Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lyman v. City of Albany

February 12, 2007


The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge


Plaintiffs Mark E. and Diana Lyman ("Lymans") allege in this action that defendant City of Albany, its mayor, and various individual police officials deprived them of their constitutional rights in connection with activities surrounding the Lymans' participation in protests at a local church in 2005 and 2006. The Lymans, who are husband and wife, seek compensatory and punitive damages as well as costs and attorney's fees in thirteen causes of action alleging deprivations of their rights under the First, Fourth, Fifth, and Fourteenth Amendments in violation of 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and state law. Am. Compl. (Docket No. 3) at ¶¶ 24, 66-181. Presently pending is defendants' motion*fn1 to disqualify the Lymans' attorney, John A. Aretakis, Esq., ("Aretakis") from representing the Lymans in this case pursuant to the "advocate witness" prohibition of Disciplinary Rule ("DR") 5-102(A) of the Code of Professional Responsibility. Docket No. 6. The Lymans oppose the motion. Docket No. 13. For the reasons which follow, defendants' motion is denied without prejudice.

I. Background

During the time periods at issue in this case, Mark Lyman was the Director of the Capital Region Chapter of the Survivors Network of those Abused by Priests (SNAP). M. Lyman Aff. (Docket No. 12) at ¶ 4. Mark Lyman, who identifies himself as a child victim of sexual abuse by clergy from the Albany Diocese of the Roman Catholic Church, contends that "[t]here are a significant number of predatory priests within [the Albany] diocese that have not been charged or properly removed" from their positions. Id. at ¶¶ 4, 6. Mark Lyman further contends that one such priest was Fr. Daniel Mahar of Holy Cross Church ("church") in Albany. Id. at ¶ 4. In May 2005, SNAP began conducting periodic protests, generally on Sundays, at the church over Fr. Mahar's continued presence there. Am. Compl. at ¶ 28. On September 2, 2005, Fr. Mahar was cleared of charges of abuse by the Diocesan Sexual Misconduct Review Panel and the bishop and was permitted to continue serving as a priest at the church. M. Lyman Aff. at ¶¶ 4-5; Am. Compl. at ¶ 33.

SNAP determined to continue weekly protests at the church over Fr. Mahar's ongoing presence there. Am. Compl. at ¶ 27. On September 6, 2005, a temporary restraining order (TRO) was issued by a state court prohibiting the protesters from demonstrating within 100' of the entrances to the church and its adjoining school. Decision & Order dated Jan. 18, 2006 (Docket No. 6(4)) at 2. The TRO named Aretakis and "John Doe" as defendants. Id. at 1. Aretakis had represented a number of individuals who had alleged that they were child victims of sexual abuse by priests in the Albany diocese and he had personally participated in the protests to date at the church. Id. at 1. Mark Lyman was not originally a defendant in the action but later joined as an intervenor-defendant. Id. Aretakis had represented Mark Lyman prior to the church protests and has continued to represent him on various matters throughout that period to date. M. Lyman Aff. at ¶¶ 9-18.*fn2

The TRO was extended to a temporary injunction on January 18, 2006 based in part on testimony from church members and employees that Aretakis employed methods of protest that were "aggressive, confrontational and hostile." Decision & Order at 72.

From after September 6, 2005 through April 9, 2006, the SNAP protests were conducted at the church each week on Saturdays and Sundays. Transcript of M. Lyman Testimony at 50-h Hrg. on Mar. 16, 2006 (Docket No. 6(5)) at 37. Aretakis was present for approximately half of those occasions. Id. at 41. Aretakis, however, was not present for the demonstration on Palm Sunday, April 9, 2006. M. Lyman Aff. at ¶ 11. At the demonstration on that date, Mark Lyman was arrested by Albany police for violating the terms of the injunction. Id. The police searched Mark Lyman's vehicle and found an empty pistol holster. Am. Compl. at ¶ 177. Mark Lyman advised the police that he owned a pistol for which he possessed a lawful permit. Id. at ¶ 178. Mark Lyman was taken into custody, Aretakis was called at his residence in New York City by another SNAP member, and Aretakis traveled to Albany where he was told that Mark Lyman would not be released until he produced the original pistol permit. M. Lymnan Aff. at ¶ 12. Aretakis then drove to the Lymans' residence in Saratoga County, obtained the original pistol permit, returned to Albany to produce it to the police, and Mark Lyman was then released on bail. Id. at ¶ 13. This action was commenced on September 15, 2006. Compl. (Docket No. 1).

II. Discussion

A motion for the disqualification of counsel is addressed to the sound discretion of the district court. Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72-73 (2d Cir. 1990); DeFazio v. Wallis, 459 F. Supp. 2d 159, 163 (E.D.N.Y. 2006). The Second Circuit disfavors such motions because they are often used for purely tactical reasons. Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989); Kubin v. Miller, 801 F. Supp. 1101, 1112 (S.D.N.Y. 1992). The party seeking disqualification, therefore, bears a heavy burden before an attorney will be removed from a case. Evans v. Artek Sys. Corp., 715 F.2d 788, 794 (2d Cir. 1983); Vegetable Kingdom, Inc. v. Katzen, 653 F. Supp. 917, 921 (N.D.N.Y. 1987). Courts recognize the importance of a litigant being represented by counsel of his or her choosing.

Tisby v. Buffalo Gen. Hosp., 157 F.R.D. 157, 163 (W.D.N.Y. 1994). The delay and expense caused by the disqualification of an attorney are factors of considerable significance in deciding such a motion. Clark v. Bank of N.Y., 801 F. Supp. 1182, 1196-97 (S.D.N.Y. 1992).

In considering motions to disqualify counsel, courts in this district follow the New York State Lawyer's Code of Professional Responsibility.*fn3 N.D.N.Y.L.R. 83.4(j).*fn4 DR 5-102 of that Code provides for the withdrawal of counsel when the lawyer must become a witness. The pending disqualification motion is based on DR 5-102(A), which provides:

A lawyer shall not act, or accept employment that contemplates the lawyer's acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client.*fn5 The disciplinary rules, however, "need not be rigidly applied." Renner v. Townsend Fin. Servs. Corp., No. 98 Civ. 926(CSH), 2002 WL 1013234, at *6 (S.D.N.Y. May. 20, 2002). Thus, DR 5-102(A) serves to provide guidance to a court in the exercise of its discretion. See Occidental Hotels Mgmt. B.V. v. Westbrook Allegro L.L.C., 440 F. Supp. 2d 303, 313 (S.D.N.Y. 2006).

The standard for disqualification, therefore, is whether the attorney "ought to testify" on his client's behalf. An attorney "ought" to testify when his or her testimony would be significantly useful to his client and is necessary to the case. Purgess v. Sharrock, 33 F.3d 134, 144(2d Cir. 1994); Crews v. County of Nassau, No. 06-CV-2610, 2007 WL 316568, at *3 (E.D.N.Y. Jan. 30, 2007). "Testimony may be relevant and even useful but still not strictly necessary." Computer Assocs. Int'l, Inc. v. Computer Automation, Inc., 678 F. Supp. 424, 430 (S.D.N.Y. 1987) (quoting S&S Hotel Ventures v. 777 S.H. Corp., 69 N.Y.2d 437, 446 (1987)). Determining whether testimony would be significantly useful requires consideration of the significance of the matters that would be involved, the weight of that testimony, and the potential availability of similar testimony from other sources. Crews, 2007 WL 316568, at *3. Purely cumulative testimony does not warrant disqualification. Kubin, 801 F. Supp. at 1113 (citations omitted).

If an attorney's testimony would be significantly useful, the attorney "should be disqualified regardless of whether he will actually be called." Lamborn, 873 F.2d at 531; Norman Reitman Co., Inc. v. IRBBrasil Resseguros S.A., No. 01 Civ. 0265(RCC), 2001 WL 1132015, at *3 (S.D.N.Y. Sept. 25, 2001). The rule does not permit a client to waive his attorney's testimony if it would be significantly useful in order to retain him as counsel. Munk v. Goldome Nat. Corp., 697 F. Supp. 784, 787 (S.D.N.Y. 1988). Thus, a client "cannot choose between the attorney's testimony and [the attorney's] representation." Tapers v. Local 530 of Operative Plasterers & Cement ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.