Submitted: September 4, 2014
Upon Plaintiff's Motion to Disqualify Counsel, DENIED.
Upon Plaintiff's Motion for an Evidentiary Hearing and Telephonic Conference, DENIED.
Upon Plaintiff's Motion to Exclude Defendant's Expert, DENIED.
Upon Plaintiff's Motion for Order to Transport, DENIED.
Steven A. McLeod, pro se
Cynthia H. Pruitt, Esq., Doroshow, Pasquale, Krawitz & Bhaya, Attorney for Defendant.
M. JANE BRADY SUPERIOR COURT JUDGE
This is a personal injury case. Plaintiff Steven A. McLeod ("Plaintiff") alleges that he was sexually abused as a child by his father Defendant Hughey F. McLeod ("Defendant") from approximately December 1967 through January 1972. Both parties were domiciled in Delaware at the time of the alleged abuse, but both now reside in Florida. Plaintiff is incarcerated in Florida. On April 29, 2011, Plaintiff filed the instant action under 10 Del. C. § 8145.
There are presently four Motions before the Court: (1) Plaintiff's Motion to Disqualify Counsel (submitted 9/30/14), (2) Plaintiff's Motion for an Evidentiary Hearing and Telephonic Conference on the Motion to Disqualify Counsel (submitted 9/20/14), (3) Plaintiff's Motion to Exclude Defendant's Expert Dr. Kaye (submitted 9/16/14), and (4) Plaintiff's Motion for Order to Transport (submitted 9/29/14). For the reasons outlined below, all four of these motions are hereby DENIED.
II. Plaintiff's Motion to Disqualify Counsel
A. Plaintiff's Motion
On August 20, 2014, Plaintiff filed his Motion to Disqualify Defendant's Counsel.Plaintiff argues that counsel should be disqualified because lead attorney Robert Pasquale ("Pasquale") will be a material witness at trial concerning the alleged sexual abuse of Plaintiff's sister, Cynthia McLeod Pitcher ("Pitcher"), by Defendant. Pitcher currently denies any sexual abuse by Defendant. Plaintiff says he intends to call Pasquale to impeach Pitcher if she will not admit sexual abuse at trial as allowed by D.R.E. 613.
Plaintiff says that Pitcher worked for the Prothonotary's office and several Wilmington attorneys in the late 1970s and early 1980s. During this time, Pitcher allegedly became friends with Pasquale. Plaintiff alleges that, because of the friendship between Pasquale and Pitcher, Pasquale is aware of the sexual abuse and mental health treatments that Pitcher received relating to the abuse, and Plaintiff intends to call Pasquale to impeach Pitcher and to testify that Pitcher admitted to Pasquale that the Defendant sexually abused her. Plaintiff says that he informed Defendant's counsel of this potential conflict in a letter dated February 10, 2014, but waited to file the Motion to Disqualify in the hopes that an alternative witness could be located. As Plaintiff has been unable to locate an alternate witness, Plaintiff plans to call Pasquale in the event that Pitcher will not admit sexual abuse by Defendant.
Plaintiff argues that these prior, bad acts, ie., the alleged sexual abuse of Pitcher, by Defendant are admissible under D.R.E. 404(b), citing Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247 (Del. 2011); Anker v. Wesley, 789 F.Supp.2d 487, 502-503 (D. Del. 2001); and Getz v. State, 538 A.2d 726, 730 (Del. 1988). Plaintiff argues that witness testimony is admissible to impeach Pitcher's denial of sexual abuse under D.R.E. 613. Plaintiff further argues that any communication between Mr. Pasquale and the Defendant concerning Ms. Pitcher's denial of abuse would be admissible under D.R.E. 502(d)(1). Plaintiff says that the fact that Pasquale would be called to give testimony that would be harmful to Defendant represents an ethical conflict of interest. Plaintiff also maintains that this ethical conflict would be imputed to other members of Pasquale's law firm, citing the Restatement (Second) of Agency §272 and U.S. v. Giglio, 92 S.Ct. 763 (1972).
B. Defendant's Response
On September 11, 2014, Defendant filed a combined Response to this Motion and to Plaintiff's Motion for an Evidentiary Hearing Regarding this Motion. Defendant's arguments concerning the Motion for an Evidentiary Hearing on this matter are addressed in the corresponding section below.
Regarding the Motion to Disqualify, Defendant asserts that disqualification implicates Rule 3.7(a) of the Delaware Rules of Professional Conduct, which states that a lawyer "shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness…" Defendant argues that, under In Re Appeal of Infotechnology, 582 A.2d 215, 221 (Del. 1990), "the burden of proof must be on the non-client litigant to prove by clear and convincing evidence (1) the existence of the conflict and (2) to demonstrate how the conflict will prejudice the proceedings." Defendant further argues that, under Estate of Waters, 647 A.2d 1091, 1097 (Del. 1994), the language "likely to be a necessary witness" elevates the burden of proof needed to prevail on a disqualification motion. Defendant argues that "[t]he plaintiff must show at a minimum that there is reasonable probability that counsel will be a necessary witness and is necessary to the resolution of the suit."
Defendant argues that Plaintiff has not made the requisite showing. Defendant contends that Plaintiff has not provided any factual basis for his claim that Pasquale has any knowledge concerning the alleged abuse or Pitcher's mental health, other than the fact that Pasquale knew Pitcher in the 1980s. Defendant further argues that as Plaintiff has never personally met Pasquale, Plaintiff can have no personal knowledge of what Pasquale does or does not know regarding Pitcher.
C. Legal Standard
The Delaware Supreme Court has recognized that generally an attorney should not appear as counsel for one of the litigants and as a witness in the same matter. The applicable rule is Rule 3.7 of the Delaware Rules of Professional Conduct. Rule 3.7 says "A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (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) disqualification of the lawyer would work substantial hardship on the client."
The current rule, which superseded Disciplinary Rules 5-101(B) and 5-102(A) of the former Delaware Lawyers' Code of Professional Responsibility, was intended to narrow the circumstances under which counsel will be disqualified. The concern was that, under the prior provisions, "motions to disqualify [were] often disguised attempts to divest opposing parties of their counsel of choice." Recognizing the potential for abuse of the disqualification rule, the Supreme Court has held that "the burden of proof must be on the non-client litigant to prove by clear and convincing evidence (1) the existence of a conflict and (2) to demonstrate how the conflict will prejudice the fairness of the proceedings." Clear and convincing evidence "is evidence that produces an abiding conviction that the truth of the contentions is 'highly probable.'" Clear and convincing evidence is "more than a preponderance of the evidence and less than evidence beyond a reasonable doubt."
A lawyer's serving as a necessary witness does not preclude other members of his firm from acting as counsel in the same matter. Rule 3.7 states that "that "[a] lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9." Rules 1.7 and 1.9 concern conflicts arising from a lawyer representing a party adverse to his or his firm's current or former client. Rules 1.7 and 1.9 do not apply in the instant case as neither ...