You are here: / / AN ATTORNEY SHOULD BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE WHEN...
, , ,

AN ATTORNEY SHOULD BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE WHEN THE ATTORNEY’S TESTIMONY IS NECESSARY TO PROVE ISSUES IN DISPUTE, NOT THE CASE HERE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the husband’s attorney, Smith, should not have been disqualified on the ground he would be called as a witness at trial. The appellate division determined Smith’s testimony was not relevant to the financial issues in the divorce action. Therefore Smith should not have been disqualified on the basis that his testimony would be necessary at trial:

The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, but are not binding authority for courts in determining whether a party’s attorney should be disqualified during litigation … . “Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party’s right to representation by the attorney of its choice” … . In considering whether to disqualify counsel, the court must consider a litigant’s right to select his own counsel and the fairness and effect of disqualification in the particular factual setting … . Whether to disqualify an attorney rests in the sound discretion of the trial court … . However, an attorney should be disqualified only when his or her testimony is necessary to prove the issues in dispute … . The party seeking or supporting disqualification need not show that counsel’s continued representation would prejudice his or her client where the court finds that counsel’s testimony is necessary on his or her client’s behalf … . De Luca v De Luca, 2025 NY Slip Op 05146, First Dept 9-25-25

Practice Point: Here the proposed testimony by the attorney was not necessary to prove issues in dispute. Therefore the attorney should not have been disqualified.

 

You might also like
THE CIRCUMSTANCES SURROUNDING THE IDENTIFICATION OF DEFENDANT FROM A CELL PHONE PICTURE TAKEN BY A POLICE OFFICER AT THE POLICE STATION WERE UNDULY SUGGESTIVE; THERE WAS NO PROBABLE CAUSE FOR DEFENDANT’S ARREST AND THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT). ​
JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED A MOTION TO AMEND THE COMPLAINT IN THE ABSENCE OF A MOTION AND PROPOSED PLEADINGS (FIRST DEPT).
To Demonstrate “Defamation by Implication” Where the Factual Statements Are Substantially True, It Must Be Shown the Communication as a Whole Imparts a Defamatory Inference and the Author Intended or Endorsed the Defamatory Inference
Disabled-Veteran Food Vendors Subject to the General Business Law—“Food” Is Encompassed by the Statutory Terms “Goods” and “Merchandise”
HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE.
AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT) IN THIS SLIP AND FALL CASE PROPERLY DENIED.
Pre-Discovery Motion for Summary Judgment Should Have Been Granted—Defendant Bus Driver’s Affidavit Explained the Collision Was the Result of His Reaction to an Emergency and Plaintiff Submitted No Alternate Factual Account
Taxi Owners Not Entitled to Damages After Ruling by NYC Taxi and Limousine Commission (Which Was Alleged to Have Damaged the Taxi Owners in the Amount of Over $15 Million) Was Found Arbitrary and Capricious

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

EXPULSION OF PETITIONER-STUDENT FROM THE PHYSICIAN ASSISTANT PROGRAM “SHOCKED... IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A TEACHER, PLAINTIFF-STUDENT’S...