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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