Lieberman ought to be called as a witness in this case.
Lieberman himself acknowledges that he has more knowledge of
the documents and transactions underlying this suit than anyone
else. Indeed, he has dealt with the property at the heart of
this action for 27 years, and he is the only person who has
been directly involved with the management of the property and
the relations between the different groups of trust
beneficiaries. Thus, unless he falls within one of the
exceptions outlined in DR 5-101(B)(1) through (4), Lieberman
should be disqualified from representing Donne.
The only exception arguably applicable to this case is that
found in DR 5-101(B)(4), where disqualification "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." Donne claims that he would suffer substantial hardship
in two ways: "great financial burdens in having to employ new
counsel" and "by way of losing the extremely valueable [sic]
services of Kalman S. Lieberman who knows every facet of the
problems relating to the property." We disagree. Donne may in
fact incur greater attorney fee expenses by replacing
Lieberman, but there is no reason to believe the difference
will be great. This is especially so in light of the fact that
this action was filed quite recently.*fn2 Moreover,
Lieberman's special knowledge is not as relevant to actions he
would take in his lawyerly capacity as it is to his distinctive
value as a witness — the very role barred by DR 5-102. Norman
Norell, Inc. v. Federated Department Stores, Inc., 450 F. Supp. 127,
130 (S.D.N.Y. 1978); see also Draganescu v. First National
Bank of Hollywood, 502 F.2d 550, 552 (5th Cir. 1974), cert.
denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975).
Therefore, Donne has failed to demonstrate any substantial
hardship under exception (4) to DR 5-101(B), and Lieberman, and
any other lawyer in his firm, shall be disqualified from
representing Donne further in this action.
Lieberman's Representation of Himself
Lieberman's desire to represent himself is a much different
matter. The right to self-representation in civil cases has a
long history, first conferred by Section 35 of the Judicial Act
of 1789. The right is now set forth in 28 U.S.C. § 1654, which
provides that "[i]n all courts of the United States the parties
may plead and conduct their own cases personally or by
counsel. . . ." Although not enjoying the constitutional
protection later afforded to the right of self-representation
in criminal cases, the right in civil actions is one of high
standing, "not simply a practice to be honored or dishonored by
a court depending on its assessment of the desiderata of a
particular case." O'Reilly v. New York Times Co., 692 F.2d 863,
867 (2d Cir. 1982).
Given his statutory right under Section 1654, Lieberman may
continue to represent himself in this action. However, the
rights of self-representation and representation by counsel may
not be both exercised at the same time. Id. at 868. Thus, if
Lieberman is to proceed pro se, he must immediately discharge
any other lawyer who has filed an appearance on his behalf.
We also note some practical concerns about Lieberman's
self-representation at trial, should this case reach that
stage. Lanigan claims that Lieberman actually intends to
represent a group of defendants while purporting to act pro se.
Whether or not Lanigan's concern is well founded, Lieberman's
representation of anyone other than himself in this case would
for the reasons discussed in the section above concerning
Donne.*fn3 Thus, the Court will ensure that Lieberman's
participation at trial is limited to activities necessary to
represent himself fully. Lanigan also points out the logistical
problems of Lieberman's testifying at trial: he "cannot examine
himself on the stand and be objective as to his testimony or
the cross-examination of himself." While this may be true,
these problems apply equally to any pro se party and do not
constitute grounds for disqualifying Lieberman from
Accordingly, Lanigan's motion to disqualify is granted in
part and denied in part. It is so ordered.