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Alcala Pharmaceutical, Inc v. RNB Holdings, LLC

United States District Court, S.D. California

December 16, 2019

ALCALA PHARMACEUTICAL, INC., Plaintiff,
v.
RNB HOLDINGS, LLC, Defendant.

          ORDER DISQUALIFYING PLAINTIFF'S COUNSEL MATTHEW RIFAT [ECF NO. 15]

          MITCHELL D. DEMBIN, UNITED STATES MAGISTRATE JUDGE

         On December 5, 2019, the Court issued an Order to Show Cause requiring counsel for Plaintiff, Matthew Rifat, Esq., to notify the Clerk regarding certain felony charges pending against him in the California Superior Court in Riverside County and to demonstrate why he should be allowed to continue to represent Plaintiff in this case, as required by Civil Local Rule 83.5. (ECF No. 13). On December 6, 2019, Mr. Rifat notified the Clerk of the charges. (ECF No. 14). On December 11, 2019, Mr. Rifat moved the Court to allow him to continue to represent Plaintiff. For the reasons provided below, Mr. Rifat's motion is DENIED.

         DISCUSSION

         Civil Local Rule 83.5(b) states, in part:

1. Any attorney charged with or convicted of a felony must report the charge or conviction within fourteen (14) days to the Clerk of Court. …
3. A non-court appointed attorney charged with a felony must show cause why he or she should not be removed from any pending civil or criminal case due to a conflict of interest. It will be the attorney's burden to demonstrate to each judge assigned a case on which the charged attorney wishes to appear that there is no conflict and the attorney can appropriately discharge his or her duties to the client.

         In his Motion to remain as counsel for Plaintiff, Mr. Rifat asserts that his client is aware of the charges against him and wishes that he remain as counsel. (ECF No. 15-2, ¶¶ 15-17). Mr. Rifat states that the charges against him have no connection to his representation of Plaintiff. (Id.). Mr. Rifat is vigorously defending himself against these very serious charges and correctly points out that he is entitled to the presumption of innocence. (ECF No. 15-2, ¶ 13). Nonetheless, being subject to significant criminal charges must be stressful and distracting.

         If that is all there was to this, the Court likely would accede to the wishes of Plaintiff and allow Mr. Rifat to continue as its attorney. But, there is more to the story.

         Mr. Rifat acknowledges that he is a prospective witness in this case. (ECF Nos. 10 at 3; 15-2, ¶ 15). Although starting out as a contract dispute/collections case, Defendant's Amended Counterclaims allege misrepresentations by Plaintiff inducing Defendant to enter into the subject contract. Of concern here, Defendant specifically asserts that representations were made by Mr. Rifat, which representations are alleged to have been false. (ECF No. 8, ¶¶ 22, 23).

         California Rule of Professional Conduct 3.7(a) provides:

         A lawyer shall not act as an advocate in a trial in the which the lawyer is likely to be a witness unless:

1. the lawyer's testimony relates to an uncontested issue;
2. the lawyer's testimony relates to the nature and value of legal services ...

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