2006 UT 62
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
D.J. Investment Group, L.L.C., a
No. 20050495
Utah limited liability company,
Plaintiff and Respondent,
v.
DAE/Westbrook, L.L.C., a Delaware
limited liability company;
Draper City, a municipal corporation;
F I L E D
John Does 1 through 15,
Defendants and Petitioners.
October 20, 2006
---
Fourth District, Provo Department
The Honorable Lynn W. Davis
No. 010402305
Attorneys: Denver C. Snuffer, Jr., Sandy, for plaintiff
Richard W. Casey, John H. Bogart, Evelyn J. Furse,
Nicole A. Skolout, Salt Lake City, for defendants
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1
Rule 3.7(a) of the Utah Rules of Professional Conduct
generally prohibits a lawyer from "act[ing] as [an] advocate at a
trial in which the lawyer is likely to be a necessary witness,"
but provides an exception where disqualification of the lawyer
would "work substantial hardship on the client."1 In this
interlocutory appeal, we granted certiorari on a single question
incorporating two issues: (1) whether the substantial hardship
exception requires courts to balance the interests of the client
with the interests of the opposing party and the tribunal, and
1 Utah R. Prof'l Conduct 3.7(a).

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(2) whether the substantial hardship exception was properly
applied in this case.
¶2
Defendant DAE/Westbrook, L.L.C., now known as SunCrest,
L.L.C. ("SunCrest") moved under rule 3.7(a) to disqualify lawyer
Denver C. Snuffer from representing plaintiff D.J. Investment
Group, L.L.C. ("D.J.") at trial, alleging that Snuffer's actions
have made him a necessary witness in this case. The district
court found that the disqualification of Snuffer would cause
substantial hardship to D.J. and denied the motion. SunCrest
filed an interlocutory appeal, and the court of appeals affirmed.
SunCrest argues that the court of appeals applied the wrong legal
test for substantial hardship and that it erred in affirming
because the district court did not conduct an appropriate
balancing of interests in determining that Snuffer's
disqualification would cause substantial hardship to D.J. We
conclude that the substantial hardship exception requires a
balancing of interests consistent with the advisory committee's
comment to rule 3.7, that an appropriate balancing was conducted,
and that the court of appeals correctly held that the district
court did not abuse its discretion when it found that the
substantial hardship exception applied to the facts of this case.
We therefore affirm.
BACKGROUND
¶3
Although the present lawsuit between neighboring
landowners D.J. and SunCrest has a complex factual history, we
discuss only those facts necessary to consider SunCrest's appeal
from the denial of its motion to disqualify opposing counsel
Denver Snuffer. SunCrest seeks to disqualify Snuffer and his
firm, Nelson, Snuffer, Dahle & Poulsen, P.C., from representing
D.J. as an advocate at trial based on Snuffer's involvement in a
November 16, 2000 settlement agreement ("the Agreement") between
SunCrest and D.J. that is now a subject of dispute in the present
case.
¶4
The Agreement was intended to resolve an October 2000
lawsuit brought by D.J. against SunCrest for an alleged trespass.
In provision 14 of the Agreement, SunCrest promised to allow D.J.
to use a "Southerly Roadway" that would be built across property
belonging to third party Micron Technology, Inc. ("Micron"). In
return, D.J. agreed to dismiss its prior lawsuit and to allow
SunCrest to use an access road that SunCrest had built over
D.J.'s property. Snuffer acted as D.J.'s lawyer at all times
during these events and has continued to represent D.J. through
the present proceedings. The extent of his involvement in
negotiating the November 2000 Agreement is disputed.
No. 20050495
2

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¶5
A short time after the parties signed the Agreement,
the dispute between the parties was rekindled. According to the
district court, "[d]espite [SunCrest's] representations that it
had secured the necessary easements to construct the Southerly
Roadway, the rights to these easements may not have been obtained
and [SunCrest] is now preparing to build the Southerly Highway
along a different route that does not provide D.J. with [its
desired] access to State Road 92." On May 7, 2001, D.J. filed
the present lawsuit. It seeks to rescind the Agreement and
brings multiple claims against SunCrest.
¶6
On February 19, 2004, over two and one-half years after
D.J. filed its complaint, SunCrest moved pursuant to rule 3.7 of
the Utah Rules of Professional Conduct to disqualify Snuffer from
representing D.J. at trial, arguing that Snuffer is a necessary
witness in the case. SunCrest alleges that Snuffer played an
important role in drafting provision 14 of the Agreement
regarding the Southerly Highway and that his testimony regarding
the intent of the parties will be crucial. In turn, D.J. argues
that Snuffer was not present when provision 14 was drafted and
disputes Snuffer's value as a witness. The district court
determined that Snuffer was involved in many of the negotiation
sessions regarding the November 2000 Settlement Agreement and
that he advised David Mast, the manager and primary member of
D.J., on matters related to the negotiations, but the court did
not resolve the dispute of fact regarding Snuffer's involvement
in negotiating and drafting provision 14.
¶7
Upon hearing oral arguments on SunCrest's motion to
disqualify Snuffer, the district court issued a written ruling
declining to disqualify Snuffer and his firm from representing
D.J. at trial. It reasoned that it need not determine whether
Snuffer was likely to be a necessary witness because his
disqualification would cause substantial hardship to D.J. and
thus fell within the exception provided by rule 3.7(a)(3). After
noting that it had weighed the interests of the two parties in
accordance with the comments to rule 3.7, the district court
stated,
[T]he parties have conducted a significant
amount of discovery in connection with this
litigation. Most, if not all, of the key
witnesses have been deposed and written
discovery has been sent out and answered by
both parties. All things considered, the
parties have engaged in a substantial amount
of work. Indeed, the Court file now fills
seven exceptionally thick folders and
addresses some very complex legal issues.
3
No. 20050405

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The Clerk of the Court has just opened the
eighth file. Under these circumstances, the
Court doubts that another attorney could be
brought up to speed in this matter and
recognizes that such an effort would require
D.J. to expend an exorbitant amount of time
and money.
The district court continued, "Furthermore, this court believes
that [SunCrest] could have significantly reduced the costs of
bringing new counsel up to speed if [SunCrest] had filed its
Motion to Disqualify Denver Snuffer in a more timely fashion."
It then devoted four paragraphs to the timeliness of SunCrest's
motion to disqualify. Ultimately, the district court concluded,
"Because disqualifying Denver Snuffer from the case at bar would
result in significant financial and tactical prejudice to D.J.,
and in light of [SunCrest's] untimely filing of its Motion to
Disqualify, this Court rejects [SunCrest's] motion and declines
to disqualify Denver Snuffer from this litigation."
¶8
On the issue of timeliness, SunCrest has asserted that
its motion was timely because the district court did not rule
that parol evidence of the parties' intent regarding provision 14
would be necessary until November 17, 2003, when the district
court denied D.J.'s motion for summary judgment. SunCrest
explains that, prior to that time, it believed that the terms of
provision 14 were unambiguous and that there would therefore be
no need for Snuffer's testimony regarding the parties' intent.
But the district court found that, at minimum, SunCrest's
argument established that there was a three month delay before it
filed the motion to disqualify. Further, the district court
found that SunCrest was placed on notice that D.J. intended to
rely on parol evidence when D.J. filed its motion for summary
judgment on December 20, 2002, and that D.J.'s reliance on parol
evidence "became abundantly clear" at oral argument on August 27,
2003. It also noted that "[SunCrest's] own pleadings intimate
that [SunCrest] has `reasonably foreseen,' since the initiation
of this litigation[,] that Snuffer might be called as a witness
in the case at bar."
¶9
SunCrest filed an interlocutory appeal of the denial of
its motion to disqualify Snuffer with the court of appeals,
arguing that the district court erred in not properly balancing
the interests of the parties.2 The court of appeals affirmed,
holding that the district court applied the correct balancing
2 D.J. Inv. Group, L.L.C. v. DAE/Westbrook, L.L.C., 2005 UT
App 207, ¶ 4, 113 P.3d 1022.
No. 20050495
4

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standard and did not abuse its discretion in deciding that the
interests weighed against disqualifying Snuffer.3 It also
affirmed on the separate ground of untimeliness.4 We granted
certiorari to decide whether the court of appeals properly
interpreted and applied rule 3.7(a)(3)'s substantial hardship
exception. We have jurisdiction pursuant to Utah Code section
78-2-2(3)(j), (5).
STANDARD OF REVIEW
¶10
On certiorari, we review for correctness the decision
of the court of appeals, not the decision of the district court.5
In this case, we review for correctness the court of appeals'
interpretation of rule 3.7(a) as well as the court of appeals'
selection of the standard of review and its application of that
standard to the district court's substantial hardship analysis.
ANALYSIS
¶11
Rule 3.7(a) of the Utah Rules of Professional Conduct
states, "A lawyer shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness unless: . . .
(a)(3) disqualification of the lawyer would work substantial
hardship on the client." SunCrest argues that Snuffer is a
necessary witness who should be disqualified in accordance with
rule 3.7(a) and that we should therefore reverse the decision of
the court of appeals. It asserts that the court of appeals did
not correctly review the district court's conclusion that
Snuffer's disqualification would cause substantial hardship to
D.J. because the court of appeals did not require proper
consideration of SunCrest's interests and the interests of the
district court. In addressing SunCrest's arguments, we consider,
first, whether the substantial hardship exception of rule
3.7(a)(3) requires courts to balance the interests of the client
with the interests of the opposing party and tribunal, and,
second, whether the court of appeals properly affirmed the
district court's conclusion that the substantial hardship
exception applies in this case.
I. THE SUBSTANTIAL HARDSHIP EXCEPTION REQUIRES A BALANCING
OF INTERESTS CONSISTENT WITH THE ADVISORY COMMITTEE'S
COMMENT TO RULE 3.7
3 Id. ¶¶ 3, 5, 7.
4 Id. ¶¶ 6-7.
5 State v. Brake, 2004 UT 95, ¶ 11, 103 P.3d 699.
5
No. 20050405

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¶12
We initially hold that both the court of appeals and
the district court were correct in concluding that the
substantial hardship exception of rule 3.7(a)(3) requires a
balancing of the hardship that a lawyer's disqualification would
cause to the lawyer's client against the prejudice that the
opposing party would suffer if the lawyer were to act as an
advocate-witness at trial. In addition, we recognize that new
revisions to the advisory committee's note to rule 3.7 have
clarified that the balancing contemplated by the substantial
hardship exception also calls for consideration of the interests
of the tribunal, but we conclude that these revisions do not
undermine the balancing of interests conducted by the district
court in this case.
¶13
Rule 3.7(a)(3) provides an exception to the advocate-
witness prohibition where "disqualification of the lawyer would
work substantial hardship on the client," but its plain language
does not indicate how much hardship may be imposed on a client
before the hardship becomes "substantial."6 Although the term
"substantial" is, by nature, inexact and leaves the district
court significant discretion, the advisory committee's comment to
rule 3.7 provides some factors that the district court should
consider before deciding whether the hardship in a case is
"substantial."7 As amended on November 1, 2005, the advisory
committee's note to rule 3.7 states that the substantial hardship
exception contained in rule 3.7(a)(3) "recognizes that a
balancing is required between the interests of the client and
those of the tribunal and the opposing party."8 The comment
further explains,
Whether the tribunal is likely to be misled
or the opposing party is likely to suffer
prejudice depends on the nature of the case,
the importance and probable tenor of the
lawyer's testimony, and the probability that
the lawyer's testimony will conflict with
that of other witnesses. Even if there is a
risk of such prejudice, in determining
whether the lawyer should be disqualified,
due regard must be given to the effect of
disqualification on the lawyer's client. It
is relevant that one or both parties could
6 Utah R. Prof'l Conduct 3.7(a)(3).
7 Utah R. Prof'l Conduct 3.7 advisory committee's comment.
8 Id.
No. 20050495
6

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reasonably foresee that the lawyer would
probably be a witness.9
¶14
While advisory committee comments to rules adopted by
this court are not "authoritative," we give them "great
weight."10 We generally consider the comments a fairly reliable
indicator of our intent in adopting the rules because the
comments to the rules were available to this court at the time of
their adoption.11 In this particular case, where revisions to
the advisory committee's comment to rule 3.7 were recently
approved by this court, the advisory committee's comment carries
even greater weight. We therefore conclude that, when
determining whether the hardship to a client caused by
disqualification of the client's lawyer is "substantial," and
thus provides an exception to rule 3.7(a)(3)'s prohibition
against acting in the dual role of advocate-witness, the courts
should conduct a balancing of interests that is consistent with
the comment to rule 3.7.
¶15
Our analysis thus far provides a simple prospective
rule for courts applying the substantial hardship exception.
However, for the purposes of this case, which was decided before
our November 1, 2005 amendments to the comment, we must also
consider whether the amendments indicate that the district court
applied the wrong legal standard. Pursuant to the prior version
of the advisory committee's comment to rule 3.7 of the Utah Rules
of Professional Conduct,12 the district court expressly balanced
9 Id.
10 State v. Burns, 2006 UT 14, ¶ 18 n.6, 133 P.3d 370
(discussing the weight of the advisory committee's notes to the
Utah Rules of Evidence); see also Featherstone v. Schaerrer, 2001
UT 86, ¶ 23, 34 P.3d 194 (citing "the official comment" to rule
4.2 of the Utah Rules of Professional Conduct).
11 Burns, 2006 UT 14, ¶ 18 n.6.
12 See Utah R. Prof'l. Conduct 3.7 advisory committee's
comment (2005) (amended Nov. 1, 2005) ("[P]aragraph (a)(3)
recognizes that a balancing is required between the interests of
the client and those of the opposing party. Whether the opposing
party is likely to suffer prejudice depends on the nature of the
case, the importance and probable tenor of the lawyer's
testimony, and the probability that the lawyer's testimony will
conflict with that of other witnesses. Even if there is risk of
such prejudice, in determining whether the lawyer should be
(continued...)
7
No. 20050405

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the interests of the client against the interests of the opposing
party to determine whether the hardship to the client was "
substantial" but did not discuss the interests of the tribunal.13
SunCrest argues that the district court's omission of the
tribunal's interest was a legal error. We disagree.
¶16
We view the addition of the tribunal's interest as a
refinement granting additional discretion to the tribunal in
conducting the substantial hardship balancing. Our November 2005
amendments to the advisory committee's comment to rule 3.7 leave
the core balancing test intact and do not add any new factors.
Instead, it indicates that the factors that are relevant to
whether the opposing party is likely to suffer prejudice are also
relevant to determining whether the "tribunal is likely to be
misled."14 Under the revised comment, there is significant
overlap between the interests of the tribunal and the interests
of the parties. For example, in this case, SunCrest argues that
the district court has an interest in avoiding the frequent
intervention needed to remedy the jury confusion that naturally
results when a lawyer acts as both an advocate and a witness in
the same trial. But we note that the district court may also
have an interest in avoiding the delay and confusion that results
when new counsel is introduced late into a complex case. These
interests overlap with SunCrest's interest in avoiding jury
confusion and with D.J.'s interest in avoiding the difficulties
associated with bringing new counsel up to speed late in a case.
Ultimately, the revised comment to rule 3.7 gives the district
court the power to decide which interests are stronger and to
factor its own interests into the balancing.

¶17
In sum, we recognize that separate consideration of the
interests of the tribunal under the revised advisory committee's
comment to rule 3.7 may more clearly account for the broader
impact of a lawyer's involvement or disqualification. But
because of the substantial overlap between the interests of the
court and the parties and the revised comment's effect of resting
12 (...continued)
disqualified, due regard must be given to the effect of
disqualification on the lawyer's client. It is relevant that one
or both parties could reasonably foresee that the lawyer would
probably be a witness.").
13 D.J. Inv. Group, L.L.C. v. DAE/Westbrook, L.L.C., 2005 UT
App 207, ¶ 4, 113 P.3d 1022.
14 See Utah R. Prof'l Conduct 3.7 advisory committee's
comment.
No. 20050495
8

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more discretion in the trial court, we conclude that express
consideration of the tribunal's interest is not indispensable to
the balancing in this case. Given that the district court
applied the substantial hardship analysis described by the
comment to rule 3.7 prior to the 2005 amendments, it did not err
by balancing only the interests of the parties.
II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DETERMINING THAT DISQUALIFICATION OF SNUFFER WOULD CAUSE
SUBSTANTIAL HARDSHIP TO D.J.
¶18
Having determined that the court of appeals correctly
interpreted the substantial hardship exception of rule 3.7, we
now proceed to answer the second part of the question on
certiorari; namely, whether the court of appeals properly upheld
the district court's application of rule 3.7(a)'s substantial
hardship exception. We hold that it did. Our analysis on this
point requires two steps. We will first consider whether the
court of appeals appropriately selected the deferential abuse of
discretion standard of review that it applied to the district
court's decision. Because we conclude that it did, we will then
consider whether the court of appeals correctly applied this
standard in reviewing the district court's determination that
Snuffer's disqualification would cause substantial hardship to
D.J.
A. The Court of Appeals Properly Applied a Deferential Standard
of Review to the District Court's Substantial Hardship
Determination
¶19
The court of appeals stated that it gave the district
court "some deference" in its application of the substantial
hardship exception to the facts of this case, and it reviewed the
district court's substantial hardship analysis under an "abuse of
discretion" standard of review.15 SunCrest argues that the
district court failed to consider SunCrest's interests and that
this failure constituted a mistake of law that the court of
appeals should have reviewed for correctness rather than for an
abuse of discretion. We hold that the court of appeals properly
applied a deferential abuse of discretion standard, though the
deference given to the district court's substantial hardship
determination should be characterized as "broad deference" rather
than "some deference."
¶20
Because the district court stated that it had balanced
the interests of both parties as required by the advisory
15 D.J. Inv. Group, L.L.C., 2005 UT App 207, ¶ 3.
9
No. 20050405

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committee's comment to rule 3.7, we have already concluded that
the district court did not make a mistake of law regarding the
legal standard to be applied, as SunCrest contends. The question
we now consider is a mixed question of fact and law--whether the
district court appropriately applied the substantial hardship
exception to the facts before it.
¶21
To select the appropriate standard of review for this
mixed question, we turn to the three-factor test described in
State v. Levin.16 Under that test, we select a standard of
review from along a spectrum of deference by weighing the
following factors:
(1) the degree of variety and complexity in
the facts to which the legal rule is to be
applied; (2) the degree to which a trial
court's application of the legal rule relies
on "facts" observed by the trial judge such
as a witness's appearance and demeanor,
relevant to the application of the law that
cannot be adequately reflected in the record
available to appellate courts; and (3) other
policy reasons that weigh for or against
granting discretion to trial courts.17
¶22
These factors weigh in favor of granting broad
deference to a district court's application of the substantial
hardship exception. First, the facts involved in district
courts' substantial hardship determinations are "`so complex and
varying that no rule adequately addressing the relevance of all
these facts can be spelled out.'"18 Although the advisory
committee comment to rule 3.7 gives helpful guidance in the form
of factors that are relevant to determining whether a lawyer's
dual role as an advocate-witness would ordinarily harm the
interests of the opposing party or tribunal, these factors are
generally open-ended and leave much discretion to the district
court.19 Even when factors demonstrating prejudice are present,
16 2006 UT 50, ¶ 25, __ P.3d __.
17 Id. (internal quotation marks omitted).
18 Id. ¶ 28 (quoting State v. Pena, 869 P.2d 932, 939
(1994)).
19 See Utah R. Prof'l Conduct 3.7 advisory committee's
comment ("Whether the tribunal is likely to be misled or the
(continued...)
No. 20050495
10

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the comment instructs that the district court must give "due
regard . . . to the effect of disqualification on the lawyer's
client."20
¶23
Second, the substantial hardship inquiry relies on
observations made by the district court regarding the proceeding
and the parties before it that cannot adequately be reflected in
the record. The district court is intimately connected with its
own interests in the case and has special knowledge of other
relevant facts, including the nature of the case, the importance
and probable tenor of the lawyer's testimony, and the effect that
disqualification would have on the lawyer's client. The district
court is also in a better position to understand whether either
of the parties should have foreseen that the lawyer would become
a necessary witness and whether this tends to show that the
hardship to the client should be discounted or that the motion to
disqualify is motivated by gamesmanship.
¶24
Third, policy considerations weigh in favor of granting
additional deference. In Houghton v. Department of Health,21 we
said that "[t]rial courts are usually given broad discretion in
controlling the conduct of attorneys in matters before the court"
and that "their discretion extends to deciding whether
disqualification is a proper sanction after a finding of an
ethical violation."22 But we also held that "to the extent this
19 (...continued)
opposing party is likely to suffer prejudice depends on the
nature of the case, the importance and probable tenor of the
lawyer's testimony, and the probability that the lawyer's
testimony will conflict with that of other witnesses. Even if
there is risk of prejudice, in determining whether the lawyer
should be disqualified, due regard must be given to the effect of
disqualification on the lawyer's client. It is relevant that one
or both parties could reasonably foresee that the lawyer would
probably be a witness.").
20 Id.
21 962 P.2d 58 (Utah 1998), overruled on other grounds by
Ark. Dep't of Health & Human Servs. v. Ahlborn, __ U.S. __, 126
S. Ct. 1752, 1756 (2006).
22 Id. at 61; see also Featherstone v. Schaerrer, 2001 UT
86, ¶ 30 n.7, 34 P.3d 194 ("It is within [courts'] broad
discretion to control the conduct of attorneys in matters before
the court, especially where factual assessments are necessary to
(continued...)
11
No. 20050405

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court has a special interest in administering the law governing
attorney ethical rules, a trial court's discretion is limited."23
¶25
Although the substantial hardship exception of rule
3.7(a)(3) is contained within an ethical rule and plays a role in
directing a lawyer's professional conduct, it is concerned more
with establishing the appropriate course of action after an
ethical problem has arisen than with defining the ethical
violation itself. When a district court makes a substantial
hardship determination, it is essentially deciding whether
disqualification is a proper solution to the ethical and
logistical problems that are caused when a party's lawyer becomes
a necessary witness in the case. Therefore, the policy factor
weighs in favor of granting broad discretion to the district
court. In sum, we conclude that all three factors weigh in favor
of granting the district court broad discretion in applying the
substantial hardship exception, and we review the district
court's analysis for an abuse of that discretion.
B. The District Court Did Not Abuse Its Discretion When It
Concluded that Snuffer's Disqualification Would Cause Substantial
Hardship to D.J.
¶26
We finally review the district court's application of
the substantial hardship exception in this case. The crux of
SunCrest's appeal is its argument that the district court's
written decision rejecting SunCrest's motion to disqualify
Snuffer was one-sided, completely failing to consider SunCrest's
interests, and that the district court therefore misweighed the
parties' interests. However, our reading of the district court's
written decision indicates that the court found the facts
necessary to balance the interests of both parties and did not
abuse its broad discretion in applying the balancing test to
those facts.
¶27
We initially note that SunCrest assumes that the
district court was required to make specific written findings
22 (...continued)
the determination of such violations." (alteration and internal
quotation marks omitted)).
23 Houghton, 962 P.2d at 61; see also Spratley v. State Farm
Mut. Auto Ins. Co., 2003 UT 39, ¶ 8, 78 P.3d 603 ("This
court . . . has a special interest in the administration of the
Rules of Professional Conduct and the discretion granted to the
trial court in matters of disqualification is quite limited when
there are no factual disputes.")
No. 20050495
12

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associated with its denial. This assumption is not supported by
the plain language of rule 52(a) of the Utah Rules of Civil
Procedure.24 Nevertheless, because the district court's written
findings and analysis would be sufficient even if written
findings were required, we do not further consider whether
written findings were required in this case. Where written
findings are required, "[a] trial court need not resolve every
conflicting evidentiary issue . . . . Rather, the trial court's
factual findings must be articulated with sufficient detail so
that the basis of the ultimate conclusion can be understood."25
¶28
In this case, the district court expressly stated that
it "weigh[ed] the interests of the parties" and found that D.J.
would suffer substantial hardship if Snuffer were disqualified.
Further, the district court's analysis shows that it considered
relevant factors from the advisory committee's comment to rule
3.7 and found the facts necessary to its balancing of the
parties' interests.
¶29
The advisory committee's comment to rule 3.7 mentions
five factors that are relevant in assessing the interests of the
parties.26 The first three are relevant to the prejudice that an
advocate-witness would impose on the opposing party and the
tribunal.27 The fourth factor considers the effect that the
lawyer's disqualification will have on the client and specifies
that "due regard must be given" to this effect even if there is
24 Utah R. Civ. P. 52(a) ("The trial court need not enter
findings of fact and conclusions of law in rulings on
motions . . . ."); cf. State v. Poteet, 692 P.2d 760, 763 (Utah
1984) (citing rule 52(a) for proposition that no written findings
were required in connection with denial of motion to disqualify
judge).
25 Consolidation Coal Co. v. Utah Div. of State Lands &
Forestry, 886 P.2d 514, 521 (Utah 1994) (alteration in original)
(internal quotation marks and citation omitted).
26 Utah R. Prof'l Conduct 3.7 advisory committee's comment.
27 Id. ("Whether the tribunal is likely to be misled or the
opposing party is likely to suffer prejudice depends on the
nature of the case, the importance and probable tenor of the
lawyer's testimony, and the probability that the lawyer's
testimony will conflict with that of other witnesses.").
13
No. 20050405

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risk of prejudice to the opposing party.28 Finally, the fifth
factor states, "It is relevant that one or both parties could
reasonably foresee that the lawyer would probably be a
witness."29
¶30
In applying the substantial hardship exception to the
facts of this case, the district court focused its analysis on
the fourth and fifth factors mentioned in the comment. The
district court first discussed the complexity and length of the
litigation, the size of the record filed with the court, and the
expense and time that would be required for D.J. to bring new
trial counsel into the case--all of which are relevant to the
hardship imposed on D.J. The court then discussed SunCrest's
culpability in contributing to D.J.'s hardship by failing to file
its motion to disqualify Snuffer earlier in the parties'
preparations for trial. The district court observed that
"[SunCrest's] own pleadings intimate that [SunCrest] has
`reasonably foreseen,' since the initiation of this litigation[,]
that Snuffer might be called as a witness in the case at bar."
Ultimately, the court concluded, "Because disqualifying Denver
Snuffer from the case at bar would result in significant
financial and tactical prejudice to D.J., and in light of
[SunCrest's] untimely filing of its Motion to Disqualify, this
Court rejects [SunCrest's] motion and declines to disqualify
Denver Snuffer from this litigation."
¶31
The text and structure of this analysis show that the
district court considered the facts that it found in connection
with the fourth and fifth factors from the advisory committee
comment to rule 3.7--the hardship caused to the lawyer's client
and the ability of the parties to foresee the necessity of the
lawyer's testimony--to define the parties' respective interests
in this case. It is true, as SunCrest points out, that the
district court did not explicitly make findings with regard to
the first three factors that are listed in the advisory
committee's comment to rule 3.7 as relevant to the opposing
party's interests. But it is apparent from the district court's
analysis that it considered the fifth factor, foreseeability, to
be the factor most relevant to its assessment of SunCrest's
interests. We do not assume that the district court ignored the
factors from the comment to rule 3.7 that it did not explicitly
address. Instead, we assume that the court discussed those
factors it considered important to the result. In sum, we hold
that the district court articulated its factual findings "with
28 Id.
29 Id.
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sufficient detail so that the basis of the ultimate conclusion
can be understood."30
¶32
Having established that the district court's findings
regarding the parties interests were sufficiently articulated, we
turn to consider whether the district court abused its discretion
in weighing these factors with respect to the substantial
hardship exception. We conclude that it did not. As we
discussed above, the advisory committee's comment to rule 3.7
does not indicate how the factors should be weighed together, and
it leaves much discretion to the district court to determine
whether a lawyer should be disqualified.31 Furthermore, the
district court's interpretation of the factors in the context of
this case appears to be quite reasonable.
¶33
A delay in filing a motion to disqualify counsel or in
notifying opposing counsel that a motion to disqualify is likely
raises concerns that the party who delays may be using the motion
as a manipulative litigation tactic.32 This concern naturally
enters into the balancing of interests and is addressed, in part,
by the "foreseeability" factor from the advisory committee's
comment to rule 3.7.33 In Zions First National Bank v. Barbara
Jensen Interiors, Inc.,34 the court of appeals stated that "[a]
motion to disqualify counsel must be immediately filed and
diligently pursued as soon as the party becomes aware of the
basis for disqualification, and it may not be used as a
manipulative litigation tactic."35 Thus, the timeliness of the
motion to disqualify is relevant to the balancing regardless of
whether it also constitutes a separate ground for rejecting the
motion to disqualify.
30 Consolidation Coal Co., 886 P.2d at 521.
31 See supra ¶¶ 22-25.
32 See Utah R. Prof'l Conduct scope ("[T]he purpose of the
Rules can be subverted when they are invoked by opposing parties
as procedural weapons."); see also Zions First Nat'l Bank v.
Barbara Jensen Interiors, Inc., 781 P.2d 478, 480-81 (Utah Ct.
App. 1989) ("A motion to disqualify . . . may not be used as a
manipulative litigation tactic.").
33 Utah R. Prof'l Conduct 3.7 advisory committee's comment.
34 781 P.2d at 480-81.
35 Id.
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¶34
Ultimately, it appears that the district court
concluded that SunCrest's culpability in filing an untimely
motion was the factor most relevant to the weight of its
interests and that, given SunCrest's weak claim to prejudice, the
hardship to D.J. was significant enough for the substantial
hardship exception to apply in this case. In so finding, the
district court was acting within its broad discretion to control
the conduct of the attorneys in a matter before the court.
¶35
SunCrest offers three arguments in further support of
its claim that the district court failed to adequately factor
SunCrest's interests into the balancing test, none of which is
persuasive. First, SunCrest claims that the district court erred
because it simply assumed that Snuffer's testimony was necessary
under rule 3.7 rather than making a specific factual finding to
that effect. SunCrest argues that, by doing so, the court
inevitably gave too little weight to SunCrest's interests, which
depend in part on "the importance and probable tenor of the
lawyer's testimony" and "the probability that the lawyer's
testimony will conflict with that of other witnesses." We do not
agree. The district court advanced judicial economy in the face
of a complex factual dispute by making only those findings that
were dispositive to its balancing of interests and assuming that
other facts favored SunCrest.
¶36
Second, SunCrest argues that monetary hardship should
never be sufficient to support a finding of "substantial
hardship." However, there is nothing in the language of rule 3.7
that requires the potential hardship to the client to be unique
or of a nonmonetary nature, only "substantial."36
¶37
Third, SunCrest argues that the district court
misunderstood the scope of the disqualification required by rule
3.7 and that this misunderstanding led the district court to
ascribe too much weight to D.J.'s interests. Although SunCrest
is likely correct that rule 3.7 would not require a lawyer to be
disqualified from the case altogether, but only from acting as
trial counsel,37 the district court's written decision contains
no discussion of the extent of the disqualification required by
rule 3.7, and the decision gives no indication that the district
36 Utah R. Prof'l Conduct 3.7 advisory committee's comment.
37 See Utah R. Prof'l Conduct 3.7(a) ("A lawyer shall not
act as advocate at a trial in which the lawyer is likely to be a
necessary witness unless . . . [(3)] disqualification of the
lawyer would work substantial hardship on the client." (emphasis
added)).
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court misinterpreted the extent of Snuffer's disqualification
when it weighed the interests of the parties.
¶38
Furthermore, we note that in this case the district
court based its assessment of the hardship to D.J. on the
significant time and expense required to introduce a new lawyer
into this complex case and on the tactical disadvantage that
Snuffer's disqualification would cause to D.J. Because D.J.
would not be able to avoid designating new trial counsel if
Snuffer were disqualified, D.J. would suffer very similar
hardships regardless of the extent of Snuffer's disqualification.
In sum, we hold that the court of appeals correctly concluded
both that the district court's decision contained adequate
findings to support its substantial hardship determination and
that the district court did not abuse its discretion in finding
that D.J. would suffer substantial hardship if Snuffer were
disqualified.
CONCLUSION
¶39
Although rule 3.7 of the Utah Rules of Professional
Conduct generally prohibits a lawyer from acting as both an
advocate and a witness at the same trial, that rule provides an
exception where the client would suffer "substantial hardship" as
a result of the lawyer's disqualification. We hold that the
"substantial hardship exception" requires a balancing of
interests as described in the advisory committee comment to rule
3.7 of the Utah Rules of Professional Conduct, but that the court
of appeals did not err in following the prior version of rule
3.7's advisory committee's comment in this case. Furthermore, we
conclude that the district court's substantial hardship
determination is a mixed question of fact and law that implicates
the district court's broad discretion to control the conduct of
the lawyers before it. We therefore give significant deference
to the district court's substantial hardship determination.
Finally, we hold that the court of appeals correctly concluded
that the district court did not abuse its discretion when it
weighed the interests of the parties and decided that, in light
of SunCrest's delay in filing the motion to disqualify and the
financial and tactical hardship that would be suffered by D.J. if
Snuffer were disqualified, the substantial hardship exception
applied in this case. We therefore affirm.
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¶40
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant's
opinion.
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