Attorney disqualification motions are governed by national ethical standards adopted by the court including, but not limited to: that American Bar Association's (ABA) Model Rules of Professional Conduct, and the ABA's Code of Professional Responsibility. Horaist v. Doctor's Hospital of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001). The ABA Code was "not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel." ABA Code, Cannon 5, n.31; Kroungold v. Triester, 521 F.2d 763, 766 (3rd Cir. 1975). Because of the potential for abuse, disqualification motions should be subject to "particularly strict judicial scrutiny." Rice v. Baron, 456 F. Supp. 1361, 1370 (S.D. N.Y. 1978).

1. Complainant's Motion to Disqualify Respondent's Attorney Ms. Smith

   Complainant alleges that Ms. Smith is a necessary witness and should be disqualified after Mr. Smith called Complainant "paranoid" and refused to apologize. The Model Rules state:

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(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 a substantial hardship on the client.
(b) A lawyer may act as an 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 or 1.9.
(c) If, after undertaking employment in contemplated or pending litigation, a lawyer learns, or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

Model Rules of Professional Conduct 3.7(a).

   Ms. Smith's statements, made in a pre-trial conference, enjoy a degree of privilege as they are part of the litigation process, and it is not proper to use statements made before the judge as the basis for a complaint of blacklisting. See U.S. v. Renner, 238 F.3d 810, 814 (7th Cir. 2001)(denying the introduction into evidence a statement by the U.S. attorney made at a pre-trial hearing that vouched for the defendants veracity); Kormi v. Kormi, 1998 WL 126911, *4 (E.D. Pa. 1998)(finding that statements made during a pretrial conference call are privileged in the context of defamation); Binder v. Triangle Publications, Inc., 275 A.2d 53, 56 (Pa. 1971)(stating that "[a]ll communications pertinent to any stage of a judicial proceeding are accorded an absolute privilege that cannot be destroyed by abuse . . . .[t]hus, statements by a party, witness, counsel, or a judge cannot be the basis of a defamation action whether they occur in a pleading or in open court."). Privileged statements cannot provide the basis for an overt act of blacklisting. See McLean v. International Harvester Co., 817 F.2d 1214, 1220 n.8 (5th Cir. 1987)(civil conspiracy).

   Here, I find that Ms. Smith's statements of concerning her opinion that Complainant was "paranoid" and her refusal to apologize for the comment were made in the privileged context of a pre-hearing conference and I find the remarks insufficient to justify a motion to disqualify Ms. Smith on the grounds that she is a necessary witness in a blacklisting complaint. This is clearly not a case where in-house counsel is responsible for investigating an employee's complaint where the results of the investigation from the basis of subsequent litigation. Rather, I find that Complainant's Motion to Disqualify is undertaken more for the purpose of gamesmanship in direct violation of the purpose of the ABA Code. Accordingly, Complainant's Motion to Disqualify Karol Smith and Complainant's Renewed Motion to Disqualify are >DENIED.

2. Respondent's Motion to Bar Complainant's Counsel Pursuant to Rule 18.36 for Failure to Adhere to Reasonable Standards of Conduct

   Respondent moved to bar Complainant's attorney Edward Slavin, Jr., from representing Complainant in her Whistleblower protection suit on the basis of 29 C.F.R. § 18.36 (2001), alleging that Mr. Slavin has failed to adhere to reasonable standards of conduct before the administrative law judge, and in fact, details a history of unwarranted personal attacks and allegations before other administrative law tribunals. I note that Mr. Slavin has systematically engaged in personal attacks, name calling and obtuse behavior throughout this proceeding. I do not find it appropriate, however, to disqualify Mr. Slavin under 29 C.F.R. § 18.36 (2001) at this time. Further such behavior by Mr. Slavin may make such a motion more appropriate in the future. Accordingly, Respondent's Motion to Disqualify Complainant's Attorney is DENIED.

   IT IS HEREBY ORDERED that Complainant's Motion to Disqualify Karol Smith, Complainant's Renewed Motion to Disqualify, and Respondent's Request to Bar Complainant's Attorney Under Rule 18.36 are DENIED.

       CLEMENT J. KENNINGTON
       Administrative Law Judge