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Weil v. Weil

Supreme Court of New York, Appellate Division

November 10, 1953

ADREANA P. WEIL, Appellant,
v.
CHARLES WEIL, Respondent.

Page 34

APPEAL from an interlocutory decree of the Supreme Court at Special Term (DICKSTEIN, J.), entered January 10, 1953, in New York County, granting a decree of divorce in favor of defendant and against plaintiff and awarding defendant custody of a minor son of the parties, following a trial of framed issues at a Trial Term.

COUNSEL

Neilson Olcott, Norman Roth and Joel J. Weiner for appellant.

Hiram S. Gans, John Harlan Amen, Robert Granville Burke and Leo Realberg for respondent.

Per Curiam.

After trial of framed issues of adultery plaintiff wife, who was found guilty of one of the charges, claims error in the admission of evidence and unfairness in the trial as a result of tactics of the husband's trial counsel.

Page 35

The wife brought the action for separation. The husband counterclaimed for divorce in an amended and supplemental answer specifying two adulteries. One adultery is alleged to have occurred in New York City with one of the lawyers for the wife, during the pendency of the action. At the close of the husband's proof the charge of adultery in Italy was dismissed. The trial proceeded with respect to the issue of the alleged New York City adultery.

The lawyer who tried the case for the husband had personally directed the investigation, and was personally present during the shadowing and the 'raid' which produced the evidence of the alleged New York City adultery. He testified at length as a witness with respect to his observations in such investigation including the 'raid'. As a consequence of the lawyer's activity and testimony, developed before the jury, his participation as overall strategist, investigator and witness must have been impressed upon the jury.

The record demonstrates that his integrity, credibility and professional status were intertwined inseparably with the issues of the case upon which the jury was obliged to make a finding.

The Canons of Professional Ethics provide: 'When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in Court on behalf of his client.' (Canon 19.)

The Canons further provide: 'It is improper for a lawyer to assert in argument his personal belief in his client's innocence or in the justice of his cause.' (Canon 15.)

Assuming that the lawyer's active personal participation in the pre-trial investigation was nothing worse than undignified, it established the likelihood of his becoming a witness upon the trial. Even if he had not testified as a witness, the repeated reference to his presence at events described by witnesses procured and examined by him emphasized that he personally vouched for their testimony. When the implication of such voucher was made manifest by his taking the stand the lawyer staked his oath and his word against his client's adversary. In the absence of compelling necessity that was improper. The record shows that the trial lawyer's word and his ...


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