EDWARD J. BYRNES vs. MARGUERITE JAMITKOWSKI & others. [Note 1]

IRELAND, J. The sole issue before us is the propriety of the allowance by a Superior Court judge of the plaintiff's motion to disqualify the defendants' counsel pursuant to S.J.C. Rule 3:07, DR 5-101 & 5-102, 382 Mass. 779 -780 (1981). [Note 2] See

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Superior Court Rule 12 (1974). The plaintiff filed a two-count complaint against the defendants. Count I alleged that the plaintiff was wrongfully discharged as an employee of the defendants. Count II alleged that, following the discharge, the parties orally agreed to a severance agreement which the defendants then violated. The defendants' answer to the complaint included an affirmative defense and a counterclaim, essentially alleging that the parties had reached a settlement agreement which the plaintiff now refuses to honor. More specifically, the defendants claimed that Mr. Earle C. Cooley, then counsel for the plaintiff, communicated to the defendants through their counsel, Mr. R. Robert Popeo, a specific offer to settle the dispute, and that Mr. Popeo then notified Mr. Cooley of the defendants' acceptance of the plaintiff's settlement offer. The defendants further asserted, however, that five days later Mr. Cooley informed Mr. Popeo

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that the plaintiff would not honor the settlement agreement and instead demanded that the defendants accept new and less favorable terms. The plaintiff denied the defendants' allegations and soon thereafter filed a motion to disqualify Mr. Popeo and his law firm from representing the defendants. Appended to the motion was the plaintiff's affidavit in which he stated that Mr. Cooley was never authorized to offer or accept any settlement agreement. Concluding that Mr. Popeo "ought to be called as a witness on behalf of his client," and that none of the exceptions of DR 5-101(B) applied, a Superior Court judge allowed the motion. We vacate that order. [Note 3]

Disciplinary Rule 5-102(A) provides that, subject to certain exceptions, a lawyer (and any member of his law firm) who learns that he "ought to be called as a witness on behalf of his client . . . shall withdraw from the conduct of the trial." Note 2, supra. Ever since the case of Borman v. Borman, 378 Mass. 775 (1979), the appellate courts of this Commonwealth have attempted to explicate the bare language of this rule. This has been particularly necessary because of the repeated use of a disqualification motion as a litigation tactic. The plaintiff in the present case argues, and the judge agreed, that Mr. Popeo "is a key player in this conflict and it is obvious that he, or a lawyer in his firm, ought to be called as a witness on behalf of his client." Borman, however, requires more searching inquiry. Disqualification is not required in every case in which counsel could give testimony on behalf of his client on other than formal or uncontested matters. We must look to whether the attorney is likely to "withhold crucial testimony from his client because he prefers to continue as counsel," Borman, 378 Mass. at 790, to determine if the "continued participation as counsel taints the legal system or the trial of the cause before it." Id.

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at 788. In sum, Borman "sounds a cautionary note about judicial disqualification of counsel." Serody v. Serody, 19 Mass. App. Ct. 411, 413 (1985). See also Gorovitz v. Planning Bd. of Nantucket, 394 Mass. at 250.

Upon review of the sparse record as it stands now (there has been no discovery), we conclude that the disqualification order was either unnecessary or premature. See Borman, 378 at 791. The plaintiff's affidavit only brings into issue whether Mr. Cooley had authority to bind his client to a settlement agreement. It is not clear, at this point, whether the existence of the settlement agreement, or its terms, are actually in dispute. If they are not, there is no basis for disqualifying Mr. Popeo. He could give no relevant testimony as to Mr. Cooley's authority. Cf. Black v. Black, 376 Mass. 929 (1978). If through discovery it should become clear that the agreement or its terms are in dispute, and the defendants cannot support their claim without their attorney's testimony, that will be the time to take appropriate action. We "defer to the best judgment of counsel and his client[s]" until such time as an "intention to forgo the testimony of counsel appears obviously contrary to the client[s'] interests." Borman v. Borman, 378 Mass. at 790-791. Mendel Kern, Inc. v. Workshop Inc., 400 Mass. 277, 281 (1987). See also Wellman v. Willis, 400 Mass. 494, 502 (1987).

Order of disqualification reversed.