United States District Court, N.D. Ohio, Eastern Division
JASON A. WHITACRE, Plaintiff,
NATIONS LENDING CORPORATION, et al., Defendants.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. PEARSON, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Jason Whitacre's Motion to
Disqualify Counsel. ECF No. 5. Defendants Nations Lending
Corporation and LoanCare, LLC have responded. ECF No. 9.
Plaintiff has not replied, and his time to do so has passed.
For the reasons that follow, the Court denies Plaintiff's
began working for Dinn, Hochman & Potter LLC
(“DHP”) as an attorney in April 2018. ECF No. 9-1
at PageID #: 144. During Plaintiff's employment with DHP,
he was directly supervised by attorneys Thomas Barni and
Benjamin Carnahan. ECF No. 5 at PageID #: 78. Attorneys Barni
and Carnahan are counsel of record for Defendants. Attorneys
Barni and Carnahan worked with Plaintiff while Plaintiff was
employed at DHP on several cases. ECF No. 9-1 at PageID #:
145. Some of these cases involved lender and loan servicer
litigation, and one or two of the cases may have involved
Defendant as a client. Id. at PageID #: 145-46.
Plaintiff worked with DHP for approximately nine months,
until separating from employment in mid-January 2019.
Id. at PageID #: 144.
filed suit in state court, alleging that Defendants violated
state and federal law in handling his mortgage loan. ECF No.
1-3. Plaintiff claims that, shortly after he filed his
lawsuit, Attorney Callahan called him. Attorney Callahan
allegedly notified Plaintiff that “Plaintiff's
Complaint had already been circulated amongst Plaintiff's
former supervisors and co-workers.” ” ECF No. 5
at PageID #: 79. Plaintiff's “concerns [about DHP
representing Defendants] were laughed at.” Id.
removal, Plaintiff filed his motion to disqualify DHP from
representing Defendants. ECF No. 5. He has filed no evidence
in support of his motion.
motions to disqualify counsel are ripe for abuse, they are
generally disfavored, and courts hesitate to grant them
unless absolutely necessary. See Melamed v. ITT Cont'l
Baking Co., 592 F.2d. 290, 295 (6th Cir. 1979); In re
Valley-Vulcan Mold Co., 237 B.R. 322, 337 (B.A.P. 6th Cir.
1999). A motion to disqualify is properly granted when a
moving party meets its burden of establishing the need for
disqualification. Nilavar v. Mercy Health Sys.-W.
Ohio, 143 F.Supp.2d 909, 912 (S.D. Ohio 2001). The trial
court need not hold an evidentiary hearing if the court's
factual inquiry can be conducted based on affidavits and
documents that would be acceptable under Rule 56, such
evidence is adequate for appellate review, and the matter can
be resolved without deciding disputed issues of fact. General
Mill Supply Co. v. SCA Servs., Inc., 697 F.2d. 704, 710 (6th
argues that disqualification is proper under Ohio Prof. Cond.
R. 3.7(a), claiming that his plans to call an unnamed DHP
attorney as a witness during trial requires the
disqualification of that attorney from representing
Defendants. Separately, Plaintiff urges the Court to
disqualify counsel under Ohio Prof. Cond. R. 1.7. He claims
that, should a DHP attorney testify as a witness, a conflict
of interest would arise between that attorney's interest
in zealously representing her client and her interest in
Ohio Prof. Cond. R. 3.7(a)
a lawyer may not act as an advocate in a matter in which the
lawyer is likely to be a “necessary witness.”
Ohio Prof. Cond. R. 3.7(a). A necessary witness is not simply
one who provides relevant or even highly useful testimony.
Akron v. Carter, 942 N.E.2d 409, 416 (Ohio Ct. App.
2010) (citation omitted). Rather, a necessary witness is one
who provides testimony that is material and relevant to the
issues being litigated and that the evidence is unobtainable
elsewhere. Id. The Court should consider “the
significance of the matters, weight of the testimony and
availability of other evidence. A party's mere
declaration of an intention to call opposing counsel as a
witness is an insufficient basis for disqualification even if
that counsel could give relevant testimony.”
counsel is a necessary witness in the matter, counsel may
still act as an advocate if “the testimony relates to
an uncontested issue” or “the disqualification of
the lawyer would work substantial hardship on the
client.” Ohio Prof. Cond. R. 3.7(a). The burden shifts
to the non-moving party and their counsel to prove that one
of these exceptions applies. 155 North High, Ltd. v.
Cincinnati Ins. Co., 650 N.E.2d 869, 874 (Ohio 1995).
fails to show that opposing counsel is a necessary witness to
this case. Rather, Plaintiff conclusively avers that
“attorneys and employees at the DHP Firm will be needed
to provide direct testimony regarding Plaintiff's claims
and damages, as well as authenticate records supporting his
claims. . . .” ECF No. 5 at PageID #: 82. He does not
identify the individuals whom he claims are necessary
witnesses. Nor has Plaintiff alleged how any DHP attorney
would be a ...