Attorney Witness Rule

Falk v Gallo, 2010 NY Slip Op 03864 (App. Div., 2nd, 2010)

The disqualification of an attorney is a matter that rests within the
sound discretion of the Supreme Court (see Nationscredit Fin. Servs. Corp. v Turcios, 41
AD3d 802
). A party's entitlement to be represented by counsel of
his or her choice is a valued right which should not be abridged absent a
clear showing that disqualification is warranted (see Aryeh v Aryeh, 14 AD3d 634). Thus, the
party seeking to disqualify an attorney bears the burden on the motion (see
S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp.,
69 NY2d
437; Nationscredit Fin. Servs. Corp. v Turcios, 41
AD3d 802
).

The advocate-witness rules contained in the Code of Professional
Responsibility, which have been superseded by the Rules of Professional
Conduct, provide guidance, but are not binding authority, for the courts
in determining whether a party's attorney should be disqualified during
litigation (see S & S Hotel Ventures Ltd. Partnership v 777 S.H.
Corp.,
69 NY2d 437). Rule 3.7 of the Rules of Professional Conduct
provides that 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" (Rules of
Professional Conduct [22 NYCRR 1200.0] rule 3.7). Here, since the
plaintiffs' attorney was the only person, other than the parties, who
had knowledge of any discussions regarding the terms of the oral
agreement underlying this litigation, he is "likely to be [*2]a witness on a significant issue of fact"
(Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Matter
of Stober v Gaba & Stoba, P.C.,
259 AD2d 554). Accordingly, the
Supreme Court properly granted the defendants' motion to disqualify the
plaintiffs' attorney (see Matter of Stober v Gaba & Stober, 259
AD2d 554; Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7).

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