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CAUSE NO.: DC-12-10604 MELISSA KINGSTON, Plaintiff, v. AVI ADELMAN, Defendant.

IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS

95th JUDICIAL DISTRICT

DEFENDANTS MOTION TO DISQUALIFY


TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Defendant, AVI ADELMAN (Defendant), and makes and files this motion for the Court to disqualify the attorneys FRIEDMAN & FEIGER, L.L.P., the attorneys of record for Plaintiff, MELISSA KINGSTON (Plaintiff), and will show: I. BASIS OF MOTION A. Plaintiff has brought this suit associating herself with and incorporating the law firm of Friedman & Feiger, L.L.P. 1. Plaintiff filed this lawsuit approximately a week after Defendant purchased the

domain name, melissakingston.com, and the attorneys of record for Plaintiff are Melissa Kingston and Ryan Lurich of the law firm, Friedman & Feiger, L.L.P. 2. In Plaintiffs Original Petition and Application for Injunctive Relief,1 in the paragraph naming the parties to this suit and the capacity in which they are suing or being sued, Plaintiff specifically identifies herself as a partner with the firm of Friedman & Feiger, L.L.P.2 3. Plaintiff goes on to identify herself as a lawyer.3 In the statement of facts of her

petition, Plaintiff repeats again she is a partner with the law firm of Friedman & Feiger,
1

Defendant requests the Court take judicial notice of Plaintiffs Original Petition and Application for Injunctive Relief on file with the clerk, as well as the allegations and contents therein.
2

2 of Original Petition and Application for Injunctive Relief. PAGE 1 OF 7

DEFENDANTS MOTION TO DISQUALIFY CAUSE NO. DC-12-10604

L.L.P.4 Further, Plaintiff alleges Defendants email communications could cause confusion as to whether they [were] endorsed by a lawyer.5 4. Plaintiff identifies no other employer or business association except her partnership with Friedman & Feiger, L.L.P. the attorneys now representing her in this suit. It should also be noted Friedman & Feiger, L.L.P. is not a named party to this suit. 5. Plaintiff has alleged multiple causes of action, including business disparagement, 6 and tortious interference.7 At all times relevant to Plaintiffs suit, based upon Plaintiffs own

allegations, she was a partner and employed by/with Friedman & Feiger, L.L.P. B. The elements of Plaintiffs cause of action for business disparagement make Friedman & Feiger, L.L.P. and its attorneys, essential fact witnesses. 6. The elements of business disparagement include the malicious publication of false and disparaging words about Plaintiffs economic interests by Defendant, without privilege, which resulted in special damages.8 7. Plaintiff, as a partner with Friedman & Feiger, L.L.P., has nearly an indistinguishable economic interest with the firm. Assuming, in arguendo, Plaintiffs allegations are true,

litigating this case will necessarily require testimony from Friedman & Feiger, L.L.P., and its attorneys, to prove or disprove the veracity and alleged falsity of any alleged words published

5 of Original Petition and Application for Injunctive Relief. 6 of Original Petition and Application for Injunctive Relief. 16 of Original Petition and Application for Injunctive Relief. 3739 of Original Petition and Application for Injunctive Relief. 4043 of Original Petition and Application for Injunctive Relief.

See Forbes. Inc. v. Granada BioSciences, 124 S.W.3d 167, 170 (Tex. 2003); and Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 767 (Tex. 1987). DEFENDANTS MOTION TO DISQUALIFY CAUSE NO. DC-12-10604 PAGE 2 OF 7

about Plaintiffs economic interests, and any damages which resulted from the alleged publication of same. 8. Since Friedman & Feiger, L.L.P. is the primary, if not sole source of employment of Plaintiff, Plaintiffs economic interests are so factually intertwined with Friedman & Feiger, L.L.P., it will be impossible to try this case without evidence from Friedman & Feiger, L.L.P.s attorneys as essential fact witnesses. 9. Further, since Plaintiff is a partner of Friedman & Feiger, L.L.P., she is presumably a shareholder or, at a minimum, takes part in the management of the firm. Therefore, even if no other partners or owners take part in the representation of Plaintiff in this case, Plaintiff would still have a supervisory position over any non-partner attorneys also employed by Friedman & Feiger, L.L.P. C. The elements of Plaintiffs cause of action for tortious interference make Friedman & Feiger, L.L.P. and its attorneys, essential fact witnesses. 10. The elements of tortious interference include the independent, intentional

tortious/unlawful interference by Defendant with Plaintiffs probable business relationship(s) with a third party, which proximately caused actual damage or loss.9 11. Since Friedman & Feiger, L.L.P. is the primary, if not sole source of employment of Plaintiff, the prospective business relationships into which Plaintiff would have entered into (if not for the alleged interference by Defendant), were really relationships which prospective clients would have entered into with the law firm of Friedman & Feiger, L.L.P., through Plaintiff as a partner, shareholder, manager, and/or employee. 12. Therefore, Friedman & Feiger, L.L.P., and its attorneys, are essential fact witnesses as to what/which clients prospectively were going to hire the firm or Plaintiff, the probability or
9

See Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 413 (Tex.App.Waco 2001, pet. denied); and Wal-Mart Stores v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001). DEFENDANTS MOTION TO DISQUALIFY CAUSE NO. DC-12-10604 PAGE 3 OF 7

likelihood of those relationships actually being formed, and what damages, if any, were sustained as a result of them not being formed, and whether their failure to form was proximately caused by Defendant. II. AUTHORITY & ARGUMENT A. The Rules of Disciplinary & Professional Conduct support disqualification. 13. A lawyer shall not accept or continue employment as an advocate in a pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client. 10 And, while Rule 3.08 was promulgated as a disciplinary standard rather than one of procedural disqualification, the Texas Supreme Court has recognized that the rule provides guidelines relevant to a disqualification determination.11 14. Comment 4 to Rule 3.08 states: [T]he principal concern over allowing a lawyer to serve both as an advocate and witness for a client is the possible confusion that those dual roles could create for the finder of fact.... If, however, the lawyers testimony concerns a controversial or contested matter, combining the roles of advocate and witness can unfairly prejudice the opposing party. A witness is required to testify on the facts of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.12

10

Tex. Disciplinary R. Profl Conduct R. 3.08(a).

11

In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (citing Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex. 1996).
12

Tex. Disciplinary R. Profl Conduct R, 3.08(a) cmt. 4 (emphasis added).

DEFENDANTS MOTION TO DISQUALIFY CAUSE NO. DC-12-10604

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Therefore, the attorneys of Friedman & Feiger, L.L.P. cannot continue in their employment and role as advocates at trial; and if they refuse to withdraw, this Court must disqualify said attorneys.13 B. The facts of this case meet the requisites for disqualifying the attorneys of Friedman & Feiger, L.L.P. from representing Plaintiff further. 14. To sustain a motion to disqualify an attorney, Defendant must show the attorneys testimony is necessary to establish an essential fact,14 and must also show that opposing counsel acting in dual roles as an advocate and witness will cause him actual prejudice.15 15. Friedman & Feiger, L.L.P. and its attorneys have a duty to its client (Plaintiff) to zealously prosecute this case against Defendant. At the same time, several, if not all, attorneys of Friedman & Feiger, L.L.P. will be called by Defendant to testify at trial as to the falsity and affects, if any, of Defendants alleged conduct. These dual roles are clearly in conflict. 16. Friedman & Feiger, L.L.Ps attorneys continued representation of Plaintiff presents a strong incentive, if not an ethical obligation, for its attorneys to protect Plaintiffs interests by either answering untruthfully or evading questions related to the elements of Plaintiffs claims. This conflict is amplified by the fact Plaintiff is a stakeholder, manager, and/or partial-owner of Friedman & Feiger, L.L.P. When counsel is burdened by an actual conflict of interest prejudice is irrefutably presumed.16 17. The dual roles for the attorneys of Friedman & Feiger, L.L.P. as advocates, witness, co-workers, and business partners goes beyond possible bias its outright prejudicial to
13

Anderson Producing, Inc. v. Koch Oil Co., 929 S.W. 2d 416, 421-22 (Tex. 1996). See Tex. Disciplinary R. Profl Conduct R. 3.08(a). Ayres v. Canales, 790 S.W.2d 554, 55758 (Tex.1990).

14

15

16

Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 691-692 (1984), and United States v. Cronic, 466 U.S. 648, 659 (1984)). DEFENDANTS MOTION TO DISQUALIFY CAUSE NO. DC-12-10604 PAGE 5 OF 7

Defendant. This conflict prejudices Defendant, and possibly Plaintiff, too, and is grounds for disqualification. By disqualifying the attorneys of Friedman & Feiger, L.L.P., and affording Plaintiff time to retain alternative counsel, the Court can remedy the prejudice to Defendant without adversely affecting Plaintiff. III. MOTION TO DISQUALIFY 18. Absent the prompt voluntary withdrawal of the attorneys of Friedman & Feiger, L.L.P., Defendant moves the Court to enter an order: 1) disqualifying the attorneys of Friedman & Feiger, L.L.P. from representing Plaintiff further in this case, and 2) providing Plaintiff a reasonable time to hire alternative counsel or to give notice of her intent to proceed pro se. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays the Court grant this motion and all relief requested herein, and grant all other relief, at law or equity, specific or general, to which Defendant ay show himself to be entitled. Respectfully submitted, THE NICHOLS LAW FIRM, P.L.L.C.

______________________________ JUSTIN P. NICHOLS Texas Bar No.: 24081371 106 S. Saint Marys Street 255 One Alamo Center San Antonio, Texas 78205 (210) 354-2300 phone (800) 761-5782 facsimile Justin@TheNicholsLawFirm.com ATTORNEY FOR DEFENDANT

DEFENDANTS MOTION TO DISQUALIFY CAUSE NO. DC-12-10604

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LOCAL RULE 2.07 CERTIFICATE OF CONFERENCE On September 28, 2012, counsel for Defendant, as movant, and Plaintiff, as respondent, personally conducted a telephonic conference at which there was a substantive discussion of every item presented to the Court in this motion, and despite best efforts the course have not been able to resolve those matters as presented. Certified on this October 1, 2012.

______________________________ JUSTIN P. NICHOLS

CERTIFICATE OF SERVICE I certify a true and correct copy of the foregoing instrument was served upon Plaintiff, through her attorneys, by fax to (972) 788-2667, per Tex. R. Civ. P. 21a on October 1, 2012.

______________________________ JUSTIN P. NICHOLS

DEFENDANTS MOTION TO DISQUALIFY CAUSE NO. DC-12-10604

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