CHARLES R. RICHEY, District Judge.
This case involves claims brought pursuant to 42 U.S.C. §§ 1981 and 1985, and a pendent defamation claim. The gravamen of the complaint by the six plaintiffs is that they were denied a contract to operate a coat-check room in a nightspot known as "Numbers" because some of them are black.
Plaintiffs are represented by two attorneys, David H. Shapiro and John R. Dugan, who are not members of the same law firm. In preparing the case, Mr. Shapiro interviewed the former manager of Numbers, Nestor Fernandez. Mr. Fernandez made statements highly prejudicial to the defendants. The statements were reduced to an "affidavit" on July 7, 1983, in Mr. Shapiro's law office. Subsequently, Mr. Fernandez, who is now a defendant in the case, recanted, via a deposition, virtually all of the allegations contained in the affidavit. In essence, Fernandez now asserts that the statements he made to Mr. Shapiro were totally false and motivated by a desire to get revenge because of his firing as the manager of Numbers. In the deposition, Mr. Fernandez also asserted, in essence, that Mr. Shapiro had put words in his mouth and that he did not know the meaning of some of the language found in the "affidavit." Serious questions have also been raised as to whether the "affidavit" was properly notarized by Mr. Shapiro's office manager.
The Court has already ruled that the "affidavit" is admissible at trial as a party admission, Federal Rule of Evidence 801(d)(2), and that its probative value is not substantially outweighed by the danger of unfair prejudice. Federal Rule of Evidence 403. As a result of that ruling, it became apparent to the Court that there was a possibility that Mr. Shapiro might become a witness in this case. The Court's concern with the ethical ramifications of such an event was immediately brought to the attention of all counsel. The Court "should sua sponte raise ethical problems involving danger to a just, speedy, and inexpensive remedy, even if the parties do not." General Mill Supply Co. v. SCA Services, Inc., 697 F.2d 704, 711-712 (6th Cir.1982).
The Court requested briefing on the issue by the parties and conducted a hearing into the matter. By agreement of all counsel, the court will treat the memorandum of the defendants as a motion to disqualify Mr. Shapiro from serving as counsel for the plaintiffs. Counsel for the plaintiffs have stated that they do not intend to call Mr. Shapiro as a witness, apparently believing their clients' interests can be served by cross-examination of Mr. Fernandez. However, defendants have stated that they will call Mr. Shapiro as an adverse witness at trial to examine him concerning the "affidavit," in light of the Fernandez deposition recanting the statements and accusing Mr. Shapiro of various matters adverse to his clients. Thus, there is no doubt that, if Mr. Shapiro is allowed to remain as counsel in this case, he will be acting in the dual roles of witness and attorney.
Attorneys appearing in this Court are governed by the Code of Professional Responsibility adopted by the District of Columbia Court of Appeals. Local Rule 4-3(IV)(b). Ethical Consideration 5-9 notes that "the roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state the facts objectively." The relevant Disciplinary Rule ("DR") is 5-102, "Withdrawal as Counsel When the Lawyer Becomes a Witness." That DR provides:
(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial. . . .
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.