Akin to a pro-se situation, when law firms defend themselves in a legal malpractice setting they run the risk of attorney disqualification on the attorney-witness rule.
Quadrozzi v Castro 2019 NY Slip Op 30550(U) March 5, 2019 Supreme Court, New York County Docket Number: 151675/2018 Judge: Frank P. Nervo is a good example.
“Plaintiffs seek to disqualify defense counsel on the basis that defense counsel, an associate at defendants’ law firm, was closely involved in plaintiffs real estate closing and defendants’ conduct in preparing for and during the closing formed the basis for the instant legal malpractice suit.
As relevant here, Plaintiff Quadrozzi was involved in an estate dispute with his nephew. The dispute was settled, by a separate law firm, and the settlement of that dispute included a transfer of real property to Plaintiff Quadrozzi. Defendants represented plaintiff in that real estate closing. Plaintiffs allege, inter alia, that defendants failed to properly identify or satisfy all liens against the subject property and defendants’ failure resulted in the lien(s) accruing substantial interest. Plaintiffs cite defense counsel’s email correspondences to Plaintiff Quadrozzi, including an email for approval of an appellate brief on the real estate matter, and that briefs reference to the underling settlement agreement, as evidence of defense counsel’s close involvement with the underlying matter. Additionally, plaintiffs cite defense counsel’s billing records, showing a combined 4.25 hours worked by defense counsel, and billed to Plaintiff Quadrozzi, for work on an affirmation and motion in the underlying real estate matter. Plaintiffs, therefore, argue that defense counsel should be disqualified, as a conflict exists between counsel’s former and current clients and they have not consented to this representation, counsel will be a material fact witness, and even if an actual or potential conflict does not exist, an appearance of impropriety does. ”
“Rule 3.7(a) of the Rules of Professional Conduct, addressing advocate-witnesses, provides that 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” (22 NYCRR 1200.0 ). On a motion to disqualify counsel, based on the advocate-witness rule, the challenging party bears the heavy burden to identify the expected testimony of the advocate-witness and demonstrate that such testimony would be adverse to the client’s factual allegations (Dishi v. Federal Ins. Co., 112 AD3d 484 [1st Dept 2013; see also Broadwhite Assoc. v. Truong, 237 AD2d 162 [1st Dept 1997]). Disqualification is required “only when it is likely that the testimony to be given by the witness is necessary. Testimony 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” (S&S Hotel Ventures Ltd. Partnership v. 777S.H. Corp., 69 NY2d 437, 445-456 ). Where an advocate-witness’ testimony would be cumulative, it is necessarily unessential and a motion to disqualify is properly denied (Shah v. Ortiz, 112 AD3d 543 [1st Dept 2013]).
Conversely, where an attorney is closely involved in an underlying matter which forms the basis for a subsequent legal malpractice action, and it is likely the attorney will be a witness on a significant issue of fact, the attorney is properly disqualified from representing the law firm in the legal malpractice action (Delgado v. Bretz & Coven, LLP, 109 AD3d 38, 47 [1st Dept 2013]; Chang v. Chang, 190 AD2d 311 [1st Dept 1993]; see also Lauder v. Goldhamer, 122 AD3d 908 [2q Dept 2014]).”
“However, the Court finds it is likely that defense counsel will be a witness on a significant issue of fact, namely the defendants’ representation of plaintiff in the real estate closing and research regarding liens. Plaintiff has established that defense counsel performed legal work on the matter giving rise to the instant malpractice action, and although defense counsel characterizes his involvement in the matter as more closely related to that of an assistant, he does not refute that he corresponded with plaintiff regarding the matter and billed plaintiff for 4.25 hours of said work. Defendant does not identify any other witness, besides Defendant Castro, who may be able to
provide testimony relating to standard of legal work performed for the closing. Consequently, defense counsel’s testimony regarding the closing is likely to be necessary, and he should be disqualified from representing defendants (Delgado, 109 AD3d at 47; Chang, 190 AD2d at 311). ”