Levesque v. Lilley
| Decision Date | 03 January 2017 |
| Docket Number | SUPERIOR COURT CIVIL ACTION Docket No. CV-13-206 |
| Parties | PAUL LEVESQUE, et al, Plaintiffs v. DANIEL G. LILLEY, ESQ., et al, Defendants |
| Court | Maine Superior Court |
STATE OF MAINE
CUMBERLAND, ss.
Before the court is a motion by defendants to disqualify Attorney John Flynn from representing plaintiffs Paul and Ida Levesque on the only remaining issue in the case - the amended counterclaim by defendant Daniel G. Lilley Law Offices P.A for quantum meruit and/or unjust enrichment seeking to collect its share of the contingent fee obtained after a settlement of plaintiffs Paul and Ida Levesque's claim against Central Maine Medical Center.
The relevant procedural background is set forth in the court's order dated September 2, 2016 and is incorporated in this order by reference.
The Lilley Law Office's motion to disqualify is based on Rule 3.7(a) of the Maine Rules of Professional Conduct, which provides as follows:
It is evident that Attorney Flynn would be a necessary witness at trial. Although the Levesques argue that his testimony would be limited to the nature and value of his services so as to fall within the exception in Rule 3.7(a)(2), there is room for dispute on that score. Broadly speaking, Flynn's anticipated testimony would concern the nature and value of his own legal services, both when he was working for the Lilley Office and subsequently when he represented the Levesques after leaving the Lilley Office, and could also concern the nature and value of legal services performed by the Lilley Office apart from Flynn's involvement.1
On the other hand, given that the sole remaining issue in the case involves the respective contributions of the Lilley Office and of Flynn to the Levesques' recovery from Central Maine Medical Center - an issue which may well turn on the credibility of Flynn and other lawyers who may be called as witnesses - Flynn's potential testimony does not fall comfortably within the Rule 3.7(a)(2) exception. For instance, the Levesques may seek to introduce evidence of alleged mismanagement of the Levesques' medical malpractice claim by the Lilley Office before Flynn became involved, and the Lilley Office may seek to introduce evidence of alleged mismanagement of the Levesques' medical malpractice claim by Flynn after the Levesques ceased to be represented by the Lilley Office.2 Whether Flynn's potential testimony on those issues would fall within the Rule 3.7(a)(2) exception is an exceedingly close question.
At the same time, both the court and the parties have recognized that Flynn is the real party in interest in opposing the Lilley Law Office's counterclaim. See September 2, 2016 order at 8; Motion to Disqualify at 4 n.1; Opposition to Motion to Disqualify at 4. Thus, although the Levesques are nominally the defendants on the counterclaim, Flynn will in fact retain for his ownbenefit any portion of the $90,000 attorneys fee in his escrow account that is not awarded to the Lilley Law Office on its counterclaim.
In their opposition to the motion to disqualify, the Levesques argue that if the motion to disqualify is granted, Flynn would move to intervene as the real party in interest. On the present state of the record, the court cannot see any reason why that motion would not be granted.3 If Flynn intervened, moreover, he would be entitled to represent himself pursuant to Me. Const. Art 1, § 20 and 4 M.R.S. § 860. Although the court has not found any Maine cases on point, federal courts and courts in other jurisdictions have ruled that a lawyer's right to represent himself or herself trumps the "disqualification of lawyer as witness" rule. See, e.g., Duncan v. Poythress, 777 F.2d 1508, 1515 n.21 (11th Cir. 1985); Premium Products v. Pro Performance Sports LLC, 997 F.Supp.2d 433, 436 (E.D. Va. 2014); Gorovitz v. Planning Board of Nantucket, 475 N.E.2d 377, 379-80 (Mass. 1985); Farrington v. Law Firm of Sessions, Fishman, 687 So.2d 997, 999-1000 (La. 1997). Alternatively, Flynn could choose to be represented by counsel if he intervened, but that would be his decision to make.
Because Flynn could intervene as the real party in interest, the Levesques argue that disqualification would serve no purpose other than to prejudice the Levesques - against whom the counterclaim is nominally brought - by requiring them to hire counsel. While the Levesques may be required to remain in this case as nominal parties,4 the court sees no reason why they would be required to hire counsel or be represented by counsel. As a practical matter, theLevesques do not stand to lose or gain anything regardless of the outcome of the Lilley Law Office's claims for quantum meruit and unjust enrichment.5
Given all of the above, the court concludes that whether defendants' motion should be granted - and whether there is any point in going through the procedure of disqualifying Flynn but allowing him to intervene as the real party in interest - depends on whether the counterclaim will be tried to a jury or to the court. Comment [2] to Maine Rule 3.7 demonstrates that a primary purpose of the Rule is to avoid confusion by the trier of fact between a lawyer's role as advocate and his role as a fact witness. Such confusion is far more likely to occur in a jury trial than in a bench trial. Moreover, the Reporter's Notes suggest that a judge in a non-jury trial may use different factors in deciding whether a lawyer may testify.
The court recognizes that if Flynn intervenes and represents himself, there will still be some potential for jury confusion. However, that will at least be lessened if he is named as a party, and the jury can be instructed as to his dual role.
Whether the counterclaim will be tried to a jury or to the court depends on two issues. The first is whether either or both parties are still requesting a jury. A jury trial was requested and the jury fee was paid by the Levesques back in March 2014, but that was before the settlement of all claims except those relating to the attorneys fees in Flynn's escrow account. Both parties shall advise the clerk's office within 30 days whether a jury trial is still sought.
The second issue is whether the counterclaim should proceed to trial on both the Lilley Law Office's quantum meruit claim and on its unjust enrichment claim. The court expressed some doubt as to the viability of the quantum meruit claim in its September 2, 2016 order but ultimately reserved decision on that issue. This issue now has additional practical importance because parties have a right to a jury on quantum meruit claims and not on unjust enrichment claims.
Accordingly, any further memoranda of law that the parties wish to submit on the viability of the Lilley Office's quantum meruit claim shall also be submitted within 30 days.
The entry shall be:
1. The parties shall have 30 days to submit memoranda on the issue of whether the Lilley Law Office's counterclaim for quantum meruit should be dismissed.
2. The parties shall also advise the court within 30 days as to whether, under the current posture of the case, they are seeking a jury trial if the quantum meruit claim remains in the case.
3. If the quantum meruit claim is not dismissed and either party continues to request a jury trial, defendants' motion to disqualify Attorney John Flynn as counsel for the Levesques shall be granted without prejudice to Flynn's right to intervene as the real party in interest.
4. If the quantum meruit claim is dismissed or if both parties are no longer seeking a jury trial, defendants' motion to disqualify Attorney John Flynn as counsel for the Levesques shall be denied.
5. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
/s/_________
Thomas D. Warren
Justice, Superior Court
Before the court is a motion by plaintiffs-counterclaim defendants Paul and Ida Levesque for summary judgment on the remaining issue in the case - the amended counterclaim by defendant Daniel G. Lilley Law Offices P.A seeking to collect its share of the contingent fee obtained after a settlement of the Levesques' claim against Central Maine Medical Center.
As set forth in the court's order dated February 11, 2016 all the other claims in this case have been settled.
Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition tosummary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.
The following facts are based on factual assertions that are not disputed in the summary judgment record and on the Law Court's decision in Levesque v. Central Maine Medical Center, 2012 ME 109, 52 A.3d 933.
On February 28, 2007 the Levesques entered a contingent fee agreement with Daniel G. Lilley Law Offices P.A (Lilley Law Office) to pursue claims against Central Maine Medical Center (CMMC) based on alleged malpractice while Paul Levesque was an inpatient at CMMC...
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