[*1]
Matter of James A. (Jessica G.)
2015 NY Slip Op 50013(U) [46 Misc 3d 1207(A)]
Decided on January 7, 2015
Family Court, Clinton County
Lawliss, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 7, 2015
Family Court, Clinton County


In the Matter of James A., Jr. and MARY G. Children Under Eighteen Years of Age Alleged to be Neglected by JESSICA G., Respondent.




NN-xxxxx-xx



Appearances: Clinton County Department of Social Services, Plattsburgh (Christine G. Peters, Esq., of counsel)



Keith M. Bruno, Esq., Plattsburgh, with and for James A., Sr.



Richard E. Cantwell, Esq., Plattsburgh, with and for Shannon G.



Edward D. Meyer, Esq., Plattsburgh, with and for Jessica G.



Cheryl Maxwell, Esq., Plattsburgh, as Attorney for the Children


Timothy J. Lawliss, J.

On October 7, 2014, the Clinton County Department of Social Services (hereinafter "the Department") filed three petitions alleging that three respondents, Jessica G., the mother of both children; James A. Sr., the father of James A. Jr.; and Shannon G., the father's paramour neglected Mary G., age 20 months, and James A. Jr.,, age 7 months, (hereinafter "the children"). All three respondents resided together with the two children as one family unit.

The Court held an initial appearance on the three petitions on October 8, 2014 and issued a Temporary Order for Services and a Temporary Order of Protection directed towards each respondent. In effect, the Court excluded James A., Sr., from the home and allowed the children to continue to reside with the other two respondents.

On November 21, 2014, pursuant to FCA §1024, the Department removed the children from their home on an emergency basis without a Court order. On November 24, 2014, the Department filed a second neglect petition against Jessica G. concerning the children. On November 25, 2014 and November 26, 2014, the Court, upon the application of the Department, [*2]conducted a hearing pursuant to FCA §1027.

A substantial portion of the evidence presented by the Department during the 1027 hearing concerned the children's circumstances on November 21, 2014. At the time of the emergency removal on November 21st, both children, Jessica G., Shannon G., two of the Department's caseworkers and the Attorney for the Children were present in the home. Thus, the Attorney for the Children witnessed the conditions that led to the emergency removal. Upon learning this information, the Court moved to disqualify the Attorney for the Children in all the above captioned actions pursuant to Professional Conduct Rule 3.7(a) (22 NYCRR 1200.0).

Rule 3.7(a) states:



(a)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:

(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.



It is undisputed that the Attorney for the Children observed events on November 21st and those events are potentially significant to all the pending petitions (fact-finding on the fourth petition and, if a neglect finding is made on any of the petitions, disposition). In response to the Court's motion, the Attorney for the Children does not claim that any of the enumerated exceptions of Rule 3.7(a) apply, but rather that she is not disqualified because she is not likely to be a witness.

The Attorney for the Children asserts that her testimony would be cumulative to the Department's caseworkers; and therefore, neither the Department nor a new Attorney for the Children would be likely to call her as a witness. The Department joined in the Attorney for the Children's position and confirmed that the Department did not intend to call the Attorney for the Children as a witness. The attorneys for Jessica G., Shannon G., and James A. Sr., all indicated that they did not intend to call the Attorney for the Children as a witness because in their opinions the Attorney for the Children's testimony would be harmful to their position.[FN1]

The Rules of Professional Conduct (22 NYCRR 1200) were promulgated as Joint Rules of the Appellate Divisions of the Supreme Court, effective April 1, 2009, and superseded the [*3]former Disciplinary Rules of the Code of Professional Responsibility. See, New York State Unified Court System, Part 1200 Rules of Professional Conduct, May 1, 2013. The former rule [DR 5-102] provided in relevant part that:



[a] lawyer shall not act, or accept employment that contemplates the lawyer's acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client, except that the lawyer may act as an advocate and also testify: ... {emphasis added}.



As noted above, Rule 3.7 now 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: ... {emphasis added}."

Prior to the 2009 rule change, the Courts held that:



... whether a witness "ought" to testify is not alone determined by the fact that he has relevant knowledge or was involved in the transaction at issue. Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary {citation omitted}. Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony and availability of other evidence {citations omitted}. S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 508 NE2d 647 [1987]. See also, In the Matter of Advent Associates, LLC v Vogt Family Inv. Partners, L.P., 56 AD3d 1023, 867 NYS2d 569 [3 Dept 2008] and Nicola v Barrett., 43 AD3d 583, 840 NYS2d 677 [3 Dept 2007].

Notwithstanding the 2009 rule change from "ought to be called as a witness" to "likely to be a witness," the Courts continue to apply the same necessity test. See, Lauder v Goldhamer, 122 AD3d 908 [2 Dept 2014]; Homar v American Home Mortg. Acceptance, Inc., 119 AD3d 901, 990 NYS2d 250 [2 Dept 2014]; Dishi v Federal Ins. Co., 112 AD3d 484, 976 NYS2d 379 [1 Dept 2013]; and, Blanche, Verte & Blanche, LTD, v Joseph Mauro & Sons Shore Drug Inc., 91 AD3d 693, 936 NYS2d 571 [2 Dept 2012].

Accordingly, the Court will consider the three factors relevant to the necessity test: significance of the matter, weight of the testimony and availability of other evidence. The Attorney for the Children clearly has information that is highly significant to the matter before the Court. Indeed, the events of November 21st, which the Attorney for the Children witnessed, may be pivotal when making a determination as to whether or not the subject children have been neglected or should remain in the custody of the respondents. With respect to the second factor, the Attorney for the Children's testimony could be given great weight when resolving issues of fact because the Attorney for the Children is not employed by the petitioner and does not have a personal relationship with any of the respondents, and therefore, has no obvious bias. With respect to the third factor, there are other available witnesses to testify regarding the events of November 21st including two caseworkers employed by the petitioner and two of the three respondents. Thus, two of the three factors of the necessity test support the motion for disqualification.

However, after consideration of these factors, the Court must acknowledge that every party to this action has unequivocally stated that they do not intend to call the Attorney for the Children as a witness. Given those representations, the Court cannot conclude that the Attorney for the Children is "likely to be a witness".

When considering this issue, Courts have also been sensitive to a party's right to choose their own counsel. "The right to choose one's own counsel is a valued right {citations omitted}. Thus, the restriction of that right must be carefully scrutinized {citations omitted}". In the Matter of Advent Associates, LLC v Vogt Family Investment Partners, L.P., 56 AD3d at 1024, 867 NYS2d at 570 [3 Dept 2008]. Normally "when considering a motion to disqualify counsel, the court must consider the totality of the circumstances and carefully balance the right of a party to be represented by counsel of his or her choosing against the other party's right to be free from possible prejudice due to the questioned representation." Parnes v Parnes, 80 AD3d 948, 915 NYS2d 345 [3 Dept 2011]. In the instance proceeding, however, given the age of the children, their right to counsel of choice is not a factor in this case.

The Court has also considered and is concerned about the possibility that a party may change its position and seek to call the Attorney for the Children as a witness. In the event any party does change their position and seeks the testimony of the Attorney for the Children, nothing in this decision precludes the Attorney for the Children from making an application pursuant to 22 NYCRR 1200.00, Rule 3.7(a)(5).

Accordingly, the Court hereby denies its own motion to disqualify the Attorney for the Children in the pending action; and it is further



ORDERED, that all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or Attorney for the Children upon the appellant, whichever is earliest.

Signed and Dated:January ____, 2015

Plattsburgh, New York



E N T E R



Hon. Timothy J. Lawliss



Family Court Judge

Footnotes


Footnote 1:Although the attorney for Shannon G. was not present when the Court made its initial motion, the attorney was notified, in writing, of the Court's motion. The Court reserved and provided all parties and the Attorney for the Children with an opportunity to submit papers in response to the Court's motion. The Department submitted a Memorandum of Law and the Attorney for the Children submitted her own Affirmation. No other party submitted any responding papers. Shannon G.'s attorney did eventually notify the Court, on the record, of Shannon G.'s position.