1.25 - 11. Disqualification Of Counsel

JurisdictionNew York

11. Disqualification of Counsel

An interested attorney’s testimony is always competent, but an attorney should not deliberately put himself in a position where he becomes a relevant witness and then testify when other witnesses are available. The attorney should not be called to testify when no showing of necessity is made, as when his testimony can be elicited from other witnesses. A compelled change of counsel rests in a trial judge’s discretion but is not permitted or required absent prejudice to the adverse side.85 There is no per se rule disqualifying counsel from testifying in a criminal or civil case. It is said that the law has evolved from an exclusionary rule of evidence to a matter of ethical conduct.86 Ethical strictures do not have the force of law, nor are they rules of evidence.87 There is no substitute for good judgment.88

The unsworn witness rule for purposes of disqualification has no definitive contours, but “generally stands for the proposition that the prosecutor may not inject his own credibility into the trial. . . . The primary rationale . . . is rooted in a concern that the criminal process be fair. Such conduct on the part of the prosecutor amounts to a subtle form of testimony against the defendant, as to which the defendant may have no effective means of cross-examination. Hence, the rule is founded upon the possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the belief and opinions of the prosecutor.”89

It is incumbent on a defendant to make an adequate showing that a prosecutor’s pretrial conduct presents a significant possibility that it will be material to an issue in the trial such that the prosecutor’s participation will render the subsequent trial unfair. A mere assertion that the prosecutor will be questioned by the defense concerning some aspect of his conduct will not be enough. Reality, not speculative gamesmanship or afterthought, is controlling. Is there an actual necessity to call the prosecutor as a witness regarding a material issue? The timeliness of a defense recusal motion is a function of the good faith that must support it. It must be made pretrial as opposed to a later quest for tactical advantage. And what should be obvious is that recusal, indeed disqualification, is appropriate where necessary testimony from trial counsel will be adverse to his or her side of the contest.90

No man can serve two masters. Especially is this so when the interests of the two clients are antagonistic or potentially so. Defense attorneys live with the specter of being conflicted out of representing a client, occasionally one with the wherewithal to pay for his excellent services. “Where a conflict of interest is shown, the courts need not precisely calculate the degree of prejudice in order to find a violation of Sixth Amendment rights.”91 What is more, “an individual possesses no absolute right to representation by an attorney of his choice,” although “any restriction imposed on that right will be carefully scrutinized.”92 Rarely, if ever, would a court have reason or...

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