Opinion
May 30, 1991
Appeal from the Family Court, Bronx County (Marjory D. Fields, J.).
In this child abuse proceeding, respondent-father was represented by his union's prepaid Legal Services Plan-Local 237. During a hearing, petitioner's witness, the children's mother, testified that she had been coerced by respondent's attorney to sign a statement exonerating respondent. The court then immediately sua sponte, disqualified the attorney and the Legal Services Plan pursuant to Code of Professional Responsibility DR 5-102.
DR 5-102 generally requires withdrawal of counsel when it appears that counsel ought to testify on a client's behalf regarding a disputed factual issue, or when it appears that counsel will be called as a witness for an adverse party and that testimony may be prejudicial to the client (People v Paperno, 54 N.Y.2d 294). Whether counsel ought to testify does not depend solely on the fact that counsel has knowledge or was involved in the transaction, but whether the testimony is necessary (S S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 N.Y.2d 437, 444). While it appears that counsel's testimony may be necessary to refute the allegations of coercion, there is no good reason why under DR 5-102 (A) the entire firm should be required to withdraw where, as here, a lawyer from the firm may appear as a witness. As disqualification of the entire prepaid legal services firm could leave respondent unable to afford other counsel, we modify accordingly.
Concur — Rosenberger, J.P., Ellerin, Kupferman, Asch and Smith, JJ.