Class plaintiffs waited almost a decade — and within six weeks of trial – before asking the district court to delete the main defense firm from the counsel of record list. The district court, we'd all guess, denied the motion. It likely also scolded the lawyers for pushing such a diaphonously dilatory and pusillanimous ploy.
But no. The district court GRANTED the motion. Yowza.
The Second Circuit set things aright. It first busted the district court's ruling that the firm had once represented the plaintiffs, who consisted of Metropolitan Life Insurance policyholders. Debevoise & Plimpton didn't act as lawyers for the policyholders, the court ruled, just because MetLife took the "mutual" (rather than "stock") form and the policyholders benefited as owners from the firm's advice. "[T]his does not distinguish a mutual insurance company from any other corporation." Murray v. Metropolitan Life Ins. Co., No. 09-3716-cv, slip op. at 10 (2d Cir. Sept. 29, 2009).
The panel next addressed an ethical rule that prohibits a lawyer from acting as witness and advocate at the same time and imputes the lawyer's disability to the entire firm also. Sure, Debevoise lawyers might need to testify, but so what? The plaintiffs pointed to no testimony that would really hurt MetLife. Id. at 15-17. Plus, none of the Debevoise witnesses would serve as trial counsel. That mattered because "the concerns motivating Rule 3.7 are attenuated where, as here, the 'advocate' is not someone who will be trying the case to the jury." Id. at 17. The views of MetLife's in-house lawyers also cut against DQ: "We are reluctant to conclude that MetLife, a sophisticated client with sophisticated in-house counsel, has a radically defective understanding of the case after nine years of litigation." Id. at 18.
Blawgletter recalls a bunch of occasions when we could have, but didn't, ask for DQ of counsel for the other side. Many times, you prefer what you have to what you might get. Lots of the other times, you can make more trouble for your opponent by letting its lawyers try to walk the line between bad guy and advocate for the bad guy. Only in rare cases ought you to demand DQ. Murray, we feel sure, lacked the rarity.