A recent decision from Westchester Commercial Division Justice Linda Jamieson presents an interesting contrast to a case we discussed in an earlier post. In Prisco v. L’Aquila Realty LLC, Index No. 58654/2018, Petitioner moved to disqualify opposing counsel, who was deposed in the case and certain to be called as a witness at trial. Petitioner argued that, pursuant to Rule 3.7 of the Rules of Professional Conduct, a lawyer cannot be both an advocate and a witness, except in limited circumstances.

Justice Jamieson explained that “the court is guided, but not bound by, the standards set forth in Rule 3.7, and whether to disqualify an attorney rests in the sound discretion of the Court” (quoting Harris v. Sculco, 86 A.D.3d 481, 926 N.Y.S.2d 897 (1st Dep’t 2011). Then, because summary judgment motions had not yet been filed in the case, the Court denied the motion as “premature.” “If the parties do not make motions for summary judgment, or if the motions are unsuccessful such that a trial is necessary,” Justice Jamieson said, “petitioner may make a second motion.”

In an earlier decision in HH Marina Development LLC v. Tarrytown Boat Club, Inc., however, Justice Jamieson held that a general counsel who was deposed in the case and would be a key witness at trial “cannot be allowed to take the deposition of other key witnesses.”

The different outcomes in the two cases likely is attributable to the fact that in HH Marina, the general counsel who sought to depose other witnesses was not counsel of record. Thus, plaintiff HH Marina was not deprived of its choice of counsel and the motion was not really a motion to disqualify.

Takeaway: HH Marina was a highly unusual situation, and Justice Jamieson’s decision in Prisco likely better reflects the Court’s reluctance to interfere with the parties’ choice of counsel.

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