On May 01, 2023 a
Exhibit,Appendix
was filed
involving a dispute between
Global Horizion Funding Llc,
and
Prestige Trucking Global Llc,
Steven Badru,
for Commercial - Business Entity
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 09/11/2023 02:08 PM INDEX NO. 652121/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 09/11/2023
EXHIBIT B
FILED: NEW YORK COUNTY CLERK 09/11/2023 02:08 PM INDEX NO. 652121/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 09/11/2023
NEW YORK RULES OF PROFESSIONAL CONDUCT 158 RULE 3.7 LAWYER AS WITNESS
(a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a
witness on a significant issue of fact unless:
(1) the testimony relates solely to an uncontested issue;
(2) the testimony relates solely to the nature and value of legal services rendered in the matter;
(3) disqualification of the lawyer would work substantial hardship on the client;
(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that
substantial evidence will be offered in opposition to the testimony; or
(5) the testimony is authorized by the tribunal.
(b) A lawyer may not act as advocate before a tribunal in a matter if: (1) another lawyer in the lawyer's
firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is
apparent that the testimony may be prejudicial to the client; or (2) the lawyer is precluded from doing so
by Rule 1.7 or Rule 1.9.
Comment [1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing
and also can create a conflict of interest between the lawyer and client. RULE 3.7 159 Advocate-
party
Witness Rule [2] The tribunal may properly object when the trier of fact may be confused or misled by a
lawyer's serving as both advocate and witness. The opposing party may properly object where the
combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on
the basis of personal knowledge, while an advocate is expected to explain and comment on evidence
given by others. It may not be clear whether a statement by an advocate-witness should be taken as
proof or as an analysis of the proof. The requirement that the testimony of the advocate-witness be on a
significant issue of fact provides a materiality limitation. [3] To protect the tribunal, the Rule prohibits a
lawyer from simultaneously serving as advocate and witness except in those circumstances specified in
paragraph (a). Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in
the dual role are purely theoretical. Testimony relating solely to a formality is uncontested when the
lawyer reasonably believes that no substantial evidence will be offered in opposition to the testimony.
Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services
rendered in the action in which the testimony is offered, permitting the lawyer to testify avoids the need
for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has
firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to
test the credibility of the testimony. [4] Apart from these two exceptions, paragraph (a)(3) recognizes
that a balancing is required among the interests of the client, of the tribunal, and of the opposing party.
Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on
the nature of the case, the importance and probable tenor of the lawyer's testimony and the probability
that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such
prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the
effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably
foresee that the lawyer would probably be a witness. The conflict of interest principles stated in Rule 1.7,
1.9 and 1.10, which may separately require disqualification of the lawyer-advocate, have no application
to the tribunal's determination of the balancing of judicial and party interests required by paragraph
(a)(3). NEW YORK RULES OF PROFESSIONAL CONDUCT 160 [5] The tribunal is not likely to be misled
when a lawyer acts as advocate before a tribunal in a matter in which another lawyer in the lawyer's firm
testifies as a witness. Therefore, paragraph (b) permits the nontestifying lawyer to act as advocate
FILED: NEW YORK COUNTY CLERK 09/11/2023 02:08 PM INDEX NO. 652121/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 09/11/2023
before the tribunal except (1) when another lawyer in the lawyer's firm is likely to be called as a witness
on a significant issue other than on behalf of the client, and it is apparent that the testimony may be
prejudicial to the client, or (2) when either Rule 1.7 or Rule 1.9 would prohibit the non-testifying lawyer
from as advocate before the tribunal. unless Rules 1.7 or 1.9 preclude non-
acting Moreover, it, the
testifying lawyer and the testifying lawyer may continue to represent the client outside of the tribunal,
with the client's informed consent, in pretrial activities such as legal research, fact gathering, and
preparation or argument of motions and briefs on issues of law, and may be consulted during the trial by
the lawyer serving as advocate. Conflict of Interest [6] In determining whether it is permissible to act as
advocate before a tribunal in which the lawyer will be a witness, the lawyer must also consider that the
dual role may give rise to a conflict of interest that will require compliance with Rule 1.7 or Rule 1.9. For
example, if there is likely to be substantial conflict between the testimony of the client and that of the
lawyer, the representation involves a conflict of interest that requires compliance with Rule 1.7. This
would be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously
serving as advocate and witness because the lawyer's disqualification would work a substantial hardship
on the client. Similarly, a lawyer who might be permitted to serve simultaneously as an advocate and a
witness by paragraph (a)(3) might be precluded from doing so by Rule 1.9. The problem can arise
whether the lawyer is called as a witness on behalf of the client or is called by the opposing party.
Determining whether such a conflict exists is primarily the responsibility of the lawyer involved. If there
is a conflict of interest, the lawyer must secure the client's informed consent, confirmed in writing. In
some cases, the lawyer will be precluded from seeking the client's consent. See Rule 1.7. See Rule 1.0(e)
writing" consent."
for the definition of "confirmed in and Rule 1.0(j) for the definition of "informed
Document Filed Date
September 11, 2023
Case Filing Date
May 01, 2023
Category
Commercial - Business Entity
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FILED: NEW YORK COUNTY CLERK 09/11/2023 02:08 PM INDEX NO. 652121/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 09/11/2023 EXHIBIT B FILED: NEW YORK COUNTY CLERK 09/11/2023 02:08 PM INDEX NO. 652121/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 09/11/2023 NEW YORK RULES OF PROFESSIONAL CONDUCT 158 RULE 3.7 LAWYER AS WITNESS (a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless: (1) the testimony relates solely to an uncontested issue; (2) the testimony relates solely to the nature and value of legal services rendered in the matter; (3) disqualification of the lawyer would work substantial hardship on the client; (4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or (5) the testimony is authorized by the tribunal. (b) A lawyer may not act as advocate before a tribunal in a matter if: (1) another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; or (2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9. Comment [1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing and also can create a conflict of interest between the lawyer and client. RULE 3.7 159 Advocate- party Witness Rule [2] The tribunal may properly object when the trier of fact may be confused or misled by a lawyer's serving as both advocate and witness. The opposing party may properly object where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof. The requirement that the testimony of the advocate-witness be on a significant issue of fact provides a materiality limitation. [3] To protect the tribunal, the Rule prohibits a lawyer from simultaneously serving as advocate and witness except in those circumstances specified in paragraph (a). Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Testimony relating solely to a formality is uncontested when the lawyer reasonably believes that no substantial evidence will be offered in opposition to the testimony. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyer to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony. [4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required among the interests of the client, of the tribunal, and of the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. The conflict of interest principles stated in Rule 1.7, 1.9 and 1.10, which may separately require disqualification of the lawyer-advocate, have no application to the tribunal's determination of the balancing of judicial and party interests required by paragraph (a)(3). NEW YORK RULES OF PROFESSIONAL CONDUCT 160 [5] The tribunal is not likely to be misled when a lawyer acts as advocate before a tribunal in a matter in which another lawyer in the lawyer's firm testifies as a witness. Therefore, paragraph (b) permits the nontestifying lawyer to act as advocate FILED: NEW YORK COUNTY CLERK 09/11/2023 02:08 PM INDEX NO. 652121/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 09/11/2023 before the tribunal except (1) when another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client, or (2) when either Rule 1.7 or Rule 1.9 would prohibit the non-testifying lawyer from as advocate before the tribunal. unless Rules 1.7 or 1.9 preclude non- acting Moreover, it, the testifying lawyer and the testifying lawyer may continue to represent the client outside of the tribunal, with the client's informed consent, in pretrial activities such as legal research, fact gathering, and preparation or argument of motions and briefs on issues of law, and may be consulted during the trial by the lawyer serving as advocate. Conflict of Interest [6] In determining whether it is permissible to act as advocate before a tribunal in which the lawyer will be a witness, the lawyer must also consider that the dual role may give rise to a conflict of interest that will require compliance with Rule 1.7 or Rule 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer, the representation involves a conflict of interest that requires compliance with Rule 1.7. This would be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously serving as advocate and witness because the lawyer's disqualification would work a substantial hardship on the client. Similarly, a lawyer who might be permitted to serve simultaneously as an advocate and a witness by paragraph (a)(3) might be precluded from doing so by Rule 1.9. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether such a conflict exists is primarily the responsibility of the lawyer involved. If there is a conflict of interest, the lawyer must secure the client's informed consent, confirmed in writing. In some cases, the lawyer will be precluded from seeking the client's consent. See Rule 1.7. See Rule 1.0(e) writing" consent." for the definition of "confirmed in and Rule 1.0(j) for the definition of "informed