Skiba v. Whitcomb, No. S1232-01 CnC (Katz, J., Jan. 21, 2004)



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STATE OF VERMONT                         SUPERIOR COURT
Chittenden County, ss.:                  Docket No. S1232-01 CnC

CATHERINE SKIBA

v.

HAROLD L. WHITCOMB &
ELIZABETH LEGGETT



                                ENTRY
              (Motion to Disqualify and Compel Deposition)

       Plaintiff has made two motions regarding defendant Leggett’s
attorney, Catherine Clark. Plaintiff requests that Clark be compelled to
give a deposition. Regardless of whether or not this is granted, plaintiff
requests that Clark withdraw from the case. Both of these requests stem
from Clark’s role as attorney for defendant Whitcomb in probate
proceedings which led to the creation of the Art Trust Agreement against
which defendants, in the present case, are alleged to have committed fraud
and conversion.

       Under the Vermont Rules of Professional Conduct, an attorney must
withdraw if she is likely to be a necessary witness unless: 1) the testimony
is about an uncontested issue; 2) the testimony relates to nature and value
of legal services rendered; or 3) disqualification would render “substantial
hardship on the client.” Vt. Rule of Prof. Cond’t 3.7. Although the rules
do not define what a “necessary witness” is, the requirement of
“necessary,” rather than merely “relevant,” appears to create a higher
standard for application. This fits with the first stated purpose of Rule 3.7,
which is the protection of the client. Vt. Rule of Prof. Cond’t 3.7 cmt. As
commentators have noted, “the purpose of the rules is not to gain a tactical
advantage, but to protect clients, opposing counsel, and the public’s
perception of the legal system.” Brian Altman & Jordan Smith, Utilizing
the Substantial Hardship Exception to Model Rule 3.7, 15 Geo. J. Legal
Ethics 619, 622 (2002). Under this standard we are dubious of plaintiff’s
request to remove Clark. As a rule of Professional Conduct, 3.7 requires
“voluntary compliance.” Vt. Rule of Prof. Cond’t II Scope. It is incumbent
on each attorney to first and foremost examine whether or not her role as
counsel has been compromised. Only after that opportunity for self-
censure can opposing counsel challenge. Since Clark has apparently
looked within and found no conflict or reason to believe that she is a
necessary witness, we will examine the plaintiff’s arguments for
compelling the deposition.

       Plaintiff propounds that the Art Trust Agreement is ambiguous and
that Clark must be questioned on the meaning of the language. (Pl. Mot. to
Compel Dep. at ¶ 10). Even if the agreement is deemed ambiguous, it is
unclear what light Clark’s testimony would shine on the intent of the
parties, all of whom are alive and available to testify as to what they
intended the agreement to mean. Our court has recently re-emphasized that
the unexpressed mental impressions of parties to an agreement are not
relevant, even as parol evidence Quenneville v. Buttolph, 2003 Vt. 82, ¶ 15.
If such impressions of the parties are irrelevant, why would such private
beliefs of the scrivener be relevant? Clark’s testimony could address
scrivener’s intent but little more since she was counsel, not party, to the
agreement. While this may be relevant to explaining some ambiguous
word choice, see Putnam v. Am. Bible Soc’y, 37 Vt. 271, 278 (1864), it is
less than necessary to the case.

        Plaintiff would also like to examine Clark about her files and
correspondence during the formation of the Art Trust. (Pl. Mot. to Compel
Dep. at ¶¶ 6–9). There is a two-fold problem with this realm of testimony.
First, plaintiff’s line of questioning veers directly into the heart of the
attorney-client privilege. While the documents themselves may have been
disclosed and certain utterances made in public, much of Clark’s advice,
knowledge, and communications are still protected by V.R.E. 502. Second,
without speculating on which information falls under the umbrella of
V.R.E. 502, it is equally apparent that this testimony is less than necessary.
As plaintiffs admit in their brief, “if plaintiff can establish that Clark
discussed this obligation with Leggett and Whitcomb, it will strengthen
evidence of their intentional wrongdoing.” (Pl. Mot. to Compel Dep. at ¶ 7,
emphasis added). Strengthening is altogether different from necessary.
Plaintiff’s case could ultimately be more persuasive if Clark testified to
everything she knew, but the testimony is not necessary to prove the case,
especially where all of the relevant parties are alive and available.
Plaintiff’s argument is one of preference. She would prefer to have Clark’s
testimony over Whitcomb’s. Id. at ¶ 11. Although Whitcomb is elderly
and frail, we will not presume him to be an incompetent witness. Rule 3.7
is not about preferences or relevance, it is about attorneys becoming so
inextricably tied to the underlying facts that their testimony becomes a
necessary element in the case. In this case, information plaintiff seeks does
not rise to that level and cannot be the basis for dismissal. Even still, an
attorney may represent the client despite her role as a necessary witness if
removal would bring about substantial hardship. Vt. Rule of Prof. Cond’t
3.7(a)(3). Certainly there is evidence that Clark’s removal, on the eve of
trial, would cause defendant great harm.

        Plaintiff’s similar contention for disqualification on a potential
conflict of interest under Vt. Rule of Prof. Cond’t 1.7 and 1.9 is
unpersuasive. As the potential conflict of interest lies between co-
defendants and not with the plaintiff, Clark should not be compelled to
withdraw based on the plaintiff’s reasoning, altruistic as it may be.
Defendant Leggett has not proffered a defense that is adverse to defendant
Whitcomb. Short of a clear conflict of interest and lack of waiver,
disqualification is a bridge too far. To do otherwise would rob the
defendant of her choice of counsel in exchange for a dubious clarification
of interests. We also have in mind the practical issue of Leggett’s limited
means—if Clark is ruled disqualified, her client may well not be able to
afford to educate a new attorney about this thorny and recondite litigation.

        Therefore, Clark will not compelled to attend a deposition. As the
Eighth Circuit has written, attorney depositions are a “negative
development . . . that should be employed in only limited circumstances.”
Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); see also
Timothy Flynn, On “Borrowed Wits”: A Proposed Rule for Attorney
Depositions, 93 Colum. L. Rev. 1956 (1993). This disinclination is fueled
by fears that such depositions will lead to the disqualification of attorneys,
additional stress and burdens on the counsel and client, and a chilling of
client-attorney communications. Flynn, at 1958. Here, these concerns are
further complicated by the attorney-client privilege that Clark has asserted
over her testimony. In re Subpoena Issued to Dennis Friedman, 350 F.3d
65, 72 (2d Cir. 2003). Given that plaintiff has access to all other witnesses
for the relevant information, we are disinclined to grant a motion that
promises to fulfill several of the Eight Circuit’s fears in return for non-
necessary testimony.

       Plaintiff’s motions to compel Attorney Clark’s testimony and
disqualification are denied.

       Dated at Burlington, Vermont________________, 2004.



                                          ________________________
                                          Judge
