Monday, July 23, 2018

A Necessary (Witness) Evil

The Tennessee Court of Criminal Appeals affirmed the grant of a motion to disqualify an attorney under the 'necessary witness" provision of Rule 3.7

The defendant is charged with exploiting her mother 

The State indicated that the proof at the trial on the exploitation charge would show that Defendant used the victim’s resources, funds, and property to benefit herself to the victim’s detriment all during the time that Defendant was acting as caretaker for the victim. The State referenced a quitclaim deed and a durable power of attorney with healthcare, prepared by trial counsel in 2011 and 2012, respectively, as evidence that would be introduced at trial. The State indicated that trial counsel would be called to testify regarding the preparation of these documents; the monetary compensation, if any, that trial counsel received for preparation of these documents; and the extent to which trial counsel had interactions with the victim. The State also indicated that Defendant used a credit card in the victim’s name to pay $1000 to trial counsel and that trial counsel’s testimony would be necessary at trial to explain the charge and/or payment. Thus, the State concluded that trial counsel was a necessary witness and should, therefore, be disqualified from representing Defendant.


The trial court held a hearing on May 12, 2017. At the hearing, the trial court noted that there was a potential conflict because the trial judge was a former law partner of trial counsel. During argument on the motion, trial counsel maintained that he was never paid for preparing the quitclaim deed or power of attorney, that he was not responsible for the actual execution of the documents he prepared, and that he had no idea whether the documents were actually even used or filed. Moreover, trial counsel informed the trial court that he never had any contact with the victim. Trial counsel maintained that he was not a necessary witness.

The judge recused himself and the new judge granted the motion

Specifically, the trial court noted that the issue relevant to the prosecution of Defendant is not who prepared the documents but rather who paid for the services, who benefitted from the services, and who authorized the services and/or payments. The trial court opined that trial counsel was the only person who could provide this testimony and that the issues were “central to the allegations in the case.” While recognizing Defendant’s right to counsel of her own choosing, the trial court acknowledged that the issues raised by the motion, coupled with trial “counsel’s prior contact with Defendant overcome the deference to Defendant’s choice of representation.” The trial court “reluctantly” disqualified trial counsel, explicitly finding that there was “no improper behavior” and taking no position on “potential attorney/client privilege” matters.

Here the court reviewed for an abuse of discretion

We have been unable to find any Tennessee cases defining the term “necessary witness” in the context of Rule 3.7. However, several courts within the Sixth Circuit have addressed what it means to be a “necessary witness” for purposes of disqualification. In both Ohio and Michigan, whose rules of professional conduct pertaining to disqualification contain language identical to our own rule, there are cases interpreting what qualifies as a necessary witness for purposes of disqualification...Based on the marked similarities to our own rule, we confidently conclude the above-cited cases can and should be used as persuasive authority in rendering our decision.

In this case, trial counsel’s testimony is certainly material and relevant. He prepared a quitclaim deed giving property to Defendant from the victim and a power of attorney with healthcare giving Defendant power of attorney over the victim’s affairs. This evidence is relevant regardless of whether the documents were actually executed. Trial counsel also confirmed that he received payment from Defendant on a credit card that the victim jointly owned with defendant. We conclude that the trial court properly determined that trial counsel is a necessary witness. 

None of the three Rule 3.7 exceptions applied.

We are in somewhat of a unique position, being required to determine whether trial counsel’s testimony is necessary, material, and relevant without having anything other than an indictment charging Defendant with a crime. When placed in this position, the fact that trial counsel has potential testimony, which may be used by the State at trial to build its case, leads us to conclude that the trial court properly determined trial counsel should be disqualified. Thus, while we acknowledge that disqualification of trial counsel as a consequence of an appearance of impropriety is not per se barred, we conclude that the facts of this particular case qualify it as one of “the rarest of cases” in which disqualification is an appropriate bar against that appearance.

(Mike Frisch)

Professional Responsibility | Permalink


Post a comment