Motion to Disqualify Counsel in New York

What Is a Motion to Disqualify Counsel?

Background

“A party’s entitlement to be represented in ongoing litigation by counsel of [its] own choosing is a valued right.” (Town of Oyster Bay v. 55 Motor Ave. Co., LLC, 109 A.D.3d 549, 550 [2nd Dept. 2013].) However, that right “will not supersede a clear showing that disqualification is warranted.” (Gjoni v. Swan Club, Inc., 134 A.D.3d 896, 897 [2nd Dept. 2015].) The New York Rules of Professional Conduct confer “standing on any attorney to challenge a lawyer’s representation of a client.” (Lane Apartments Inc. v. Green, 21 Misc. 3d 480 [N.Y. Sup. Ct. 2008].)

How to Structure the Motion

Counsel may be disqualified on the ground of a conflict of interest. (Foley v. Foley, 123 A.D.3d 973, 973 [2nd Dept. 2014].) The burden is on the party moving for disqualification to prove the existence of a prior attorney-client relationship with the movant, that the matters involved in both representations are substantially related, and that the interests of the present client and former client are materially adverse. (Matter of Town of Oyster Bay v. 55 Motor Ave. Co., LLC, 109 A.D.3d 549, 550 [2nd Dept. 2013]; Gussack v. Goldberg, 248 A.D.2d 61, 672 [2nd Dept. 1998].)

Similarly, “[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.” (22 N.Y.C.R.R. 1200.0, Rule 3.7(a); Friia v. Palumbo, 89 A.D.3d 896, 896 [2nd Dept. 2011].) The purpose of the advocate-witness rule “is to avoid the unseemly situation where an advocate must argue his own credibility before the trier of fact.” (North Shore Neurosurgical Group, P.C. v. Leivy, 72 A.D.2d 598, 599 [2nd Dept. 1979].)

In determining whether an attorney’s testimony is necessary, so as to disqualify an attorney under the advocate-witness rule, such attorney’s testimony does not need to be “strictly necessary”; it “may be relevant and even highly useful, but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence.” (Sokolow, Dunaud, Mercadier & Carreras LLP v. Lacher, 747 N.Y.S.2d 441, 449 [1st Dept. 2002].) The burden of demonstrating necessity is on the party seeking disqualification. (Bentvena v. Edelman, 47 A.D.3d 651 [2nd Dept. 2008].)

The party seeking disqualification also “carries a heavy burden of identifying the projected testimony of the advocate-witness and demonstrating how it would be so adverse to the factual assertions or account of events offered on behalf of the client as to warrant his disqualification.” (Broadwhite Associates, etc. v. Truong, 237 A.D.2d 162, 163 [1st Dept. 1997].) Absent such a showing, the courts have uniformly found that “defendants are simply seeking a strategic advantage by the disqualification of plaintiff’s attorney of longstanding, a result which would deny their adversary the valued right to representation by counsel of its choice.” (Id.)

These heavy burdens are imposed because disqualification “during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants” in that it deprives a party of its right to representation by counsel of its choice. (S & S Hotel Ventures Limited Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443 [1987].)

The Court’s Decision

It is well-settled that the disqualification of an attorney is a matter that rests within the sound discretion of the court. (Matter of Town of Oyster Bay v. 55 Motor Ave. Co., LLC, 109 A.D.3d 549, 550 [2nd Dept. 2013].) In considering an application to disqualify an attorney, the court’s duty is “to protect the integrity of the judicial system and preserve the ethical standards of the legal profession.” (Matter of Abrams, 62 N.Y.2d 183, 197 [1984].)

The New York Rules of Professional Conduct provide “guidance, not binding authority, for courts in determining” whether disqualification is required. (Ahrens v. Chisena, 40 A.D.3d 787, 787-88 [2nd Dept. 2007].) This is because, “[w]hen raised in litigation… the Code provisions cannot be applied as if they were controlling statutory or decisional law.” (S & S Hotel Ventures Limited Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443 [1987].)

A court must consider the fact that “in the context of an ongoing lawsuit, disqualification of a plaintiff’s law firm can… redound[] to the strategic advantage of one party over another.” (S & S Hotel Ventures Limited Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443 [1987].) “[D]isqualification motions are frequently made as a litigation tactic, and cause hardship and delay to the litigants and to the court.” (Solow v. W. R. Grace & Co., 83 N.Y.2d 303, 310 [1994].)

Timeline

There is no statutory or common law deadline to file a motion to disqualify counsel. (M.A.C. Duff, Inc. v. ASMAC, LLC, 61 A.D.3d 828, 830 [2nd Dept. 2009].)

Documents for Motion to Disqualify Counsel in New York

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Be A Good Neighbor Llc v. Torres Millwork & Construction Llc, Mauro Torres, David Leslie document preview

EXHIBIT(S) - E - Email Correspondence With Opposing Counsel

2 pages

FILED: NEW YORK COUNTY CLERK 04/11/2024 12:18 PM INDEX NO. 650901/2022 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 04/11/2024 Zachary Rosenberg From: michelle@zzllp.com Sent: Tuesday, April 2, 2024 10:24 AM To: Zachary Rosenberg Cc: …

Case Name Be A Good Neighbor Llc v. Torres Millwork & Construction Llc, Mauro To…