founders of this country to be a basic right and since the very first year of our country it has been statutorily guaranteed to win against in federal court it was passed by the nation's first congress and signed by president george washington into law the day before even the sixth amendment was proposed i don't think it contemplated a situation like this where the district court and then only the lawyers may see the confidential information not the parties to the suit in that ship so i don't think you can credit the founders with supporting your position in this case it's been pretty clear as to why you should not be allowed to see this information and your hon vine case and in that case there was even a stronger showing against a litigant having access to information in that case a patent attorney had sued several companies that help patents and sought him for that information in discovery it was produced subject to his attorney's eyes only he sought to modify the protection of the order to get access to that information and that was denied then he terminated his attorney said well now we get access to it and the court allowed him to represent himself but said you still don't get access to the attorney's eyes only information and it may be that i'm not that i'm denied access or that it may be that i have to represent myself without ever getting any information that they designate as attorneys eyes only that will be a question that the court will have to resolve in light of its rule twenty six discussion and the court has substantial tools and substantial discretion to be able to decide that the court does not have the same discretion to prevent me from representing myself or from disqualify me from representing my solo practice and that's because this court recognized in chapman versus the united states that there are two tests that apply to whether a party has a right to assert the right to self representation the first is one it is clearly asserted before to represent themself versus the potential prejudice to the proceeding and respectfully the truth the trial court erred in this case because it confused the legal standard that is a political to a lawyer driven withdraw and the right to assert there was a motion to withdraw in this case but it was to effectuate my clear indication of the right to self representation it's not a motion to withdraw over my objection it's not a motion to withdraw for one of the good reasons good cause reasons and one point one five of the texas ethical rules such as a client's failure to pay or disagreement over the goals of the representation was there any evidence that you were unable to pay your lawyer before he tried to withdraw there was your honor i testified before the  court and i said specifically that my lie billion chinese policy which is a one hundred thousand dollars diminishing policy had more essentially been half eroded at that time and there were seventeen depositions scheduled and that it was going to erode immediately and i acted preemptively to prevent a situation where there would be a potential delay to trial i recognize that my policy is going to be exhausted and i'm going to be in a situation where i can either decide not to participate in discovery or you know or you know or are there the alternative would i not sure i mean i think i would have to be forced to do that or it was a bad situation i testify before the court i need to do this in order to get get my i'm going to be my best advocate here i can't afford to pay retained attorney to do everything that i would want him to do to effectively represent me in this case and i wanted to represent myself and i provided that explanation and the court measured my explanation against the standard of good cause and i guess a standard of whether i had satisfied my burden to show the absence of a prejudice to the proceeding that's not the law with respect to self representation and no court has ever held that good cause must be shown to exercise the right to self representation i researched the authorities in the only case i ever found was a state case from ohio where the judge specifically wrote to say that he disagreed with  and the court said in that case i'm not aware of any rule that requires good faith and i could faith good cause be shown the only restriction that has been recognized in this circuit is that the self rights were sought her position can be forfeited whenever the letter get involved in deliberate and serious misconduct and the cases that describe that misconduct are talking about misconduct that occurs in litigation not before and conduct that essentially amounts to contempt of court in the us versus long case the litigant that was stripped of the right to self representation for example would be non responsive to the judge's questions there is no insinuation or allegation of any behavior like that from me in the court below and there was no finding by the court that i engaged in that type of conduct such that my rights should be stripped the reason why the trial court reached the decision it did is because it was applying an erroneous standard let me guess let me ask you for the self representation and because it's honestly my only option to this point my policy has entirely exhausted i don't have the resources to defend through retained counsel and the case on i think i'm going to be my best advocate and i do not have the resources i move preemptively because there were a number of depositions that were being scheduled and i said i saw the writing on the wall that my policy is to write it and it now has entirely read it well you're that in that situation you can serve as the dual role so with respect to the issue of whether i can represent myself individually there would be no it's specifically authorized to perform the dual role would you ever see yourself or your call for a share and should those i would record old shareholder and respectfully with respect with with regard to my corporate entity that there was also an error in denying me the right to represent that entity generally a lay person cannot appear on behalf of the corporation no matter how honor and i have been following the case intimately familiar with it we represented the court and i wholeheartedly believe that we would have been ready for the trial date that was scheduled to occur in august now that trial that this case has been severed so there mr minutiae and i want to bring this to the court's attention because i want to highlight the stakes of this appeal this appeal is about the rights of suffer opposite station which is a very core and fundamental right recognized by statute but it's also about the practical circumstances to me and my for i need to be able to represent myself in order to effectively give a defense in order to avoid being pressured into a settlement of a case that has no merit again my ability to represent myself was that it would lead to hybrid representation now that's never been the rule in the fifth circuit circuit case on point is us versus canal this is cited by both parties briefs and the fifth circuit has only held that you don't have or you don't have a right to both paths of the right of the statute you either represent yourself without any attorney or you stick with your counsel you cannot be associated co counsel yourself or you if you don't have the right second motion and said i'm getting rid of my counsel i want to represent myself and the court said at that point that you know had a right to represent himself because it was clear and on and on ambiguous that he intended to do so here it's also clear i want to represent myself and i'm not looking to have any other attorney involved if the court grants what i'm asking there will be no hybrid representation with respect the only case that the police are able to cite in their support is u s versus private gran and that's a nine hundred fifty seven case that didn't apply the legal standard of the circuit in that case the court said that the district court didn't abuse discretion and properly balanced the considerations in the case that's not the standard here and that case also about gamesmanship honestly i probably don't need a lot of access to information they have the burden to to to show liability by me i don't think that they have a chance to do so the only situation in which they have a chance of prevailing is if they leverage me by the fact that i have to go forward but i can't afford my counsel or i'm not able to speak on my own behalf that's the only situation where i'm worried about losing that's my concern i'm not trying to affect anything else and i think and i think that the reason you don't like to defend yourself is to go to escape the reach of that protective more you know you are and i would still want to defend myself even if the court says you still can't review this information i need to defend myself because i don't have the please the court i'm howard clatskanie and i represent the up police in this proceeding the diamond consortium and david blanc my client's position on this appeal is premised upon a forty point number one it is well established under applicable law including a law created and adopted by the fifth circuit that an attorney may withdraw from representation only upon a showing of good cause the attorney seeking to withdraw bears the burden of establishing good cause and must demonstrate that his or her withdrawal will not adversely affect the efficient litigation of the lawsuit moving forward your party a move to withdraw and in that same pleading with hammer vald asked to take over for his own defense and defense of his firm and the trial court discussed it at  the trial court found we believe correctly that your party and did not meet his burden of establishing good cause the second key point here is that hammer of old cannot represent himself in the underlying case because he is a necessary fact witness who will provide extensive testimony at the trial the applicable disciplinary rules and hammer both reference to an earlier and case law discussing those rules say that an attorney shall not act an advocate or accept employment as an advocate if the attorney knows or believes that he is or may be a witness necessary to establish an essential fact on behalf of his client that speak to self representation of representation of others well your honor i think it certainly speaks to the representation of others and i would argue particularly with the facts that we have here where the interests of mr hammer vold and his professional corporation are completely aligned that it speaks to him as well mr hammer vault is also prevented from representing his firm he's the sole owner the interests are identical and i believe that our trial judge judge mazatlan referenced that in his order and that's distinguishable from the o'reilly versus new york times case that mr hammer vold heavily relies on and i'm going to touch on that here in a few moments the third point is that hammer hold cannot represent himself pro s because it would lead to hybrid representation the court trial court did not find that your party and demonstrated good cause and did not permit him to withdraw and if hammer vold was to act as associate counsel or co counsel there would be hybrid representation and the right to the statutory right to self representation and the right to be represented by counsel cannot be exercised at the same time the fourth point is the requested withdraw all of mr your party and and the permitted substitution of hammer of old would prejudice my clients and interfere with the administration of justice by disrupting discovery and the efficient it sounds to me like you're hanging your hat on and went to rowing to grow not not necessarily but i do think that withdrawal is important and sort of ignoring my notes here let me just jump ahead make a couple of points that i think addressed that first of sought withdrawal based upon information that he received from him of old that the insurance policy that was providing a defense was eroded he did not testify that he had ever been discharged by h vote or his for he did not address as the trial court noted how allowing hammer vold to take over and substitute in would not prejudice my clients and that's where the protective order comes into play that i'm going to get to in a minute and the hammer vald did not present evidence that the policy had a row did he told the panel here moments ago that it was about half the road he said he testified excuse me he said he testif insurance policy was being diminished i think that's correct but it his testimony did not indicate or even suggest that it was diminished as of that day he told the panel ten minutes ago that he thinks it was about half diminished at but the other point is mr hammer of old he dodged this question a little bit when he was asked by the panel he did not testify that he could not afford to hire counsel period when i believe judge asked mr hammer bold about affordability and he talked about his insurance policy he didn't talk about his own ability to retain counsel no mr hemmer vote in his firm were named as defendants in this case back in september of tw illegal scheme that was designed to defraud them as well as other jewelers and my clients also alleged that the defendants continued to harass and threaten them during the pendency of the ca given the allegations the ones i've just referenced my clients were legitimately concerned that any confidential information involving their customers and business transactions that they had with their customers that they were compelled to it permitted all parties not just my clients but all parties to designate discovery material as attorney's eyes only material when counsel believed in good faith that such a designation was appropriate about three weeks pardon me three months later my clients filed a motion to clarify the protective order to make it crystal clear that the attorney defendants would not be permitted access to this attorney's eyes only material and this motion to clarify unopposed the defendants did not oppose the motion the court granted the motion and then we get to what judge taken botham was referencing earlier mr hammer vold fills out his paperwork and gets admitted to practice in the eastern district and then appears as associate counsel for himself his coconspirators file applications to appear pro hockey each a in the case and then they file the emergency motion to modify the protective order seeking to remove all attorney's eyes only does ignatius because they had appeared as counsel for themselves and mr hammer vold in his firm agreed with that requested relief in the motion to withdraw and motion for substitution it's referenced in a footnote where they say they agree to it and adopt that argument now in support of the motion to withdraw your party unit again just said hey i was instructed that there were not going to be sufficient resources to pay me through trial we had not gotten to trial yet and hammer told argued that he had the right to self representation under twenty eight u s c sixteen fifty four  be referencing well both but in this context the motion to withdraw and substitute we were opposed as soon as we advised the parties through a filing made in the case that we were opposed to modifying the protective order to represent himself in his law firm and the trial court when it denied the motion to withdraw the motion for substitution specifically bolden his firm had been defendants in the case his temper of twenty sixteen but it was only after my client's objected to the emergency motion to modify the protective order that he first felt the need supposed to gain access but again not only did mr ham of old seek to represent himself and his firm he and his coconspirators were actively seeking relief from the trial court doing away with the a t o designations after not opposing our motion to clarify the protective order addressing those very issues and mr ham of old mentioned something earlier that i think is important he talked about seventeen depositions that were still going to be taken in th case i don't know if that number is accurate but what i do know is that we're talking about jewelers situated throughout the country who had been threatened who felt like they were being extorted and shak en who did not want mr ham of old or his coconspirator or sitting in on deposition testimony they had to give in the case and that was raising problems but because they were not attorneys  record ultimately they agreed to not sit in on those depositions if hemmer vote is permitted to represent himself and his firm we're going to incur those same types of problems again not only are we talking i was thinking about documents we had designated a lot of documents as a try to write customer invoices and receipts and things like that and my client wants to protect that information i think they've got a legitimate interest in doing so but i was also ta all says let's not go this is not information that's come come out in the trial possibly yes possibly no but the point that i'm making is the reason why this is so concerning not only would it make sensitive confidential information is found by the trial court available to mr ham of all it's also going to disrupt things because every time we fly into a city to take a deposition of a jeweler who has felt like they were shaken down by hammer vald and his coconspirators they're not that you know when we talk about mr hammer holds firm it is a corporation that fact is undisputed corporations must be represented by licensed counsel that's undisputed and while mr hammer vold is a licensed attorney going back to something judge clement said he is a key necessary witness in the case and his intent to act as an advocate for his firm while he is a defendant violates rule three point zero eight of the texas disciplinary rules rule three point seven of the a b a model rules and cases interpret in those things the pot and this this ethical rule is underscored by some important concerns the possibility that when hammer vote is addressing the jury a trial he will appear to be vouching for his own credibility as both a lawyer and a witness the unfair and difficult situation that the attorneys for the diamond dr and david blank will face when they have to cross examine him or hold a trial and seek to impeach his credibility and the appearance of impropriety that's created specifically the likely implication that ham of old may be distorting the truth for the sake of his firm  it's undisputed that hammer of old is going to be the primary if not the sole witness for his corporation as well as for himself at trial and his testimony is going to address a number of contested fact issues if he's permitted to represent himself in his firm the integrity of the adversary process will be compromised the line between arguments that hammer hold is making as counsel and testimony that  as his counsel i don't think i'd be making the same argument your honor but he he is it and the line between arguments made by him of all his counsel testimony he gives as a defendant is clearly going to be blurred which is likely to undermine entities the concern that we've got would your argument be the same if you had no l s e if it was just mr hammer gold i think some of the arguments would apply others may not but would still have the issue with the protective order again that they did not oppose the clarification to it that they did not oppose the question about gamesmanship the fact that the trial court clearly viewed it as gamesmanship and i would hearken back to to to that fact because there is a case and i'm forgetting the name of it off the top of my head i want to say that it's the row sean case where and i think judge clement was involved in in that decision where the court said look while while some of the court may disagree with the trial court's rationale if reasonable minds could disagree the trial court's ruling is going to be affirmed and and we're asking that it be affirmed here public confidence in our legal system is going to be jeopardized if revote is permitted to serve in the dual role of attorney and witness in this case there are certain to be a tangible and unavoidable scrambling of roles my clients and i think the panel for the time and consideration and we they please the court the standard of review is and is mixed here the elements that involve the statutory interpretation of the right to self representation the record the interpretation of ethical rule three point zero eight those are questions of law as is their application the only element that is given a substantial deference to the trial court are specific findings that fall within those or bricks because the court did not apply the correct legal standard it didn't make any of the findings that would justify it removing the right to self representation the court was working with this incorrect good cause standard and found that i had met my burden to show good cause there are no findings to defer to he you also heard that there was ongoing harassment and threats by me but there's no specificity to it in the oral argument and if you actually look down the citations that are in the app at least brief there's nothing that applies to me the we moved i believe in the middle of may and the trial was in august so it's about two half months before trial and there was a substantial amount of discovery in between now and then and part of the reason i moved when i did it is because i reviewed the case law and i knew that one of the bas for denying myself representation is if you wait right before trial and then there's a potential for the delay they would be saying the same thing this was gamesmanship he's trying to delay trial he doesn't want to go forward to trial and and you know it would be one thing or the opposition as a client and i'm assuming that your parent was your counsel and you were the right you were being represented by i believe that i would have the right to attend one and i actually did attend one of the jewelers deposition where there was no order ok and respectfully we have submitted that they have used the attorney's eyes only in this case but this court doesn't need to get into the the nitty gritty of the discovery issues because no court has ever held that that is a precondition to self representation right and the trial court has discretion and means to control discovery and to determine what needs to be provided what should be protected the final element that i want to address is three point zero are two is essentially rationale so this one is a conflict of interest rationale and i thought it was a bit disingenuous whenever they said in their brief that penfold p l c is intitled to counsel that is not going to be serving the dual rol another attorney brian minikin started a media campaign in which he was soliciting clients and diamond doctor approached him and said we would like to retain you to end that campaign and they claimed that due to the pressure of the campaign that his intention all along was that they come to him and make that that demand and that that was a so there was an  that the jeweler was selling diamonds that they knew were overgraded that had that they represented a specific representation about they what the color and clarity work and they knew that they were three or four grades higher than the actual rate of those