United States District Court, Northern District of Illinois, E.D
August 16, 1984
MAY'S FAMILY CENTERS, INC., PLAINTIFF,
GOODMAN'S, INC., DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
May's Family Centers, Inc. ("May's") sues Goodman's, Inc.
("Goodman's")*fn1 for breach of contract and tortious
interference with the business relationship between May's and
Zayre Corporation ("Zayre"). In brief,*fn2 May's (as lessee)
sought the consent of Goodman's (as lessor) to an assignment of
May's lease to Zayre. Allegedly Goodman's (in breach of its
lease obligation) refused to grant its consent in the time
frame May's needed, causing May's to lose Zayre as a potential
May's attorney, Bernard Wiczer ("Wiczer") of the firm of Wiczer
and Associates, Ltd., conducted negotiations with Goodman's
former counsel, Larry Goodman and Earl Slavitt of the firm of
Katten, Muchin, Zavis, Pearl and Galler.*fn3 Wiczer also had
some discussions with Goodman's lessor Belscot Retailers, Inc.
Goodman's has now moved to disqualify Wiczer and his firm
from representing May's because Wiczer ought to be called as
a witness.*fn4 May's resists disqualification, contending:
1. Wiczer would testify only to uncontroverted matters.
2. Goodman's has not shown its own case would be prejudiced
if Wiczer remains as May's counsel.*fn5
3. Disqualifying Wiczer at this point will prejudice May's
prosecution of this action.*fn6
Those assertions seek to bring this case within exceptions (1)
and (4) of ABA Code of Professional Responsibility ("Code") DR
5-101(B), incorporated by DR 5-102:
DR 5-101 Refusing Employment When the Interests of the Lawyer
May Impair His Independent Professional Judgment.
(B) A lawyer shall not accept employment in contemplated or
pending litigation if he knows or it is obvious that he or
a lawyer in his firm ought to be called as a witness,
except that he may undertake the employment and he or a
lawyer in his firm may testify:
(1) If the testimony will relate solely to an uncontested
(2) If the testimony will relate solely to a matter of
formality and there is no reason to believe that
substantial evidence will be offered in opposition to the
(3) If the testimony will relate solely to the nature and
value of legal services rendered in the case by the lawyer
or his firm to the client.
(4) As to any matter, if refusal would work a substantial
hardship on the client because of the distinctive value of
the lawyer or his firm as counsel in the particular case.
DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a
(A) If, after undertaking employment in contemplated or
pending litigation, a lawyer learns or it is obvious that
he or a lawyer in his firm ought to be called as a witness
on behalf of his client, he shall withdraw from the conduct
of the trial and his firm, if any, shall not continue
representation in the trial, except that he may continue
the representation and he or a lawyer in his firm may
testify in the circumstances enumerated in DR 5-101(B)(1)
What of the first of those exceptions, DR 5-101(B)(1)? It has
already been said that Wiczer conducted negotiations with
Goodman's former counsel. If the facts to which Wiczer would
testify in that respect were truly "uncontroverted," Goodman's
former counsel could presumably testify and there would be no
need for Wiczer to testify at all. But May's is unwilling to
leave it at that (May's June 15, 1984 Mem. 3-4). Under those
circumstances there is at least a substantial doubt that Wiczer
will in fact be testifying to "uncontroverted" matters.*fn7
If not, Wiczer must bring himself within the second exception,
DR 5-101(B)(4). On that score he advances several hardships to
May's if Wiczer's firm were forced to withdraw:
1. delay in the proceedings;
2. payment for duplicate effort;
3. new counsel's not having viewed deponents during
4. May's possible inability to find substitute counsel, for
its current cash flow does not allow prompt payment of bills
(May's is in bankruptcy).*fn8
If "substantial hardship on the client because of the
distinctive value of the lawyer or his firm as counsel in the
particular case" equated with delay and expense incurred in
bringing new counsel into the case, the exception would swallow
up the rule. Teleprompter of Erie, Inc. v. City of Erie,
573 F. Supp. 963, 966 (W.D.Pa. 1983) quoting MacArthur v. Bank of
New York, 524 F. Supp. 1205, 1210 (S.D.N.Y. 1981). Courts that
have considered the question have not found "distinctive value"
in a long standing relationship with the client, involvement
with the litigation from its inception or financial hardship to
the client. General Mill Supply Co. v. SCA Services, Inc.,
505 F. Supp. 1093, 1098-1100 (E.D. Mich. 1981), aff'd,
697 F.2d 704
, 713 (6th Cir. 1982); United States ex rel. Sheldon
Electric Co. v. Blackhawk Heating & Plumbing Co., 423 F. Supp. 486,
490 (S.D.N.Y. 1976).
Plainly May's reasons do not meet the "substantial hardship" or
"distinctive value" tests. This is not a complicated case.
May's counsel should have known from the outset that what
happened in the negotiations between Goodman's and May's would
be the core of May's claim. And of course Wiczer can assist in
bringing new counsel up to speed on the current posture of the
case, minimizing the hardship to May's. In sum, if Wiczer is in
fact going to testify to controverted matters, he and his firm
should be disqualified.
Disqualification is not mandated now (see n. 7). If it is
hereafter determined Wiczer ought to testify at trial to any
controverted matter, he and his firm are disqualified from
representing May's in this action. If however Wiczer will be
testifying to truly uncontroverted matters, or if it later
becomes clear he need not testify at all, then he and his firm
are not disqualified. In the interim there is no reason they
cannot continue in the case to deal with the summary judgment
motion now in the briefing stage.