Wendy E. Prince et al. v. Amy J. Greenberg (2010)

MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION TO DISQUALIFY (# 114.00)

This case comes to this court as a Motion to Disqualify attorneys Beverly M. Krieger and Alicia P. Chalumeau.   The plaintiffs claim Attorneys Krieger and Chalumeau should be disqualified.

This court has reviewed the briefs submitted by the parties, the motions submitted therein, and has heard the testimony of the witnesses.

The parties do not disagree on the law.   The parties agree that Rule 3.7 of the Rules of Professional Conduct provide “a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless:  ․” the key is whether these two attorneys are necessary witnesses.   The court finds that the testimony of a necessary witness is tested by two prongs:

1. First, the proposed testimony must be relevant and material.

2. It must be unobtainable elsewhere.

The second prong is the key prong to this test.   The parties have cited various cases in support of their positions.   This court is convinced after listening to the testimony of Amy Greenberg, that the testimony of Beverly M. Krieger is necessary.   Attorney Greenberg had in her testimony, many areas where she was not sure of Attorney Krieger's involvement on critical issues concerning shutting down the phones, emails, paying bills from new accounts, removing signs from the door, and the involvement of Attorney Krieger therein.   There are allegations that Attorney Krieger had knowledge of, or actively participated in Greenberg's conduct prior to separating from Plaintiff LLC, all as alleged in the complaint.   In addition, it is alleged that Attorney Krieger who is a partner of Greenberg LLP, has knowledge of, and actively participated in Greenberg's conduct at issue in this lawsuit, subsequent to separating from the Plaintiff LLC.

Further, it is alleged that Attorney Krieger has an interest in the Plaintiff LLC. Prince alleges that Prince and Greenberg were the only two members of the Plaintiff LLC, each having a 50% membership interest.   Greenberg, on the other hand, alleges that Attorney Krieger became a 25% member in Plaintiff LLC in July 2009, thereby reducing Princes' and Greenbergs' interest to 37.5% each.   Greenberg was sure that Attorney Krieger had nothing to do with moving the funds, but that is all subject to proper cross-examination, by calling Attorney Krieger to the stand.   Attorney Krieger may have a different recollection of all of this.

Most of the cases that raise this issue do not involve actual participants in the dispute.   One can see from the allegations of the complaint here, there is basically a dispute between Prince and Greenberg concerning Princes' allegations that Greenberg wrongfully did, or performed activities detrimental to Princes' claims.   These matters need full hearings, and the court is satisfied that Attorney Krieger is a necessary witness.

Accordingly, Attorney Beverly M. Krieger is disqualified in this case from participating as an attorney.

On the other hand, Attorney Alicia P. Chalumeau is not found to be a necessary witness, and accordingly, she is not disqualified.   Her involvement, this court finds, does not reach the level of a necessary witness under 3.7.   Accordingly, she is not disqualified.

SO ORDERED.

EDWARD R. KARAZIN, JR., J.T.R.

Karazin, Edward R., J.T.R.