is more than likely that state's attorneys Schultz and Moore
will corroborate Houtsma's and Pointer's testimony, not Jones'
testimony. Since there is no record identifying the two nurses
who were also witnesses as hospital employees, their
testimony, even if favorable to Jones, may not be readily
available. Likewise, Sister Maureen's testimony, even if
favorable to Jones, may be difficult to obtain in view of the
fact that she presently resides in Australia. But even
assuming that the presently unidentified nurses and Sister
Maureen were available and testified on behalf of Jones,
attorney Schmeidel's testimony would still be necessary to
rebut four very impressive defense witnesses, Houtsma,
Pointer, Schultz and Moore.
In fact, in very similar circumstances the Sixth Circuit
recently disqualified an attorney who could testify as to a
conversation the attorney had which formed the basis for his
client's claim for abuse of process. In General Mills Supply
Co. v. SCA Services, Inc., 697 F.2d 704 (6th Cir. 1983), the
court determined that it was unlikely that the testifying
attorney's adversary would confirm the testifying attorney's
account of the conversations. Although the testifying attorney
claimed that he might get admissions and prove the substance of
the conversations by other means, he could not stipulate that
he would not testify. Under such circumstances the court found
that an independent attorney would not feel safe in submitting
the case to the trier without the attorney's testimony.
The testimony of Schmeidel in the instant case is similarly
required, like the testimony of the disqualified attorney in
General Mills. Even attorney Taylor, Schmeidel's partner,
recognizes that proving plaintiffs' allegations that police
improperly promoted and encouraged Pointer to identify Jones as
the perpetrator of the crimes is "important" to the plaintiffs'
case. Moreover, a disinterested lawyer would certainly want
Schmeidel's testimony to support Jones' claim of false arrest,
false imprisonment, malicious prosecution, denial of due
process and conspiracy claims. On balance, this Court finds
that Schmeidel's testimony is essential to his clients' case.
Under such circumstances, Schmeidel "ought" to testify.
Although this Court finds that the necessity for Schmeidel's
testimony about the hospital room show-up is a sufficient
reason to disqualify Schmeidel, the Court also addresses the
city's other claimed bases for disqualification for purposes
of appellate review. Turning to the city's claim that attorney
Haas ought to testify to his conversations with Furlong,
wherein he requested reports of lab tests, this Court finds
that the substance of their conversations are not in dispute.
Although there is a dispute about why Furlong failed to
include certain test information in certain reports, the
substance of the Haas-Furlong conversations is not disputed.
The gist of the dispute is what inference can be drawn from
the conversations between Haas and Furlong which would be
probative of whether Furlong suppressed the reports. This
Court cannot foresee any reason why Haas would have to testify
as to the substance of an undisputed conversation and
therefore finds that the Haas-Furlong conversations afford no
basis to disqualify Haas.
The City's final claim, that Schmeidel should testify in
support of his Monell claims, as he did in Palmer, does,
however, militate in favor of his disqualification. Some of
Schmeidel's Monell testimony in Palmer related to the hospital
room show-up of Jones. Although the amount of Schmeidel's
testimony relating to the show-up is not clear, some of the
Monell claim testimony did relate to the show-up. Since
Schmeidel was an eye-witness to that show-up, his testimony
ought to be offered in support of plaintiff's Monell claim.
This factor also supports disqualification of Schmeidel.
Disqualification of Testifying Attorney's Firm
Next, this Court turns to the more difficult question of
whether disqualification of attorney Schmeidel also requires
disqualification of his partners, Taylor and Haas, and other
partners and associates of their firm. Under former DR
5-102(A), disqualification of an attorney required
disqualification of the attorney's entire firm. The former
rule required that once a lawyer learns that he "or a lawyer
in his firm ought to be called as a witness on behalf of his
client, he shall withdraw . . . and his firm, if any, shall not
continue the representation." (emphasis added). Under the new
ABA Model Rules of Professional Conduct, however, "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" Rule 3.7.
Neither of the parties in the instant case have discussed the
application of the new Model Rules in their briefs, or alluded
to the change regarding firm disqualification under the
advocate-witness rule. Nonetheless, this Court has considered
the new Model Rule 3.7 as well as former Code provision DR
5-102(A). This Court notes, however, that the ethical rules for
attorneys developed by the ABA need not be literally applied by
federal courts in every case. J.P. Foley & Co. v. Vanderbilt,
523 F.2d 1357 (2d Cir. 1975) (Gurfein, J., concurring). Rather,
ethical rules serve as guidelines to the federal courts in
protecting the judicial process. Id.; see International
Electronics Corp. v. Flanzer, 527 F.2d 1288, 1293 (2d Cir.
1975); Norman Norrell, Inc. v. Federated Department Stores,
450 F. Supp. 127, 130-31 (S.D.N.Y. 1978).
Notwithstanding the change in the new Rules, permitting
members of the testifying attorney's firm to act as advocates
in the same lawsuit, this Court finds that participation of
Schmeidel's firm at trial is not proper under the
circumstances of the instant case. Cases developed under the
former Code and current commentary dealing with the issue of
firm disqualification convince this Court that the judicial
process itself would be tainted by allowing the testifying
lawyer's firm to act as trial counsel under the circumstances
of this case.
In the first place, the same reasons which support
disqualification of the testifying attorney also support
disqualification of the testifying attorney's entire firm.
See generally 5 A.L.R. 4th 562 § 3[a] (1981 & Supp. 1983).
Courts have simply recognized to the extent the client's case
is proffered through the advocate-attorney's partner or
associate, the advocate partner must indelicately argue their
partner's credibility. MacArthur v. Bank of New York,
524 F. Supp. 486 (S.D.N.Y. 1981); Sheldon v. Blackhawk Heating &
Plumbing, 423 F. Supp. 486 (S.D.N.Y. 1976). Moreover, the
testifying lawyer's credibility is still impaired since the
opposing side can argue that the testifying lawyer still
maintains a stake in the litigation. Comden v. Superior Court,
20 Cal.3d 906, 576 P.2d 971, 145 Cal.Rptr. 9 (1978); see also
Eurocom, S.A. v. Mahoney, Cohen & Co., 522 F. Supp. 1179
In cases where courts have refused to extend
disqualification to an entire firm, unique circumstances, not
present here, were found to exist. In International Electronics
v. Flanzer, 527 F.2d 1288 (2d Cir. 1975), for example, the
court did not extend disqualification to the testifying
lawyer's entire firm because the testifying lawyer was no
longer a member of the firm representing one of the parties in
the case. The testifying lawyer had retired from the firm and
the practice of law. In such circumstances, the court found DR
5-101(B) and DR 5-102 inapplicable.
Similarly, in Greenbaum-Mountain Mortgage Co. v. Pioneer
National Title Insurance Co., 421 F. Supp. 1348 (D.Colo. 1976),
relied on by plaintiffs, the court's refusal to disqualify the
testifying lawyer's firm was based, in large part, on unique
facts and circumstances. The motion to disqualify was filed
more than 14 months after the complaint was filed as an
alternative by the defendant in the event its motion for
summary judgment was denied. As the court noted in reaching its
decision, "the timing of the motion hardly speaks for its bona
fides." Id. at 1394. (emphasis in original). The filing of the
motion near time of trial indicated it was being used as a
trial tactic. Moreover, the court recognized that costs had
piled up during the long period between the filing of the
complaint and the motion to disqualify. In these unique
circumstances, the court refused to disqualify the entire
firm. However, the court did recognize that disqualification
of an entire firm would be appropriate where the trial could
not be conducted in fairness to all absent disqualification.
See also Wayland v. Shore Lobster & Shrimp Corp., 537 F. Supp. 1220
(S.D.N.Y. 1982) (denying motion to disqualify where no
disputed issue which attorney ought to testify to); Zions First
National Bank v. United Health Clubs, 505 F. Supp. 138 (E.D.Pa.
1981) (no specific allegations as to what lawyer should testify
In the instant case, however, unique circumstances are not
present. The motion to disqualify has been brought at an early
stage in this litigation before substantial discovery has
taken place. Moreover, as previously noted, Schmeidel's
testimony regarding the show-up will be essential to establish
many of his clients' claims. Obviously, Schmeidel's
credibility will be important. If Schmeidel's firm and
associates act as trial counsel, Schmeidel's partners will
have to argue his credibility to the jury. As his partners and
associates, their efforts may be discounted by the trier, to
the detriment of their client's case. In addition, the jury
may discount Schmeidel's testimony because he will share in
any fees which his partners may earn on the case.