United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. Koeltl United States District Judge
plaintiff, John Harris, P.C., has sued the defendants, Gerald
J. Tobin, Gerald J. Tobin P.A, and Helene Tobin, for
outstanding legal fees. The plaintiff claims that it is owed
in excess of $200, 000 in legal fees for representing the
defendants in various litigations.
plaintiff has moved to disqualify attorney Robert Goldstein
(“Goldstein”), and Goldstein's law firm,
Epstein Becker & Green (“EBG”), from
representing the defendants on the purported grounds that
Goldstein will be required to be a witness against the
defendants, and that his testimony would be prejudicial to
the defendants. The plaintiff argues that EBG must also be
disqualified because the firm is not large enough to erect
sufficient barriers to shield its other attorneys from
Goldstein's prejudicial taint.
to disqualify opposing counsel are viewed with disfavor
because they impinge on parties' rights to employ the
counsel of their choice.” Fulfree v.
Manchester, 945 F.Supp. 768, 770 (S.D.N.Y. 1996)
(citations omitted). A high standard of proof is required for
disqualification motions because they are “often
interposed for tactical reasons, ” and because
“even when made in the best faith, such motions
inevitably cause delay.” Evans v. Artek Sys.
Corp., 715 F.2d 788, 791-92 (2d Cir. 1983) (citations
and internal quotation marks omitted); see also Williams
v. Rosenblatt Sec. Inc., No. 14-CV-4390 (JGK), 2016 WL
590232, at *7 (S.D.N.Y. Feb. 11, 2016).
plaintiff argues that Goldstein and EBG's representation
of the defendants will run afoul of the
“witness-advocate rule” embodied in Rule 3.7 of
the New York Rules of Professional Conduct, which provides in
relevant part that “[a] lawyer shall not act as
advocate before a tribunal in a matter in which the lawyer is
likely to be a witness on a significant issue of fact.”
Although instructive, state disciplinary rules “merely
provide general guidance” to federal courts; “not
every violation of a disciplinary rule will necessarily lead
to disqualification.” Hempstead Video, Inc. v. Inc.
Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir.
2005). “For the plaintiff to prevail on a motion to
disqualify based on the witness-advocate rule where he
allegedly intends to call his adversary's attorney, he
must demonstrate both that the lawyer's testimony is
necessary and that there exists a substantial likelihood that
the testimony would be prejudicial to the
witness-advocate's client.” Williams, 2016
WL 590232, at *7 (quoting Goodwine v. City of N.Y.,
No. 15-CV-2868 (JMF), 2016 WL 379761, at *4 (S.D.N.Y. Jan.
plaintiff has not come close to meeting the high standard of
proof necessary to justify disqualifying Goldstein and EBG.
plaintiff's motion is primarily based on a dispute during
the period immediately before the end of his representation
of Helene Tobin in a litigation before the Court of Appeals
for the Second Circuit. By June 2016, the working
relationship between the defendants and the plaintiff had
broken down over (among other issues) outstanding legal fees,
leading the plaintiff on June 20, 2016, to move to withdraw
as counsel, a request the Court of Appeals granted on June
29, 2016. See Tobin v. Gluck, No. 15-3500 (2d Cir.)
Dkts. 81, 85. On August 1, 2016, Goldstein was substituted as
counsel in that action. Tobin v. Gluck, No. 15-3500
(2d Cir.) Dkt. 88. The plaintiff argues that Goldstein will
be required to testify about a brief disagreement during the
interim over the filing of a request to extend the time for
Helene Tobin to file an opposition brief before the Court of
Appeals. The issue is not substantial and therefore would not
trigger the witness-advocate rule. In addition, there is
nothing about the proposed testimony that would appear to be
prejudicial to the defendants.
plaintiff also argues that Goldstein's testimony is
necessary to support its contention that the defendants
admitted that they owed the plaintiff either $100, 000 or
$30, 000 in legal fees. Goldstein denies personal knowledge
of such an admission or of the alleged discussions between
the plaintiff and the defendants. Goldstein indicates that
any second-hand knowledge that he gained through settlement
discussions would likely be inadmissible pursuant to Rule 608
of the Federal Rules of Evidence. In addition, as Goldstein
correctly points out, any testimony about the purported
admission of liability loses some of its probative value for
the plaintiff (and thus potential prejudice to the
defendants) because the plaintiff claims that it is owed far
more, in excess of $200, 000.
plaintiff has thus failed to show that Goldstein has any
knowledge about a substantial matter, and that any testimony
would be prejudicially adverse to the defendants.
the witness-advocate rule primarily concerns the trial
process. See Glueck v. Jonathan Logan, Inc., 653
F.2d 746, 748 (2d Cir. 1981) (disqualification warranted only
in situations where there is a significant risk of trial
taint). The rule does not bar counsel's participation in
pre-trial proceedings. See Gormin v. Hubregsen, No.
08-CV-7674 (PGG), 2009 WL 508269, at *3 (S.D.N.Y. Feb. 27,
2009) (collecting cases); see also Williams, 2016 WL
590232, at *8. There is no basis for disqualifying Goldstein
at this time, particularly with the flimsy showing proffered
by the plaintiff.
follows that there is no derivative basis for disqualifying
EBG: there is no taint. To the extent that the plaintiff
argues that a representative of EBG might be called as a
witness regarding the defendants' payments of EBG's
legal bills, that is not a basis for disqualification under
the witness-advocate rule. See N.Y. R. Prof'l
Conduct 3.7(a)(2) (permitting testimony by a lawyer if
“the testimony relates solely to the nature and value
of legal services rendered in the matter”). The bills
can be authenticated and introduced as evidence. If
necessary, a witness can be called on behalf of EBG to
testify about the bills without disqualifying the firm.
See N.Y. R. Prof'l Conduct 3.7(a)(1) (permitting
testimony by a lawyer if “the testimony relates solely
to an uncontested issue”).
the motion is denied.