A defence lawyer for an indicted Dewey & LeBoeuf executive wants Steven Davis – the firm's former chairman – to appear as a witness in his retrial.

But whether Davis will testify during retrial is an open question.

The request suggests that the retrial may not be so similar to the first trial, which resulted in a hung jury in the criminal case against Davis, Stephen DiCarmine and Joel Sanders.

Davis signed a deferred prosecution agreement with the Manhattan District Attorney's Office after the mistrial in October 2015, allowing him to avoid retrial. As part of the agreement, prosecutors have agreed to drop charges against him in five years.

But prosecutors are continuing with charges against DiCarmine and Sanders, who are accused of misleading investors and lenders about Dewey's finances before the firm's 2012 bankruptcy.

Opening arguments are expected to start next week in their case.

As jury selection continues, prosecutors and defence lawyers for Sanders and DiCarmine appeared on Tuesday before Manhattan Acting Supreme Court Justice Robert Stolz, to discuss witnesses and exhibits lists.

Andrew Frisch, who represents Sanders, told Stolz that Davis is living in the UK and his lawyer has declined to accept service of a subpoena on his behalf.

However, Frisch pointed out that under Davis's deferred prosecution agreement, he agreed to appear for a court conference "when requested" by the District Attorney's Office.

Frisch told Stolz that he is asking the District Attorney to schedule a conference with Davis so the defence can schedule him at retrial.

But assistant District Attorney Peirce Moser said he didn't believe the prosecution was obligated to do so.

Stolz, after hearing the exchange, noted that Davis was not scheduled to appear for a status conference anytime soon.

Outside of court, Frisch told reporters that he would expect that the District Attorney wants "Steven Davis here to testify so the jury has all the information".

Lawrence Bader, one of Davis's attorneys and a partner at Morvillo Abramowitz Grand Iason & Anello, confirmed to the Law Journal that his firm declined to accept service on Davis's behalf. But Bader declined to comment about the possibility of Davis testifying during retrial.

Also during a court conference on Tuesday, Moser said there are "a few" witnesses for the retrial who did not appear in the first.

A list of more than 200 potential witnesses and people whose names may be mentioned in the case includes top Dewey partners and cooperating witnesses who testified during the 2015 trial.

But the 2017 list also includes new names, including Seth Farber and Harvey Kurzweil, two Dewey partners who moved to Winston & Strawn in 2012 amid Dewey's collapse; and Alan Salpeter, a former Dewey lawyer now at Arnold & Porter Kaye Scholer. Kurzweil and Farber both declined to comment. Salpeter said he hadn't been contacted about appearing at the second trial, adding: "I can't imagine what either side would want me for."

Frisch has also said he may call Alan Schachter, a certified public accountant at Citrin Cooperman, as an expert witness, but he told Stolz on Tuesday that the defence was struggling to pay for experts, given the financial toll of the case.

Frisch said on Tuesday that Sanders, who was an administrator at Florida-based law firm Greenspoon Marder after leaving Dewey, is not working now, while his wife quit her job. Sanders has a Florida condo and a Long Island home, he said. "Our expectation is that he's going to be acquitted and return to Florida," Frisch told Stolz.