Kubiak v. Hurr

• Decision Date: 29 August 1985
• Docket Number: Docket No. 75499
• Citation: 372 N.W.2d 341,143 Mich.App. 465
• Parties: Cheryl KUBIAK, Plaintiff/Counter-Defendant/Appellant, and James A. Kubiak, Plaintiff-Appellant, v. Theresa Margaret HURR, Defendant/Counter-Plaintiff/Appellee, and St. Joseph Hospital of Mt. Clemens, Michigan, a Michigan non-profit corporation, Defendant-Appellee, and Harvey I. Wax, and Sisters of Charity Health Care Systems, Inc., an Ohio non-profit corporation, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 341

372 N.W.2d 341

143 Mich.App. 465

Cheryl KUBIAK, Plaintiff/Counter-Defendant/Appellant, and James A. Kubiak, Plaintiff-Appellant, v. Theresa Margaret HURR, Defendant/Counter-Plaintiff/Appellee, and St. Joseph Hospital of Mt. Clemens, Michigan, a Michigan

non-profit corporation, Defendant-Appellee,

and

Harvey I. Wax, and Sisters of Charity Health Care Systems,

Inc., an Ohio non-profit corporation, Defendants-Appellants.

Docket No. 75499.

Court of Appeals of Michigan.

Submitted Nov. 13, 1984.

Decided June 4, 1985.

Released for Publication Aug. 29, 1985.

Levin, Levin, Garvett & Dill by Jeffery A. Heldt and Erwin E. Ellmann, Southfield, for Kubiak.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by John P. Jacobs, Detroit, for Wax.

Kitch, Suhrheinrich, Saurbier & Drutchas, P.C. by Ralph F. Valitutti and Robert M. Wyngarden, Detroit, for defendant-appellee St. Joseph Hosp.

Honigman, Miller, Schwartz & Cohn by William G. Christopher, William F. Frey and Lawrence Nathanson, Detroit, for defendant/counter-plaintiff/appellee Hurr.

Before HOOD, P.J., and BRONSON and TAHVONEN ^*, JJ.

PER CURIAM.

Appellants Harvey I. Wax and Cheryl and James Kubiak appeal by leave granted the November 28, 1983, orders denying a motion to sever and granting a motion to disqualify Wax as the Kubiaks' attorney.

On March 25, 1983, plaintiffs Cheryl and James Kubiak filed an action for harassment and defamation against defendant, Sister Theresa Margaret Hurr, and her employer, defendant St. Joseph Hospital of Mt. Clemens, Michigan. The complaint alleged that Hurr harassed and defamed Cheryl Kubiak by making statements regarding her sexual activities, dress habits and conduct in the hospital.

Before filing the complaint, the Kubiaks' attorney, Harvey Wax, wrote a letter on January 24, 1983, to Hurr and the Board of Trustees at the hospital stating the basis of Mrs. Kubiak's allegations and requesting a retraction. On February 24, 1983, Hurr's counsel sent Wax a letter denying the allegations and demanding retraction from Wax and Cheryl Kubiak. In a letter dated February 28, 1983, Wax acknowledged the invitation by Hurr's counsel to retract the statements but rejected it.

After the Kubiaks filed their lawsuit against Hurr, Hurr counterclaimed against Mrs. Kubiak and filed a complaint against Wax alleging defamation based on the excessive publication of the aforementioned letters and statements which formed the basis of a story published in the Macomb Daily newspaper.

Hurr's claim against Wax and counterclaim against Mrs. Kubiak were joined in one action with the Kubiaks' original complaint. On June 27, 1983, Mrs. Kubiak and Wax moved to strike the complaint and counterclaim on the grounds that publication of the prelitigation letters was absolutely privileged. This motion was denied by Judge Lawrence P. Zatkoff on August 26, 1983.

On September 2, 1983, Hurr and the hospital moved to disqualify Wax as the Kubiaks' attorney pursuant to DR 5-102, stating that they intended to call Wax as a witness to testify as to his and Cheryl Kubiak's intent in publishing the prelitigation letters. In response to this motion, Wax moved to sever the complaint against himself from the action between the Kubiaks and Hurr.

At a hearing on November 28, 1983, Judge Chrzanowski granted Hurr's motion to disqualify Wax and denied Wax's motion to sever. We review each decision of the trial court separately.

I The Motion For Disqualification

The motion for disqualification was based upon DR 5-102 which reads:

"(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).

"(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client".

The circumstances in DR 5-101(B), subds. (1)-(4) which form the exceptions to this rule are:

"(1) If the testimony will relate solely to an uncontested matter.

"(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

"(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.

"(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case".

Because Michigan law construing DR 5-102 is sparse, we turn to the general principles set forth in other jurisdictions for guidance on this issue.

Disciplinary Rule 5-102 was designed to protect the interest of all parties and the reputation of the legal profession by assuring the client and the bar of the independent judgment of trial counsel in situations where it would be in the client's interest to attack the credibility of a lawyer witness. Rice v. Baron, 456 F.Supp. 1361, 1370 (S.D.N.Y.1978). Naxon Telesign Corp. v. GTE Information Systems, Inc., 89 F.R.D. 333, 340 (N.D.Ill.1980). The rule was not drafted to permit a lawyer to call opposing counsel as a witness and to thereby disqualify him as counsel. Smith v. Arc-Mation, Inc., 402 Mich. 115, 261 N.W.2d 713 (1978); Rice v. Baron, supra. The prime factors to be considered in determining whether disqualification is necessary are whether the lawyer ought to be called and whether, if called by the opposing party, the testimony is likely to be prejudicial to the client. DR 5-102; Smith v. Arc-Mation, Inc., supra; MacArthur v. Bank of New York, 524 F.Supp. 1205, 1208 (S.D.N.Y.1981); Connell v. Clairol, Inc., 440 F.Supp. 17, 18-19 (N.D.Ga.1977); Field v. Freedman, 527 F.Supp. 935, 941 (D.Kan.1981). The testimony of the disqualified attorney need not be absolutely crucial for a disqualification motion to be granted, but neither can it be so insignificant that it raises suspicions that the motion is a tactical device. Freeman v. Kulicke & Soffa Industries, Inc., 449 F.Supp. 974, 977-978 (E.D.Pa.1978); MacArthur v. Bank of New York, supra, p. 1210.

The party seeking disqualification bears the burden of demonstrating specifically how and as to what issues in the case the likelihood of prejudice will result. Rice v. Baron, supra, p. 1371; Freeman v. Kulicke & Soffa Industries, Inc., supra. See Kroungold v. Triester, 521 F.2d 763, 766 (C.A. 3 1975). For testimony to be prejudicial within the scope of the disciplinary rule, the "projected testimony of a lawyer or firm member must be sufficiently adverse to the factual assertions or account of events offered on behalf of the client, such that the bar or the client might have an interest in the lawyer's independence in discrediting that testimony". Freeman v. Kulicke & Soffa Industries, Inc., supra, p. 977. See also Smith v. New Orleans Federal Savings & Loan Ass'n, 474 F.Supp. 742, 749-750 (E.D.La.1979); Rice v. Baron, supra, p. 1371.

In the present case, we agree that attorney Wax "ought" to be called as a witness in the action against him. However, because we believe the case against Wax should be severed from the action against Mrs. Kubiak, this conclusion is not dispositive of the disqualification issue. (See Issue II, infra.)

We do not agree, however, that Wax "ought" to be called as a witness in the action against his client. Hurr contends that an essential element of the libel action against Mrs. Kubiak is her state of mind in having the letters published. According to Hurr, Wax's testimony is essential in proving her intent and state of mind at the time the publications were made because Wax drafted and published the letters. Hurr further reasons that, if Wax testifies and supports Mrs. Kubiak's testimony, then Mrs. Kubiak will have a better chance at successfully defending against the defamation claim. Hurr concludes, therefore, that Wax's testimony is essential to Mrs. Kubiak's defense.

We cannot accept this reasoning. First, we find that Wax's testimony concerning Mrs. Kubiak's state of mind in having the letters published is prohibited by the attorney-client privilege. This privilege attaches to the confidential communications made by a client to his attorney acting as a legal adviser and made for the purpose of obtaining legal advice on some right or obligation. Alderman v. People, 4 Mich. 414 (1857). The purpose of the privilege is to allow a client to confide in his attorney secure in the knowledge that the communication will not be disclosed. Parker v. The Associates Discount Corp., 44 Mich.App. 302, 306, 205 N.W.2d 300 (1973).

While Hurr acknowledges that the communications between Mrs. Kubiak and her attorney concerning the substance of the letters may have been initially privileged, Hurr contends that publication of the prelitigation letters waived that privilege. We disagree.

Although either can assert the privilege, only the client may waive the privilege. Alderman v. People, supra; People v. Van Alstine, 57 Mich. 69, 78-79, 23 N.W. 594 (1885); Agee v. Williams, 17 Mich.App. 417, 169 N.W.2d 676 (1969). Professor Wigmore instructs that the client's offer of his own testimony in the case at large is not a waiver of the privilege. Otherwise the privilege of consultation would be exercised only at the cost of closing the client's mouth on the stand. Nor will the client's offer of his own testimony as to specific facts which he has happened to communicate to the attorney operate...