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MAY'S FAMILY CENTERS, INC. v. GOODMAN'S

August 16, 1984

MAY'S FAMILY CENTERS, INC., PLAINTIFF,
v.
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 assignee.

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
    matter.
      (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
    testimony.
      (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 ...

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