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evidentiary hearing, in view of his participation as counsel in
the trial of the test cases.67
F. Pretrial Conference (January 1996)
On January 16, 1996, the Court held a second pretrial
conference on the record to obtain oral status reports from the
parties respecting discovery and the stipulation process, to
establish the format for the evidentiary hearing, and to discuss
possible conflicts of interest affecting counsel.68
Specifically, the Court and the parties discussed possible
conflicts of interest of Mr. Izen and Mr. DeCastro.
G. Denial of Respondent's Motion To Disqualify Mr. Izen
On February 12, 1996, respondent filed a motion to
disqualify Mr. Izen as counsel on the ground that he would be a
necessary witness at the evidentiary hearing.69 By order dated
April 1, 1996, the Court noted that, because Mr. Izen was likely
to testify at the evidentiary hearing, Mr. Izen's testimony might
in some sense prove to be adverse to the interests of his
clients. With these concerns in mind, and relying on ABA Model
67 While both Messrs. Dombrowski and O'Neill testified at
the evidentiary hearing, neither of them served as respondent's
counsel at the evidentiary hearing.
68 By order dated May 2, 1996, the Court indicated that it
would defer ruling on the assignment of the burden of proof and
the standard of proof to be applied in these cases.
Nevertheless, the Court established a procedure for the orderly
presentation of evidence at the evidentiary hearing.
69 On Oct. 4, 1995, respondent had filed a motion to
disqualify Mr. Izen as counsel on similar grounds. By order
dated Oct. 17, 1995, the Court had denied respondent's motion
without prejudice to renew pending the completion of discovery.
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