Advocate-Witness Rule Disqualification Due to Involvement in Underlying Events — Factors

From Beechwoods Restorative Care Center v. Leeds, 2011 U.S. Dist. LEXIS 102145 (W.D.N.Y. Sept. 12, 2011):

Defendants also move to disqualify one of plaintiffs' attorneys, Kevin Cooman, Esq., from acting as trial counsel in this case. Defendants contend that because Cooman was involved in some of the events giving rise to this case, such as the state administrative proceedings, defendants would be prejudiced if he were allowed to question witnesses about those events, and that he would in effect become a non-testifying witness for plaintiffs.

I am not persuaded by these arguments. Rule 3.7 of the New York Rules of Professional Conduct provides as subsection (a) that, with certain exceptions, "[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." As the Second Circuit has recognized, however, "Rule 3.7 lends itself to opportunistic abuse." Murray v. Metropolitan Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009). "Because courts must guard against the tactical use of motions to disqualify counsel," therefore, such motions "are subject to fairly strict scrutiny, particularly motions" under the witness-advocate rule. Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989).

The Court of Appeals

ha[s] identified four risks that Rule 3.7(a) is designed to alleviate: (1) the lawyer might appear to vouch for his own credibility; (2) the lawyer's testimony might place opposing counsel in a difficult position when she has to cross-examine her lawyer-adversary and attempt to impeach his credibility; (3) some may fear that the testifying attorney is distorting the truth as a result of bias in favor of his client; and (4) when an individual assumes the role of advocate and witness both, the line between argument and evidence may be blurred, and the jury confused.

Ramey v. District 141, Int'l Ass'n of Machinists & Aerospace Workers, 378 F.3d 269, 282-83 (2d Cir. 2004).

Defendants have failed to show that such dangers are present here. Plaintiffs have stated that they do not intend to call Cooman as a witness, and even if he were called by defendants, it appears likely that his testimony would fall within one of the exceptions to Rule 3.7, such as that for uncontested issues or "matters of formality." See Rule 3.7(a)(1), (4). If, closer to or at trial, this matter appears to be more significant or intractable, it can appropriately be dealt with at that time.

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