourth assignment of error and their fifth assignment of error are

without merit.

                                 Scope of Disqualification

       {¶83} In their second assignment of error, the Reos argue the trial court erred by

not applying Prof.Cond.R. 3.7 narrowly and limiting Attorney Reo’s disqualification to

serving as counsel at the actual trial.

       {¶84} By its plain language, Prof.Cond.R. 3.7 forbids a lawyer from acting as an

advocate “at a trial” in which he is likely to be necessary witness. The rule does not

address whether a lawyer may act as an advocate other than at trial. Akron v. Carter,




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190 Ohio App.3d 420, 2010-Ohio-5462, ¶21 (9th Dist.). The Supreme Court of Ohio has

not ruled on the required scope of disqualification under Prof.Cond.R. 3.7.

       {¶85} The Reos cite State v. Ponce, 7th Dist. Mahoning No. 11 MA 75, 2012-Ohio-

4572 for “[t]he general rule in Ohio” that “even if an attorney is likely to be a witness at

the trial, he may still engage in nontestimonial representation, which would include

essentially everything up to the trial.” However, Ponce does not contain this proposition,

nor does the court even address the relevant issue.

       {¶86} The Reos also cite commentary to Model Rule 3.7 of the American Bar

Association’s Model Rules of Professional Conduct for the proposition that an attorney

should only be disqualified from serving as the advocate at the actual trial. Obviously,

this commentary is not binding on us, and the Reos have not demonstrated any Ohio

court has adopted it.

       {¶87} Finally, the Reos cite Bank One Lima, N.A. v. Altenburger, 84 Ohio App.3d

250 (3d. Dist.1992) for the proposition “[n]ontestimonial input by a lawyer in a case, such

as submitting briefs or presenting oral argument” is “perfectly proper” and does not

“invoke the advocate-witness prohibition.” Altenburger does not contain this proposition.

Instead, the court merely held an attorney’s affidavit attached to an opposition to a motion

for summary judgment did not make him a necessary witness. Id. at 258.

       {¶88} By contrast, the federal Sixth Circuit Court of Appeals held the term “trial”

as used in the ABA Code of Professional Responsibility had a broader meaning than just

the actual proceedings before a jury. See General Mill Supply Co., v. SCA Services, Inc.,

697 F.2d 704 (6th Cir.1982). The Sixth Circuit held “the word ‘trial’ * * * could not have

been meant in the limited sense plaintiffs attribute to it.” Id. at 715. Instead, “the ultimate




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‘trial’ is connected as a seamless web to the ascertainment of issues at the pretrial

proceedings, and particularly to the discovery depositions.” Id. See Hood v. Midwest

Sav. Bank, S.D. Ohio No. C2-97-218, 2001 WL 327723, *4 (Mar. 22, 2001) (applying

General Mill to disqualify attorney from “all phases of the litigation” under the Ohio Code

of Professional Responsibility).

       {¶89} In Libbey-Owens-Ford Co. v. Martin, 10th Dist. Franklin No. 96APE02-215,

1996 WL 517616 (Sept. 12, 1996), the Tenth District held a trial court did not abuse its

discretion in adopting the Sixth Circuit’s holding in General Mill, stating an expansive view

was “directly applicable to modern trial practice in Ohio where liberal discovery is not only

available but encouraged.” Id. at *8.

       {¶90} In the absence of binding legal authority to the contrary, the trial court did

not abuse its discretion by disqualifying Attorney Reo from the entire case as opposed to

just the actual trial. The Reos’ second assignment of error is without merit.

       {¶91} Based on the foregoing, the judgment of the Painesville Municipal Court is

affirmed.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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