Monday, January 11, 2010

Lawyer Witness Disqualified

The New York Appellate Division for the First Judicial Department affirmed a trial court decision to disqualify defense counsel in civil litigation under the "lawyer witness" rule:

Rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.29) provides that "[a] lawyer may not act as an advocate before a tribunal in a matter if: (1) another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is
apparent that the testimony may be prejudicial to the client" (22 NYCRR 1200.29[b][1]). Here, plaintiff sufficiently established that a member of the subject firm would be a witness and provide testimony that "may be prejudicial to the client," inasmuch as defendants claim that the note in question is invalid and a forgery, and the member is the person who prepared the note in question, who would most likely have knowledge regarding its execution, and who is claimed to have delivered it to plaintiff. The member also represented defendant Nightlife in the transaction that resulted in the promissory note, as well as in negotiating a subsequent agreement regarding the note with the person whom defendants claim was its rightful owner. Furthermore, any delay in bringing this motion was minimal, given that discovery is ongoing, and defendants have claimed no prejudice. (citations omitted)

(Mike Frisch)

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