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When Representation Goes Downhill: Husband Disqualified as Counsel in Products Liability Case

On Behalf of | Jul 1, 2015 | Firm News

The Case: Spencer v. BMW of N. Am., LLC, 2015 U.S. Dist. LEXIS 83112, (W.D. Tex. June 26, 2015).

Brief Facts:

On September 18, 2015, Erin Spencer was attempting to operate her BMW X5. She attempted to disengage the emergency brake, which she alleged was located at the back of the vehicle such that she could not disengage it from the driver’s seat.

When she exited the vehicle to do so, the brake unexpectedly disengaged, causing the BMW to roll down an incline. She alleged serious injuries to her arms, legs, and pelvis.

Her husband Jason Spencer (“Spencer”) represented her in the lawsuit against BMW. On June 9, 2015, BMW filed its Motion to Disqualify Counsel, arguing that (1) Spencer was a material witness in the case and (2) was his wife’s only witness as to the exact series of events leading to the accident. Defendant’s theory of the case was that Spencer released the parking brake at issue.

Spencer countered that his wife had already agreed to the representation and that the ethical rules were intended to protect clients, not defendants. Spencer further cited Tex. Disc. R. Prof’l Conduct § 3.08(a), which allows for representation where the attorney has notified opposing counsel and disqualification would impose “substantial hardship on the client.”

Spencer argued that disqualification would impose such a burden since his wife had visited numerous law firms, but had been unable to find any lawyer who would take her case.

The Decision by the U.S. District Court for the Western District of Texas:

The Court noted that, when addressing Motions to Disqualify, it must consider a court’s local rules along with the American Bar Association’s Model Rules of Professional Conduct and Model Code of Professional Responsibility-not to mention Texas’ own rules of professional conduct. Thus, the Court must weigh the purported benefits of each before making a determination, considering “whether a conflict (1) has the appearance of impropriety in general, or (2) a possibility that a specific impropriety will occur, and (3) the likelihood of public suspicion from the impropriety outweighs any social interests which will be served by the lawyer’s continued participation in the case.” Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001).

The Court ruled that Spencer was a necessary witness to the case and it granted the Defendant’s Motion to Disqualify. The Court reasoned that the case was the exact situation where disqualification is appropriate: Spencer will be called to testify as to his role in the accident and any liability attributed to him as a responsible third party will lessen the award he can win for his client.

The Court stated that it was bound by Fifth Circuit precedent where the attorney is a necessary witness and the balancing of prejudices weighs against representation.

What to Take Away:

Attorneys should always be wary of potential conflicts of interest when taking a case, but they should also be aware that an ethical dispute’s determination will necessarily depend on the ethical rules and case law in play. Here, the Court seemed to suggest that had it not been bound by Fifth Circuit precedent, the case would have been a closer one.


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