U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D.C. MICHEALP. HUERTA,ADMINISTRATOR, FederalAviationAdministration, 

# RECEIVED OCT 082014 HEARING DOCKET

FDMS NOS. FAA2013-0851 and FDMS 2013-0852 REGENT AEROSPACE CORPORATION Respondent.

RESPONDENT'S MOTION TO DISQUALIFYATTORNEY ZURALES Respondent, REGENT AEROSPACE CORPORATION, by and through its counsel, HOFF LAW GROUP, and pursuant to ABA Model Rule 3.7 and Illinois Ru1e ofProfessional Conduct 3.7, hereby moves the Court to disqualify attorney Christopher Zurales, Esq. from acting as counsel for the Administration, andrespectfully states as follows: Christopher Zurales, Esq., has been identified as lead counsel for the Administrator. He has also been designated as akey witness to be calledby Respondent onthe issue oflaches. Mr. Zurales is an Illinois licensed attorney. Therefore, he is bound and constrained by the ethical requirements of the Illinois Rules of Professional Conduct. Illinois Rule of Professional Conduct 3.7 (whichis modeled after ABA Rule 3.7)provides as follows: RULE 3.7: LAWYERAS WITNESS (a) A lawyer shall not act as advocate at a trial in which the lawyer is likelyto be anecessary witness unless: (1) the testimonyrelates to an uncontestedissue; (2) the testimony relates to the nature and value of legal serv1ces rendered inthe case; or (3) disqualification ofthe lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 orRule 1.9.The most important consideration for Rule 3.7 is to eliminate the possibility that the attorney may not be a fully objective witness (while at the same time serving as an "advocate), and may be perceived by the fact finder as "distorting" (or using selective versions of) the truth in order to zealously advance the interests ofhis client. Jones v. City ofChicago, 610 F. Supp. 350, 357 (N.D. Ill. 1984). The Rule is also designed to prevent the trier offact from confusing the back and forth roles of advocate and witness, and thereby granting undue weight to the attorney's testimony. Greater Rockford Energy & Technology Corp. v. Shell Oil Co., 777 F. Supp. 690, 693 (C.D. Ill. 1991). For example, in National Wrecking Company v. Midwest Terminal Corp., 234 Ill. App. 3d750 (l Dist. 1992), the attorneyhadrepresented a corporation in contract negotiations. Later,

a suit was filed arising out ofan allegedbreach ofthat same contract. Because this attorney was the only person who could have testified concerning the negotiations, the court disqualified the attorney from representing the corporationinthe subsequent suit. Id. Rule 3.7 is also applicable ifa party intends to call the opposing party's attorney as a witness ifthe opposing party's attorney knows that his own testimony may be prejudicial to his client. For example, in People v. Norris, 361 N.E.2d 105 (l Dist. 1977), the court held the assistant public defender should have withdrawn from the case, when it became clear he was a valuable material witness against the client's other assistant public defenders, thus creating a patent"conflictofinterest." Here, Mr. Zurales will be a valuable principal witness in support ofRegent's Affirmative Defense of laches. Mr. Zurales has already personally taken full responsibly for the 3-4 year delay upon which Regent bases its Affirmative Defense. As set forth inhis Affidavit, he's even admitted his delay was "long and unusual." See Administrator's Responses to Motions for

2Summary Judgment. Therefore, his testimonymay be prejudicial to his client, may conflict with his role as advocate for his employer/client's cause, and he shouldbe disqualified from acting as lead counsel. Moreover, ifhe serves as counsel in this matter, Mr. Zurales will be in the position of advocating as to the reasonableness ofhis own prior conduct. Because ofthis, Mr. Zurales may notbe a fully objective witness, and may be perceived as putting an undue "spin" on the truth, in order to advance the interest of his client, the Administrator. Likewise, Mr. Zurales, is an experienced and well-known attorney before the USDOT Office ofHearings. By allowing Mr. Zuralesto intermixhis role as advocate withhis supposedrole as awitness may leadto the Court granting undue and unfair weight to his testimony. This will cause unfair prejudice to Respondent. Respondent did not file this Motion at an earlier time because Respondent was unsure if Mr. Zurales wouldbe acting as lead counsel inthis matter at the Hearings, or whetherthe matter would be farmed out to another attorney at the Regional Counsel's Office. On September 30, 2014, Respondent's counsel sent an e-mail to Mr. Zurales, inquiring if Mr. Zurales would be serving as an advocate at the upcoming Hearings (or simply a witness). Respondent has not yet received aresponse to saide-mail. Therefore, this Motion is filed outofan abundance ofcaution in the event Mr. Zurales intends to take any role at the Hearings (other than that ofa factual witness). WHEREFORE, Respondent, Regent Aerospace Corporation, respectfully requests this Administrative Law Judge to disqualify attorney Christopher Zurales, Esq. from wearing "two hats" in this matter and from any further participation in this matter, other than that ofa purely factual witness.

3JohnS. Hoff JeffreyF. Clement HoffLawGroup 135 S. LaSalle Street, Suite 3300 Chicago, IL 60603 (312) 346-8111 (312) 853-3924 (FAX) 

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4CERTIFICATE OF SERVICE I certify that on September 30, 2014 a copy of the foregoing was served upon the following by facsimile and by depositing said document in an envelope, sealed, first-class postage fully prepaid and placed in the U.S. mail located at 135 South LaSalle Street, Chicago, Illinois 60603: ORIGINALAND ONE COPY Hearing Docket Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: HearingDocketClerk, AGC-430 WilburWrightBuilding-Suite2W1000 FAX: 202-493-5142

Chris G. Zurales, TheAgency's Counsel GreatLakes Region, AGL-7K FederalAviation Administration 2300 EastDevonAvenue Des Plaines, IL 60018-4696 TEL: 847-294-7713 FAX: 847-294-7498 ONE COPY

The Honorable Richard C. Goodwin,AdministrativeLawJudge Office ofHearings, M-20 U.S. DepartmentofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, D.C. 20590 TEL: 202-366-5121 StaffAssistant FAX: 202-366-7536

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