DECISION AND ORDER UPON ORDER TO SHOW CAUSE On June 1, 2020, B.B. (petitioner-father) filed a family offense petition against E.E. (respondent-mother) seeking an order of protection for himself and the parties’ three minor children. As is relevant herein, the petitioner-father’s family offense petition alleges that the respondent-mother “accosted my lawyer blocking his car and door from his office building until [local] PD responded to my attorney’s 911 call.” That same day, he also filed a custody petition seeking custody of the parties’ children. After the ex parte appearance on the family offense petition, the Court found good cause to grant a temporary order of protection. In addition, the Court ordered an investigation by the Westchester County Department of Social Services and assigned an attorney for the respondent-mother and an attorney for the children. On July 27, 2020, the respondent-mother, by her attorney at that time, filed an order to show cause seeking disqualification of the petitioner-father’s attorney on the grounds that he was likely to be called as a witness on significant issues of fact in these matters, to wit, an incident between the respondent-mother and the petitioner-father’s attorney that allegedly took place on May 31, 2020. The application was made returnable on September 24, 2020 but was subsequently advanced to September 3, 2020. The petitioner-father filed an opposition in which he unequivocally states that he will not call his attorney as a witness and waives his right to do so, nor will he rely on any evidence or testimony regarding the incident on May 31, 2020 (aff of petitioner 2). He identifies the lengthy history of alleged incidents involving the respondent-mother and asserts that “the testimony of [my attorney] would be relatively insignificant to the issues before this Court” (id. 8). Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7 (a) provides 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 unless” one of five enumerated circumstances exist. These include: “(1) the testimony relates solely to an uncontested issue; (2) the testimony relates solely to the nature and value of legal services rendered in the matter; (3) disqualification of the lawyer would work substantial hardship on the client; (4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or (5) the testimony is authorized by the tribunal” (id.). Of these exceptions, only the third is relevant in the instant matter. Comment (4) of Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7 provides “paragraph (a)(3) recognizes that a balancing is required among the interests of the client, of the tribunal, and of the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even if there is a risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer’s client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness” (emphasis added). This Court has reviewed the transcript of the June 1, 2020 appearance. During the ex parte application, the Court asked, “What specifically has [the mother] done to put the family in danger that it can’t wait to hear from both sides?” (June 1, 2020 tr at 4, lines 17-19). As part of his response, the petitioner-father’s attorney states, “…I can tell you not only what my client has written in detail, but [the mother] personally came to my office close to midnight last night which is at the bottom of my client’s statement and aggressive [sic], I personally witnessed her having delusional thoughts, aggressive behavior. She blocked my car in the parking lot. She didn’t even know who I was, Judge. She didn’t know I was his attorney.” (id. at 5, lines 1-7). The Court asked, “Has [the mother] done anything to put the family in danger?” (id., lines 8-9). The petitioner-father’s attorney responded, “Judge, I don’t believe she’s able, based on my personal observation of her, to make any kind of decision in the interests of this family.” (id., lines 10-12). After the Court heard from the petitioner-father and indicated that a temporary order of protection would be granted, counsel for the petitioner-father stated, “I would just like to add that and just as you contemplate the situation of the children, last night at close to midnight when E.E. accosted me at my office, not knowing who I even was, she was making statements that her husband, there was a palliative care office in the building that he must, I must be his drug dealer, that he must be, he could be dead upstairs. When I called 911 — ” (id. at 9, lines 11-19). The Court interjected, “Was [the mother] physical with you?” (id., line 20). Counsel responded, “Yes, Judge. I have no doubt that if I hadn’t retreated multiple times that there would’ve been, she would’ve initiated an altercation. She initially blocked my car when I was leaving the building. Again, not knowing who I was. Never had an association with her and I haven’t appeared or anything. She blocked the car — ” (id. at 9, line 21-10, line 2). At this point, the Court interjected, and stated, “ Well, Counsel, first of all, you have to be careful because you are now, and you’ve become a witness.” (id. at 10, lines 3-5). “Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary (S & S Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., 69 NY2d 437, 445-446 [1987]). “[T]he roles of an advocate and of a witness are inconsistent and it is unseemly for a lawyer in a trial to also argue his own credibility as a witness (Zaccaro v. Bowers, 2 Misc3d 733, 734 [Civ Ct, New York County 2003]). “The right to counsel of choice is not absolute and may be overridden where necessary…but it is a valued right an any restrictions must be carefully scrutinized” (S & S Hotel Ventures, 69 NY2d at 443). “Courts must…consider such factors as the party’s valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation” (id., 440). “The disqualification of an attorney is a matter that rests within the sound discretion of the trial court…The advocate-witness rules contained in the Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7 provide guidance, but not binding authority, for courts in determining whether to disqualify an attorney” (Bajohr v. Berg, 143 AD3d 849, 850 [2d Dept 2016] [internal citations omitted]). The problem lies not only in whether B.B.’s attorney might be called to testify at trial, but in the fact that he already has. His statements during the June 1, 2020 appearance went beyond presenting his client’s case. He recounted alleged events for which his client was not present, and for which he himself was the witness. These allegations were included in the petitioner-father’s family offense petition. While the petitioner-father may have waived his right to call his attorney as a witness, his attorney has already made statements on the record in the nature of that of a fact witness. Although the petitioner-father has stated he will not be calling his attorney to testify, the application to disqualify his attorney was filed by the respondent-mother. Just because the petitioner-father does not intend to call his attorney does not mean that there is not still the potential for him to be called by the respondent-mother. The third exception to rule 3.7 “is if disqualification would work a substantial hardship to the client because of the distinctive value of the lawyer in the particular case” (Zaccaro, 2 Misc3d at 735). Two of the major reasons the petitioner-father seeks to avoid disqualification is because of his attorney’s purported unique knowledge of the intersection of family law and mental health issues and because of the time and expense that would be required to get another attorney sufficiently familiar with the family’s circumstances and the filings in these proceedings. While this Court is not unsympathetic to either concern, this Court first draws attention to the commentary to rule 3.7 quoted above regarding the relevancy of one or both parties reasonably foreseeing the possibility of the lawyer becoming a witness. At the very first appearance in this matter, counsel made the decision to insert himself into the proceeding as a witness to events rather than as a purely legal advocate for his client. Even at that initial appearance, this Court raised the concern of counsel having made himself a witness. As such, from day one, this issue should have been foreseeable to everyone involved. This Court is also cognizant of the financial implications of starting over with a new attorney at this stage in the proceedings. While in many instances, changing attorneys three months into a family court proceeding would not be unduly burdensome, the volume, length and content of the filings in this matter has generated an unusually large file for such a short period of time. However, case law is clear that adverse financial consequences is not a basis to deny disqualification (Federated Adj. Co. v. Sobie, 90 AD2d 806, 807 [2d Dept 1982]). The petitioner-father’s attorney argues that any issue regarding disqualification “has no bearing of any kind on the custody case” (affirmation of petitioner’s counsel 6). The problem with this argument is that custody and family offense proceedings are rarely bifurcated. Even if the matters are heard separately, this Court must consider the effect of any domestic violence proven by a preponderance of the evidence upon the best interests of the children (Domestic Relations Law §240 [1] [a]). The two matters are inextricably intertwined such that it would not be possible to have an attorney disqualified in the family offense matter continue representation in the custody matter. ”There is a sound basis for what may seem like a harsh result to the clients who have chosen these particular attorneys to represent them. The attorneys by having personally involved themselves in significant issues in this proceeding have removed themselves from the sidelines and moved to the stage. Rather than being presenters of the facts of the case, they have moved into the role of actors in the case unfolding before the court. This duality of being the attorney and the witness causes the attorney to becomes [sic] handicapped in representing his/her client, as the attorney’s credibility necessarily becomes an issue in the case” (Zaccaro, 2 Misc3d at 736). This Court has put a great deal of thought into this difficult issue. After considering the relevant factors and the issues raised by both sides, this Court finds that it has no choice but to grant the respondent-mother’s application to disqualify B.B.’s attorney in these matters. This decision has been made after serious consideration of the possible implications to both parties. However, the statements already made by B.B.’s attorney on June 1, 2020 leave little room for this Court to arrive at any other conclusion. ACCORDINGLY, IT IS HEREBY ORDERED that [Redacted], Esq. is disqualified from representing B.B. in these proceedings; and it is further ORDERED that the order to show cause filed by E.E. under the above-captioned docket numbers is granted to the extent set forth herein; and it is further ORDERED that any relief sought under the above-captioned docket numbers not specifically granted herein is denied. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: September 10, 2020
