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A federal judge in New Jersey has ruled that the prohibition against lawyers handling cases in which they are witnesses applies only to trial phases, not the rest of the litigation. U.S. District Judge Dickinson Debevoise’s Sept. 12 opinion rejects more expansive interpretations, notably a 9-year-old precedent in the district that said lawyers must bow out as soon as they learn their testimony is likely. Debevoise said such immediate action is not required under the plain language of the Rule of Professional Conduct 3.7(a). The stricture is designed to avert confusion among fact finders, particularly jurors, about whether a lawyer is presenting facts or argument, the judge said. Preventing the appearance of unseemliness at the trial is also a goal, he added. “Limiting the disqualification to advocacy at trial achieves these objectives and at the same time respects a client’s right to be represented generally by an attorney of his choice,” the opinion said. The decision is important because there is no clear authority on the issue from the New Jersey Supreme Court. The ruling in Main Events Productions v. Jeff Lacy, Civ. 02-3028, allows Patrick English of Clifton, N.J.’s Dines & English to continue representing Main Events, a Totowa, N.J., boxing promoter suing Jeff Lacy, a rising star among superwelterweights, who wants to cancel a 2000 contract. English is a potential witness because he was Main Events’ contract negotiator and there is a disagreement over the parties’ intent when they crafted the cancellation clause Lacy is invoking. In August, at the urging of Lacy’s lawyers, U.S. Magistrate Judge Ronald Hedges ousted English from the case immediately, relying on the only precedent in the district, a ruling by Magistrate Judge Joel Rosen that has been cited in federal courts in other states. Rosen said in Freeman v. Vicchiarelli, 827 F. Supp. 300 (D.N.J 1993), that although the plain language of RPC 3.7(a) says lawyer witnesses are barred from acting “as advocate at a trial,” letting a lawyer serve in the case beforehand would defeat the inherent purpose of the ban. An attorney faced with disqualification might be too anxious to settle, and opponents might dig in their heels knowing the other side would have to find a new lawyer for the trial, Rosen said. The judge in the case might also be affected, he suggested. These “procedural distortions” raise the specter of appearance of impropriety and could harm adjudication on the merits, he concluded. Federal courts in Georgia and Colorado have come to the same conclusion, but those in the Virgin Islands and Pennsylvania have stuck to the plain language of the rule, and Debevoise did, too. At the same time, he suggested that the definition of a “trial” doesn’t necessarily mean the final climactic courtroom battle. It could also include a pretrial evidentiary hearing, such as one that was held in the Main Events case: a hearing for the plaintiff’s request for a preliminary injunction. Debevoise did not have to face that issue because Main Events appointed a co-counsel, Laurence Orloff of Roseland, N.J.’s Orloff, Lowenbach, Stifelman & Siegel, to handle the temporary restraints hearing and assist with anything that would be ethically awkward for English. Orloff would be the trial counsel if the case gets that far. “I took pains to avoid doing anything unseemly,” English says. He says he believes the other side tried to oust him for strategic reasons; as longtime Main Events counsel, he knows more about the plaintiffs’ case than anyone else. One of Lacy’s lawyers, David Picon, a senior counsel at New York’s Proskauer Rose, says, however, that his side pushed the motion because English would not concede that the restriction barred him from handling the temporary restraints hearing as well. Picon says Hedges’ ouster order was necessary to keep English out of that proceeding. Another Lacy lawyer, Judd Burstein, who heads a firm in New York, says he is not upset with the ruling. The goal was to get English out of trial work in the case. “Now that’s not going to occur, and we’re satisfied,” he says. Alan Lands, a solo practitioner in Pleasantville, N.J., familiar with the issue because he was the lawyer disqualified in Freeman, says most attorneys ousted under RPC 3.7(a) wouldn’t want to remain for the pretrial phase alone. In Freeman, a civil-rights case growing out of police conduct he had witnessed, Lands was hired on a contingency basis, and it did not make economic sense for his client to have two lawyers, one for discovery and one for the trial, he says. “I would think you don’t want to stay in the case if you can’t try it,” Lands says. For Debevoise, evaluating ethics rules is a personal tradition. In the early 1980s, he served as chairman of the New Jersey Supreme Court committee that examined the American Bar Association’s new model ethics code, most of which the court adopted. The dispute over RPC 3.7(b) is not the only issue in Main Events that pivots on the power of plain language. The central question in the underlying litigation appears to be this: What’s the definition of the word “both”? And the answer will determine whether Main Events of Totowa gets to keep the potential bonanza coming to whoever promotes Lacy, a 165-pound former Olympian whose professional record of 10-0 makes him a potential championship contender. A couple of boxing writers have written that he is so strong and mean that some opponents have cancelled fights by making suspect claims of illness. Pleadings in the federal case say the negotiations leading up to Lacy’s four-year contract in 2000 included a discussion of whether he would continue to work with Main Events if certain key executives left the company. That led to a contract clause that said Lacy could terminate the pact in 14 days “in the event that both Kathy Duva and Gary Shaw are no longer involved in the management.” Duva, the chief executive, remains in that post. Shaw was the chief operating officer and when he left in the spring, Lacy terminated the agreement. Main Events sought a restraining order to keep him from boxing for another promoter. As Debevoise saw it in a Sept. 4 opinion on the restraints case, it all boiled down to whether the escape clause was applicable if Duva or Shaw left or whether it could be applied only if Duva and Shaw left. So far, there has been no definitive answer. The relationship between the escape clause and the other parts of the agreement are an issue, making the intent of the parties ambiguous enough to warrant a trial, Debevoise found. He denied Main Events’ request for temporary restraints against the wandering Lacy, partly on grounds that keeping the fighter on the shelf during his prime would not be fair to him. If it turns out Main Events’ interpretation of the contract is correct, it can recoup its losses monetarily, Debevoise suggested. Picon says he thinks the denial of the temporary restraints using language that champions an athlete’s right to compete during contract disputes is more newsworthy than the ethics ruling. In the meantime, discovery is proceeding. And thanks to Debevoise’s ethics ruling, English will be participating.

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