57 New York opinions name it 5 courts 1983–2025 5 in the last five years
The cases below were cited by New York courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
People v. Papernogreen2 sentences2015Contrary to defendant’s contention, the court properly discharged the attorney on the ground that his continued representation of defendant would violate the advocate-witness rule (see Paperno, 54 NY2d at 299-300 ; People v Lawson, 65 AD3d 1380, 1380 [2009], lv denied 13 NY3d 908 [2009]; People v Swanson, 43 AD3d 1331, 1332 [2007], lv denied 9 NY3d 1010 [2007]). 2015Memorandum: On appeal from a judgment convicting him upon his plea of guilty of bail jumping in the second degree (Penal Law § 215.56), defendant contends that County Court erred in granting the People’s motion to disqualify defense counsel, which the People made to prevent defense counsel from violating the advocate-witness rule (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7), and the unsworn witness rule (see generally People v Paperno, 54 NY2d 294, 300-301 [1981]). | 12 | 17 |
Skiff-Murray v. Murraygreen2 sentences2011The purpose of the advocate-witness rule is to avoid the unseemly situation where an attorney must both testify on behalf of a client and argue the credibility of his or her testimony at trial (Skiff-Murray v Murray, 3 AD3d 610, 611 [2004]). 2007We further reject defendants’ claim that testimony from an attorney at Flink Smith will be necessary to dispute a key issue at trial and, thus, disqualification is required under the advocate-witness rule (see Code of Professional Responsibility DR 5-102 [a], [b] [22 NYCRR 1200.21 (a), (b)]; Skiff-Murray v Murray, 3 AD3d 610, 611 [2004]). | 3 | 3 |
Walker v. We Try Harder, Inc.green2 sentences2019Partnership v Compton , 19 AD3d 823, 824 ; Walker & Bailey v We Try Harder , 123 AD2d 256, 257 ). 2014(Id. ¶¶ 9, 10.) Mr. DiResta asserts that defendant’s motion to disqualify him from representing TDD, as essentially counsel for himself, makes no sense—for all intents and purposes, he is the plaintiff as he is the trustee and also the sole beneficiary of TDD. (¶ 2 of Mr. DiResta’s affirmation in opposition.) Mr. DiResta further argues that the advocate-witness rule does not apply here as the attorney is a litigant and cites Walker & Bailey v We Try Harder ( 123 AD2d 256, 257 [1st Dept 1986]) to support his position. | 2 | 4 |
ABS Properties, Inc. v. American Bureau of Shippinggreen2 sentences2015It is well settled that the party seeking disqualification under the advocate-witness rule is “required to identify the projected testimony of the witness and show that it would be so adverse to the factual assertions or account of events offered on behalf of the client as to warrant his [or her] disqualification” (Martinez v Suozzi, 186 AD2d 378, 379 [1992]). 2015It is well settled that the party seeking disqualification under the advocate-witness rule is “required to identify the projected testimony of the witness and show that it would be so adverse to the factual assertions or account of events offered on behalf of the client as to warrant his [or her] disqualification” (Martinez v Suozzi, 186 AD2d 378, 379 [1992]). | 2 | 4 |
The People v. Luis Ortizgreen2 sentences2016Supreme Court also properly disqualified Jaffe from representing any of the Locascio defendants. 2 Under the so-called advocate-witness rule (see People v Ortiz, 26 NY3d 430, 437-438 [2015]), subject to certain exceptions not applicable here, “[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” (Rules of Professional Conduct [22 NYCRR 1200.0] *1212 rule 3.7 [a]). 2016As an alternative holding, we find that the curative instructions, taken together, were sufficient to direct the jury not to consider the offending cross-examination, as well as to avoid any violation of the advocate-witness rule or defendant’s right to conflict-free representation (see People v Ortiz, 26 NY3d 430 [2015]). | 2 | 3 |
Campbell v. McKeongreen2 sentences2013Accordingly, disqualification is not warranted under the advocate-witness rule (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Campbell, 75 AD3d at 481 ). 2013Accordingly, disqualification is not warranted under the advocate-witness rule (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Campbell, 75 AD3d at 481 ). | 2 | 3 |
People v. Lawsongreen2 sentences2015Contrary to defendant’s contention, the court properly discharged the attorney on the ground that his continued representation of defendant would violate the advocate-witness rule (see Paperno, 54 NY2d at 299-300 ; People v Lawson, 65 AD3d 1380, 1380 [2009], lv denied 13 NY3d 908 [2009]; People v Swanson, 43 AD3d 1331, 1332 [2007], lv denied 9 NY3d 1010 [2007]). 2015Contrary to defendant’s contention, the court properly discharged the attorney on the ground that his continued representation of defendant would violate the advocate-witness rule (see Paperno, 54 NY2d at 299-300 ; People v Lawson, 65 AD3d 1380, 1380 [2009], lv denied 13 NY3d 908 [2009]; People v Swanson, 43 AD3d 1331, 1332 [2007], lv denied 9 NY3d 1010 [2007]). | 2 | 3 |
People v. Washingtongreen2 sentences2015The prosecutor did not conduct that hearing, and thus she did not “serve [ ] as both a witness and an advocate” in violation of the advocate-witness rule (People v Washington, 233 AD2d 684, 687 [1996], lv denied 89 NY2d 1042 [1997]; see People v Paperno, 54 NY2d 294, 299-300 [1981]). 2015The prosecutor did not conduct that hearing, and thus she did not “serve [ ] as both a witness and an advocate” in violation of the advocate-witness rule (People v Washington, 233 AD2d 684, 687 [1996], lv denied 89 NY2d 1042 [1997]; see People v Paperno, 54 NY2d 294, 299-300 [1981]). | 2 | 3 |
Vidal v. Goordgreen2 sentences2015Finally, insofar as defendant contends that the People could not establish that he received proper notice to appear in court and surrender, we note that such contention is a challenge to the sufficiency of the evidence, and was therefore forfeited by his plea of guilty (see People v Nichols, 37 AD3d 1097, 1098 [2007], lv denied 8 NY3d 948 [2007]). 2015Finally, insofar as defendant contends that the People could not establish that he received proper notice to appear in court and surrender, we note that such contention is a challenge to the sufficiency of the evidence, and was therefore forfeited by his plea of guilty (see People v Nichols, 37 AD3d 1097, 1098 [2007], lv denied 8 NY3d 948 [2007]). | 2 | 3 |
People v. Swansongreen2 sentences2015Contrary to defendant’s contention, the court properly discharged the attorney on the ground that his continued representation of defendant would violate the advocate-witness rule (see Paperno, 54 NY2d at 299-300 ; People v Lawson, 65 AD3d 1380, 1380 [2009], lv denied 13 NY3d 908 [2009]; People v Swanson, 43 AD3d 1331, 1332 [2007], lv denied 9 NY3d 1010 [2007]). 2015Contrary to defendant’s contention, the court properly discharged the attorney on the ground that his continued representation of defendant would violate the advocate-witness rule (see Paperno, 54 NY2d at 299-300 ; People v Lawson, 65 AD3d 1380, 1380 [2009], lv denied 13 NY3d 908 [2009]; People v Swanson, 43 AD3d 1331, 1332 [2007], lv denied 9 NY3d 1010 [2007]). | 2 | 3 |
People v. Shogagreen2 sentences2013Defendant failed to demonstrate a “ ‘substantial likelihood that prejudice resulted’ ” from the trial prosecutor’s participation in a prehearing conference wherein the District Attorney, who represented the People at the hearing, opposed defendant’s request for an adjournment (see People v Shoga, 89 AD3d 1225, 1230-1231 [2011], lv denied 18 NY3d 886 [2012]). 2013Defendant failed to demonstrate a “ ‘substantial likelihood that prejudice resulted’ ” from the trial prosecutor’s participation in a prehearing conference wherein the District Attorney, who represented the People at the hearing, opposed defendant’s request for an adjournment (see People v Shoga, 89 AD3d 1225, 1230-1231 [2011], lv denied 18 NY3d 886 [2012]). | 2 | 3 |
Broadwhite Associates v. Truonggreen2 sentences2007Thus, petitioner did not carry its heavy burden of demonstrating that the projected testimony would be adverse to his client’s interests (see Broadwhite Assoc. v Truong, 237 AD2d 162, 163 [1997]; see also Grassini v Paravalos, 270 AD2d 52 [2000]). 2003Although the mother sought disqualification on the ground that the Law Guardian might be called as a witness and thus that the advocate-witness rule would thereby be violated, she failed to meet her burden of establishing the necessity for that testimony (see Martinez v Suozzi, 186 AD2d 378 [1992]; see generally Broadwhite Assoc. v Truong, 237 AD2d 162 [1997]). | 2 | 3 |
Leonard v. Leonardgreen2 sentences2004The purpose of the advocate-witness rule here is to avoid the unseemly situation where an attorney must both testify to establish her client’s case and argue the credibility of her own testimony at trial (see Ellis v County of Broome, 103 AD2d 861, 862 [1984]). 1986Code of Professional Responsibility, DR 5-102, commonly referred to as the advocate-witness rule, "prohibits a lawyer from representing his client in pending litigation when he or a lawyer in his firm ought to be called as a witness on behalf of his client” (Ellis v County of Broome, 103 AD2d 861, 862 ). | 2 | 3 |
Sokolow, Dunaud, Mercadier & Carreras LLP v. Lachergreen2 sentences2024(NYSCEF No. 39 at 3.) The rule applies in either of two scenarios: When "the testimony of plaintiff's attorney will be necessary to establish the claim or prejudicial in the event the attorney is called" by the opposing party. ( East Forty-Fourth Street LLC v Bildirici , 58 AD3d 542, 542 [1st Dept 2009] [emphasis added].) A party seeking disqualification is not "required to show that [an advocate-witness's] continued representation would prejudice his clients; such a showing is required only when the attorney is called as a witness for the adverse party." ( Sokolow, Dunaud, Mercadier & Carrera 2004The advocate-witness rule requires an attorney to withdraw from pending litigation if it appears that his or her testimony is “necessary” and he or she “ought to be called as a witness” (Code of Professional Responsibility DR 5-102 [a] [22 NYCRR 1200.21]; see Sokolow, Dunaud, Mercadier & Carreras v Lacker, 299 AD2d 64, 74-75 [2002]; Bullard v Coulter, 246 AD2d 705, 706 [1998]). | 2 | 2 |
Kantrowitz, Goldhamer & Graifman, P.C. v. Ayrovainengreen2 sentences2024The court therefore requested, sua sponte, that the parties submit letter briefing on the issue of disqualification. ( See Kantrowitz, Goldhamer & Graifman, P.C. v Ayrovainen , 122 AD3d 908, 908 [2d Dept 2014] [affirming motion court's sua sponte disqualification of counsel under the advocate-witness rule].) The parties have submitted the requested letters. ( See NYSCEF Nos. 35, 39.) This court now concludes that disqualification is warranted. 2023Thus, Bowman also must be disqualified from representing the plaintiff pursuant to the advocate-witness rule ( see Rules of Prof Conduct rule 3.7[a]; Gould v Decolator , 131 AD3d 448, 449-450 ; Lauder v Goldhamer , 122 AD3d 908, 910-911 ). | 1 | 3 |
Gasoline Expwy, Inc. v. Sun Oil Co.green2 sentences2024In Gasoline Expwy, Inc. v Sun Oil Co. of Pennsylvania ( 64 AD2d 647, 647-648 [2d Dept 1978]), the Second Department held that the advocate-witness rule barred an attorney from acting as counsel for a closely held corporation of which she was the sole shareholder, given defendants' showing that the attorney's testimony "will be of primary importance in proving the plaintiff's case." In reaching that conclusion—and reversing the ruling below—the Court specifically rejected the attorney's "argument that such a result improperly denies her the right of appearing pro se." ( Id. at 648 .) The Court 2024In Gasoline Expwy, Inc. v Sun Oil Co. of Pennsylvania ( 64 AD2d 647, 647-648 [2d Dept 1978]), the Second Department held that the advocate-witness rule barred an attorney from acting as counsel for a closely held corporation of which she was the sole shareholder, given defendants' showing that the attorney's testimony "will be of primary importance in proving the plaintiff's case." In reaching that conclusion—and reversing the ruling below—the Court specifically rejected the attorney's "argument that such a result improperly denies her the right of appearing pro se." ( Id. at 648 .) The Court | 1 | 2 |
New Jerusalem v. New York State Electric & Gasgreen2 sentences2019Partnership v Compton , 19 AD3d 823, 824 ; Walker & Bailey v We Try Harder , 123 AD2d 256, 257 ). 2007Partnership v Compton, 19 AD3d 823, 825 [2005]; Walker & Bailey v We Try Harder, 123 AD2d 256 [1986]). | 1 | 2 |
Ullmann-Schneider v. Lacher & Lovell-Taylor PCgreen1 sentence2025Further, defendants failed to meet their "heavy burden" to warrant disqualification under the advocate witness rule by demonstrating that plaintiffs' counsel's testimony is necessary and prejudicial to plaintiffs ( see Ullmann-Schneider v Lacher & Lovell-Taylor PC , 110 AD3d 469, 470 [1st Dept 2013]). | 1 | 1 |
People v. Reyesgreen1 sentence2024(NYSCEF No. 39 at 3.) The rule applies in either of two scenarios: When "the testimony of plaintiff's attorney will be necessary to establish the claim or prejudicial in the event the attorney is called" by the opposing party. ( East Forty-Fourth Street LLC v Bildirici , 58 AD3d 542, 542 [1st Dept 2009] [emphasis added].) A party seeking disqualification is not "required to show that [an advocate-witness's] continued representation would prejudice his clients; such a showing is required only when the attorney is called as a witness for the adverse party." ( Sokolow, Dunaud, Mercadier & Carrera | 1 | 1 |
Van Ryn v. Golandgreen1 sentence2024The movant bears "the burden of demonstrating that the testimony of the opposing party's counsel is necessary to his or her case, and that such testimony would be prejudicial to the opposing party" ( Van Ryn v Goland , 189 AD3d 1749, 1755 [3d Dept 2020] [internal quotation marks and citations omitted]; see People v Ortiz , 26 NY3d 430, 437-438 [2015]; Lilley v Greene Cent. | 1 | 1 |
Michael Reilly Design, Inc. v. Houraneygreen2 sentences2024And, unlike a partnership, an "LLC, like a corporation or voluntary association, is created to shield its members from liability and once formed is a legal entity distinct from its members." ( Michael Reilly Design, Inc. v Houraney , 40 AD3d 592, 593 [2d Dept 2007]; cf. Walker & Bailey v We Try Harder, Inc. , 123 [*3]AD2d 256, 257 [1st Dept 1986] [holding that because "a partnership is not a legal entity separate and apart from the individuals comprising it," the advocate-witness rule does not bar an attorney from both serving as a witness for, and appearing on behalf of, a law firm of which h 2024And, unlike a partnership, an "LLC, like a corporation or voluntary association, is created to shield its members from liability and once formed is a legal entity distinct from its members." ( Michael Reilly Design, Inc. v Houraney , 40 AD3d 592, 593 [2d Dept 2007]; cf. Walker & Bailey v We Try Harder, Inc. , 123 [*3]AD2d 256, 257 [1st Dept 1986] [holding that because "a partnership is not a legal entity separate and apart from the individuals comprising it," the advocate-witness rule does not bar an attorney from both serving as a witness for, and appearing on behalf of, a law firm of which h | 1 | 1 |
| Taylor v. Casologreen | 1 | 1 |
| In re the Estate of Walshgreen | 1 | 1 |
| 1010Data, Inc. v. Firestone Enterprises, Inc.green | 1 | 1 |
| Talvy v. American Red Cross in Greater New Yorkgreen | 1 | 1 |
| Weksler v. Wekslergreen | 1 | 1 |
| Kihl v. Pfeffergreen | 1 | 1 |
| Guiliano v. Carlislegreen | 1 | 1 |
| Douglas v. Kingston Income Partners '87green | 1 | 1 |
| Aaron v. Kavanaghgreen | 1 | 1 |
| Stilwell Value Partners IV, L.P. v. Cavanaughgreen | 1 | 1 |
| Kirshon, Shron, Cornell & Teitelbaum v. Savaresegreen | 1 | 1 |
| Meccariello v. Di Pasqualegreen | 1 | 1 |
| Smith v. Palonegreen | 1 | 1 |
| People v. Perezgreen | 1 | 1 |
| People v. Limongelligreen | 1 | 1 |
| People v. Amatogreen | 1 | 1 |
| Grassini v. Paravalosgreen | 1 | 1 |
| In re the Estate of Rothkogreen | 1 | 1 |
| New York State Ass'n of Counties v. Axelrodgreen | 1 | 1 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in New York. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
People v. Leigh
green
2 sentences2015Contrary to defendant’s contention, the court properly discharged the attorney on the ground that his continued representation of defendant would violate the advocate-witness rule (see Paperno, 54 NY2d at 299-300 ; People v Lawson, 65 AD3d 1380, 1380 [2009], lv denied 13 NY3d 908 [2009]; People v Swanson, 43 AD3d 1331, 1332 [2007], lv denied 9 NY3d 1010 [2007]). 2015Contrary to defendant’s contention, the court properly discharged the attorney on the ground that his continued representation of defendant would violate the advocate-witness rule (see Paperno, 54 NY2d at 299-300 ; People v Lawson, 65 AD3d 1380, 1380 [2009], lv denied 13 NY3d 908 [2009]; People v Swanson, 43 AD3d 1331, 1332 [2007], lv denied 9 NY3d 1010 [2007]). | 3 | 2015–2015 |
People v. Springer
green
2 sentences2013Defendant failed to demonstrate a “ ‘substantial likelihood that prejudice resulted’ ” from the trial prosecutor’s participation in a prehearing conference wherein the District Attorney, who represented the People at the hearing, opposed defendant’s request for an adjournment (see People v Shoga, 89 AD3d 1225, 1230-1231 [2011], lv denied 18 NY3d 886 [2012]). 2013Defendant failed to demonstrate a “ ‘substantial likelihood that prejudice resulted’ ” from the trial prosecutor’s participation in a prehearing conference wherein the District Attorney, who represented the People at the hearing, opposed defendant’s request for an adjournment (see People v Shoga, 89 AD3d 1225, 1230-1231 [2011], lv denied 18 NY3d 886 [2012]). | 3 | 2013–2013 |
Falk v. Gallo
green
2 sentences2018Rule 3.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that, unless certain exceptions apply, "[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" ( see Falk v Gallo, 73 AD3d 685 ). 2011Although not binding upon the courts, the advocate-witness rule “provide [s] guidance ... for the courts in determining whether a party’s attorney should be disqualified during litigation” (Falk, 73 AD3d at 686 ; see S & S Hotel Ventures Ltd. | 2 | 2011–2018 |
S & S Hotel Ventures Limited Partnership v. 777 S. H. Corp.
green
2 sentences2011Partnership, 69 NY2d at 443-445 ). 2007Partnership, 69 NY2d at 445-446 ). | 2 | 2007–2011 |
People v. Beals
green
2 sentences2002The first stipulation, deemed insignificant by the court, involved whether or not defendant was wearing a certain jacket at the time of the shooting (see Beals, 162 Ill 2d at 504-505, 643 NE2d at 793 ). 2001In reaching this conclusion, we begin our analysis with the decision of the Supreme Court of Illinois in People v Beals (162 Ill 2d 497, 643 NE2d 789 ). | 2 | 2001–2002 |
People v. Baldi
green
2 sentences2001Similarly, the Supreme Court of Connecticut in State v Crespo (246 Conn 665, 691, 718 A2d 925, 939 , cert denied 525 US 1125 ) stated that “[t]he use of a stipulation rather than an attorney’s testimony has been accepted as a legitimate trial strategy when the information in the stipulation otherwise could have been presented by the prosecution, but the use of the stipulation was strategically preferable.” Consistent with Beals and Crespo , our own Court of Appeals, in People v Baldi ( 54 NY2d 137 ), has also indicated that a defense counsel’s testimony, even if facially adverse to his client, 1984As such, we note that Jafife’s testimony did not violate the advocate-witness rule embodied in the provisions of DR 5-101 (subd B) and 5-102 of the Code of Professional Responsibility (see People v Paperno, supra, p 299, n 4 ; People v Baldi, 76 AD2d 259, 276 , revd on other grounds 54 NY2d 137 ). | 2 | 1984–2001 |
Kassis v. Teacher's Insurance & Annuity Ass'n
green
1 sentence2023Where one attorney is disqualified due to a conflict of interest, "there is a rebuttable presumption that the entirety of the attorney's current firm must be disqualified" ( Moray v UFS Indus., Inc. , 156 AD3d at 783 ; see Rules of Prof Conduct rule 1.10[a]; Kassis v Teacher's Ins. & Annuity Assn. , 93 NY2d 611, 617 ). | 1 | 2023–2023 |
Moray v. UFS Industries, Inc.
green
1 sentence2023Where one attorney is disqualified due to a conflict of interest, "there is a rebuttable presumption that the entirety of the attorney's current firm must be disqualified" ( Moray v UFS Indus., Inc. , 156 AD3d at 783 ; see Rules of Prof Conduct rule 1.10[a]; Kassis v Teacher's Ins. & Annuity Assn. , 93 NY2d 611, 617 ). | 1 | 2023–2023 |
Gould v. Decolator
green
1 sentence2023Thus, Bowman also must be disqualified from representing the plaintiff pursuant to the advocate-witness rule ( see Rules of Prof Conduct rule 3.7[a]; Gould v Decolator , 131 AD3d 448, 449-450 ; Lauder v Goldhamer , 122 AD3d 908, 910-911 ). | 1 | 2023–2023 |
| In re Deans neutral | 1 | 2019–2019 |
| Herczl v. Feinsilver green | 1 | 2019–2019 |
| Talvy v. American Red Cross in Greater New York green | 1 | 2018–2018 |
| NY Kids Club 125 5th Avenue, LLC v. Three Kings, LLC green | 1 | 2018–2018 |
| People v. Waller green | 1 | 2018–2018 |
| Fuller v. Collins green | 1 | 2018–2018 |
| People v. Mitchell green | 1 | 2018–2018 |
| People v. Parker green | 1 | 2018–2018 |
| American Transit Insurance v. Lucas green | 1 | 2017–2017 |
| Matter of Johnson v. Selsky green | 1 | 2016–2016 |
| Ben Miller, Inc. v. Marcus Brothers Textiles, Inc. green | 1 | 2016–2016 |
| People v. Berroa green | 1 | 2015–2015 |
| People v. Ortiz green | 1 | 2012–2012 |
| People v. McDonald green | 1 | 2012–2012 |
| Various Tenants v. State of New York Division of Housing & Community Renewal green | 1 | 2011–2011 |
| Nemia v. Nemia green | 1 | 2008–2008 |
| Grasso v. General Motors Corp. green | 1 | 2007–2007 |
| GASOLINE EXPWY, INC. v. Sun Oil Co. of Pennsylvania green | 1 | 2007–2007 |
| Olivarez v. United States green | 1 | 2007–2007 |
| People v. Keeton green | 1 | 2003–2003 |
| People v. Freeman green | 1 | 2003–2003 |
| Ninemire v. Stovall green | 1 | 2001–2001 |
| People v. Satterfield green | 1 | 2001–2001 |
Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.
Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.