Opinion
34882/2009
07-29-2013
WCM Plumbing & Heating Corp d/b/a Paul Haines, Plaintiff(s) v. Barry M. Bernstein, Defendant(s)
Barry Bernstein Defendant, Pro se Hugh M. Merle Esq. by Gary J. Weber, Esq Attorneys for Plaintiff
Barry Bernstein
Defendant, Pro se
Hugh M. Merle Esq.
by Gary J. Weber, Esq
Attorneys for Plaintiff
Andrew G. Tarantino, J.
Plaintiff moved for a Court Order precluding Defendant's testimony at trial upon the ground that Defendant, an attorney admitted to practice in the courts of New York, could not act as an advocate and witness without violating the Rules of Professional Conduct §3.7. Plaintiff's basis was "as a principal witness to the hotly disputed facts of this case, he is barred from acting as an attorney in the matter and, at the same time, become a witness testifying as to these disputed facts."
Plaintiff commenced this action seeking $6,137.31 as payment for services and materials provided to Defendant in connection with an oil burner and heating system at Defendant's residence. Defendant claimed, among other things, that there was no agreement in writing, and that the Plaintiff failed to properly winterize the heating system which caused the need for the repairs. Defendant is a licensed attorney practicing real estate law, and has represented himself in this action.
ANALYSIS
The new Rules of Professional Conduct § 3.7, state:
(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.The Comments to the Rule illuminate the concern about the attorney-witness relationship:
Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and also can create a conflict of interest between the lawyer and client. 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. 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.Although the Rule does not address an attorney acting in a self-represented role, it is apparent that the Rule exists to protect a client whose success before a tribunal can be effected negatively if the credibility of the client's attorney is damaged after testifying as a witness. Perhaps this was the genesis of the 19th century adage: A lawyer who represents himself has a fool for a client.
Although the Rule does not expressly speak to a self-represented attorney, decisional law has addressed the issue. Generally, as stated in Falk v Gallo, 73 AD3d 685, 901 N.Y.S.2d 99 (2d Dep't 2010), "A party's entitlement to be represented by counsel of his or her choice is a valued right which should not be abridged absent a clear showing that disqualification is warranted (see Aryeh v Aryeh, 14 AD3d 634, 788 N.Y.S.2d 622 [2d Dep't 2005]). Thus, the party seeking to disqualify an attorney bears the burden on the motion."
Specifically on point, in Walker & Bailey v We Try Harder, Inc., 123 AD2d 256, 506 N.Y.S.2d 163 (1st Dep't 1986), it was held, "While the disciplinary rules preclude an attorney from acting as both witness and advocate in the same proceeding, the prohibition does not apply where, as here, the attorney is a litigant. (Oppenheim v. Azriliant, 89 AD2d 522, 452 N.Y.S.2d 211 [1st Dep't]) An attorney has the right, both statutory (CPLR 321(a)) and constitutionally (N.Y.S. Const. Art. 1, § 6), to represent himself. Although the right is not absolute, any restriction thereof must be carefully scrutinized (Matter of Abrams [John Anonymous], 62 NY2d 183, 196, 476 N.Y.S.2d 494, 465 N.E.2d 1)."
By reason of the above, the application to disqualify Defendant as a witness is denied. The Court has examined the nature of the case and the importance and probable tenor of the lawyer's testimony. However, to avoid misleading the jury, the Defendant is cautioned, and the jury shall be instructed, that the evidence upon which the jury will base its decision will come from testimony given on the witness stand and not from statements made in open court as in opening statements and summations.
This constitutes the decision and order of the Court.
ENTER
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Judge