5.1.3

Rule 5-210:  Attorney As Witness

Case:

Haynes v. R.H. Dyck, Inc. (E.D.Cal. 2008) 2008 WL 80749

Issue:

Must defense counsel be disqualified where, more than a year before the scheduled trial date, plaintiff indicates that counsel may be called to testify that he received and forwarded to his client discovery requests from plaintiff that allegedly put those clients on notice that they were fraudulently making a product for which plaintiff allegedly held a patent?

Holding:

No.  First, plaintiff’s motion was premature, given that trial was set more than a year in the future.  “Because Rule 5-210 does not apply to pretrial proceedings, Plaintiff cannot establish that [defense counsel] should be disqualified at this juncture.”  (Id. at *2.)  Second, “because Rule 5-210 does not apply to situations where another attorney in the firm may be testifying,” another attorney in the firm may be able to try the case.  (Ibid.)  Third, Plaintiff had not shown that defense counsel had to, or ought to, testify, as discussed in the comments to Rule 5-210.  “The Court can imagine a plethora of other ways to gather evidence that the Defendants received the discovery requests at issue here.  Indeed, Plaintiffs moving papers indicate that members of [defense counsel’s] staff may be able to provide the testimony necessary,” which would not require disqualification.  (Ibid.)    Given all of this, and since defendants had given their informed consent to the representation, the Court declined “to overturn their choice of counsel where Plaintiff had failed to show actual detriment or injury.”  (Ibid.)