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PLAINTIFF’S ATTORNEY VIOLATED THE RULES OF PROFESSIONAL CONDUCT BY DEPOSING A NONPARTY WITNESS WHEN HER COUNSEL WAS NOT PRESENT, HOWEVER THE VIOLATION DID NOT PREJUDICE DEFENDANTS AND DID NOT THEREFORE REQUIRE DISQUALIFICATION (FOURTH DEPT). ​

The Fourth Department determined the motion to disqualify plaintiff’s attorney for deposing an important nonparty witness without counsel present was properly denied. However, Supreme Court should not have precluded further questioning of the witness:

“Disqualification of a party’s chosen counsel . . . is a severe remedy which should only be done in cases where counsel’s conduct will probably taint the underlying trial’ ” … . Here, although plaintiff’s attorney improperly engaged in conversations with an allegedly represented nonparty witness, delayed in providing notes regarding one of those conversations, and allegedly misrepresented the nature of one of the conversations, we reject defendants’ contentions that plaintiff’s attorney has gained any unfair advantage requiring his disqualification.

Generally, a violation of the Rules of Professional Conduct, while relevant to the issue whether the attorney’s continued participation will taint a case, is not, in and of itself, sufficient to warrant disqualification … . Based on our review of the records … , we cannot conclude that plaintiff’s attorney obtained any information that he could not have otherwise obtained in the ordinary course of discovery … . Any improper testimony from the witness at her first deposition would be inadmissible at trial, and we doubt that any knowledge plaintiff’s attorney acquired regarding the witness’s inadmissible opinions would lead the attorney to develop a novel theory of the case or to uncover otherwise undiscovered information. We thus conclude that disqualification of plaintiff’s attorney was not “necessary in order to rectify the situation and to prevent the offending [attorney] from realizing any unfair advantage” from his conduct … . Harris v Erie County Med. Ctr. Corp., 2019 NY Slip Op 06352, Fourth Dept 8-22-19

 

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