The Trial Lawyers College v. Gerry Spences Trial Lawyers College at Thunderhead Ranch et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
THE TRIAL LAWYERS COLLEGE,
a nonprofit corporation,
Plaintiff, Counterclaim Defendant,
v. 	Case No. 1:20-cv-80-JMC
GERRY SPENCES TRIAL LAWYERS
COLLEGE AT THUNDERHEAD RANCH,
a nonprofit corporation,
THE GERRY SPENCE METHOD AT
THUNDERHEAD RANCH INC,
a nonprofit corporation, and
JOHN ZELBST,
JOSEPH H. LOW,
KENT SPENCE, and
DANIEL AMBROSE, individuals,
Defendants,
JOHN JOYCE,
Defendant, Counterclaim Plaintiff,
GERALD L. SPENCE, and
REX PARRIS, individuals,
Defendants, Counterclaim Plaintiffs, Third-Party Plaintiffs,
v.
JOHN SLOAN,
ANNE VALENTINE,
JAMES R. CLARY, JR,
MILTON GRIMES,
MAREN CHALOUPKA,
DANA COLE, individuals,
Third-Party Defendants,
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JOHN JOYCE,
Third-Party Plaintiff,
v.
F WARRIORS,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO DISQUALIFY
On September 30, 2022, Plaintiff The Trial Lawyers College filed a Motion to Disqualify
Attorney Haytham Faraj as Trial Counsel for Defendant John Joyce (Doc. 532) and memorandum
supporting the same (Doc. 533). Defendant John Joyce responded in opposition (Doc. 540). The
Court heard argument at a status conference on October 5, 2022. For the reasons stated below, the
Court grants Plaintiff’s motion.
I. 	Background
The background of this case is well-known to the parties. The Court will recount only the
facts necessary to understand the motion to disqualify. John Joyce is an attorney and a defendant
in this lawsuit. Initially, Joyce represented himself pro se. But in September 2021, two attorneys
appeared on his behalf: James Fitzgerald and Nafis Nina Hodjat (Docs. 220–22, 225). Despite this
representation, in the proposed pretrial order, Joyce stated that he would defend himself pro se at
trial. 	Then, last week, two other attorneys appeared on Joyce’s behalf: Vance Countryman and
Haytham Faraj (Docs. 515–17, 530). According to Countryman and Faraj, Joyce now wishes to
have Faraj represent him at trial. The instant motion seeks to disqualify Faraj because, earlier in
the case, Defendant Gerry Spence Method at Thunderhead Ranch Inc. (“GSM”) designated Faraj
as one of its corporate representatives and Faraj testified in that capacity.
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II. 	Applicable Law
The parties agree on the applicable law. 	“‘[T]he control of attorneys’ conduct in trial
litigation is within the supervisory powers of the trial judge,’ and is thus a matter of judicial
discretion.” Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994) (quoting Redd v.
Shell Oil Co., 518 F.2d 311, 314 (10th Cir. 1975)). 	“While the power to disqualify an attorney
from a case ‘is one which ought to be exercised with great caution,’ it is ‘incidental to all courts,
and is necessary for the preservation of decorum, and for the respectability of the profession.’”
United States v. Collins, 920 F.2d 619, 634 (10th Cir.1990) (quoting Ex Parte Burr, 22 U.S. 529,
529–30 (1824)). Motions to disqualify are governed by two sources of authority: (1) “the local
rules of the court in which they appear;” and (2) “standards developed under federal law.” Cole,
43 F.3d at 1383.
The focal point of this motion is Rule 3.7 of the Wyoming Rules of Professional Conduct,
which provides in relevant part:
(a) A lawyer shall not act as 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.
Wyo. RPC 3.7(a). Moreover, the Standard of Attorney Conduct in the United States District Court
for the District of Wyoming mandates: “[a]ttorneys shall at all times exercise professional
integrity, candor, diligence, and utmost respect to the legal system, judiciary, litigants, and other
attorneys.” Local Rule 84.1(a)(1).
As the moving party, Plaintiff has the burden of establishing grounds for disqualification.
Johnson v. King, 2011 WL 13093127, at *3 (D. Wyo. July 27, 2011) (citing Religious Tech. Ctr.
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v. F.A.C.T.Net, Inc., 945 F. Supp. 1470, 1473 (D. Colo. 1996)). “The ultimate burden of proof,
however, lies with the attorney . . . whose disqualification is sought.” Lowe v. Experian, 328 F.
Supp. 2d 1122, 1125 (D. Kan. 2004). Although sometimes a court requires an evidentiary hearing
before it enters an order disqualifying counsel, no such requirement exists when the parties have
fully briefed the issue and issues of fact are undisputed or adequately presented to the court. See
Weeks v. Indep. Sch. Dist. No. I–89 of Okla. Cnty., 230 F.3d 1201, 1212 (10th Cir. 2000).
III. 	Analysis
Plaintiff contends Faraj is a necessary witness to this litigation because of his role as a
board member and treasurer of GSM. 	According to Plaintiff, Faraj produced documents and
testified as GSM’s corporate representative as to GSM’s financial information. 	Joyce does not
dispute that Faraj was a corporate representative for some of GSM’s financial topics. 	Rather,
Joyce attempts to minimize the role and knowledge of Faraj, arguing that the financial documents
speak for themselves on an uncontested issue. 	Plaintiff pushes back on that characterization,
explaining that Faraj’s “testimony is essential to account for the extent of TLC’s damages and
profit losses attributable to GSM as a result of Defendants’ unlawful conduct” (Doc. 533 at 5).
Plaintiff further states its intention to call Faraj to testify as to GSM’s financial documents and
operations.
The Court agrees with Plaintiff that Faraj is likely to be a necessary witness in this case.
Plaintiff did not specifically request to depose Faraj, but did so because GSM designated Faraj as
one of its corporate representatives. Plaintiff’s damages and profit losses attributable to GSM are
relevant to Plaintiff’s claims in this case.
Joyce’s arguments in favor of one of Rule 3.7’s exceptions are unavailing. 	First, Joyce
contests the importance of Faraj’s testimony and says that, to the extent Plaintiff requires
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contextual foundation for GSM’s finances, Joseph Low (a named defendant and GSM’s other
corporate representative) is the proper witness. 	As mentioned above, however, the issue with
Joyce’s argument is that GSM chose to designate Faraj as the only corporate representative on
certain financial topics, and Plaintiff deposed Faraj in that capacity. Faraj thereby gave binding
testimony for a Defendant in this case—testimony for which Joyce and one of his other attorneys,
Hodjat, were present. In the filings so far, Defendants have made no concession as to damages.
Faraj’s anticipated testimony thus relates to an important, contested issue.
Second, Joyce argues that, even if Faraj is necessary and his testimony relates to a contested
issue, disqualification of Faraj would work a substantial hardship on Joyce. 	The hardship
exception “requires a balancing to determine its applicability.” 	Mt. Rushmore Broad., Inc. v.
Statewide Collections, 42 P.3d 478, 481 (Wyo. 2002) (discussing comments to Wyoming Rule of
Professional Conduct 3.7(a)(3)). That is, “balancing the likelihood of prejudice to the opposing
party . . . against the possible substantial hardship disqualification of the lawyer would have on his
client.” Id. Given that Faraj will likely provide testimony in this case, the possibility exists that
having Faraj testify and represent Joyce would adversely impact Plaintiff’s interests and confuse
the jury. Indeed, “[a] witness is required to testify on the basis of personal knowledge, while an
advocate is expected to explain and comment on evidence given by others. 	It may not be clear
whether a statement by an advocate-witness should be taken as proof or as an analysis of the
proof.” Wyo. RPC 3.7 cmt. 2. While a party denied their choice of counsel might always incur
some hardship, because Faraj entered his appearance last week (just two weeks before the start of
trial) and Joyce has other counsel of record (including Fitzgerald, who plans to represent other
defendants at trial), it is difficult to conclude that Joyce would incur substantial hardship should
the Court disqualify Faraj.
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Perhaps most problematic for Joyce is that one week before the pretrial conference, on
September 21, 2022, he (via Hodjat) listed Faraj as a “will call” witness in the parties’ proposed
final pretrial order. Joyce also informed the Court in that document that he would proceed pro se
at trial. Then, one day before the final pretrial conference, Faraj filed a motion seeking pro hac
vice admission to represent Joyce at trial. 	By Faraj’s appearance, Joyce—to the surprise of
opposing counsel and the Court—backtracked the positions he set forth a week earlier on his
counsel and, presumably, on the witnesses he plans to call. It would be manifestly unfair to the
parties in the case who have long planned to call Faraj as a witness if the Court were to allow Faraj
to now serve as Joyce’s attorney and a witness in the case. Cf. Monfore v. Phillips, 778 F.3d 849,
851 (10th Cir. 2015) (Gorsuch, J.) (explaining that final pretrial orders are not easy to modify “to
ensure everyone involved has sufficient incentive to fulfill the order’s dual purposes of
encouraging self-editing and providing reasonably fair disclosure to the court and opposing parties
alike of their real trial intentions.”). Thus, balancing the prejudice to Plaintiff against the hardship
to Joyce, the Court determines that the hardship exception is not applicable.
Finding no exception to Rule 3.7 applicable, the Court is left with the Rule’s mandate: “[a]
lawyer shall not act as advocate at a trial in which [he] is likely to be a necessary witness.” Wyo.
RPC 3.7(a). The Court is mindful that “showing a violation of a professional rule does not in every
case necessitate disqualification,” but in considering and balancing the facts here, disqualification
is the necessary remedy. Schneider v. CitiMortgage, Inc., 2014 WL 6632939, at *2 (D. Kan. Nov.
21, 2014). Faraj simply cannot be both attorney and witness in the context of this case where a
party previously designated him as a corporate representative and multiple parties—including
Joyce—listed him as a witness who will give testimony on a contested damages issue.
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IV. 	Conclusion
For the reasons set forth above, the Court GRANTS Plaintiff’s Motion to Disqualify
Attorney Haytham Faraj as Trial Counsel for Defendant John Joyce (Doc. 532).
IT IS SO ORDERED.
Entered for the Court
this the 6th day of October, 2022
/s/ Joel M. Carson III 	.
Joel M. Carson III
United States Circuit Judge
Sitting by Designation
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