United States District Court, D. Nevada
DANA ANDREW, as Legal Guardian of RYAN T. PRETNER, and RYAN T. PRETNER, individually, Plaintiffs,
CENTURY SURETY COMPANY, et al., Defendants.
WEKSLER, UNITED STATES MAGISTRATE JUDGE.
before the court is Plaintiff's Counsel's Motion to
Withdraw as Attorney (ECF No. 293), Defendant's response
(ECF No. 296), and Plaintiff's reply (ECF No. 298), filed
on July 29, 2019, August 12, 2019, and August 19, 2019,
respectively. Plaintiff also filed an Errata to its Motion to
Withdraw as Attorney (ECF No. 295) on July 31, 2019.
Plaintiff's counsel's motion is granted for the
reasons discussed below.
is currently represented by the law firm formerly known as
Eglet Prince (now doing business as Eglet Adams). (ECF No.
293 at 2.) Plaintiff seeks to have this law firm withdraw as
Plaintiff's counsel. (Id.; ECF No. 295-1.)
Plaintiff further seeks to have Mr. Prince, who previously
represented Plaintiff while at Eglet Prince, remain on as a
lead counsel at his new firm, Prince Law Group. (ECF No. 293
at 2; ECF No. 295-1.)
does not oppose the law firm Eglet Prince (now doing business
as Eglet Adams) withdrawing as Plaintiff's counsel. (ECF
No. 296 at 2.) However, Defendant does oppose Mr. Prince
remaining on as lead counsel. (Id.) Defendant argues
that Mr. Prince will be a necessary witness at trial, and
therefore, under Nevada Rule of Professional Conduct 3.7(a)
(Lawyer as Witness), Mr. Prince cannot (1) take or defend
further depositions or (2) appear as trial counsel.
(Id.) Defendant requests that Eglet Adams only be
allowed to withdraw on the condition that Mr. Prince identify
counsel for Plaintiff other than himself within 30 days of
Eglet Adams' withdrawal. (Id.)
withdrawals are governed by Local Rule IA 11-6. This rule
provides that an attorney may not withdraw except by leave of
court after notice has been served on the affected client and
opposing counsel. LR IA 11-6 also provides that withdrawal
will not be allowed, except for good cause shown, if it would
result in a delay of discovery, trial, or a hearing.
Adams satisfied the requirements of LR IA 11-6. It gave
notice to the affected client. (See ECF No. 295-1
(affidavit explaining that the client requested that her case
be transferred to Mr. Prince at his new law firm).) Eglet
Adams also gave notice to opposing counsel by virtue of
filing its motion to withdraw and serving it on opposing
counsel. (See ECF No. 293.) Finally, neither party
argues that Eglet Adams' withdrawal would cause delay,
and it does not appear to the court that it would. Discovery
is closed, and no trial date is set. Accordingly, under LR IA
11-6, Eglet Adams met its burden to withdraw as counsel.
question remains, however, whether Mr. Prince should be
ordered to identify different counsel for further depositions
and trial given Defendant's argument that Mr. Prince will
be a necessary witness at trial.
3.7(a) of the Nevada Rules of Professional Conduct provides,
“[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.”
3.7(a) applies specifically to attorneys acting as counsel at
trial and is intended to prevent jurors from being confused
by an attorney acting in some respects as a witness and in
other respects as an advocate. Ahern Rentals, Inc. v.
Lexington Ins. Co., 2011 WL 13302279, at *2 (D. Nev.
Mar. 3, 2011); Pasina v. California Cas. Indem.
Exch., 2010 WL 11579016, at *3 (D. Nev. Feb. 12, 2010).
Accordingly, pretrial disqualification is generally not
necessary. Ahern Rentals, 2011 WL 13302279, at *2;
Pasina, 2010 WL 11579016, at *3 (“absent
demonstrated compelling circumstances[, ] pretrial
disqualification is generally not necessary”). However,
a lawyer may be required to limit his role prior to trial if
such “pretrial participation will create confusion and
prejudice to a jury.” Ahern Rentals, 2011 WL
13302279, at *2. Factors to consider when determining whether
pretrial disqualification is necessary include whether the
case is likely to go to trial, whether the evidence is
available from a source other than the lawyer, whether the
client prefers to have the attorney as an advocate rather
than a witness, whether either party is likely to be
prejudiced by allowing the lawyer to participate in
depositions, and whether there is any indication that the
lawyer's pretrial activity might reveal her dual role at
trial. Id. at *3.
court also notes that disqualification motions are to be
“subjected to ‘particularly strict judicial
scrutiny'” because of the potential for abuse.
Optyl Eyewear Fashion Int'l Corp. v. Style Companies,
Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985).
Defendant's request that Mr. Prince identify counsel
other than himself for further depositions and trial is
premature. As Plaintiff notes, discovery closed (meaning
there are no pending depositions) and no trial date is set.
(ECF No. 298 at 4; ECF No. 296 at 13.) Additionally, a
mediation is scheduled for October 2, 2019, meaning this case
may settle and never go to trial. (ECF No. 290 at 1.)
Accordingly, the court cannot engage in a meaningful analysis
of the factors listed above. Should the parties not settle