Motion To Disqualify Ray Urbanik

MOTION TO DISQUALIFY RAYMOND J. URBANIK, COUNSEL FOR DANIEL J SHERMAN  
AND BRIEF IN SUPPORT  - Page 1
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 
DALLAS DIVISION 
   
NETSPHERE, INC.,        §  Civil Action No. 3-09CV0988-F 
MANILA INDUSTRIES, INC., and    § 
MUNISH KRISHAN,       § 
 Plaintiffs.     § 
            § 
  v.           §  
            § 
JEFFREY BARON, and      §   
ONDOVA LIMITED COMPANY,    § 
 Defendants.    § 
 
 
MOTION TO DISQUALIFY RAYMOND J. URBANIK, COUNSEL  
FOR DANIEL J SHERMAN AND BRIEF IN SUPPORT
   
 
TO THE HONORABLE ROYAL FURGESON, U.S. DISTRICT COURT JUDGE: 
   COMES NOW, Jeffrey Baron, Appellant, and moves for the disqualification 
of Mr. Urbanik as counsel for Mr. Sherman because his continued advocacy before 
this Court is unethical and a violation of the Texas Disciplinary Rules of 
Professional Conduct.  
1.  A District Court is obliged to take measures against unethical conduct 
occurring in connection with any proceeding before it.  Woods v. Covington Cty. 
Bank, 537 F. 2d 804, 810 (5th Cir. 1976).  A motion to disqualify counsel is the 
proper method for a party-litigant to bring the issues of a breach of ethical duties to 
the attention of the court.  McCuin v. Texas Power & Light Co., 714 F. 2d 1255,  
1264 (5th Cir. 1983). 
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MOTION TO DISQUALIFY RAYMOND J. URBANIK, COUNSEL FOR DANIEL J SHERMAN  
AND BRIEF IN SUPPORT  - Page 2
 
2.  Rule 3.08(a) of the Texas Disciplinary Rules of Professional Conduct 
expressly prohibits continued employment as an advocate before a tribunal in a 
contemplated or pending adjudicatory proceeding if the lawyer knows or believes 
that the lawyer is or may be a witness necessary to establish an essential fact on 
behalf of the lawyer's client. 
3.   Prior to today, Mr. Urbanik has received the benefit of the doubt that his 
advocacy before this tribunal fell within the scope of exception 4 to the rule 
applying to a lawyer who is a party to the action.  However, Mr. Urbanik has now 
made clear that he is not a party and is not appearing as a party.  Accordingly, the 
exception to Rule 3.08(a) does not apply. 
4.   Mr. Urbanik has established by sworn declaration that he is a witness to 
the substantive matters involved in this case and the motion for stay pending 
appeal of the appointment of the receiver.  Mr. Urbanik’s sworn declaration was 
the only
 declaration offered by Mr. Sherman in response to Mr. Baron’s motion.  
Mr. Urbanik’s sworn testimony (offered on behalf of his advocated position 
opposing stay of the receivership order) includes that: 
a.  He has personal knowledge of the facts stated in his declaration. 
b.  He is familiar based on a review of records the asset structure 
Jeffrey Baron established, and such structure is accurately 
reflected in a chart offered by Mr. Urbanik. 
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MOTION TO DISQUALIFY RAYMOND J. URBANIK, COUNSEL FOR DANIEL J SHERMAN  
AND BRIEF IN SUPPORT  - Page 3
 
c. According to his claimed personal knowledge, immediately 
subsequent to the appointment of the Receiver, steps had to 
be taken to stop the transfer of valuable property, including 
300,000 internet domain names, to a foreign entity outside of 
the jurisdiction of the federal courts. 
d.  He claims personal knowledge that Mr. Baron's assets are 
substantially located in the Cook Islands, and that such location 
is notorious for asset protection and non-compliance with United 
States law. 
e. He claims personal knowledge that the entities located in the 
Cook Islands are controlled by Mr. Baron. 
f.  He claims personal knowledge that Mr. Baron has used a total 
of seventeen attorneys, three of whom did not formally enter an 
appearance. 
g.  He claims personal knowledge that Mr. Baron
 has hired and 
filed numerous attorneys since the Trustee's appointment, 
through the related entities.
 
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MOTION TO DISQUALIFY RAYMOND J. URBANIK, COUNSEL FOR DANIEL J SHERMAN  
AND BRIEF IN SUPPORT  - Page 4
 
5.    The  need  for  maintaining a clear differentiation between the role of 
witness and the role of advocate are particularly significant in this case where the 
motion against Mr. Baron came after he objected to a fee application made by Mr. 
Urbanik.  
  
  Accordingly, Mr. Baron respectfully moves for the disqualification of Mr. 
Urbanik as counsel for Mr. Sherman because his continued advocacy before this 
Court is unethical. 
 
             Respectfully submitted, 
 
             /s/ Gary N. Schepps   
 
             Gary N. Schepps 
             State Bar No. 00791608 
             Drawer 670804 
             Dallas, Texas 75367 
             (214) 210-5940 
             (214) 347-4031 Facsimile 
             APPELLATE COUNSEL FOR  
             JEFFREY BARON 
 
 
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MOTION TO DISQUALIFY RAYMOND J. URBANIK, COUNSEL FOR DANIEL J SHERMAN  
AND BRIEF IN SUPPORT  - Page 5
 
 
CERTIFICATE OF SERVICE
 
This is to certify that this was served on all parties who receive notification through the 
Court’s electronic filing system. 
/s/ Gary N. Schepps     
 
             Gary N. Schepps
 
 
 
 
 
CERTIFICATE OF CONFERENCE
 
This is to certify that the undersigned conferred with Mr. Raymond J. Urbanik, attorney 
for DANIEL J. SHERMAN, Trustee for ONDOVA LIMITED COMPANY, and they 
opposed the motion. 
/s/ Gary N. Schepps     
 
             Gary N. Schepps
 
 
 
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Rule 3.08 Lawyer as Witness
 
(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a 
contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the 
lawyer is or may be a witness necessary to establish an essential fact on behalf of the 
lawyer's client unless:
 
(1) the testimony relates to an uncontested issue;
 
(2) the testimony will relate solely to a matter of formality and there is no reason to believe 
that substantial evidence will be offered in opposition to the testimony;
 
(3) the testimony relates to the nature and value of legal services rendered in the case;
 
(4) the lawyer is a party to the action and is appearing pro se; or
 
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in 
the matter and disqualification of the lawyer would work substantial hardship on the client. 
 
(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the 
lawyer believes that the lawyer will be compelled to furnish testimony that will be 
substantially adverse to the lawyer's client, unless the client consents after full disclosure.
 
(c) Without the client's informed consent, a lawyer may not act as advocate in an 
adjudicatory proceeding in which another lawyer in the lawyer's firm is prohibited by 
paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could 
not also serve as an advocate under this Rule, that lawyer shall not take an active role before 
the 
tribunal
 in the presentation of the matter.
 
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