| Ullmann-Schneider v Lacher & Lovell-Taylor PC |
| 2013 NY Slip Op 06512 [110 AD3d 469] |
| October 8, 2013 |
| Appellate Division, First Department |
| Nancy Ullmann-Schneider et al.,Respondents, v Lacher & Lovell-Taylor PC et al.,Appellants. |
—[*1] Golenbock Eiseman Assor Bell & Peskoe LLP, New York (Jeffrey T. Golenbock ofcounsel), for respondents.
Order, Supreme Court, New York County (Lawrence K. Marks, J.), enteredDecember 11, 2012, which denied defendants' motion to disqualify plaintiffs' attorneys,unanimously affirmed, without costs.
"Disqualification . . . during litigation implicates not only the ethics ofthe profession but also the substantive rights of the litigants [and] denies a party's right torepresentation by the attorney of its choice" (S & S Hotel Ventures Ltd. Partnership v777 S. H. Corp., 69 NY2d 437, 443 [1987]). The right to counsel is "a valued rightand any restrictions must be carefully scrutinized" (id.). Furthermore, where therules relating to professional conduct are invoked not at a disciplinary proceeding but "inthe context of an ongoing lawsuit, disqualification . . . can [create a]strategic advantage of one party over another" (id.). Thus, the movant must meeta heavy burden of showing that disqualification is warranted (see Broadwhite Assoc.v Truong, 237 AD2d 162, 163 [1st Dept 1997]). Disqualification is required onlywhere the testimony by the attorney is considered necessary and prejudicial to plaintiffs'interests (see id.). Defendants have not met their burden.
The dispute in this case involves the extent and reasonableness of the fees thatdefendants charged to Leonard Ullmann, now deceased, during accounting proceedingsrelated to his mother's estate. To justify their fees based on the directives given by theirclient, defendants can use his deposition taken during the accounting proceedings, andthus, would not need to call to the stand Donald Hamburg, plaintiffs' counsel, who alsoserved, for a time, as Leonard Ullmann's co-executor of his mother's estate. Even ifHamburg's testimony is needed, there is no evidence that it would be prejudicial to hisclient.
Neither are any other partners at counsel's law firm necessary witnesses. The leadtrial litigator for plaintiffs affirmed that his involvement with the subject estate and theaccount proceedings was minimal, and any testimony that could be provided by counsel'scopartner in [*2]the firm's trust and estates department,who did not have first hand experience with the plaintiffs, would be cumulative (seeTalvy v American Red Cross in Greater N.Y., 205 AD2d 143, 153 [1st Dept 1994],affd 87 NY2d 826 [1995]). Concur—Gonzalez, P.J., Mazzarelli, Andriasand DeGrasse, JJ.