United States District Court, D. Montana, Missoula Division
JAY L. TIMLICK, Plaintiff,
LIBERTY MUTUAL INSURANCE COMPANY and SAFECO INSURANCE COMPANY OF ILLINOIS, Defendants.
KATHLEEN L. DESOTO UNITED STATES MAGISTRATE JUDGE.
Liberty Mutual Insurance Company and Safeco Insurance Company
of Illinois have filed a motion to disqualify Plaintiff Jay
Timlick's counsel, Gary Crowe, pursuant to Rule 3.7 of
the Montana Rules of Professional Conduct 3.7 and Rule 83.5
of the Local Rules of Procedure for the District of Montana.
For the reasons discussed below, the motion is granted.
bad faith insurance action arises from a motor vehicle
accident that took place on March 10, 2016, when a vehicle
driven by Timlick was rear-ended by another vehicle. (Doc. 3,
at 2). Timlick settled with the tortfeasor's liability
insurance carrier for the $100, 000 policy limits, and then
made a claim for underinsured motorist (“UIM”)
benefits with his own insurer, Safeco. (Doc. 3, at 2). After
settling his UIM claim with Safeco, Timlick commenced this
action against Liberty and Safeco alleging claims for breach
of contract and violations of Montana's Unfair Trade
Practices Act (“UTPA”), Mont. Code Ann. §
33-18-201 et seq. (Doc. 3, at 3-7).
current counsel of record, Gary Crowe, also represented him
in making the underlying UIM claim against Safeco. Because of
Crowe's representation in the underlying matter,
Defendants move for his disqualification pursuant to Montana
Rule of Professional Conduct 3.7 and Local Rule 83.5 on the
ground that he is likely to be a necessary witness in this
bad faith action.
of attorney disqualification are governed by state law and
applicable disciplinary rules. Nelson v. Hartford Ins.
Co. of the Midwest, 2012 WL 761965, *2 (D. Mont. March
8, 2012). In addition, the Local Rules of Procedure for the
District of Montana apply in all cases brought in this Court.
Nelson, 2012 WL 761065, *2.
83.5 provides that “[i]f an attorney representing any
party is examined as a witness in a case and gives testimony
on the merits, the attorney may not argue the merits of the
case, either to the Court or jury, except by permission of
the Court, and as limited by the Court.” D. Mont. L.R.
83.5 (Feb. 1, 2019). This rule does not apply to pretrial
advocacy, and the Court has typically applied it narrowly to
prohibit an attorney who testifies at trial from making the
closing argument. Nelson, 2012 WL 761965, *3. But
“Rule 83.5 may have a broader application where there
is a risk that the jury will construe the attorney's
participation as argument.” Nelson, 2012 WL
761965, *3. If, for example, an attorney “has personal
knowledge of the subject, ” the attorney's
“questions to a witness at a deposition or at trial may
be construed as argument by a jury.” Nelson,
2012 761965, *3.
Rule of Professional Conduct 3.7 directly addresses when a
lawyer may serve as trial counsel and witness in the same
proceeding. Rule 3.7(a) provides:
(a) A lawyer shall not act as an advocate at a 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.
Mont. R. Prof. Conduct 3.7. “Courts within this
district have recognized that an attorney in a bad faith case
may be subject to disqualification if the attorney also
represented the plaintiff in the underlying suit, and is
likely to be a necessary witness in the subsequent
action.” Katica v. Allstate Fire and Casualty Ins.
Co., 2018 WL 3475479, *1 (D. Mont. July 19, 2018)