In Groper v. Taff, 230 U.S. App. D.C. 358, 717 F.2d 1415, 1418 (D.C.Cir.1983), this Circuit held that the application of DR 5-102(A) does not depend on whether a lawyer will be called as a witness, but on whether he ought to be called. However, the Groper court also noted that the decision on disqualification is left to the discretion of the trial judge. Groper, supra, 717 F.2d at 1418. Furthermore, the word "ought" implies some kind of necessity for the attorney's testimony, and may be distinguished from cases where the lawyer "may" be called. In the former case, the lawyer should be called regardless of whether the client would rather waive application of the disqualification rule. In the latter case, where a lawyer's testimony is not a necessity, a court, upon considering all relevant facts, may permit a client to waive the dictates of the rule. Healthcrest, Inc. v. American Medical International, Inc., 605 F. Supp. 1507, 1509 (N.D.Ga.1983).
This would seem the more rational approach in a case such as the one before this Court, where plaintiff has another witness, Dr. Wellner, who was intimately involved in the negotiation process and is available to testify from personal knowledge concerning the disputed factual issue. (Aff. of Wellner, para. 6). Furthermore, if the defendant wishes to call Mr. Stromberg despite plaintiff's decision to forego his testimony, defendant may do so even if plaintiff is represented by Hogan & Hartson. See Universal Athletic Sales Co. v. American Gym, et al., 546 F.2d 530, 539 (3rd Cir.1976), cert. denied sub nom. Super Athletics Corp. v. Universal Athletics Sales Co., 430 U.S. 984, 97 S. Ct. 1681, 52 L. Ed. 2d 378 (1977) (holding that where a lawyer's testimony is not indispensable, he should be allowed to testify even though his firm represented one of the parties). See also J.D. Pflaumer, Inc. v. Department of Justice, et al., 465 F. Supp. 746, 747 (E.D.Pa.1979) (holding that if a party in its own judgment determines an attorney's testimony is not crucial, the party may forego the lawyer's testimony and continue to be represented by him or his firm). Thus the case at hand may be distinguished from Groper because here, the attorney's testimony is not necessary to establish a crucial element of the case.
The present case may also be distinguished from Moyer v. 1330 Nineteenth St. Corporation, 597 F. Supp. 14 (D.D.C.1984), upon which defendant relies. In Moyer, the attorney was likely to be called to testify about allegations that he personally participated in falsifying an affidavit that was crucial to the case before the court. Id. at 15. Obviously, that situation implicates the integrity of the judicial system far more than the simple case presented here. Defendant further relies on MacArthur v. Bank of New York, 524 F. Supp. 1205 (S.D.N.Y.1981), which held that a client may not waive the protection of DR 5-102(A) where a lawyer "ought" to be called as a witness. However, that court also noted that the rule requires careful evaluation of the relevant issue upon which the lawyer might testify, and whether other testimony is available to resolve that issue. Id. at 1208. As noted above, that is exactly the case the Court has before it here.
In the alternative, Hogan & Hartson should be permitted to continue to represent plaintiff because to disqualify the firm would cause undue hardship to the Council. DR 5-101(B)(4). Hogan & Hartson is very familiar with the lengthy and complicated MacHovec litigation that underlies this case, while it would take several months for replacement counsel to master these details. Furthermore, if Hogan & Hartson is disqualified from representing plaintiff, defendant's counsel would likely be disqualified as well, because Mr. Coyne, who allegedly negotiated the settlement for defendant, is connected to the law firm representing defendant in the present litigation. Dual disqualification at this point would be extremely expensive for both parties and cause undue delay in the judicial process. The exceptions to DR 5-102(A) specifically allow representation to continue where a client would suffer substantial personal or financial hardship. DR 5-101(B)(4). This is such a case.
Under another exception to the disqualification rule, DR 5-101(B)(3), lawyers from Hogan & Hartson would be permitted to testify concerning a key issue in this litigation, the nature and value of the legal fees incurred in the MacHovec litigation. See Griesemer v. Retail Store Employees Union, etc., 482 F. Supp. 312, 315 (E.D.Pa.1980). At its heart, the major issue in this case is the reasonableness of the attorneys fees. Under DR 5-101(B)(3), Mr. Stromberg would be permitted to testify on that issue even if Hogan & Hartson represented the Council. Thus it would seem a hollow victory for ethics to invoke the disqualification rule here, where it would serve no other purpose than to run up legal bills (which defendant may in the end have to pay) while lawyers from Hogan & Hartson would be permitted to take the stand in any case.
In sum, where an attorney's testimony may be relevant but is not necessary to a case, the best approach is to consider the motion to disqualify in light of the total circumstances of the case, including the client's desires. The Court is also aware that DR 5-102(A) may be used as a delaying tactic and is on guard to prevent the rule from being so abused. See J.P. Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1360 (2d Cir.1975) (Gurfein, J., concurring); Greenebaum-Mountain Mortgage Co. v. Pioneer National Title Insurance Co., et al., 421 F. Supp. 1348, 1352 (D.Colo.1976). Because there are other witnesses available to testify concerning the settlement negotiations and the issue of bad faith, because there are exceptions to the rule that would permit Hogan & Hartson attorneys to testify in any case, and because the complaint presents preliminary evidence of intentional delay by defendant, the Court concludes the issue is best resolved by permitting the case to proceed with both parties represented by current counsel. Therefore, defendant's motion to disqualify plaintiff's attorney is denied.