RUTH MILLER, Magistrate Judge.
Darwin Carr, as trustee of the Live By Faith Irrevocable Trust (the "Trust") entered into a land contract with Earl Robert Velger on August 18, 2009, for the purchase of an apartment at Pineapple Village Condominiums in St. Thomas, Virgin Islands. On May 3, 2010, Velger brought suit against Darwin Carr, individually and as the trustee of the Trust, for breach of the contract. The Trust
Velger moves to disqualify Carr (ECF 208), pursuant to ABA Model Rule of Professional Conduct 3.7(a),
Carr opposes the motion asserting that he has the right to (1) represent himself in his individual capacity, (2) represent the Trust "as counsel of record,"
Velger previously moved to disqualify Attorney Carr (ECF 19) from representing himself and the Trust. That motion was denied with respect to Carr's representation of himself individually and as trustee, and denied without prejudice with respect to the representation of the Trust (ECF 38). The Court sees no reason to disturb its original findings with respect to Carr's right and ability to represent himself, either individually or as trustee.
In all but the three circumstances enumerated in Rule 3.7(a), a lawyer is prohibited from being an advocate at a trial where he is likely to be a necessary witness.
The purpose of the prohibition against an attorney assuming the roles of both an advocate and a witness at trial is to prevent possible confusion by the trier of fact about the attorney's role as a witness and that as an advocate.
In deciding a motion to disqualify under Rule 3.7(a)(3),
Thus, under the Rule, the Court must balance the interests of the parties and the Court and determine if Carr's disqualification would work a substantial hardship on the Trust.
As indicated above, the Court has already recognized Carr's right to represent himself. This would apply to representation of himself both individually and as trustee.
Carr's representation of the Trust, however, an entity separate from himself, raises issues under Rule 3.7(a). The Rule prohibits an attorney from being an advocate in a trial in which he is likely to be a necessary witness. Here, a review of the pleadings and motion practice in the case reveals that all parties view as key Carr's role in and firsthand knowledge of the negotiation, performance and breach of the land contract. He is also alleged to personally have made representations that form the basis of several of plaintiff's claims. It cannot reasonably be argued at this stage that his testimony, on the whole, would relate only to uncontested issues, and it thus appears that Carr would be a "necessary witness" at trial.
Carr contends that it would be a substantial hardship to retain separate counsel, because of the great volume of the pleadings and asserting that "there will be an inordinate amount of time and expense involved in familiarizing new counsel with facts and circumstances of this case . . ."
Nevertheless, the inquiry does not end there. Because of his recognized right to represent himself as an individual, even if the Court were to disqualify Carr from representing the Trust at trial, he would still be testifying about all the same matters, whether on his own behalf under his own interrogation, or on behalf of the Trust under questioning by another attorney. Thus, as a practical matter, even if the Trust were to retain trial counsel, this would not remedy Velger's concerns about possible prejudice stemming from the dual roles as advocate and witness. Under the circumstances presented here, the concerns that the advocate-witness rule seeks to address would not be remedied by separate counsel for the Trust.
In balancing the countervailing interests, the Court finds that to disqualify Carr from representing the Trust would not alleviate the concerns implicated in Rule 3.7(a), and the potential hardship to the Trust outweighs the possibility of prejudice to either plaintiff or the Court.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the motion to disqualify is DENIED.
Moreover, here the counterclaim brought in the name of the Trust might raise an issue with respect to diversity that is not present in the action against the trustee. See Emerald Investor Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 203-06(3d Cir. 2007) (the citizenship of the trustee and the beneficiaries are to be considered in determining whether there is diversity when a trust has been named as a party). The Court may exercise jurisdiction over the Trust's counterclaim, however, pursuant to 28 U.S.C. § 1367(a). See Lannet Co., Inc. v. Gratz, 1994 U.S. Dist. LEXIS 12148, at * 18-19 (E.D. Pa. Aug. 30, 1994) (recognizing that although "the counterclaim has no independent basis for jurisdiction[,] . . .. [a] court has supplemental jurisdiction over a compulsory counterclaim pursuant to 28 U.S.C. § 1367(a)").
ABA Model Rule of Professional Conduct 3.7(a) (2011). The ABA Model Rules of Professional Conduct have been adopted as the governing rules for attorney ethics in the Virgin Islands. V.I.S.C.T.R. 203(a).