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Lawfirm Permitted to Testify and Represent Client During Same Trial (NY)

October 19, 2009

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Deciding whether to move to disqualify counsel is an interesting tactical decision that presents itself from time to time. Recently, a New York federal appellate court made disqualification more difficult in circumstances where the basis of the motion is that the law firm trying the case is also going to present witnesses that will testify at trial on behalf of their client.
In <i>Murray v. Metropolitan Life Ins. Co., </i>plaintiffs were policyholders in Met Life Insurance before it demutualized, and sought to disqualify Debevoise &amp; Plimpton LLP, from serving a trial counsel in a class-action suit because: 1) Debevoise represented Met Life in the demutualization process, and thus also represented the policy holders; and 2) other Debevoise attorneys were going to testify at the trial where their partners were acting as trial counsel. The Second Circuit Court of Appeals reversed the trial court order and ruled against disqualification.
First, the court held that the plaintiffs were not clients of Debevoise. Outside counsel to a corporation represent the corporation, not its shareholders or other constituents, and the same principle applies to a mutual company.
On the second issue, generally, Rule 3.7 (a) of the New York Rules of Professional provides, with certain exceptions, 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. Subsection (b) addresses “imputation:” “A lawyer may not act as an advocate before a tribunal in a matter if ... 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.”
The Court held that these motions are subject to strict scrutiny because they are subject to abuse, and the Court crafted a new rule that required plaintiff to establish, by clear and convincing evidence that: (a) the witness will provide testimony prejudicial to the client; and (b) the integrity of the judicial system will suffer as a result.
In reversing the trial Court, the Second Circuit found that the Debevoise attorneys that were going to testify were primarily going to authenticate documents. The Court also held that other factors, including plaintiff’s delay in filing the motion, all weighed against disqualification.
<a href="http://caselaw.lp.findlaw.com/data2/circs/2nd/093716p.pdf">http://caselaw.lp.findlaw.com/data2/circs/2nd/093716p.pdf</a>

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