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Current Developments in the Commercial Divisions of the
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Posted: August 18, 2015

Counsel Disqualified Under Attorney-Witness Rule

On August 13, 2015, Justice Emerson of the Suffolk County Commercial Division issued a decision in DCS Pharmacy, Inc. v. Ugenti, 2015 NY Slip Op. 51188(U), disqualifying counsel under the attorney witness rule.

In DCS Pharmacy, the plaintiff moved to disqualify the defendant’s counsel on the ground that he was a necessary witness on the plaintiff’s claim that the defendant had violated a confidentiality agreement. The court granted the motion, explaining:

Disqualification of an attorney is a matter that rests within the sound discretion of the trial court. A party’s entitlement to be represented in ongoing litigation by counsel of its choosing is a valued right that should not be abridged absent a clear showing that disqualification is warranted. The advocate-witness rule requires an attorney to withdraw from pending litigation if the attorney is likely to be a witness on a significant issue of fact. Disqualification is warranted if the attorney’s testimony is necessary. Any doubt concerning the necessity for the attorney’s testimony should be resolved in favor of disqualification.

(Internal quotations and citations omitted) (emphasis added). The court went on to hold that there was an issue of fact regarding whether the defendant’s counsel was involved in the facts that formed the basis for the plaintiff’s claims and that because the defendant’s counsel had “exclusive personal knowledge of the issue that cannot be provided by other parties,” “his testimony is necessary” and for that reason, he should be disqualified.

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