Commercial Division Blog

Posted: October 28, 2016 / Categories Commercial, Law Firms and Professional Ethics

Attorney Properly Disqualified Under Attorney-Witness Rule

On October 19, 2016, the Second Department issued a decision in Bajohr v. Berg, 2016 NY Slip Op. 06797, affirming an order disqualifying an attorney under the attorney-witness rule, explaining:

The disqualification of an attorney is a matter that rests within the sound discretion of the trial court. The advocate-witness rules contained in the Rules of Professional Conduct Rule 3.7 provide guidance, but not binding authority, for courts in determining whether to disqualify an attorney. Pursuant to Rule 3.7 of the Rules of Professional Conduct, unless certain exceptions apply, a lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.

Here, Berg, who is a defendant in Action No. 1, is likely to be called as a witness on significant issues of fact regarding his conduct with respect to the money that he is holding in escrow. Accordingly, the Supreme Court providently exercised its discretion in granting that branch of Bajohr's oral application which was to disqualify Berg and his law firm from representing Josephine Longo in Action No. 2.

(Internal quotations and citations omitted).