United States District Court, D. Alaska
Russel Holland United States District Judge
moves to disqualify Kyle P. Durand and Precept
Law Group, PLLC as counsel for defendants. This motion is
opposed. Oral argument was not requested and is not
Iditasport Alaska commenced this action on March 9, 2018
against defendants Katharina Merchant; Kyle Durand; Kevin
Robbins; Alaska Ultra Sport LLC; Winter Ultra, LLC; and
Intrepid, LLC. In its complaint, plaintiff asserts trademark,
unfair competition, cyberpiracy, and conspiracy claims
1, 2018, Durand filed a pro hac vice motion and a
declaration in support of his motion. On May 2, 2018, Durand's
motion was granted. The instant motion to disqualify Durand
and Precept Law Group followed.
first argues that Durand must be disqualified because as a
named defendant in this case, he will be called upon to
testify at trial. In support of this argument, plaintiff
cites to Alaska Rule of Professional Conduct 3.7(a),
A lawyer shall not act as advocate at trial in which the
lawyer is likely to be a necessary witness unless:
(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.
argues that Durand will likely be a necessary witness because
of his “integral involvement as a principal participant
in the facts of this matter.”
that Durand is likely to be a necessary witness in this case
as plaintiff contends, his disqualification pursuant to Rule
3.7 is not required at this time because this case is not yet
at the trial stage. Alaska Rule of Professional Conduct
3.7(a) prohibits lawyers who are likely to be necessary
witnesses from acting as trial counsel. On its face, the rule
does not prohibit a lawyer who may testify at trial from
being involved in pretrial proceedings. This reading of
Alaska Rule of Professional Conduct 3.7(a) is consistent with
other jurisdictions' interpretation of similar rules.
See, e.g., Culebras Enterprises Corp.
v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir. 1988)
(“Rule 3.7 is limited to situations where the
lawyer-witness acts as trial counsel”); DiMartino
v. Eighth Judicial Dist. Court ex rel. County of Clark,
66 P.3d 945, 947 (Nev. 2003) (“[b]ecause the rule is
meant to eliminate any confusion and prejudice that could
result if an attorney appears before a jury as an advocate
and as a witness, pretrial disqualification generally is not
necessary”); United States v. Castellano, 610
F.Supp. 1151, 1167 (D.C.N.Y. 1985) (lawyer-witness “may
continue to participate fully in the pre-trial stage of this
case”); Burch-Lucich v. Lucich, Civ. No.
1:13-00218-BLW, 2013 WL 5876317, at *9 (D. Idaho Oct. 31,
2013) (Rule 3.7 “does not prevent a lawyer/witness from
representing a client during pretrial proceedings”).
if Durand has been as involved in the facts of this matter as
plaintiff contends, then defendants might do well to find
another lawyer to represent them sooner rather than later.
Durand may not represent defendants through the pretrial
stages of this case, knowing that he is likely to be a
necessary witness, and then later claim that his
disqualification at trial would work a substantial hardship
on his clients. But, for now, Durand will not be disqualified
pursuant to Rule 3.7.
next argues that if Durand is disqualified, then Precept Law
Group should also be disqualified. Because Durand is not
being disqualified at this time, there is no reason to
disqualify his law firm now either. The court would note
however that based on evidence submitted by plaintiff,
Durand appears to be the sole attorney in Precept Law Group.
Thus, if Durand is at some point disqualified because he is a
necessary witness at ...