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Commercial Division Disqualifies Attorney Acting in a Dual Role Pursuant to Advocate-Witness Rule

In a recent decision, Justice Lawrence S. Knipel in the Commercial Division ordered an attorney to comply with a non-party subpoena and disqualified the same attorney from representing her client in the action pursuant to the Advocate-Witness Rule[1] of the New York Rules of Professional Conduct due to the fact that the lawyer was likely to be a witness on a significant issue of fact in the case.  Vanderbilt Brookland LLC v. Vanderbilt Myrtle Inc., No. 500522/2014, 2016 BL 433294 (Sup. Ct. Dec. 23 2016).   

The dispute in Vanderbilt involved a breach of property sale contract and the validity of an assignment.  The lawyer representing the defendant in the litigation was subpoenaed for records and testimony related to her representation of defendant in the transactions, including various agreements and communications with other parties’ attorneys.  The lawyer failed to respond to the subpoena.  Plaintiff sought enforcement of the subpoena contending that the attorney had critical and unique knowledge on the underlying matter that was not protected by the attorney-client privilege.

Justice Knipel held that the discovery sought was relevant, material and necessary to plaintiff’s claims as the attorney was the authorized corporate representative, and the materials sought related to pre-litigation communications not protected by the attorney-client privilege. 

As to disqualification, the Court stated that “[d]isqualification during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants and denies a party’s right to representation by the attorney of its choice.”[2]  Further, “[w]here the rules relating to professional conduct are invoked not at disciplinary proceeding but in the context of an ongoing lawsuit, disqualification can create a strategic advantage of one party over another.”[3]  According to the Court, “[a] party seeking to disqualify an attorney or a law firm must establish (1) the existence of a prior attorney relationship and (2) that the former and current representation are both adverse and substantially related.”[4]

The Commercial Division found that the attorney must be disqualified from representing her client in the litigation.  The Court determined that the attorney’s involvement in drafting and negotiating key documents demonstrated that she had personal knowledge of material facts and would likely be a witness in the litigation.  This was only further solidified by the testimony of other individuals who had little or no recollection of the transactions at issue and the fact that the subject matter of the proposed testimony was hotly contested by the parties.  As a result, Justice Knipel ordered the attorney disqualified from continued representation of her client.

By Ashley Ochs and Muhammad U. Faridi

[1] Rule 3.7(a) of New York Rules of Professional Conduct, 22 NYCRR § 1200.00, states:

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 unless:

  1. the testimony relates solely to an uncontested issue;
  2. the testimony relates solely to the nature and value of the legal services rendered in the matter;
  3. disqualification of the lawyer would work substantial hardship on the client;
  4. the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition of the testimony; or
  5. the testimony is authorized by the tribunal.

[2] Vanderbilt Brookland LLC v. Vanderbilt Myrtle Inc., No. 500522/2014, 2016 BL 433294, at *8-9 (Sup. Ct. Dec. 23 2016).

[3] Id. at *9.

[4] Id.