United States District Court, E.D. Wisconsin
NANCY DEWEY individually and as a trustee, THE NANCY DEWEY LIVING TRUST, THE NANCY DEWEY 2015 NEA GRANTOR RETAINED ANNUITY TRUST, THE NANCY DEWEY 2015 P&D GRANTOR RETAINED ANNUITY TRUST, THE IRREVOCABLE TRUST FOR THE GRANDCHILDREN OF NANCY AND DOUGLAS DEWEY, JOHN DEWEY individually and as a trustee, THE JOHN D. DEWEY LIVING TRUST, THE JOHN D. DEWEY IRREVOCABLE CHILDREN'S TRUST, THE ABIGAIL DEWEY IRREVOCABLE TRUST, THE ERIN DEWEY IRREVOCABLE TRUST, THE IAN DEWEY IRREVOCABLE TRUST, THE SHEAMUS DEWEY IRREVOCABLE TRUST, THE ABIGAIL DEWEY DESCENDANTS TRUST, THE ERIN DEWEY DESCENDANTS TRUST, THE IAN DEWEY DESCENDANTS TRUST, THE SEPARATE TRUSTS FOR IAN DEWEY, SHEAMUS DEWEY, ERIN DEWEY, ABIGAIL DEWEY, and THE SHEAMUS DEWEY DESCENDANTS TRUST, Plaintiffs,
KURT BECHTHOLD, MARK FILMANOWICZ, DAVID BECHTHOLD, PAYNE & DOLAN, INC., NORTHEAST ASPHALT, INC., CONSTRUCTION RESOURCES MANAGEMENT, INC., ZENITH TECH, INC., and TIMBERSTONE OF RICHFIELD, INC., Defendants.
Stadtmueller U.S. District Judge.
September 10, 2019, Plaintiffs filed a motion to disqualify
attorneys Bryan House (“House”) and Thomas
Shriner (“Shriner”), who are longtime
representatives of Defendants. (Docket #135). On September
20, 2019, Defendants responded with a motion for a protective
order regarding the depositions and a motion to quash the
depositions of House and Shriner. (Docket #170, #171). Those
motions are all fully briefed. For the reasons explained
below, Plaintiffs' motion to disqualify House and Shriner
will be denied without prejudice. Defendants' motions for
a protective order and to quash the depositions will also be
House and Shriner were to be deposed before the briefing on
these motions was complete, they attended their depositions.
(Docket #190). However, they were inflexible as to what they
could be deposed about, and refused to answer many of
Plaintiffs' questions. Following these depositions,
Defendants filed a motion to terminate or limit the
depositions to the single subjects about which the deponents
had discussed in their declarations. (Docket #191).
Plaintiffs, perceiving things very differently, filed an
expedited motion to continue the depositions and compel
testimony. (Docket #198). Both motions will be denied as moot
for the reasons explained below.
Court will order the parties to resume the depositions of
House and Shriner forthwith. As is customary, the attorneys
will be able to depose House and Shriner on a range of issues
in order to source discoverable information. Once the
depositions are complete, the parties should explore the
possibility of stipulating to House and Shriner's
testimonies so that there is no issue of fact that would
necessitate testimony at trial. If a stipulation cannot be
reached, Plaintiffs may submit a renewed motion to disqualify
trial counsel. However, they must include deposition
transcripts of the proffered testimony that they believe is
necessary, as well as evidence from the record that makes
clear that the testimony is contested. If the Court is
persuaded that House and Shriner will be required to testify
at trial, then they will be precluded from serving as trial
counsel so as to avoid confusing a jury. However, they will
still be permitted to assist in the preparation of the case
for trial. On the other hand, if Plaintiffs fail to show any
genuine dispute of fact as to House and Shriner's
testimony, the testimony will be treated as uncontested, and
House and Shriner will be permitted to remain as trial
MOTION TO DISQUALIFY
advocate-witness rule generally bars a lawyer from acting as
both an advocate and a witness in the same proceeding except
under special circumstances.” United States v.
Jones, 600 F.3d 847, 861-62 (7th Cir. 2010). Federal
courts look to the relevant state court rules of professional
conduct to determine the contours of the attorney-witness
rule in a given state. Crafton v. Law Firm of Jonathan B.
Levine, 12-CV-602, 2013 WL 3456982, at *1 (E.D. Wis.
Jul. 9, 2013) (citing Diettrich v. N.W. Airlines,
Inc., 168 F.3d 961, 964 (7th Cir. 1999) (applying the
Wisconsin Rules of Professional Conduct to evaluate a trial
attorney's misconduct in the district court)).
Wisconsin's advocate-witness rule is set forth in
Wisconsin Supreme Court Rule 20:3.7, which states that
(a) A lawyer shall not act as an 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.
trial court has broad discretion to allow an attorney to
testify in a case in which he or she is an advocate.
State v. Foy, 557 N.W.2d 494, 499 (Wis. Ct. App.
1996); Harris v. State, 354 N.W.2d 291, 298 (Wis.
1977) (declined to follow on other grounds by Wilson v.
State, 264 N.W.2d 234, 237 (Wis. 1978)). “There
is, however, a longstanding ethical prohibition against an
attorney testifying for his or her client in most
cases.” Foy, 557 N.W.2d at 499. “The
rule recognizes the danger that an attorney might not be a
fully objective witness, as well as the risk that a jury
could confuse the two roles when deciding how much weight to
accord to a testifying attorney's statements.”
Jones, 600 F.3d at 862. Accordingly, “courts
should not usually permit an attorney who is an advocate in a
trial to testify in that trial, especially where the value of
the testimony is small or collateral to the ultimate
issues.” Foy, 557 N.W.2d at 499.
party seeking disqualification based on [Rule] 20:3.7 has the
burden of proving the necessity for disqualification.”
State v. Gonzalez-Villarreal, 824 N.W.2d 161, 164
(Wis. Ct. App. 2012). On the other hand, when an attorney
knows in advance of trial that “his testimony will be
required, ” it is “improper for [the] attorney to
continue to conduct litigation.” In re Elvers'
Estate, 179 N.W.2d 881, 884 (Wis. 1970). “If an
attorney is to be a witness, he is under a duty to withdraw
from the litigation.” Id.
Relevant Procedural Background
First Amended Complaint alleges several claims against
Defendants including fraud, breach of fiduciary duty, and
shareholder oppression. See (Docket #45 at 34-44).
In support of these claims, Plaintiffs include excerpts of
one of House's emails, which discusses whether John Dewey
(“John”) would be estopped from challenging the
validity of the 2014 transfer restriction. Id.
¶ 40. The email was sent to Plaintiffs' attorney,
Vincent Louwagie (“Louwagie”). (Docket #114
¶ 8). Louwagie and House discussed the proposed language
of the transfer restriction, and contemplated the effects of
the bylaw provision on the pending litigation. Id.
¶¶ 8-12. Based on this email, Plaintiff contends
that “the Companies are estopped from asserting that
John voted in favor of the 2014 Restriction.” (Docket
#45 ¶ 91). The complaint also references
“misrepresented” or “false” property
lists as one of the bases for their claims of breach of
fiduciary duty and fraud. Id. ¶¶ 6, 64,
73. Shriner was the attorney who drafted these property
lists; he communicated about them with another of
Plaintiffs' attorneys, Ralph Weber (“Weber”).
August 15, 2019, Defendants moved for summary judgment.
(Docket #110). In lieu of deposing and providing affidavits
from individuals who are not litigating the case but might
have had knowledge of the disputed issues, such as, for
example, Louwagie, Weber, the Bechthold brothers, Mark
Filmanowicz, or John Dewey, ...