| Harris v Sculco |
| 2011 NY Slip Op 05983 [86 AD3d 481] |
| July 21, 2011 |
| Appellate Division, First Department |
| Betsy Harris, Respondent, v Thomas Sculco, M.D., et al.,Appellants, et al., Defendants. |
—[*1] The Law Office of Tamara M. Harris, PLLC, New York (Tamara M. Harris of counsel), forrespondent.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered September 17, 2010,which denied defendants' motion to disqualify plaintiff's attorney, unanimously affirmed, withoutcosts.
Rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0) generally prohibits anattorney from acting as an advocate before a tribunal where it is likely that the attorney will becalled as a witness on a significant issue other than on behalf of the client, and it is apparent thatthe testimony may be prejudicial to the client, or where the attorney knows he or she is likely tobe a witness on a significant issue of fact on the client's behalf, unless the testimony relates toenumerated subjects, not here relevant (see Goldberger v Eisner, 21 AD3d 401 [2005]; BroadwhiteAssoc. v Truong, 237 AD2d 162 [1997]).
In determining whether to disqualify an attorney on the ground that he or she will likely be awitness, the court is guided, but not bound by, the standards set forth in rule 3.7 (see S & SHotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 445-446 [1987]), andwhether to disqualify an attorney rests in the sound discretion of the court (see Gulino v Gulino, 35 AD3d 812[2006]). While discovery may establish the substance and necessity of plaintiff's attorney'stestimony so as to permit disqualification under rule 3.7, the court exercised its discretion indenying defendants' motion on the ground that it was premature at this early stage of theproceedings (see Kirshon, Shron, Cornell & Teitelbaum v Savarese, 182 AD2d 911[1992]). Concur—Andrias, J.P., Sweeny, Moskowitz, Renwick and Richter, JJ.