You are here: / / PLAINTIFF’S ATTORNEY VIOLATED THE RULES OF PROFESSIONAL CONDUCT BY...

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

 

You might also like
Biogas Facility Which Is Located on a Farm and Which Produces Electricity from Manure Is Not Entitled to a Tax Exemption Pursuant to the Former Version of RPTL 483-a
THE ERRONEOUS “LOSS OF CHANCE” JURY INSTRUCTION REQUIRED REVERSAL; THE CHARGE USED THE PHRASES “SUBSTANTIAL FACTOR” AND “SUBSTANTIAL PROBABILITY” WHEN THE CORRECT PHRASE IS “SUBSTANTIAL POSSIBILITY” IN REFERENCE TO WHETHER A BETTER OUTCOME WAS DENIED DUE TO A DEVIATION FROM THE STANDARD OF CARE (FOURTH DEPT).
UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT).
Skiers Do Not Assume the Risk of Recklessness on the Part of Another Skier
CONTRARY TO SUPREME COURT’S RULING, THE PURCHASE CONTRACT DID NOT INCLUDE A CLAUSE LIMITING PLAINTIFF’S REMEDY FOR A BREACH TO RETAINING THE DEPOSIT (FOURTH DEPT).
THE APPEAL WAIVERS WERE NOT EXECUTED UNTIL SENTENCING AND WERE THEREFORE INVALID; ARGUMENTS ABOUT A LATE FILED OMNIBUS MOTION AND DEFENSE COUNSEL’S FAILURE TO FILE OMNIBUS MOTIONS DID NOT SURVIVE THE GUILTY PLEAS (FOURTH DEPT).
THERE WERE QUESTIONS OF FACT WHETHER THE ACCIDENT—THE COLLAPSE OF A DECK—EVER HAPPENED IN THIS LABOR LAW 24O (1) ACTION; SUPREME COURT REVERSED (FOURTH DEPT).
THE TRIAL TESTIMONY RENDERED THE COUNT DUPLICITOUS, NEW TRIAL REQUIRED (FOURTH DEPT).

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

COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR PRIMA FACIE TORT, ELEMENTS EXPLAINED... GRAND JURY EVIDENCE WAS SUFFICIENT TO SUPPORT ROBBERY FIRST DEGREE DESPITE THE...