Disqualificaiton

Trimarco v Data Treasury Corp., 2012 NY Slip Op 00360 (2nd Dept., 2012)

The advocate-witness rules contained in the Rules of Professional Conduct (see 22 NYCRR 1200.0), 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 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[a]; see Falk v Gallo, 73 AD3d 685). In order to disqualify counsel, a party moving for disqualification must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be [*2]prejudicial to the opposing party (see S & S Hotel Ventures Ltd. Partnership v 777 S.H., 69 NY2d at 446; Daniel Gale Assoc., Inc. v George, 8 AD3d 608, 609).

Here, the plaintiff failed to demonstrate that the disqualification of Richard B. Friedman and his law firm, McKenna, Long & Aldridge, LLP, from representing the defendant in this action was warranted. There was no showing that Friedman's testimony was necessary, as there was no evidence that he had first-hand knowledge of material facts relevant to the case (cf. Falk v Gallo, 73 AD3d 685). Further, the plaintiff failed to demonstrate that Friedman's testimony would be prejudicial to the defendant. Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was to disqualify Friedman and McKenna, Long & Aldridge, LLP, from representing the defendant in this action.

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