United States District Court, E.D. Louisiana
WES W.C. JOHNSON
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
ORDER & REASONS
J. BARBIER, UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss Opposing Counsel
(R. Docs. 13, 17) filed by Plaintiff Wes “W.C.”
Johnson and an opposition thereto (R. Doc. 18) filed by
Defendants. Having considered the motion and legal
memoranda, the record, and the applicable law, the Court
finds that the motion should be DENIED.
AND PROCEDURAL BACKGROUND
lawsuit derives from an alleged breach of contract and
deprivation of constitutional rights. Plaintiff alleges that
he filed grievances with the national branch of the NAACP
pursuant to the NAACP's constitution and bylaws seeking
relief for inappropriate conduct by elected officers of the
New Orleans Branch of the NAACP (the New Orleans Branch).
Rather than investigate his claims, he alleges that the
national branch of the NAACP threatened to either dissolve
its New Orleans Branch or affect Plaintiff's membership
status to chill litigation. Plaintiff alleges that this has
resulted in difficulties in holding proper and lawful local
elections for NAACP branch members. Specifically, Plaintiff
alleges that the national branch of the NAACP has allowed
irregularities in the local elections and allowed ineligible
members to run and be elected to NAACP office positions.
Plaintiff argues he has been deprived of his constitutional
rights under the First, Sixth, Seventh, Ninth, and Fourteenth
Amendments to the United States Constitution. Plaintiff asks
this Court to force the national branch of the NAACP to
address his complaints as to the voting irregularities and to
require that all elections be rescinded until the proper
execution of the NAACP's constitutional protections can
be administered. Finally, Plaintiff seeks $100, 000 in
punitive damages to be given to the New Orleans Branch, a
judgment forcing Defendants to reorganize the NAACP's
constitution to comply with the United States Constitution,
and for all costs incurred.
23, 2017, Plaintiff moved to dismiss Defendants' counsel.
(R. Doc. 16.) In short, Plaintiff argues that if Mr. Danatus
King is permitted to act as defense counsel he will serve as
an “advocate witness, ” and because Mr. King is
on Plaintiff's witness list, he must be disqualified.
Defendants oppose the motion, R. Doc. 18, which is now before
the Court on the briefs and without oral argument.
seeks to dismiss Mr. King because Mr. King has a close
relationship with the national branch of the NAACP and was
allegedly counsel for, and former president of, the New
Orleans Branch. Further, Plaintiff argues that Mr. King was
placed on the Plaintiff's witness list before Plaintiff
realized that Mr. King would serve as defense counsel in the
instant case. Plaintiff alleges that because of Mr.
King's relationship with the New Orleans Branch, his role
as defense attorney impermissibly sways Plaintiff's own
witnesses against Plaintiff's interests. Also, Plaintiff
claims that after discovery, Mr. King may become a defendant
in this case for disrupting NAACP activities. Moreover,
Plaintiff alleges that because of Mr. King's knowledge
and relationships with individuals in the New Orleans Branch,
any discovery would be tainted by Mr. King's influence.
Finally, Plaintiff argues that Mr. King has served as counsel
for the Secretary of the New Orleans Branch, Ms. Laurene
McMillan, and the New Orleans Branch itself which he alleges
creates a conflict of interest.
response, Defendants present three arguments. First,
Defendants argue that this case is not yet at trial and Model
Rule 3.7 generally prevents conflicted counsel from
participating at trial. Second, Defendants argue that Mr.
King is not a necessary witness to this case. And finally,
Defendants argue that the neither the New Orleans Branch nor
Ms. McMillan have been Mr. King's clients. Accordingly,
Defendants argue that Plaintiff's motion should be
determine whether disqualification of counsel is appropriate,
district courts must examine the local rules, the rules that
govern attorneys practicing in the relevant state court, and
the America Bar Association's (“ABA”) Model
Rules of Professional Responsibility (“the Model
Rules”). CEF Funding, L.L.C. v. Sher Garner Cahill
Richter Klein & Hilbert, L.L.C., No. 09-6623, 2010
WL 2773116, at *2 (E.D. La. July 9, 2010) (citations
omitted). Courts must not apply these rules
“inflexibly” but must take into account the
social interests at stake and the right of a party to choose
its counsel and the right of attorneys to freely practice
their profession. Id. (citing SAS Overseas
Consultants v. Offshore Consultants USA, Ltd., 1998 WL
676992, at *1 (E.D. La. 1998)). In the Eastern District of
Louisiana, the relevant local rules, the Louisiana State bar
Association's Rules of Professional Conduct, and the
Model Rules are identical. Id. Plaintiff bears the burden
of demonstrating disqualification is warranted. In
re Duke Invs., 454 B.R. 414, 422 (S.D. Tex.
2011). Model Rule 3.7(a) provides that “a lawyer shall
not act as advocate at a trial in which the lawyer
is likely to be a necessary witness. . . .” CEF
Funding, 2010 WL 2773116, at *2 (emphasis added)
(quoting Model Rule 3.7(a)). Determining whether
disqualification is appropriate is a delicate procedure
particularly when a motion to disqualify comes at the early
stages of the litigation. See Leleux-Thubron v. Iberia
Par. Gov't, No. 13-0852, 2015 WL 339617, at *8 (W.D.
La. Jan. 23, 2015) (noting that Rule 3.7 “is couched in
the future tense and is therefore forward-looking toward
trial-related violations”). While Model Rule 3.7 states
that a lawyer-witness may be disqualified from acting as an
advocate at trial, with some exceptions, there is precedent
for dismissing an attorney from representation at any stage
of the proceedings “where the lawyer-witness's
testimony is likely to be prejudicial to his client.”
See Lange v. Orleans Levee Dist., No. 97-987, 1997
WL 668216, at *3 (E.D. La. Oct. 23, 1997) (citing Guar.
Corp. v. Nat'l Union Fire Ins. Co., No. 90-2695,
1993 WL 165690 (E.D. La. 1993))
has not met the heavy burden of proving that disqualification
of Mr. King is warranted. See CEF Funding, 2010 WL
2773116, at *2 (noting that a request for disqualification is
reviewed with “fairly strict scrutiny, ” and that
the party seeking disqualification bears a “heavy
burden of demonstrating that disqualification is
necessary”). Specifically, Plaintiff has not
demonstrated that Mr. King will be a necessary witness at
trial, that his testimony would prejudice his clients, or
that he may become a defendant to this lawsuit. This case
stems from the national branch of the NAACP's alleged
non-compliance with its internal constitutional procedures
and bylaws. While Plaintiff alleges that this non-compliance
was a result of some of Mr. King's actions, which led to
the alleged deprivation of Plaintiff's constitutional
rights,  the Court is unwilling to disqualify
Defendants' sole counsel without more information.
Further, although Plaintiff alleges that Mr. King's
representation will lead to an unfair advantage, conflict, or
some impropriety in this litigation, these allegations alone
are insufficient to demonstrate that disqualification is
necessary at this stage of the proceedings. See Fed.
Deposit Ins. Corp. v. U.S. Fire Ins. Co., 50 F.3d 1304,
1316 (5th Cir. 1995) (“[D]isqualificaiton is
unjustified without at least a reasonable possibility that
some identifiable impropriety actually occurred.”).
Finally, it is unclear due to the infancy of this litigation
whether Mr. King's association with New Orleans Branch or
Ms. McMillan is even relevant-neither is a party in this
litigation, and Mr. King submitted a sworn affidavit that he
has never served as legal counsel for either the New Orleans
Branch or Ms. McMillian. (R. Doc. 18-1.) Should it become
clear that Mr. King is a necessary witness, must become a
party to this action, or that an unwaivable conflict of
interest has arisen, the Court will determine whether Mr.
King must be disqualified as counsel for Defendants at that
time. However, the facts do not warrant dismissal at this
stage of the proceedings. See Lange, 1992 WL 668216, at
*3 (noting that courts “must be especially sensitive to
the potential for abuse when . . . the party seeking
disqualification is also the one wanting to call the attorney
as a witness.”).
IT IS HEREBY ORDERED that Plaintiff's Motion to