Blurred Lines And Actual Prejudice

The Maine Supreme Judicial Court affirmed the granting of a motion to disqualify a lawyer and his law firm in a tort claim action based on the "lawyer as witness" rule

Jamie Pacheco appeals from a judgment of the Superior Court (Androscoggin County, Stewart, J.) granting a motion to disqualify filed by Gene Libby, Esq., and Libby, O’Brien, Kingsley, and Champion, LLC (collectively Libby), to preclude Jeffrey Bennett, Esq., and his firm, Legal-Ease, LLC, P.A. (collectively Bennett), from continuing as counsel for Jamie. We affirm the court’s judgment.

Facts

In 2015, Jamie filed a complaint for divorce against her then husband, Kevin Pacheco. Jamie was represented in the divorce proceedings by Bennett. Kevin was represented by two attorneys prior to being represented by Libby.

During the divorce proceedings, Bennett voluntarily produced to Libby’s predecessor counsel what he represented to be, save for one redacted line, the complete counseling session notes of Jamie’s therapist, Sandra Falsey. The redacted line contained highly sensitive personal information that Bennett believed would harm Jamie if Kevin obtained it.

Libby subpoenaed Falsey without notifying Bennett.2 The subpoena required Falsey to testify at a hearing scheduled for November 7, 2018, and directed Falsey to produce her “entire file regarding Jamie Pacheco from 2011 to the date of Jamie Pacheco’s most recent therapy appointment, including, but not limited to, all correspondence and emails between [Falsey] and any attorney representing Jamie Pacheco.” Though Falsey ultimately did not testify at the November 7 hearing, she turned over to Libby her complete counseling records related to Jamie, including counseling notes from four sessions not previously produced by Bennett and an unredacted copy of the counseling notes that Bennett had redacted in his original production. The unredacted notes were disclosed to Kevin when he was copied on an email that included the notes as an attachment. Jamie moved for a mistrial and to disqualify Libby in the divorce proceedings. Both motions were denied.

On July 7, 2021, after the divorce proceedings concluded, Jamie, with Bennett representing her, filed an action against Libby asserting claims of abuse of process, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED) based on Libby obtaining Falsey’s unredacted therapy notes and disclosing them to Kevin. Jamie demanded a jury trial in her action against Libby.

Disqualification was sought because of Bennett's role as a witness

The court [below]...found that Bennett is the only witness with sufficient personal knowledge of these issues to be able to testify to them and is likely to be one of a few central witnesses. In addition, the court found that Bennett’s testimony is likely to be controversial, inconsistent with other witnesses’ testimony, and emotional.

The court here

Bennett’s actions or inactions in the treatment and disclosure of Jamie’s psychotherapy records are central to Jamie’s case, and Bennett alone has this knowledge, making his testimony relevant, material, and unobtainable from other sources. See Commonwealth v. Delnegro, 75 N.E.3d 73, 80-81 (Mass. App. Ct. 2017). The measures Bennett took or did not take to preserve confidentiality of the records, and the notice Bennett gave to Libby of these measures, are also highly relevant to Jamie’s claim for abuse of process, see Advanced Const. Corp. v. Pilecki, 2006 ME 84, ¶ 23, 901 A.2d 189, and her claim for IIED, see Lyman v. Huber, 2010 ME 139, ¶ 16, 10 A.3d 707. Bennett is likely to be a central trial witness and to give testimony that may be emotionally charged and inconsistent with other testimony. Moreover, if Jamie decides to testify to the impact Libby’s actions had on her, Bennett’s testimony could corroborate or impeach Jamie’s testimony. Clearly, there are multiple sound bases for the court’s conclusion that Bennett’s continued representation of Jamie would result in an affirmative violation of Rule 3.7.

Actual prejudice

There are sound bases in the record for the court’s conclusion that there would be actual prejudice in allowing Bennett to continue representing Jamie. See Morin, 2010 ME 36, ¶ 7, 993 A.2d 1097. Libby states that he will call Bennett to testify to firsthand knowledge of the disclosure of the therapy notes, which could force Bennett to testify against Jamie’s interests. See M.R. Prof. Conduct 1.7 cmt. (1); see also Model Rules of Pro. Conduct r. 3.7 cmt. (6) (Am. Bar Ass’n 1983). Jamie has also demanded a jury trial, which creates a greater risk of confusion because a jury may be required to distinguish between Bennett’s advocacy and his testimony. Finally, we note that Bennett’s participation in this appeal has already blurred the line between advocacy and personal involvement. For all these reasons, we affirm Bennett’s disqualification.

Oral argument is linked here.

The court had earlier ruled that issue preclusion did not bar the tort suit. (Mike Frisch)