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Current Developments in the Commercial Divisions of the
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Posted: February 16, 2018

Court Refuses to Disqualify Counsel Based on Lawyer-Witness Rule

On February 1, 2018, Justice Ash of the Kings County Commercial Division issued a decision in Atlantic Yards Plaza LLC v. Talde, 2018 NY Slip Op. 30179(U), refusing to disqualify a lawyer under the lawyer-witness rule, explaining:

[D]isqualification of MSF is also unwarranted pursuant to the witness-advocate rule. The witness-advocate rule contained in the Rules of Professional Conduct provide guidance, but are not binding on the court determining a disqualification motion. Rule 3.7 of the Rules of Professional Conduct provides that unless certain exceptions apply, a lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact. In the application of that rule, courts have held that the party seeking its application must demonstrate that the testimony of the opposing party’s counsel is necessary to his or her case, not merely relevant or even highly useful. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence.

First, presuming Rich is an indispensable fact witness for Plaintiff, he is no longer an attorney with MSF and has not been since April or May of 2016. With regards to any other MSF attorney, Plaintiff fails to demonstrate that the testimony of any such attorney is necessary. Even if an MSF attorney’s testimony is necessary, Plaintiff does not provide a reason to disqualify the entire firm considering that MSF is a mid-sized law firm with many attorneys, only the attorney-witness who will testify on behalf of the client is disqualified.

(Internal citations omitted).

We both bring and defend motions relating to attorney conflicts and do appeals of the decisions on those motions. The attorney-witness rule discussed above is one basis for disqualifying counsel. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you face a situation where counsel may be–or is accused of being–conflicted.

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