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FULFREE v. MANCHESTER

November 26, 1996

ELLEN P. FULFREE, Plaintiff, against ROBERT MANCHESTER and MANCHESTER LAW OFFICES, Defendants.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Plaintiff Ellen Fulfree brings this case against defendants Robert Manchester and Manchester Law Offices for malpractice and fraud in connection with defendants' handling of a personal injury action previously brought by plaintiff against the manufacturer of Dalkon Shield IUD's. Defendants now move to disqualify Richard Fulfree, Esq., plaintiff's husband and attorney, from representing her in this action. Defendants' motion is granted. Because Mr. Fulfree undoubtedly will be a material witness in this action, both as to liability and damages, he is disqualified from serving as plaintiff's counsel.

 FACTS

 In 1981, plaintiff retained defendant Robert Manchester to represent her in a personal injury action against A.H. Robins Co., Inc. (which became an action against the Dalkon Shield Claimants Trust after A.H. Robins went into bankruptcy) for injuries she sustained after prolonged use of the Dalkon Shield IUD. *fn1" Several years later, differences between plaintiff and Robert Manchester prompted him to request to be relieved as plaintiff's counsel. (Adams Aff. Ex. E, F & G). The motion to withdraw was granted on January 24, 1995. (Id. Ex. H). Thereafter, Mr. Fulfree represented the plaintiff in her personal injury action and apparently settled the case on her behalf. (Id. P 16, Ex. L).

 On August 15, 1995, plaintiff filed a summons and complaint against Robert Manchester and Manchester Law Offices in Westchester County Supreme Court alleging attorney malpractice and fraud. (Adams Aff. Ex. I). Defendants removed the action to this Court pursuant to 28 U.S.C. ยง 1446. *fn2"

 In a letter dated October 2, 1995, counsel for defendants urged Richard Fulfree to withdraw as plaintiff's counsel in this action because he would be a "material witness" at trial. (Adams Aff. Ex. L). Mr. Fulfree responded to this letter on October 6, 1995 indicating that he had no intention of withdrawing. (Id. Ex. M). Defendants thereafter moved to disqualify Richard Fulfree as plaintiff's counsel pursuant to New York's Disciplinary Rule ("DR") 5-102(B), the advocate-witness disqualification rule. *fn3"

 DISCUSSION

 The Code of Professional Responsibility provisions pertaining to disqualification are grouped under Canon 5: "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client." The reason for disqualification of an advocate-witness is rooted in the concept that a "lawyer's professional judgment should be exercised for the client's benefit, free of compromising influences and loyalties." S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 508 N.E.2d 647, 515 N.Y.S.2d 735, 738 (N.Y. 1987). Moreover, from a public image perspective, the roles of an advocate and a witness are inconsistent because the public might think that the lawyer is distorting the truth for the sake of the client. See, e.g., Munk v. Goldome Nat'l Corp., 697 F. Supp. 784, 788 (S.D.N.Y. 1988).

 Nonetheless, motions to disqualify opposing counsel are viewed with disfavor because they impinge on parties' rights to employ the counsel of their choice. See, e.g., Stratavest Ltd. v. Rogers, 903 F. Supp. 663, 666 (S.D.N.Y. 1995). To establish a violation of DR 5-102(B), the moving party "bears the burden of demonstrating specifically how and as to what issues in the case the prejudice may occur and that the likelihood of prejudice is substantial." Genentech, Inc. v. Novo Nordisk A/S, 923 F. Supp. 61, 63 (S.D.N.Y. 1996). In addition, the drastic remedy of disqualification based on the advocate-witness rule is subject to strict scrutiny because of the strong potential for abuse to "stall and derail the proceedings, redounding to the strategic advantage of one party over another." S & S Hotel Ventures, 515 N.Y.S.2d at 738.

 Defendants maintain that they will both depose Mr. Fulfree and call him as a witness at trial, and contend that the testimony of Mr. Fulfree will be prejudicial to plaintiff. To support this claim, defendants allege that Mr. Fulfree's testimony at trial and his deposition testimony will reveal: (1) that Mr. Fulfree disrupted the attorney-client relationship between plaintiff and defendants; (2) that plaintiff's damages were the result of Mr. Fulfree's, not Robert Manchester's, conduct; (3) that Mr. Fulfree's subsequent representation of plaintiff in her personal injury action serves as a defense to the instant malpractice action; and (4) that Mr. Fulfree's physical condition tended to support the Dalkon Shield Trust's defense that a sexually transmitted disease rather than the Dalkon Shield IUD caused plaintiff's personal injuries. (Adams Aff. PP 22-30). Defendants point out that Mr. Fulfree was deposed as a non-party witness in the underlying action. (See Adams Aff. Ex. P).

 Defendants also urge that the "substantial hardship test" enumerated in DR 5-101(B)(4) does not apply to motions to withdraw pursuant to DR 5-102(B). *fn4" (Adams Reply Aff. PP 16, 17). In any event, defendants maintain that plaintiff will not suffer any substantial hardship should Mr. Fulfree be required to withdraw as counsel. They assert that Mr. Fulfree will still be able to advise the plaintiff with respect to the case, and there is no proof that obtaining new counsel will be difficult or unduly expensive. (Id. PP 18, 19).

 Plaintiff raises a number of arguments in support of her claim that Richard Fulfree need not be disqualified from serving as her pre-trial counsel in this matter. *fn5" Plaintiff maintains that she will suffer grave hardship should she be required to find new counsel to represent her at this stage in the litigation. (Richard W. Fulfree Aff. at 7-8; Ellen Fulfree Aff. at 2; Pl. Mem. at 6-7). In addition, plaintiff argues at length that there is no conflict of interest present in the instant case that would justify requiring Mr. Fulfree to withdraw as counsel. (Ellen Fulfree Aff. at 2; Pl. Mem. at 1-4). ...


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