19 A.D.2d 814 | N.Y. App. Div. | 1963
Order, entered on April 18, 1963, unanimously affirmed, without costs. The motion was made by defendants to disqualify on ethical grounds the law firm presently appearing for plaintiff from its continued representation of the plaintiff in the preparation and trial of this action. The defendants urge that it will be improper for such firm and each of its members and associates to participate in the trial of this action in that it appears that certain partners therein will be material and necessary witnesses on the trial. Where the facts warrant it, a motion, such as this, may be entertained by the court in which a particular action is pending, to disqualify a particular attorney from appearing or further participating therein as an attorney for a party (see Matter of Huie, 2 A D 2d 163; Evyan Perfumes v. Hamilton, 22 Mise 2d 616), but the function of the court upon such a motion is restricted to the taking of such action as may be necessary to insure a proper representation of the parties and fairness in the conduct of the litigation. The motion may not be entertained for the purpose of obtaining an adjudication as to what constitutes professional misconduct on the part of an attorney (see Erie County Water Auth, v. Western N. T, Water Co., 304 N. Y. 342, 346), nor will the court utilize this motion for the purpose of laying down guide rules for the future conduct of an attorney on the speculation of what may develop during a litigation. There is no hard and fast rule that it is always improper, irrespective of the circumstances, for an attorney to appear as trial counsel in a case where his partner is a material witness. (See Drinker, Legal Ethics, pp. 158-159.) Order, entered on May 10, 1963, unanimously affirmed, without costs. No opinion. Concur — Breitel, J, P,, Rabin, McNally, Stevens and Eager, JJ.