The opinion of the court was delivered by: Richard Mills, District Judge:
Antitrust case — 17 Plaintiffs — 11 Defendants — 69
lawyers — and literally a half-ton of pleadings.
First of all, Plaintiffs' counsel accepted this case with a
But Defendants waited until 3 years into this major
antitrust action before moving to disqualify Plaintiffs' lead
counsel (and his firm) on the grounds that Defendants intend
to call him as a witness to give testimony that is prejudicial
to his clients.
Bob Wright is a senior partner for the firm of Domengeaux
and Wright, counsel for Plaintiffs. Mr. Wright is also the
president and 85% shareholder of Plaintiff Alpebo, Inc. Alpebo
entered into a joint venture to produce ethanol with Shepherd
Oil, Inc., and Celerol Oil and Gas Company. When the ethanol
industry began to struggle, the Department of Agriculture
decided to subsidize many of the grain-based ethanol
producers. Alpebo, Shepherd, and Celerol were not subsidized,
however, because their ethanol was not produced from grain.
In June of 1986, Alpebo, Shepherd and other firms filed a
suit against the United States Secretary of Agriculture
seeking a declaratory judgment and a permanent injunction
which would require the Secretary of Agriculture to include
the Plaintiffs in the subsidy program. In that action, Bob
Wright appeared as attorney for Alpebo and Shepherd. In the
complaint against the Secretary of Agriculture, the Plaintiffs
asserted that they "will be irreparably injured as a result of
the Secretary's decision to selectively subsidize only a part
of the ethanol industry." Plaintiffs then stated: "This
situation will exascerbate the economic plight the plaintiffs
face and will increase the danger that the plaintiffs will be
forced out of business." In September of 1986, the district
court for the Western District of Louisiana granted summary
judgment in favor of the Secretary of Agriculture. Alpebo, Inc.
v. Richard E. Lyng, U.S. Secretary of Agriculture, No. 86-1431
(W.D.La., Ruling of Sept. 29, 1986).
Defendants in the instant case claim that they intend to
call Mr. Wright as a witness to testify as to matters
concerning the prior litigation with the Secretary of
Agriculture. Specifically, Defendants claim they need Mr.
Wright to testify to the validity of documents from the suit
against the Secretary of Agriculture. Defendants further
assert that Mr. Wright, as president and attorney for Alpebo,
is in the best position to testify as to the prior suit and as
to the financial and competitive situation of Alpebo.
It is the Defendants' contention that Wright's testimony
will be prejudicial to the Plaintiffs and he should therefore
be disqualified. In support of their motion, Defendants
initially cited the ABA model code of professional
responsibility. However, the applicable law is the Illinois
rules of professional conduct which became effective in August
of 1990. These rules are very similar to the ABA code. The
pertinent section of the Illinois Rules of Professional
Conduct is Rule 3.7 which reads as follows:
Rule 3.7. Lawyer As Witness
(b) If a lawyer knows or reasonably should know
that the lawyer may be called as a witness, other
than on behalf of a client, the lawyer may accept
or continue representation until the lawyer knows
or reasonably should know that the lawyer's
testimony is or may be prejudicial to the client.
(c) Except as provided by Rule 1.7 or Rule 1.9 a
lawyer may act as an advocate in a trial in which
another lawyer in the lawyer's firm may be called
as a witness.
Plaintiffs have offered several valid reasons why Mr. Wright
should not be disqualified. First, they contend that the suit
against the Secretary of Agriculture represented only one of
the several reasons why their business failed. Thus, they
argue Defendants may still be liable even if they were harmed
by the actions of the Secretary of Agriculture. Second,
Plaintiffs contend that Mr. Wright should not be ...