The Eleventh Appellate District Court of Ohio has upheld a lower court’s decision to disqualify attorney Dennis R. Fogarty from representing Ruple Builders, Inc. in a case involving a mechanic’s lien filed against Shoregate Towers NS, L.L.C. The ruling, issued on November 24, 2025, centers on whether Fogarty’s role as the drafter of the disputed lien makes him a necessary witness, thereby creating a conflict under the Ohio Rules of Professional Conduct.
Background of the Case
The dispute stems from a construction project at Shoregate Towers, where Ruple Builders was a subcontractor. After a parking garage at the property collapsed in August 2023, Ruple filed a mechanic’s lien for unpaid work. Shoregate subsequently sued Ruple, alleging the lien was fraudulent and an attempt to avoid liability for the garage collapse. Fogarty, Ruple’s attorney, drafted and filed the lien.
The Disqualification Motion
Shoregate moved to disqualify Fogarty, arguing that he was a necessary witness due to his involvement in drafting and filing the lien. They also contended that his representation of Ruple presented a conflict of interest. The trial court agreed, leading to Fogarty’s appeal.
The Court’s Reasoning
The appellate court affirmed the trial court’s decision, focusing on Rule 3.7 of the Ohio Rules of Professional Conduct, which addresses when a lawyer may act as an advocate in a trial where they are also a witness.
The court found that Fogarty was indeed a “necessary witness” because his testimony was crucial to understanding his intent and knowledge when drafting and filing the mechanic’s lien. The court noted that no other witness could provide this information, making Fogarty’s testimony essential to Shoregate’s claims.
The court also considered exceptions to the rule, such as whether disqualification would cause “substantial hardship” to Ruple. The court found that Fogarty and Ruple had not met the burden of proving that disqualification would cause substantial hardship. The court noted that Ruple had time to retain new counsel, and the case was still in the discovery phase.
Key Points from the Opinion
* Necessary Witness: The court emphasized that a “necessary witness” is someone with material information that no one else can provide. Fogarty’s role in drafting the lien fell into this category.
* Substantial Hardship: The court found that Fogarty’s long-standing relationship with Ruple and his involvement in the case did not constitute “substantial hardship” to Ruple, which would have been an exception to the disqualification rule.
* Prejudice to Opposing Party: The court also considered the prejudice to Shoregate, noting their inability to depose Fogarty due to his representation of Ruple.
Impact of the Ruling
This decision reinforces the importance of the Ohio Rules of Professional Conduct and the potential consequences for attorneys who may also be witnesses in a case. It highlights the delicate balance between a client’s right to counsel of their choice and the need to ensure a fair and just legal process.