Divorce litigation often leads to contentious disputes, not only between spouses but also between their attorneys. In high-conflict cases involving financial disclosure, third-party subpoenas, and allegations of attorney misconduct, courts must determine whether a lawyer can continue to represent a client when personal knowledge of disputed facts may make the lawyer a necessary witness. A recent decision from a New York court illustrates how New York courts analyze these situations and the legal standards applied when attorney disqualification is on the table. If you intend to seek a divorce, it is essential to consult a New York divorce attorney as soon as possible to protect your interests.
Procedural History and Allegations
It is reported that the parties were engaged in divorce litigation in New York County when the husband’s attorney, who had submitted sworn affirmations with factual claims based on his personal knowledge, was disqualified by the trial court. The court, on its own motion, determined that the attorney had “inserted himself beyond the role of advocate” and had become a material and necessary witness in connection with claims related to equitable distribution and counsel fees. The court issued a stay of the proceedings to give the husband time to obtain new counsel.
It is further reported that the husband had issued subpoenas to multiple financial institutions seeking the bank records of a nonparty, who had some financial connection to the wife. The nonparty moved to quash the subpoenas, and the husband cross-moved to disqualify the nonparty’s attorney, enforce the subpoenas, and seek sanctions and attorney’s fees. The trial court granted the nonparty’s motion to quash and denied all aspects of the husband’s cross-motion. The husband appealed.
Grounds for Disqualification of Counsel in Divorce Proceedings
On appeal, the court reversed the disqualification of the husband’s attorney. The court emphasized that although the Code of Professional Responsibility guides the advocate-witness rule, disqualification implicates not just ethics but a party’s substantive right to counsel of choice. The court reiterated that disqualification is a remedy to be imposed sparingly and only where an attorney’s testimony is necessary to prove disputed issues at trial.
The court found that the attorney’s personal knowledge was limited to an incident in which the wife allegedly removed duct tape from a closet during access to the marital residence and committed a “crime” against the attorney. However, the court determined that this incident was irrelevant to the financial issues at the heart of the divorce proceedings. As a result, the trial court’s order disqualifying counsel was reversed, though the appellate court left open the possibility of renewed disqualification upon a proper showing of necessity.
Meet with a Trusted New York Divorce Attorney
Divorce litigation can quickly become legally and emotionally complex. If your case involves contested discovery, concerns about legal ethics, or the involvement of third parties, it is critical to have a seasoned family law attorney on your side. Attorney Ksenia Rudyuk of Rudyuk Law Firm is a trusted New York divorce attorney who can offer you experienced and strategic counsel to help you protect your interests at every stage. You can contact us at (212) 706-2001 or complete our online form to schedule a consultation.