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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kim Cramton,

Plaintiff,

v. 

Grabbagreen Franchising LLC, et al.,

Defendants.

No. CV-17-04663-PHX-DWL

ORDER 

Pending before the Court is a somewhat unusual ethical and evidentiary question—

whether attorney Kelli Newman (“Counsel”), who was once named as a defendant in this 

action, may represent the remaining defendants (one of whom is her spouse) during the 

upcoming bench trial even though she is also expected to testify as a witness during the 

bench trial and even though the parties have invoked Federal Rule of Evidence 615, the socalled rule of exclusion. For the following reasons, the Court concludes that Counsel may 

serve as trial counsel. 

RELEVANT BACKGROUND

Plaintiff Kim Cramton (“Cramton”) initially asserted claims in this action against 

five different defendants: Grabbagreen Franchising, LLC (“GFL”), Eat Clean Operations,

LLC (“ECO”), Eat Clean Holdings, LLC (“ECH”), Keely Newman, and Counsel, who is 

Keely Newman’s spouse. (Doc. 88.) However, the claims against Counsel were dismissed 

at summary judgment (Doc. 247) and the claims against ECO have been stayed due to 

ECO’s bankruptcy (Doc. 255). Additionally, the Court recently determined that Cramton 

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waived her right to a jury trial with respect to her remaining claims against ECH and Keely

Newman. (Doc. 345 at 21-39.) A bench trial on those claims is scheduled to begin on 

December 10, 2020. (Doc. 348.)1

In the joint proposed final pretrial order, the parties identified Counsel as a potential 

trial witness. (Doc. 303 at 90, 101.) Around that time, Counsel also filed a notice of 

appearance on behalf of ECH and Keely Newman. (Doc. 311.) Given those developments, 

the Court issued an order requiring Counsel to submit a brief “no later than 30 days prior 

to the trial in this case addressing . . . whether [she] may appear as trial counsel consistent 

with E.R. 3.7(a), Arizona Rules of Professional Conduct.” (Doc. 312.) Later, the Court 

clarified that Counsel’s brief also should address whether her “joint role as fact witness 

and counsel may be harmonized with counsel’s invocation of Rule 615, which would 

otherwise bar [her] from being present in court except while testifying.” (Doc. 348.) 

Counsel has now filed the requested brief, arguing that her participation as trial 

counsel would not violate ER 3.7 or Rule 615. (Doc. 357.) 

DISCUSSION

I. ER 3.7

The District of Arizona has adopted, by local rule, the Arizona Rules of Professional 

Conduct. See LRCiv 83.2(e). Accordingly, this Court must follow those rules when 

deciding whether Counsel’s dual role as trial witness and trial counsel is permissible. 

Unified Sewerage Agency v. Jelco Inc., 646 F.2d 1339, 1342 n.1 (9th Cir. 1981) (holding 

that Oregon’s ethical rules governed disqualification issue because “the United States 

District Court for the District of Oregon has adopted as its rules the disciplinary rules of 

the State Bar of Oregon” but “express[ing] no opinion on the law to apply where the district 

court has not designated the applicable rules of professional responsibility”). See also 

Quatama Park Townhomes Owners Ass’n v. RBC Real Est. Fin., Inc., 365 F. Supp. 3d 

1129, 1136-37 (D. Or. 2019) (“When considering a motion to disqualify counsel in the 

1 Cramton’s remaining claim against GFL has been severed. (Doc. 345 at 39.) 

Following the bench trial, the parties will address whether and when to commence a jury 

trial on that claim. (Id.)

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Ninth Circuit, at least when a district court has adopted by local rule the ethical code 

governing lawyers promulgated by the state in which that court sits, federal courts are 

directed to apply the law of the forum state . . . .”). 

Here, the applicable Arizona ethical rule is ER 3.7, which is entitled “Lawyer as 

Witness.” It provides as follows:

(a) A lawyer shall not act as 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.

(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 ER 1.7 or ER 1.9.

Id. The comments to ER 3.7 suggest that a court may order disqualification based on a 

rule violation even if, as here, the opposing party has not moved for disqualification. See 

ER 3.7, cmt. 2 (“The tribunal has proper objection when the trier of fact may be confused 

or misled by a lawyer serving as both advocate and witness.”).

In her brief, Counsel argues that because ER 3.7 is intended “to guard against the 

confusion and prejudice at trial caused when a jury hears from a lawyer both in her capacity 

as an advocate . . . and in her capacity as a witness,” it doesn’t apply in bench trials. (Doc. 

357 at 2-4, emphasis omitted.) Alternatively, Counsel argues that her participation as trial 

counsel wouldn’t violate ER 3.7 for two reasons: (1) the rule only applies to a “necessary 

witness,” yet she will be testifying “largely [as] a historian” and “some” of her testimony 

“is likely to be uncontested”; and (2) her “depth of knowledge and familiarity with the facts 

and exhibits in this case” exceeds that of her co-counsel, who “joined the defense so late 

in the case.” (Id. at 1-2.) 

The Court agrees that disqualification is not required under these facts. As an initial 

matter, there is a strong argument that ER 3.7 should be deemed inapplicable in bench trials 

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and other non-jury proceedings. The main point of the rule is to avoid confusing the trier 

of fact. As the comments to Rule 3.7 explain, because “[a] witness is required to testify on 

the basis of personal knowledge, while an advocate is expected to explain and comment on 

evidence given by others,” “[i]t may not be clear whether a statement by an advocatewitness should be taken as proof or as an analysis of the proof.” See ER 3.7, cmt. 2. Here, 

because the Court will be acting as the trier of fact, there is no risk of such confusion. Cf. 

Shore v. Mohave County, 644 F.2d 1320, 1322-23 (9th Cir. 1981) (“Since this was a bench 

trial, there was little danger under the circumstances that the court would have been unduly 

impressed by the expert’s testimony or opinion.”). Although Arizona courts don’t appear 

to have addressed this issue, many other courts, including the Fifth Circuit, have concluded 

that ethical rules similar to Arizona’s ER 3.7 are inapplicable in this circumstance. See, 

e.g., Crowe v. Smith, 151 F.3d 217, 233-34 (5th Cir. 1998) (“[A]s numerous courts and 

commentators have recognized, the only justification for the attorney testimony rule that 

might be viewed as affecting the rights of the opposing party is that derived from the fear 

that the jury will either accord such testimony undue weight, or will be unable to distinguish 

between the attorney’s testimony, offered under oath, and his legal argument, offered in 

rhetorical support of his client’s case. As the majority of these courts have also recognized, 

this justification is inapplicable where, as here, the testimony is made to a judge, not a 

jury.”) (citations omitted).

2

2 See also Gordon v. Jordan Sch. Dist., 2020 WL 4747763, *3 (D. Utah 2020) 

(denying disqualification motion in part because “this case there will be a bench trial. 

Although Rule 3.7(a) is not limited to jury trials, courts have found that its primary purpose 

is to avoid ‘jury confusion at trial.’ There will thus be no jury confusion at trial and this 

court is confident that it can distinguish between Mr. Gordon’s dual roles”) (citations 

omitted); Darnell v. Merchant, 2017 WL 2618823, *5 (D. Kan. 2017) (“The primary 

rationale . . . is to prevent potential jury confusion in the unusual circumstance where an 

advocate for a client would be called on to testify. . . . [T]he rule should not apply to nonjury proceedings, as the underlying policy concerns necessitating the rule (namely, 

avoiding jury confusion) would not apply.”) (emphasis omitted). But see Merchant & 

Gould, P.C. v. Premiere Glob. Servs., Inc., 2010 WL 11646623, *5 (D. Minn. 2010) (“Rule 

3.7 does not differentiate between jury and bench trials for the purpose of determining 

whether a lawyer is likely to be a necessary witness at trial or whether the lawyer should 

be precluded from acting as both advocate and witness. . . . [E]ven if the trier of fact, in 

this case Judge Tunheim, would not be confused by Clifford’s simultaneous role as witness 

and advocate at trial, defendants are entitled to a proceeding free of the taint that can result 

from Clifford’s dual roles.”).

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Moreover, even if ER 3.7 were deemed applicable here, it would not require 

Counsel’s disqualification. As the Arizona Supreme Court has explained, “the sine qua 

non for disqualification under ER 3.7” is that the attorney “is a necessary witness.” Sec. 

Gen. Life Ins. Co. v. Superior Ct., 718 P.2d 985, 988 (Ariz. 1986). “[T]here is a dual test 

for ‘necessity.’ First the proposed testimony must be relevant and material. Then it must 

also be unobtainable elsewhere.” Id. These prerequisites have not been satisfied here. In 

the Final Pretrial Order, Cramton merely identified Counsel as a witness “who may be 

called at trial” (as opposed to a witness “who will be called at trial”) and did not provide 

any description of her anticipated testimony. (Doc. 310 at 90.) Similarly, ECH and Keely

Newman described Counsel as a potential, but not necessary, witness. (Id. at 99.) Such 

showings have been deemed insufficient to trigger disqualification. Cf. Security General, 

718 P.2d at 988 (“A party’s mere declaration of an intention to call opposing counsel as a 

witness is an insufficient basis for disqualification even if that counsel could give relevant 

testimony.”).

Alternatively, even if Counsel somehow did qualify as a “necessary” witness, the 

Court would decline to order her disqualification because this outcome “would work 

substantial hardship on the client.” See ER 3.7(a)(3). Counsel has been involved in these 

proceedings, in one capacity or another, for over three years. Her current co-counsel, in 

contrast, did not appear until after discovery ended and after the summary judgment 

briefing process was complete. (Doc. 187.) Under these facts, and in light of the 

questionable necessity of Counsel’s anticipated testimony, the Court concludes it would be 

inequitable to order her disqualification. Cf. Security General, 718 P.2d at 988 (“[T]he 

importance of the right to have the counsel of one’s choice require[s] careful scrutiny of 

the facts before [disqualification under ER 3.7] is permitted.”).

II. Rule 615

Keely Newman and ECH have invoked Rule 615, the rule of exclusion. (Doc. 347.) 

Rule 615 provides as follows:

At a party’s request, the court must order witnesses excluded so that they 

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cannot hear other witnesses’ testimony. Or the court may do so on its own. 

But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, 

after being designated as the party’s representative by its 

attorney;

(c) a person whose presence a party shows to be essential to 

presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

Id. 

At first blush, Rule 615 would seem to require Counsel’s exclusion from the 

courtroom during the testimony of other witnesses. This would obviously interfere with 

her ability to serve as trial counsel. Accordingly, Counsel argues she falls within Rule 

615(c)’s exception for “a person whose presence a party shows to be essential to presenting 

the party’s claim or defense.” (Doc. 357 at 4-5.)

The Court agrees. In Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912 (9th 

Cir. 2005), the Ninth Circuit confronted an analogous situation. There, after the plaintiff 

(Milicevic) bought a Mercedes S-500 for nearly $100,000, the car began experiencing 

mechanical problems. Id. at 914. In response, Milicevic arranged for her attorney (Gellner) 

to write a letter and make phone calls to the manufacturer and dealer. Id. Milicevic, 

represented by Gellner, then brought a “lemon law” lawsuit against the manufacturer and 

dealer. Id. The defendants, in turn, identified Gellner as a trial witness (due to his role in 

writing the letter and making the phone calls) and argued he should be “exclude[d] . . . 

from the courtroom while other witnesses were testifying” under Rule 615. Id. The district 

court denied the exclusion request and the Ninth Circuit affirmed, holding that Gellner’s 

presence in the courtroom was permissible under Rule 615(c) because, inter alia, “Gellner 

had represented Milicevic from the beginning of the claim process, and Milicevic had 

special reasons for insisting he continue as one of her attorneys.” Id. at 916.3 

3 The district court in Milicevic placed several limitations on Gellner’s participation 

at trial (including barring him from examining witnesses on issues about which he had 

first-hand knowledge, requiring his co-counsel to conduct his examination, and requiring 

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In reaching this result, the Ninth Circuit cited, with approval, the Eighth Circuit’s 

decision in United States v. Reeder, 614 F.2d 1179 (8th Cir. 1980). Reeder was a multidefendant criminal case in which one defendant (Reeder) believed his co-defendant’s 

attorney (Sexton) could provide exculpatory testimony on his behalf. Id. at 1185-86. 

Reeder moved for severance, arguing that the ethical rules and Rule 615 would otherwise 

prevent Sexton from serving as a trial witness, but the district court denied the severance 

request and the Eighth Circuit affirmed, holding that “Sexton could have been called as a 

witness [during the joint trial] if Reeder or his counsel felt it necessary” because Rule 

615(c) “clearly would allow Sexton to remain present in the courtroom as an exception to 

the exclusionary rule for witnesses.” Id. at 1186. 

In light of Milicevic and Reeder, the Court concludes that Counsel may be present 

in court throughout the bench trial, notwithstanding her status as a potential witness, 

because ECF and Keely Newman have established that her “presence” will be “essential to 

presenting [their] claim or defense.” See Fed. R. Evid. 615(c).

Dated this 12th day of November, 2020.

his co-counsel to make Milicevic’s opening statement and closing argument) in an effort 

to minimize any prejudice. Id. at 915. Although the Ninth Circuit identified these 

limitations as part of the reason why it was affirming the district court’s denial of the 

exclusion motion, it did not suggest that exclusion would have been required but-for the 

limitations. Id. at 916.

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