North Carolina Lawyers Weekly
Even though a lawyer generally may appear pro se, the court concludes, in a matter of first impression, that a court may disqualify a lawyer from appearing pro se in a particular case. The trial court did not abuse its discretion in disqualifying the defendant-attorney from representing himself in this legal malpractice action arising out of his representation of plaintiff while his license was suspended.
We affirm the trial court’s disqualification of defendant attorney Fine from representing himself or the defendant-law firm in this action.
Without informing plaintiff or the courts that his law license was suspended, Fine accepted fees from and represented plaintiff in litigation. In this malpractice action, plaintiffs sue both Fine and his law firm. Arguing that Fine would be a material and necessary witness in the litigation and that Fine’s representation of the firm would be materially adverse to plaintiff’s interests, plaintiff successfully moved to have Fine disqualified from representing himself and the firm in this litigation.
Law Firm
In a 2020 Ethics Opinion addressing N.C. R.P.C. 3.7, the State Bar Ethics Committee noted that, while Rule 3.7’s prohibition on a lawyer acting as both advocate and witness “does not automatically extend to a lawyer’s representation of a client in pretrial proceedings,” the court has discretion to disqualify a lawyer from pretrial proceedings “if the pretrial activities involve evidence that, if admitted at trial, would reveal the lawyer’s dual role.” 2020 Formal Ethics Opinion 3, no. 2, N.C. State Bar.
In this case, if admitted at trial, evidence obtained during pretrial depositions of Fine and other lawyers at the firm would reveal Fine’s dual role as it may not be clear to the jury whether they should take Fine’s deposition statements as proof or as an analysis of the proof. Therefore, the trial court did not abuse its discretion in disqualifying Fine from representing the firm under Rule 3.7.
Pro Se Appearance
In broad terms, litigants are permitted to appear pro se, regardless of whether the litigant is a lawyer or a layperson and even when a lawyer-litigant is likely to be a necessary witness. Nevertheless, 2011 Formal Ethics Opinion 1, Opinion no. 3, N.C. State Bar notes that “it is the sole prerogative of a court to determine advocate/witness issues when raised in a motion to disqualify.”
A lawyer’s right to be self-represented even when the lawyer is likely to be a necessary witness notwithstanding, the question remains whether circumstances may arise permitting a court to disqualify a lawyer from appearing pro se in a particular case. North Carolina courts do not appear to have addressed this question.
The State Bar Formal Ethics Opinion on the question suggests there may well be circumstances necessitating disqualification of a lawyer-litigant during the course of proceedings in an individual case. Moreover, North Carolina courts retain inherent disciplinary power to regulate attorneys appearing before the courts.
While it is apparent that the trial court did rely on Rule 3.7 in part for the basis of disqualifying Fine from representing both himself and the firm, it is also clear this was not the sole basis for disqualifying Fine. In fact, the trial court’s findings reflect the trial court’s concern that Fine would likely be the key witness with unique knowledge upon which both his and the firm’s liability might hinge. Further, the trial court’s findings reflect concern about Fine’s ability to operate and advocate objectively in this tripartite role of litigant, lawyer, and key witness as illustrated by Fine’s behavior and demeanor in this case including Fine’s own acknowledgment: “he was angry about being sued by Plaintiff and therefore his filed motions may reflect his emotional feelings…”
Moreover, the trial court’s findings also demonstrate the trial court’s additional concern about the interwoven relationships at the heart of this case including the attorney-client relationship between Fine and plaintiff, Fine’s relationship with the firm, and the firm’s role in collecting substantial fees from plaintiff for legal work while Fine was unlicensed. Finally, undergirding all of these concerns was the trial court’s recognition of Fine’s history of wrongful conduct as found by the North Carolina State Bar including: making “misleading statements [to clients] regarding the services Fine could provide”; making “a false statement to a tribunal by holding out in case filings as an actively licensed attorney in North Carolina despite being suspend at the time”; and charging or collecting “an illegal or excessive fee in violation of Rule 1.5(a).”
Given this litany of concerns, we cannot conclude the trial court’s exercise of its inherent authority to control proceedings—including control of the lawyers appearing before it—was arbitrary or unsupported by reason. Therefore, the trial court did not err in disqualifying Fine from appearing pro se and from representing the firm in this litigation.
Affirmed.
Rosenthal Furs, Inc. v. Fine (Lawyers Weekly No. 011-080-22, 17 pp.) (Toby Hampson, J.) Appealed from Durham County Superior Court (Orlando Hudson, J.) Randolph James for plaintiff; Andrew Fine for defendants. 2022-NCCOA-208
