United States District Court, S.D. West Virginia, Charleston
BLACKHAWK LAND AND RESOURCES, LLC and PANTHER CREEK MINING, LLC, Plaintiffs/Counterdefendants,
WWMV, LLC and RWMV, LLC, Defendants/Counterclaimants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr., United States District Judge
before the court is the plaintiffs' motion to disqualify
defendants' counsel Shawn George, including a request for
a protective order to that end, filed on December 12, 2017.
Defendants have responded in opposition, and the court held a
hearing on the matter on December 22, 2017.
move to disqualify Shawn George as counsel for the defendants
because he took part in the settlement negotiations between
the parties leading to, and including, the settlement of
claims between them that the defendants allege took place.
According to plaintiffs, such role makes Mr. George a
necessary witness, because the alleged settlement is asserted
as a defense by the defendants to the breach of contract
claims at issue, and this settlement is in dispute.
Plaintiffs believe that Mr. George's connection to the
defendants as one who has an ownership interest is also
material. Along with the disqualification, plaintiffs seek a
protective order to prevent Mr. George from taking
capacity as counsel for the defendants, Mr. George
participated in a meeting with representatives of Blackhawk
Mining on August 22, 2016, along with Ralph Ballard, the
manager of RWMV, which manages WWMV, and E. Forrest Jones,
Jr. whose affiliation is not entirely clear to the court at
this juncture. In their discovery response, sent on November
6, 2017, defendants discussed this meeting, the alleged
settlement, and subsequent communications between Mr. George
and Blackhawk representatives. Defendants also identified
every person present at the meeting, including Mr. George, as
individuals with knowledge concerning the allegations in the
plaintiffs' complaint and the defenses thereto.
object to the timing of the motion as
“retaliatory” to their deposition attempts and
argue that the plaintiffs seek to smooth their path to
summary judgment in their favor. Furthermore, they contend
that plaintiffs cannot satisfy the legal standard for
disqualification under Smithson v. United States
Fidelity & Guaranty Co., 411 S.E.2d 850 ( W.Va.
hearing, the defendants maintained that Mr. Ballard, present
at the meeting in question, would be made available for
deposition, and all parties appeared to agree that the e-mail
communications to and from Mr. George, pertaining to the
alleged settlement, would likely be admissible in court.
Standard for Disqualification
Rule of Civil Procedure 83.7 provides that “attorneys
shall conduct themselves in accordance with the Rules of
Professional Conduct and the Standards of Professional
Conduct promulgated and adopted by the Supreme Court of
Appeals of West Virginia, and the Model Rules of Professional
Conduct published by the American Bar Association.”
L.R. Civ. P. 83.7.
Virginia Rules of Professional Conduct, Rule 3.7 provides
(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