United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff's Motion to Bar Defense
Counsel's Attempt to Call Plaintiff's Counsel
Professor Brian M. McCall as a Witness [Doc. No. 35]. The
relief sought by Plaintiff's Motion is either an order
excluding attorney Brian McCall as a trial witness or an
order authorizing him to serve as a trial advocate even if
Defendant City of Oklahoma City (the “City”)
calls him to testify. Plaintiff has filed the instant Motion
in anticipation of a future motion by the City to disqualify
Mr. McCall as trial counsel. Defendants have responded in
opposition to the Motion. The City and Defendant James Brown,
through municipal counsel, oppose the Motion in all respects.
The individual defendants other than Mr. Brown, who are
police officers with separate representation, take no
position regarding disqualification of Mr. McCall but state
the Motion is premature. The Motion is fully briefed and at
is represented in this case by three attorneys: Brenda
Barnes, an attorney from the University of Oklahoma
(“OU”) Legal Clinic; Mr. McCall, a professor at
the OU Law Center admitted to practice pro hac vice
in this case; and James M. Bendell, a nonresident attorney
also admitted pro hac vice. Ms. Barnes commenced the
action for Plaintiff and moved for pro hac vice
admission of the other attorneys. Only Messrs. McCall and
Bendell appeared as counsel for Plaintiff in the Joint Status
Report and Discovery Plan, or at the scheduling conference on
March 6, 2017. Under the Scheduling Order, the deadline for
Defendants to disclose their fact witnesses and exhibits is
November 3, 2017, and the deadline to complete discovery is
December 6, 2017. However, the City's attorney has stated
an intention to name Mr. McCall as a trial witness, and
Plaintiff seeks a determination early in the case of Mr.
McCall's ability to serve as trial counsel.
bases her Motion on written communications between Mr. McCall
and Assistant Municipal Counselor Richard C. Smith (copies of
which are attached as exhibits to the Motion) that reflect a
disagreement concerning whether Mr. McCall is a necessary
fact witness for the City's defense of the case. Mr.
McCall admits he had some personal involvement in events
related to the subject of Plaintiff's Complaint, which
was the performance of a “Black Mass” at the
Civic Center Music Hall in Oklahoma City on September 21,
2014. Mr. McCall attests that he was an event coordinator for
a protest or prayer assembly earlier that day, but he was not
present at the time of Plaintiff's arrest for allegedly
protesting or praying outside the performance. See
McCall Aff. [Doc. No. 35] at 11-12, ¶¶ 3-4.
parties agree that any disqualification of Mr. McCall from
serving as Plaintiff's attorney at trial is governed by
Rule 3.7 of the Oklahoma Rules of Professional Conduct, which
this Court has adopted. See LCvR83.6(b). Rule 3.7(a)
provides: “A lawyer shall not act as an advocate at a
trial in which the lawyer is likely to be a necessary
witness” except in limited circumstances, including
where “the testimony relates to an uncontested
issue” or where “disqualification of the lawyer
would work substantial hardship on the client.” Okla.
Stat. tit. 5, ch. 1, app. 3-A, R. 3.7(a). Plaintiff contends
Mr. McCall is not a “necessary witness” because
his personal knowledge concerns facts that are not relevant
to the trial issues or could be presented in a different way,
either through another witness or by a stipulation of the
parties. Alternatively, Plaintiff contends the exceptions are
satisfied here, in that Mr. McCall's testimony would
relate to an uncontested issue and his disqualification would
cause substantial hardship to Plaintiff because he is serving
pro bono and previously represented Plaintiff in the
criminal case related to her arrest.
City disagrees, arguing that Mr. McCall “was a
participant in the City's planned response to a
constitutionally protected activity, ” referring to the
Black Mass, and that he personally communicated with
municipal employees regarding plans for the event.
See Def. City's Resp. Br. [Doc. No. 37] at 2
(footnote omitted) & Ex. 2 [Doc. No. 37-2] at 7-8. The
City's position is that Mr. McCall is a necessary witness
to defend against Plaintiff's claim of municipal
liability under 42 U.S.C. § 1983, which is based on
allegations that the City had an official policy of arresting
and bringing false charges against protestors who opposed the
Black Mass. and engaged in prayer. See Compl. [Doc.
No. 1], ¶¶ 101-04. The City's position
regarding Plaintiff's alternative proposal that Mr.
McCall be allowed to testify and serve as a trial advocate is
unclear; the City seems to argue this circumstance could be
addressed by appropriate jury instructions. See Def.
City's Resp. Br. [Doc. No. 37] at 4.
3.7 prohibits a lawyer from serving a dual role in the trial
of a case as both an advocate and a witness except in
specific circumstances. See Okla. Stat. tit. 5, ch.
1, app. 3-A, r. 3.7, cmt. 3; see also Jensen v.
Poindexter, 352 P.3d 1201, 1206 (Okla. 2015);
Crussel v. Kirk, 894 P.2d 1116, 1120 (Okla. 1995).
The advocate-witness rule “protects the integrity of
the judicial process by: (1) eliminating the possibility that
the lawyer will not be an objective witness, (2) reducing the
risk that the finder of fact may confuse the roles of witness
and advocate, and (3) promoting public confidence in a fair
judicial system.” Jensen, 352 P.3d at 1206;
see Crussel, 894 P.2d at 1120. Where an attorney of
record for a party is a necessary trial witness, the attorney
can continue as co-counsel and represent the party in other
aspects of the proceeding so long as the attorney takes
“the necessary prophylactic measures, all consistent
with the rationale of Rule 3.7, to insulate himself from the
role of trial advocate.” Crussel, 894 P.2d at
1120; see Jensen, 352 P.3d at 1206. Unwilling to
limit Mr. McCall's role in this case, Plaintiff seeks a
determination, first, that he is not a “necessary
witness” for the City's defense.
advocate-witness rule is common in American jurisprudence, as
are related policies of protecting a litigant's right to
his choice of counsel and preventing motions to disqualify
counsel from being used as tactical weapons in litigation.
See Jensen, 352 P.3d at 1205; Okla. Stat. tit. 5,
ch. 1, app. 3-A, Scope (“the purpose of the Rules can
be subverted when they are invoked by opposing parties as
procedural weapons”). Consistent with these policies,
courts have narrowly defined the term “necessary
witness” for purposes of the advocate-witness rule to
mean a witness with knowledge of facts “to which he
will be the only one available to testify.” See
Macheca Transp. Co. v. Philadelphia Indem. Ins. Co., 463
F.3d 827, 833 (8th Cir. 2006) (internal quotation
omitted). It is not enough, for example, that a
party's attorney had direct communications with the
opposing party that are relevant to a claim or defense.
“Testimony may be relevant and even highly useful, but
still not strictly necessary.” Id.; see
also Mercury Vapor Processing Techs., Inc. v. Village of
Riverdale, 545 F.Supp.2d 783, 789 (N.D. Ill. 2008)
(disqualification depends, in part, on “whether other
witnesses would be able to testify to the same
case, the parties do not sufficiently address in their briefs
whether this stricter “necessary witness”
standard is met. The City's arguments in particular show
only that Mr. McCall's testimony would be relevant and
useful to the City's defense. Assuming this is true, it
is insufficient to make Mr. McCall a necessary witness and
disqualify him as a trial advocate. Because this case is in
early stages of discovery, however, the Court finds that it
would be premature to make a determination at this point
whether the City should be precluded from calling Mr. McCall
as trial witness. See Mercury Vapor, 545 F.Supp.2d
at 789 (early in a case, “[i]t is entirely conjuectural
what claims, if any, will proceed to trial, let alone whether
[an attorney] will be called as a [necessary]
if it is established that Mr. McCall has information to which
only he can testify and thus he is a necessary witness,
Plaintiff would bear the burden “to avoid
disqualification due to substantial hardship” by
demonstrating that “her interests in retaining [Mr.
McCall] outweigh those of the tribunal and the opposing party
in disqualifying [Mr. McCall].” Jensen, 352
P.3d at 1206. This balancing of interests must be done with
the purposes of the advocate-witness rule in mind:
Whether the tribunal is likely to be misled or the opposing
party is likely to suffer prejudice depends on the nature of
the case, the importance and probable tenor of the
lawyer's testimony, and the probability that the
lawyer's testimony will conflict with that of other
witnesses. Even if there is risk of such prejudice, in
determining whether the lawyer should be disqualified due
regard must be given to the effect of disqualification on the
Okla. Stat. tit. 5, ch. 1, app. 3-A, r. 3.7, cmt. 4. The
parties do not adequately address these considerations in
their briefs to permit a reasoned determination of whether
Mr. McCall's disqualification as trial counsel would
cause substantial hardship to Plaintiff.
of a lawyer-witness is very circumstance specific, and often
these circumstances are not fully revealed until the case
progresses.” Mercury Vapor, 545 F.Supp.2d at
789 (internal quotation omitted). Here, the Court finds that
the question of whether Mr. McCall should be allowed to serve
as both an advocate and a witness simply cannot be resolved
at this stage of the case.
THEREFORE ORDERED that Plaintiff's Motion to Bar Defense
Counsel's Attempt to Call Plaintiff's Counsel
Professor Brian M. McCall as a Witness [Doc. No. 35] is
DENIED without prejudice to a future motion by any party, as
appropriate to the ...