TUCKER, J.
{¶ 1} Plaintiff-appellant, Janice L. Weadock, appeals from the trial courts decision of November 20, 2017, in which the court disqualified her attorney from continuing to represent her in this matter pursuant to Prof. Cond. Rule 3.7(a). Raising three assignments of error, Weadock contends that the decision should be reversed because it derives from the trial courts faulty determination that her attorney would be a necessary witness at trial. We find that the court did not err as contended, and therefore we affirm.
I. Facts and Procedural History
{¶ 2} On May 24, 2015, Defendant-appellee, Dr. Jamal Taha, performed surgery on Weadocks lower back at Kettering Medical Center. Second Am. Compl. ¶ 18; Answer of Jamal Taha, M.D. to Second Am. Compl. ¶ 8. Afterward, Weadock experienced complications that Taha attempted to correct through additional surgery on June 4, 2015. Second Am. Compl. ¶ 40; Answer of Jamal Taha, M.D. to Second Am. Compl. ¶ 13. The second surgery did not improve Weadocks condition. Second Am. Compl. ¶ 43-49; compare with Answer of Jamal Taha, M.D. to Second Am. Compl. ¶ 14-16.
{¶ 3} On May 23, 2016, Weadock filed a complaint against Taha; Kettering Health Network; Genesis Health Care, LLC; and the Secretary of the United States Department of Health and Human Services. The complaint asserted four causes of action against Taha: negligence, fraudulent concealment, failure to obtain informed consent, and battery.
{¶ 4} On October 11, 2016, Taha moved to disqualify Weadocks counsel under Prof. Cond. Rule 3.7(a). In his motion, Taha argued that disqualification was required under the rule because Weadocks counsel had personally participated in significant events underlying the complaint, making counsel a necessary witness. The trial court overruled the motion, finding only a mere possibility that counsel would be called to testify at trial; that counsels testimony could be replaced with that of another witness; and that counsels testimony would not necessarily relate to a contested issue. Decision on Mot. to Disqualify 3-5, Nov. 8, 2016; see also Prof. Cond. Rule 3.7(a)(1)-(3).
{¶ 5} Genesis Health Care, LLC then moved for judgment on the pleadings. In a decision docketed on December 16, 2016, the trial court overruled the motion but ordered Weadock to amend her complaint in compliance with Civ.R. 10(D)(2)(a). Weadock filed an amended complaint on January 17, 2017. The causes of action asserted against Taha were unchanged.
{¶ 6} On March 31, 2017, Weadock requested leave to file a second amended complaint for the purpose of adding a claim against Taha for spoliation, citing evidence obtained through discovery purportedly indicating that Taha had destroyed a key document in anticipation of litigation. See Mot. for Leave to File a Second Am. Compl. 6, Mar. 31, 2017. The court initially denied Weadocks request, though it later reconsidered its ruling and sustained the motion. Decision Denying Pl.s Mot. for Leave to File Second Am. Compl. 2-3, Apr. 24, 2017; Decision Granting Pl.s Mot. for Leave to File Second Am. Compl. 2, June 15, 2017.
{¶ 7} Weadock filed her second amended complaint on June 21, 2017. In the newly included spoliation claim, Weadock alleged that Taha had destroyed a document memorializing a meeting held on July 22, 2015, and attended by Taha himself, Weadocks counsel, and one of Weadocks personal friends. Second Am. Compl. ¶ 67-74 and 107-118; see also Appellants Br. 2-3. Taha allegedly destroyed the document to produce a defense to Weadocks claims against him. Second Am. Compl. ¶ 116.
{¶ 8} On August 23, 2017, Taha filed a second motion to disqualify Weadocks counsel. The trial court sustained the motion in its decision of November 20, 2017, and Weadock timely filed her notice of appeal two days later.
II. Analysis
{¶ 9} In her brief, Weadock argues that the trial court erred by sustaining Tahas second motion to disqualify. See Appellants Br. 3-5. Weadock presents her argument as three assignments of error, which we address together. For her first assignment of error, Weadock contends that:
THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT WHEN IT HELD THAT THE ANTICIPATED TESTIMONY OF JUDITH R. FELLERS REGARDING WHAT SHE HEARD AND SAW AT A MEETING ON JULY 22, 2015 WOULD BE INADMISSIBLE HEARSAY.
For her second assignment of error, Weadock contends that:
THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT WHEN IT HELD THAT ATTORNEY ALFRED J. WEISBROD IS A NECESSARY WITNESS FOR THE PURPOSES OF PROF. COND. R[ULE] 3.7.
And for her third assignment of error, Weadock contends that:
THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT WHEN IT DISQUALIFIED ALFRED J. WEISBROD AS HER ATTORNEY.
Appellants Br. 1, 5 and 8-9.
{¶ 10} Weadock argues that her counsel need not testify at trial because her friend, Judith R. Fellers, can testify in counsels place, rendering counsels testimony unnecessary. Appellants Br. 8. In its decision sustaining Tahas second motion to disqualify, the trial court concluded that Fellers could not testify in counsels place because Fellerss testimony would consist of inadmissible hearsay. Decision Granting Mot. to Disqualify Counsel 7-8, Nov. 20, 2017 [hereinafter Decision ].
{¶ 11} According to Prof. Cond. Rule 3.7(a), [a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the lawyers testimony relates to an uncontested issue; (2) the lawyers testimony relates to the nature and value of legal services rendered in the case; or (3) the lawyers disqualification * * * would work substantial hardship on the client. (Emphasis omitted.) The instant matter revolves around the question of whether Weadocks counsel is a necessary witness, or in other words, whether the testimony to be offered by Weadocks counsel is admissible and unobtainable through other * * * witnesses. (Citations omitted.) Gonzalez-Estrada v. Glancy , 2017-Ohio-538, 85 N.E.3d 273, ¶ 12 (8th Dist.) ; Brown v. Spectrum Networks, Inc. , 180 Ohio App.3d 99, 2008-Ohio-6687, 904 N.E.2d 576, ¶ 14-15 (1st Dist.). We review the trial courts decision for abuse of discretion. Gonzalez-Estrada , 2017-Ohio-538, 85 N.E.3d 273, ¶ 10, citing 155 N. High, Ltd. v. Cincinnati Ins. Co. , 72 Ohio St.3d 423, 426, 650 N.E.2d 869 (1995) ; Brown , 180 Ohio App.3d 99, 2008-Ohio-6687, 904 N.E.2d 576, ¶ 10, citing 155 N. High Ltd. , 72 Ohio St.3d at 426, 650 N.E.2d 869, and Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 12} Weadocks inclusion of a claim for spoliation against Taha in her second amended complaint led the trial court to conclude not only that her counsel would be a necessary witness at trial, but also that counsels continued representation [would] undermine the integrity of the proceedings. Decision 6. The claim itself arises from a meeting attended by Taha, Weadocks counsel, and Fellers on July 22, 2015. Second Am. Compl. ¶ 107-116; Decision 2. Taha maintains that during the meeting, Weadocks counsel told him to take no further action with respect to Weadocks treatment unless instructed by counsel to do so. Appellees Br. 3-4; Answer of Jamal Taha, M.D. to Second Am. Compl. ¶ 31-32. Weadock denies that her counsel made these statements and accuses Taha of destroying a contemporaneous written record of the meeting in order to perpetuate a deliberate deception designed to disrupt [her] case. Second Am. Compl. ¶ 116; Appellants Br. 5.
{¶ 13} We find that the trial court did not abuse its discretion by disqualifying Weadocks counsel. First, we concur with the trial courts determination that although Fellers attended the meeting of July 22, 2015, any testimony she might provide regarding that which counsel said, or did not say, would constitute hearsay. Decision 8. Second, we concur that in light of the role played by Weadocks counsel in the events underlying the complaint, counsels continued representation of Weadock in this case would be inappropriate. Id. at 6-7.
{¶ 14} On July 21, 2015, Weadock executed a durable power of attorney for health care authorizing counsel to make medical decisions on her behalf, and the substance of the instructions, if any, subsequently given by counsel to Taha at the meeting on July 22, 2015, is the central issue of fact presented by Weadocks claim for spoliation. Id. at 1 fn.1; see Second Am. Compl. ¶ 107-116; Answer of Jamal Taha, M.D. to Second Am. Compl. ¶ 31-32. Weadock insists that because [n]ot stating something cannot be an assertion, Fellerss testimony about statements she did not hear during the meeting is not hearsay as defined by Evid.R. 801(A) and (C). Appellants Br. 6-7.
{¶ 15} Weadocks position has some support in the case law. For instance, the Supreme Court of Ohio held that the hearsay rule did not apply to the testimony of a witness who overheard [one man] ask [another man,] prior to [a] robbery, where he could obtain a gun and ammunition. State v. Carter , 72 Ohio St.3d 545, 548, 651 N.E.2d 965 (1995). The Court observed that because an inquiry of the referenced kind is not a declarative statement of fact or observation, it cannot by its nature * * * be prove[n] either true or false and does not constitute an assertion for purposes of Evid.R. 801. See id. at 549, 651 N.E.2d 965 ; see also Evid.R. 801(A) and (C). As a result, the Court found that when a witness testifies to overhearing such a question, the purpose of incorporating the question into the testimony cannot be * * * to prove the truth of the matter asserted. See id. Applying the same principles, we have held that a witnesss testimony does not necessarily violate the hearsay rule when the witness testifies to that which the witness did not hear. See Damron v. CSX Transp., Inc. , 184 Ohio App.3d 183, 2009-Ohio-3638, 920 N.E.2d 169, ¶ 41 (2d Dist.) (remarking that the trial court correctly found that an attorney could testify that he [and another attorney] did not discuss spoliation of evidence because the testimony would not be offered to prove the truth of the matter [which was] discussed).
{¶ 16} Yet, in the case at hand, the question of what Weadocks counsel said or did not say is a pivotal question of fact, and Weadock acknowledges that she seeks to prove the substance of the conversation between counsel and Taha by relying entirely on the testimony of Fellers, a third party. See Appellants Br. 7. Thus, even assuming for sake of argument that Fellerss testimony would not violate the letter of the hearsay rule, her testimony in the context of Weadocks spoliation claim would, in our view, violate the spirit of the rule. See Evid.R. 802.
{¶ 17} Moreover, we agree with the trial court that because Weadocks counsel participated in the events underlying the complaint, counsels continued representation of Weadock would not be appropriate. Notwithstanding that Prof. Cond. Rule 3.7(a) does not [reflexively] render a lawyer incompetent to testify as a witness on [a clients] behalf, the rule does permit a court to exercise its inherent power of disqualification to prevent a potential violation of [the] rules governing attorney conduct. (Citation omitted.) Damron , 184 Ohio App.3d 183, 2009-Ohio-3638, 920 N.E.2d 169, ¶ 39 ; see also, e.g., Karaman v. Pickrel, Schaeffer & Ebeling Co. , 2d Dist. Montgomery No. 21813, 2008-Ohio-4139, 2008 WL 3583361, ¶ 9-14 (considering equivalent provisions of the former Code of Professional Responsibility).
{¶ 18} Here, Weadocks counsel would effectively be testifying by proxy were he permitted to examine Fellers about statements he himself made or did not make, which among other things, would seem to violate Tahas right to confront and cross-examine adverse witnesses. See, e.g., Murray v. Metropolitan Life Ins. Co. , 583 F.3d 173, 180 (2d Cir.2009) (interpreting a similar rule and finding that it was intended to prevent, among other things, the possibility that by representing a party at trial and simultaneously testifying as a material witness, a lawyer might appear to vouch for his own credibility, or blur the line between argument and evidence, thereby confusing the jury); Waite, Schneider, Bayless & Chesley Co., L.P.A. v. Davis , 253 F.Supp.3d 997, 1018-1020 (S.D.Ohio 2015) (finding disqualification appropriate for an attorney who would be a necessary witness at trial and had participated extensively in pretrial discovery);
Baker v. BP Am., Inc. , 768 F.Supp. 208 (N.D.Ohio 1991) (finding disqualification of an attorney and his firm appropriate because of the attorneys involvement in underlying events). For that matter, the underlying involvement of Weadocks counsel, to whom Weadock had given a durable power of attorney for health care, creates the possibility of a conflict of interest for purposes of Prof. Cond. Rule 1.7. See also Prof. Cond. Rule 1.14 and 3.4.
III. Conclusion
{¶ 19} We find that the trial court did not abuse its discretion by disqualifying Weadocks counsel from continuing to represent her. Therefore, the assignments of error are overruled and the trial courts decision of November 20, 2017, is affirmed.
DONOVAN, J., and HALL, J., concur.
Nothing has been filed on behalf of the Department of Health and Human Services in this case. On July 3, 2017, Weadock voluntarily dismissed her claims against Kettering Health Network with prejudice, and on November 7, 2017, she dismissed her claims against Genesis Health Care, LLC, also with prejudice.
The relevant testimony here relates to a contested issue, and Weadocks counsel would not be testifying about the nature and value of legal services. See Second Am. Compl. ¶ 67-74 and 107-118; Answer of Jamal Taha, M.D. to Second Am. Compl. ¶ 2, 14, 19-21 and 27-34; Appellants Br. 5-9. At oral argument, Weadock contended that the substantial hardship exception applies in this case, referring to the potential for delay and expense associated with engaging substitute counsel. These concerns, however, have not been deemed to be substantial hardships within the meaning of the rule. See, e.g., 155 N. High, Ltd. v. Cincinnati Ins. Co. , 72 Ohio St.3d 423, 429-430, 650 N.E.2d 869 (1995) ; Rock v. Sanislo , 9th Dist. Medina No. 09CA0031-M, 2009-Ohio-6913, 2009 WL 5154889, ¶ 18-19.
Specifically, Weadock argues that because Fellerss testimony would include no statement as that term is defined by Evid.R. 801(A), the testimony would not be hearsay as that term is defined by Evid.R. 801(C) inasmuch as Fellers would not be offering a statement into evidence as part of her testimony.
For example, at the time of the meeting on July 22, 2015, Weadock was a patient at Upper Valley Medical Center in Troy. See Decision 2-3. Fellers testified at her deposition that, during the meeting, Taha expressed a desire to have Weadock transferred from Upper Valley Medical Center, where Taha did not have surgical privileges, to Kettering Medical Center, where Taha did have surgical privileges. See id. (quoting a portion of Fellerss deposition); see also Appellees Br. 3-4. At trial, Tahas counsel would be unable to cross-examine Fellers about the response of Weadocks counsel, if any, to Tahas interest in having Weadock transferred because Fellers could not quote or paraphrase any statements made by Weadocks counsel, or indicate the meaning of counsels nonverbal expressions, without violating the hearsay rule. See Evid.R. 801(A) and (C).