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Darnell v. Merchant

United States District Court, D. Kansas

June 16, 2017

BOBBI DARNELL, Petitioner,
v.
JOHN MERCHANT, SHERIFF, BROWN COUNTY, KANSAS, and KICKAPOO TRIBE IN KANSAS, KICKAPOO RESERVATION, HORTON, KANSAS, Respondents.

          MEMORANDUM AND ORDER

          Teresa J. James, U.S. Magistrate Judge

         This case involves Petitioner Bobbi Darnell's petition for writ of habeas corpus (the “Petition”) for relief from her Kickapoo Tribal District Court (the “Tribal Court”) detention, conviction and sentencing. The matter currently pending before the Court is Darnell's Motion to Disqualify Counsel and Law Firm (ECF No. 12). Darnell requests that attorney Thomas Lemon be disqualified from representing Respondent Kickapoo Tribe in Kansas in this case, because he was the Special Prosecutor who tried the case against Darnell before the Tribal Court and he will be a necessary witness regarding the alleged improprieties and due process violations that are the basis for the petition for writ of habeas corpus. For the reasons set out below, the Court finds attorney Lemon is not likely to be a necessary witness in this case and therefore need not be disqualified from representing the Kickapoo Tribe. The motion will therefore be denied.

         I. Factual Background

         Darnell was convicted on March 9, 2017 in two cases before the Tribal Court of tampering with records, fraudulent handling of recordable instruments, and misuse of tribal funds. Although initially released on a cash bond pending sentencing, Darnell was subsequently arrested and has been incarcerated in the Brown County, Kansas Jail since March 31, 2017. On April 14, 2017, Darnell filed her petition for a writ of habeas corpus (the “Petition”). On April 24, 2017, Darnell was sentenced to 18 months and 22 months incarceration, to run concurrently, on her conviction in the two cases. On May 4, 2017, Darnell filed a supplement to her Petition. In her Petition and supplement, Darnell alleges that the Tribal Court committed a number of errors and improprieties with regard to her trial, sentencing, and incarceration, and that she was deprived of her liberty without due process of law as required under the Indian Civil Rights Act.[1] Lemon served as Special Prosecutor for the Kickapoo Tribe in prosecuting Darnell and tried her jury trial that is the subject of this habeas corpus action.[2]

         II. Summary of the Parties' Arguments

         Darnell contends that the Court should disqualify Lemon from representing the Kickapoo Tribe under Kansas Rule of Professional Conduct 3.7 (“KRPC”) because Lemon will be a material witness in any trial or evidentiary hearings regarding the Petition. Lemon will testify, according to Darnell, about the contested issues related to Darnell's prosecution in the Tribal Court. Darnell also contends that Lemon's client will not be prejudiced if Lemon is disqualified from representing it.

         The Kickapoo Tribe contends Lemon is not likely to be a necessary witness, and any testimony he would provide with regard to Darnell's allegations is not material to the determination of the issues being litigated in this case. It further argues all of the errors that Darnell relies upon occurred in open court and there are numerous other witnesses who could provide testimony, if any, with regard to those issues.

         III. Legal Standard for Disqualification of an Attorney Based upon KRPC 3.7(a) (The Advocate-Witness Rule)

         Two sources inform whether a district court should disqualify an attorney.[3] “First, attorneys are bound by the local rules of the court in which they appear. . . . Second, because motions to disqualify counsel in federal proceedings are substantive motions affecting the rights of the parties, they are decided by applying standards developed under federal law.”[4]

         The District of Kansas has adopted the Kansas Rules of Professional Conduct (“KRPC”) as the “applicable standards of professional conduct” for lawyers appearing in this Court.[5] The Court has the power to disqualify counsel at its discretion based upon these professional standards of ethics.[6] Because disqualification affects more than merely the attorney in question, the court must satisfy itself that this blunt remedy serves the purposes behind the ethical rule in question and that the motion is not being used as directed litigation strategy.[7]

         A motion to disqualify must be decided on its own facts, and the court must carefully balance the interest in protecting the integrity of the judicial process against the right of a party to have the counsel of its choice.[8] In deciding a motion to disqualify counsel, the trial court balances several competing considerations, including the privacy of the attorney-client relationship, the prerogative of a party to choose counsel, and the hardships that disqualification imposes on the parties and the entire judicial process.[9] “The right to counsel of choice is an important one subject to override for compelling reasons. Even so, this right is secondary in importance to preserving the integrity of the judicial process, maintaining the public confidence in the legal system and enforcing the ethical standards of professional conduct.”[10] A motion to disqualify counsel deserves serious, conscientious, and conservative treatment.[11]

         Kansas Rule of Professional Conduct (“KRPC”) 3.7, upon which Darnell relies as the basis for her request to disqualify Lemon, provides:

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(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.
(b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.[12]

         One of the strongest rationales for this lawyer-witness rule is to prevent jury confusion over the separate roles of an advocate and a witness.[13] This rationale is that combining the roles of advocate and witness has the potential to prejudice the opposing party because a jury may be unclear whether an attorney asked to testify is making a statement that should be taken as proof or as an analysis of the proof.[14]

         Under Kansas law, KRPC 3.7(a) “requires the opposing party to bear a higher burden on a disqualification motion, permits the court to delay ruling until it can be determined that no other witness could testify and obviates disqualification if the lawyer's testimony is merely cumulative.”[15] The District of Kansas uses the so-called Smithson test in determining whether potential testimony is necessary and whether counsel should be disqualified based on KRPC 3.7.[16]Under the Smithson test, a motion for disqualification should not be granted unless: (a) the attorney would give evidence that is material to the issue being litigated, (b) such evidence is unobtainable from other sources, and (c) the testimony is prejudicial or potentially prejudicial to the testifying attorney's client.[17] Disqualification will not be granted unless all three of the Smithson factors are met.[18]

         IV. Whether Lemon Should be Disqualified as a Necessary Witness Based on his Potential Testimony Regarding Darnell's Habeas Corpus Allegations A. Whether Lemon's Potential Testimony is Necessary

         Darnell lists five alleged errors in the proceedings against her that Lemon ...


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