concluding that under Prof.Cond.R. 3.7, a trial court could disqualify an attorney as counsel for her family, but could not disqualify her from representing herself
How later courts described this case
- concluding that under Prof.Cond.R. 3.7, a trial court could disqualify an attorney as counsel for her family, but could not disqualify her from representing herself
- affirming district court’s disqualification of counsel from representing her husband and child because she would be “providing substantial factual testimony that is central to” the case
- “A self-represented lawyer advances or argues only her cause. The concerns of impeachability and credibility that could potentially harm another person are not present.”
- “There are several federal courts that have addressed the issue and held that an attorney may always represent himself in his own litigation even if he must testify as to the substantive facts of the case. Most recently, in Cooke v. AT & T Corp., No. 2:05-CV-374, 2006 WL 1447415, at *3 (S.D.Ohio 2006), the court held that there was no basis under DR 5-102(A) for removal of an attorney from representing himself or his wife because the attorney had an unqualified right to represent himself in civil litigation in a federal court, his testimony is cumulative, he is already subject to cross-examination regarding his own case, and the jury would be able to understand that the attorney has a personal interest in the outcome of the two claims and it could evaluate the credibility of the attorney’s testimony on that basis.”
Written by the judges who cited it.
The opinion
Handwork, Judge,
dissenting.
{¶ 40} I write separately to dissent as to the majority’s ruling on the first assignment of error relating to the ability of attorney Horen to act as her own counsel and testify as to the facts of this ease. The cases cited by the majority are only persuasive authority. I believe that Prof.Cond.R. 3.7(a) speaks for itself when it provides: “A lawyer
shall not
act as an advocate at a trial in which the lawyer is likely to be a necessary witness* * *.” (Emphasis added.) The Preamble to the Ohio Rules of Professional Conduct states that “some of the rules are imperatives, cast in the terms ‘shall’ or ‘shall not.’ These define proper conduct for purposes of professional discipline.” Therefore, a literal reading of the new rule prohibits an attorney from acting as his own counsel even with respect to his own litigation. Employment as an attorney is not a part of the language of the Professional Conduct Rules as it was under the former ethical and Disciplinary Rules. Had the Ohio Supreme Court intended to provide an exception for attorneys acting as their own counsel, it could have done so. Therefore, I would conclude that it was not an abuse of discretion for the trial court to interpret the rule as it did and disqualify attorney Horen from acting as her own counsel in this ease.