United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendant's Motion
to Address Plaintiff's Attorney's Conflict of
Interest, or in the Alternative, to Disqualify
[#25] (the “Motion”).Plaintiff filed a
Response [#26] in opposition to the Motion and Defendant
filed a Reply [#28]. This case has been referred to the
undersigned for all purposes pursuant to D.C.COLO.LCivR
40.1(c) and 28 U.S.C. § 636(c), on consent of the
parties. See [#19, #20]. The Court has reviewed the
Motion, Response, Reply, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion [#25] is
DENIED in part and GRANTED in part.
bad faith insurance case involves a claim for hail, wind, and
water damage to Plaintiff's property under a
Homeowner's Policy issued by Defendant. See generally
Compl. [#6]. Plaintiff alleges that it made a timely
claim for the property damage and that Defendant offered an
unreasonably low settlement for the cost of repairs and
unreasonably delayed or denied payment of covered benefits
without a reasonable basis in violation of Colo. Rev. Stat.
§§ 10-3-1115 and 10-3-1116, and in breach of the
parties' insurance contract. See Id.
instant Motion, Defendant represents that Mr. Richard LaFond
(“LaFond”), Plaintiff's counsel of record,
made Plaintiff's initial claim for the property damage
and was Plaintiff's primary contact with Defendant prior
to the filing of this lawsuit. [#25] at 2. For this reason,
Defendant argues that Mr. LaFond cannot act as an advocate on
Plaintiff's behalf in this case because he is a necessary
witness and will be subject to cross examination.
Id. Specifically, Defendant asserts that Mr. LaFond
“must be disqualified from this case as the attorney
for the Plaintiff, or, in the alternative, disqualified from
depositions and the trial.” Id. at 8.
Response, Plaintiff does not contest Defendant's
characterization of Mr. LaFond's involvement in
Plaintiff's insurance claim pre-suit, but nonetheless
argues that the Motion [#25] should be denied. See
generally [#26]. Plaintiff first argues that the request
to completely disqualify Mr. LaFond from any involvement or
participation in this case is not supported by law or fact.
Id. at 2. Second, Plaintiff argues that
Defendant's request to disqualify Mr. LaFond from
participating at trial is now moot given that Plaintiff has
retained Mr. Robert Lichty (“Lichty”) to
represent Plaintiff during trial in place of Mr. LaFond.
Id. at 3. Finally, Plaintiff asserts that unless Mr.
LaFond's identity will likely be disclosed to the jury by
deposition testimony admitted into evidence, Plaintiff's
counsel should not be disqualified from conducting
depositions. Id. at 4-7.
Reply [#28], Defendant appears to abandon its request that
Mr. LaFond be disqualified either from the case entirely or
from trial, stating: “Since Plaintiff's attorney
has advised that he will not serve as trial counsel in this
action, the only issue to be addressed is whether or not he
can take and defend depositions.” Reply [#28]
at 3. Pursuant thereto, Defendant maintains that Mr. LaFond
“must be precluded from taking and defending
depositions” because to hold otherwise would, among
other reasons, prejudice Defendant “in not being able
to challenge Mr. LaFond's factual statements and
questions during the depositions in this action.”
Id. at 7.
motion to disqualify counsel is addressed to the sound
discretion of the district court.” World Youth Day,
Inc. v. Famous Artists Merch. Exch., Inc., 866 F.Supp.
1297, 1301 (D. Colo. 1994). The movant bears the burden of
establishing the grounds for disqualification. World
Youth Day, 866 F.Supp. at 1299. “When ruling on a
motion for disqualification of counsel, [the Court] must make
specific findings and conclusions.” Id.
(citation omitted). The Court should evaluate motions to
disqualify with suspicion, and it must be aware that such
motions may be used to “secure a tactical advantage in
the proceedings.” Pappas v. Frank Azar &
Assoc., P.C., No. 06-cv-01024-MSK-BNB, 2007 WL 4224196,
at *6 (D. Colo. Nov. 27, 2007) (citing Religious Tech.
Ctr. v. F.A.C.T. Net, Inc., 945 F.Supp. 1470, 1478 (D.
to D.C.COLO.LAttyR 2(a), this District applies the Colorado
Rules of Professional Conduct as its standards for
professional responsibility. Defendant premises its request
on Colorado Rule of Professional Conduct 3.7 (“Rule
3.7”). In pertinent part, Rule 3.7 prescribes that:
(a) A lawyer shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal
services rendered in the case; or
(3) disqualification of the lawyer would work substantial
hardship on the client.
lawyer is a ‘necessary' witness if his or her
testimony is relevant, material and unobtainable
elsewhere.” World Youth Day, 866 F.Supp. at
1302. “[T]he opposing counsel cannot be disqualified on
the basis of speculation or conjecture, and disqualification
can occur only after facts have been alleged that demonstrate
a potential violation of the Rule.” Fognani v.
Young, 115 P.3d 1268, 1272 (Colo. 2005) (citation
mere violation of [Rule 3.7] does not automatically result in
disqualification.” Id. at 1303 (citation
omitted). The Court must determine “whether the
litigation can be conducted in fairness to all parties,
” and whether “the claimed misconduct in some way
‘taints' the trial or the legal system.”
World Youth Day, 866 F.Supp. at 1302. In making this
determination, the Court should evaluate whether the jury
would be confused by the advocate also appearing as a
witness, and whether the dual role would implicate “an
unfair advantage in rebutting or advancing the substantive
allegations at issue.” Id. The Court must also
consider “the nature of the case, with emphasis on (1)
the subject of the lawyer's testimony; (2) the weight the
testimony might have in resolving disputed ...