OK, so we're pushing what that case says a little; it's argument, isn't it?"
RULE 11: Federal Circuit Affirms Reprimand for DOJ Attorney for Misleading Quotations of Law

In a lesson to motion writers everywhere, the Federal Circuit affirmed the reprimand of a U.S. Department of Justice lawyer, under a rule identical to Federal Rule of Civil Procedure 11, for misleading omissions in a brief. Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346 (Fed. Cir. Jan. 13, 2003). What the court called the "doctored quotations" dealt with the meaning of the term "forthwith." It probably didn't help the lawyer's cause that the term was used in an order denying her an extension to respond to a summary judgment motion and ordering the filing of a response "forthwith." The lawyer had initially moved for a 30-day extension to answer a motion for summary judgment. The court denied the extension and ordered the lawyer to file the response "forthwith." Twelve days later, the lawyer filed the response. The court struck the response and granted the other party a summary judgment. In a motion to reconsider this order, the DOJ lawyer omitted one of two sentences and a citation from a quotation in a parenthetical following the citation of a decision. She also omitted a reference to a specific statute from a Scalia dissent. The trial court reprimanded the lawyer, and the Federal Circuit affirmed, holding that the omissions violated Rule 11.

 the firm had erected a screen; 

Federal Courts.  Orders granting or denying motions to disqualify under 28 U.S.C. § 1291 are not appealable.  Richardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985) (order granting motion to disqualify); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (order denying motion to disqualify).

Conflict must cause "actual prejudice" to justify disqualification.  Smith v. Coleman, 2004 Mich. App. LEXIS 1730 (Mich. App. June 24, 2004).  

Agent for service of process.  Serving as an agent for service of process could create conflicts problems.  Springtree Country Club Plaza, Ltd. v. Blaut, 642 So. 2d 27 (Fla. App. 1994).

*The 4th DCA quashed an order disqualifying an attorney from representing plaintiffs in a civil battery.
The trial court ordered the disqualification because the lawyer was a witness to the battery, which took
place in the courthouse. The clients appealed the trial court, stating that their former attorney was not
the only witness in the case and should not be disqualified just because the attorney might be a witness.
The appellate court followed Columbo v. Puig, 745 So.2d 1106 (Fla. 3d DCA 1999), in stating that
the attorney should not be disqualified from participating in pre-trial proceedings, but noted that the
attorney "cannot, however, try the case if he will be a witness at trial.” Cerillo and Delaney v. Highley
and Steele, 26 Fla. L. Weekly D2592 (Fla. 4th DCA October 31, 2001).


It then noted that "[m]atters are ‘substantially related' if "‘the factual contexts of the two representations are similar or related.'" 1999 WL 512501 at *2, quoting State v. Hunsaker, 74 Wash.App. 38, 43, 873 P.2d 540 (1994).

"substantially related matter."

A review of the entire transcript  shows that the excerpts set forth in Appellees’ Brief are mis-characterizations and statements taken out of context.

In construing and evaluating decisions and their rationale, counsel have a duty not to lift words out of context.69. See Coleman v. State, 215 So. 2d 96, 96 (Fla. 4th DCA 1968). 

Conflict Charged by an Opposing Party

[15] Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See Scope.


Rule 3.7 Lawyer as Witness SCBAR

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue; 

(2) the testimony relates to the nature and value of legal services rendered in the case; or 

(3) disqualification of the lawyer would work substantial hardship on the client. 

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.


Rule 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal; 

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; 

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. 


Rule 3.7 includes three exceptions to disqualification. First, if the issue for which the lawyer's testimony is needed is uncontested, there is then no conflict between the roles of advocate and witness and no disqualification is required. Rule 3.7 (a)(1). A lawyer also may testify without disqualification as to the nature and value of legal services rendered in a case. Finally, an advocate may testify if disqualification "would work substantial hardship on the client." In determining whether this final exception applies, it is relevant whether the parties reasonably could have foreseen the problem arising. Rule 3.7, cmt.

Rule 3.7 disqualifies a necessary witness only from serving as "advocate at a trial." A South Carolina advisory opinion has interpreted that language narrowly to allow a lawyer, who is disqualified from trial, to continue to assist other counsel in preparation of the case. The opinion also suggests that the disqualified lawyer even may participate in certain pretrial proceedings if the matter on which the lawyer will testify is not at issue in the proceeding. See S.C. Bar Ethics Adv. Op. # 90-27; see also ABA Informal Op. 89-1529. If the lawyer who is disqualified as a potential witness is, in fact, not called as a witness at trial, the lawyer may handle the case on appeal. S.C. Bar Ethics Adv. Op. # 90-05.


Fairness, as embodied in the "rule of completeness," bars parties from introducing partial, out-of-context evidence that leaves an inaccurate impression. See United States v. Wilkerson , 84 F.3d 692, 696 (4th Cir. 1996). 

While the summary judgment

standard requires us to resolve conflicting inferences from circum- 

stantial evidence in favor of the non- moving party, it does not allow

us to ignore or distort the plain meaning of words or conveniently to

read them out of context. See Ford Motor Co. v. McDavid, 259 F.2d

261, 266 (4th Cir.), cert. denied, 358 U.S. 908 (1958).