Gordon v. Impulse Marketing Group Inc Doc.

23
Case 2:04-cv-05125-FVS Document 23 Filed 02/15/2005

1 DOUGLAS E. MCKINLEY, JR.

2 Attorney At Law
P.O. Box 202
3 Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
4

10
IN THE UNITED STATES DISTRICT COURT
11 FOR THE EASTERN DISTRICT OF WASHINGTON
AT RICHLAND
12

13 JAMES S. GORDON, JR, )

an individual residing in )
14 Benton County, Washington. )
)
15 Plaintiff, ) NO. CV-04-5125-FVS
)
16 vs. )
) Plaintiff’s Response to
17 ) Defendant’s Motions for
) Mr. Klein, Mr. Glantz, and
18 ) Mr. Moynihan to participate
) Pro Hac Vice;
19 ) Certificate of Service
IMPULSE MARKETING )
20 GROUP, INC., )
a Nevada Corporation ) JURY TRIAL DEMANDED
21 )
)
22 )
Defendant. )
23 )
24

25
Plaintiff’s Response to Defendant’s Motions 1 DOUGLAS E. MCKINLEY, JR.
26 for Mr. Klein, Mr. Glantz, and Mr. Moynihan Attorney At Law
P.O. Box 202
to participate Pro Hac Vice, Certificate of Richland, Washington 99352
Service Phone 628-0809 Fax (509) 628-2307

Dockets.Justia.com
 Case 2:04-cv-05125-FVS Document 23 Filed 02/15/2005

1 COMES NOW the plaintiff, James S. Gordon, Jr., and files this
2
response to the Defendant’s Motions for Mr. Klein, Mr. Glantz, and Mr.
3

4 Moynihan to participate Pro Hac Vice.

6
The participation of Mr. Klein, Mr. Glantz, and Mr. Moynihan
7

8 Pro Hac Vice would appear to violate Rule 3.7 of the Rules of
9
Professional Conduct
10

11 This Court is currently scheduled to hear the Defendant’s motion to

12
dismiss the Plaintiff’s complaint on February 25, 2005. In substantial part,
13
the Defendant’s motion seeks to dismiss the Plaintiff’s complaint as being
14

15 barred by the doctrine of “res judicata.” To support the Defendant’s

16
contention, the Defendant has sought to convince the Court that the present
17
litigation involves “the same” commercial email messages as those
18

19 involved in a prior lawsuit against another party, and to further convince

20
the court that “privity” exists between the present Defendant and the
21

22 defendant in this prior lawsuit. The Defendant has urged the Court to

23 accept these conclusions, and has further urged the Court to treat these
24
conclusions as dispositive with respect to its motion to dismiss.
25
Plaintiff’s Response to Defendant’s Motions 2 DOUGLAS E. MCKINLEY, JR.
26 for Mr. Klein, Mr. Glantz, and Mr. Moynihan Attorney At Law
P.O. Box 202
to participate Pro Hac Vice, Certificate of Richland, Washington 99352
Service Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 23 Filed 02/15/2005

1 To establish both of these conclusions, Mr. Klein, (who now seeks

2
admission to argue this same motion before this Court), has submitted a
3

4 declaration, sworn to be true and under penalty of perjury, testifying that

5 “[t]he Related Action [the prior suit] arose out of the receipt of the same
6
commercial e-mails as allegedly transmitted by Impulse to Mr. Gordon in
7

8 the instant litigation.” (See ¶ 8, “Declaration of David O. Klein Esq. in

9
support of Defendant’s Motion to Dismiss Plaintiff’s Complaint,” dated
10
January 25, 2005, hereafter the “Klein declaration”) Notably, no other
11

12 evidence exists before the Court setting forth this assertion, and the
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Plaintiff has vigorously contested the truth of this assertion. (See page 7 of
14
Plaintiff’s Response to Defendant’s Motion to Dismiss Plaintiff’s
15

16 Complaint). Mr. Klein has further concluded that “[t]here exists a legal
17
relationship between CMG and Impulse sufficient to establish privity
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19 between them” and has testified to numerous factual assertions in an

20 attempt to bolster his conclusion. (See ¶¶ 9-13, 17, of the Klein

21
Declaration). The Defendant has also vigorously disputed this conclusion.
22

23 (See pages 10-16 of Plaintiff’s Response to Defendant’s Motion to Dismiss

24 Plaintiff’s Complaint). Thus, the Defendants are urging the Court to
25
Plaintiff’s Response to Defendant’s Motions 3 DOUGLAS E. MCKINLEY, JR.
26 for Mr. Klein, Mr. Glantz, and Mr. Moynihan Attorney At Law
P.O. Box 202
to participate Pro Hac Vice, Certificate of Richland, Washington 99352
Service Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 23 Filed 02/15/2005

1 dismiss the Plaintiff’s complaint based on disputed evidence that, in whole

2
or in part, is only before the Court as a result of Mr. Klein’s testimony at
3

4 the same time they are seeking admission for Mr. Klein to argue the

5 Defendant’s motion based on that same evidence. Such conduct would

6
appear to run afoul of Rule 3.7 of the Washington State Court Rules of
7

8 Professional Conduct.
9
RPC 3.7 states:
10
A lawyer shall not act as advocate at a trial in which the lawyer or
11 another lawyer in the same law firm is likely to be a necessary witness
except where:
12 (a) The testimony relates to an issue that is either uncontested or a
formality;
13 (b) The testimony relates to the nature and value of legal services
rendered in the case; or
14 (c) The lawyer has been called by the opposing party and the court
rules that the lawyer may continue to act as an advocate; or
15 (d) The trial judge finds that disqualification of the lawyer would
work a substantial hardship on the client and that the likelihood of the
16 lawyer being a necessary witness was not reasonably foreseeable before
trial.
17

18
As set forth above, Mr. Klein’s testimony is not uncontested. Mr.
19

20 Klein’s testimony is also not a formality. Indeed, if the Court accepts both
21 the Defendant’s arguments regarding res judicata and further accepts Mr.
22
Klein’s testimony as factual, it is dispositive. Mr. Klein’s testimony has
23

24 nothing to do with the value of legal services, nor is it before the Court as a
25
Plaintiff’s Response to Defendant’s Motions 4 DOUGLAS E. MCKINLEY, JR.
26 for Mr. Klein, Mr. Glantz, and Mr. Moynihan Attorney At Law
P.O. Box 202
to participate Pro Hac Vice, Certificate of Richland, Washington 99352
Service Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 23 Filed 02/15/2005

1 result of any action on the part of the plaintiff. Mr. Klein’s testimony was
2
obviously foreseeable; it was on the Defendant’s own initiative that it was
3

4 entered into evidence. Finally, the disqualification of Mr. Klein would not

5 appear to work a substantial hardship on the Defendant. Mr. Ivey has been
6
representing the Defendant throughout the entire duration of the
7

8 proceedings, is a member in good standing of both the bar of the State of

9
Washington and this court, and is well versed in both the substantive
10
Washington law that governs this case and the rules and regulations
11

12 governing the procedural aspects of practice before this Court. On all of

13
these issues, Mr. Klein’s motion for admission Pro Hac Vice at this late
14
date speaks for itself.
15

16 With respect to Mr. Glantz, and Mr. Moynihan, both are partners or
17
associates of Mr. Klein. Accordingly, the appearance of either would also
18

19 appear to violate RPC 3.7. The Washington State Bar Association

20 addressed this issue in its formal published opinion No. 110. The opinion
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reads as follows:
22

23
Formal Opinion 110
(1962)
24
Lawyers as Witnesses

25
Plaintiff’s Response to Defendant’s Motions
26 for Mr. Klein, Mr. Glantz, and Mr. Moynihan
to participate Pro Hac Vice, Certificate of
Service
5 DOUGLAS E. MCKINLEY, JR.
Attorney At Law
P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 23 Filed 02/15/2005

1 You have requested the opinion of the Committee on certain

situations involving lawyers as witnesses. You have given us certain
2 hypothetical cases and queries which we shall set forth in the order
given to us followed by our opinions.
3
"1. A, B, C and D is a law partnership representing a client in a
4 personal injury action. X is an employed associate of that
partnership. The partnership represents a personal injury plaintiff on
5 a basis of a contingent fee. During the trial of the case, X, the
associate, is called as a witness to testify to the existence or non-
6 existence of material facts relating to the main issues (as
distinguished from purely formal facts). X did not have prior
7 knowledge of any of these facts but went to investigate the subject
of his testimony after the case arose and was referred to A, B, C and
8 D.
9 "Query: Is there any difference in principle in this situation and in
the situation of In Re Thorstensen’s Estate, 28 Wn. 2d. 837, and
10 Leoas v. Dewey 33 Wn. 2d. 232, and other such similar cases?"
11 Opinion: The opinions of the American Bar Association and the
statements of the courts and particularly our own Supreme Court
12 indicate that Canon 19 is to be strictly construed with certain
exceptions that are not applicable here. This canon reads as follows:
13 ‘When a lawyer is a witness for his client except as to merely formal
matters such as the attestation or custody of an instrument and the
14 like, he should leave the trial of the case to other counsel. Except
when essential to the ends of justice, a lawyer should avoid
15 testifying in court in behalf of his client."
16 It has been held in numerous opinions that the disability of a partner
in a law firm is the disability of all the partners. It is the opinion of
17 the Committee that the same disability exists as far as employed
associates of the law firm are concerned and that it is not ethical for
18 a lawyer, his partner, or his associate to testify in court in behalf of
his client except as to merely formal matters.
19
We believe that the same principles and logic which made the canon
20 necessary would apply to the lawyer’s associates as well as his
partner.
21

22 The Plaintiff realizes that motions to admit attorneys Pro Hac Vice
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are rarely, if ever, contested. However, the facts of the instant case appear
24

25 to present a unique and troubling circumstance. Since the Washington

Plaintiff’s Response to Defendant’s Motions
26 for Mr. Klein, Mr. Glantz, and Mr. Moynihan
to participate Pro Hac Vice, Certificate of
Service
6 DOUGLAS E. MCKINLEY, JR.
Attorney At Law
P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 23 Filed 02/15/2005

1 State Supreme Court’s rulings and the Washington State Bar’s ethics
2
opinions all seem to regard either a lawyer or his partners and associates
3

4 appearing as an advocate in a matter where the lawyer has provided

5 material testimony as unethical, the Plaintiff respectfully requests that the

6
Court deny the motions of Mr. Klein, Mr. Glantz and Mr. Moynihan to
7

8 participate pro hac vice.

9

10 DATED this 15th day of February, 2005

11
S/ DOUGLAS E. MCKINLEY, JR.
12 . WSBA# 20806
Attorney for Plaintiff
13 P.O. Box 202
Richland, Washington 99352
14 Phone (509) 628-0809
Fax (509) 628-2307
15 Email: doug@mckinleylaw.com
16 Certificate of Service
17 I hereby certify that on February 3, 2005, I electronically filed the foregoing,
together with a Declaration of James S. Gordon, Jr., with the Clerk of the
18 Court using the CM/ECF System which will send notification of such filing
to the following: Floyd Ivey, and I hereby certify that I have mailed by
19 United States Postal Service the documents to the following non-CM/ECF
participants: David O. Klein, Peter J. Glantz, Sean A. Moynihan.
20
S/ DOUGLAS E. MCKINLEY, JR.
21 . WSBA# 20806
Attorney for Plaintiff
22 P.O. Box 202
Richland, Washington 99352
23 Phone (509) 628-0809
Fax (509) 628-2307
24 Email: doug@mckinleylaw.com
25
Plaintiff’s Response to Defendant’s Motions 7 DOUGLAS E. MCKINLEY, JR.
26 for Mr. Klein, Mr. Glantz, and Mr. Moynihan Attorney At Law
P.O. Box 202
to participate Pro Hac Vice, Certificate of Richland, Washington 99352
Service Phone 628-0809 Fax (509) 628-2307