Civil Court of the City of New York, Bronx County, September 24, 2021

Becker & Poliakoff (Glenn Spiegel of counsel) for 1777 GC LLC and another, respondents.

Bronx Legal Services (Eugene Y. Chen of counsel) for petitioners.

New York City Department of Housing Preservation and Development (Emily Veale of counsel) for New York City Department of Housing Preservation and Development, respondent.

After oral argument held on September 13, 2021, the decision and order on this motion is as follows:

Petitioners are occupants at 1777 Grand Concourse, Bronx, NY. Their petition seeks, inter alia, an order to correct outstanding violations and a finding they have been harassed, as defined in the Housing Maintenance Code.

On November 4, 2020, the court issued an order to correct the outstanding violations. Later, the matter was scheduled for a trial to decide petitioners' remaining claims, including harassment.

On or about May 18, 2021, petitioners informed respondents they intended to call Gabriella Betances, an employee of petitioners' counsel, as a trial witness.

Respondents now move for an order prohibiting Betances from testifying at trial, arguing that she acted as an attorney for the petitioners.

Rule 3.7 (a) of the Rules of Professional Conduct (RPC) (see 22 NYCRR 1200.0) provides:

"(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."

Respondents argue that Betances' testimony would run afoul of rule 3.7 (a) because she works at or for petitioners' counsel's{**73 Misc 3d at 594} office, albeit not as an attorney. It is undisputed that Betances has visited the subject building and plans to testify about conditions she observed during those visits. As such, respondents posit she has personally involved herself in the litigation and must be disqualified from testifying. Further, respondents argue that there is no reason for Betances to testify as "any information likely to be elicited" from her "can easily be provided by other witnesses, including the petitioners themselves."

In opposition, petitioners argue that RPC rule 3.7 (a), the so-called "advocate-witness" rule, provides guidance, but is not binding authority on this court and, in any event, the rule only applies to lawyers, "not to their firms' agents or employees." Petitioners state that Betances is a paralegal and "no different from the office investigators that law firms typically call to testify to disputed facts." Petitioners add that the probative value and weight of Betances' testimony should be left for the court to determine at trial.

In reply, respondents stress that Betances has a "vested interest in the case by the sheer virtue of her involvement in the representation of petitioners," and that she has "continuously acted as a substitute for petitioners' attorneys." Thus, she ought to be disqualified under the advocate-witness rule.

Motions In Limine

If successful, a party can obtain a preliminary order before or during trial excluding or limiting the use of the anticipated evidence or testimony (see State of New York v Metz, 241 AD2d 192, 198 [1st Dept 1998]).

In limine motions are left to the court's discretion (see Woodie v Azteca Intl. Corp., 60 AD3d 535 [1st Dept 2009]; Caplan v Tofel, 58 AD3d 659 [2d Dept 2009]).

Traditionally, a motion in limine challenges evidence which is claimed to be inadmissible, immaterial, or prejudicial, or requests a limitation on the use of evidence (see State of New York v Metz, 241 AD2d at 198; see also Smith v Allstate Ins. Co., 912 F Supp 2d 242, 246 [WD Pa 2012]).

Respondents' motion invokes the "advocate-witness" rule of RPC rule 3.7 (a), basing their motion almost entirely on the fact that Betances has allegedly acted "as a substitute" for petitioners' attorneys.

Betances and RPC Rule 3.7 (a) Also Known as the Advocate-Witness Rule{**73 Misc 3d at 595}

The "advocate-witness" rule "generally instruct[s] counsel to avoid the risks associated with participating as both advocate and witness in the same proceeding." It

"seeks to avoid the confusion and prejudice that may result where a testifying lawyer may have to offer arguments about his own credibility, or where adversary counsel may have to cross-examine the testifying [*3]counsel, or where there may be an implication that the testifying lawyer is lying to benefit his client" (M.K.B. v Eggleston, 414 F Supp 2d 469, 470 [SD NY 2006]).

Critically, the rule, while providing guidance, is not binding authority for the courts in determining disqualification (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 439 [1987]).

A threshold question is whether RPC rule 3.7 (a) applies to non-attorneys. This court is guided by the plain meaning of the word "lawyer" in the RPC. A non-attorney employee is not a "lawyer" (see Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016] ["In the absence of a statutory definition, 'we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase' "]). If rule 3.7 (a) was meant to apply to employees, it could have been so written (see Mulhern v Calder, 196 Misc 2d 818, 823 [Sup Ct, Albany County 2003] [declining to apply the ethical rules governing lawyers to nonlawyer employees of law firms]).

To be sure, attorneys have an affirmative duty "to insure that their employees conduct themselves in accordance with the code" (Glover Bottled Gas Corp. v Circle M. Beverage Barn, 129 AD2d 678, 679 [2d Dept 1987]). In Glover, however, the "defendants' attorneys had hired a paralegal who had previously been employed by the plaintiff's counsel and had worked on the litigation pending between the parties and had interviewed the plaintiff's manager concerning the facts" of the case (id.; see also Raffaeli v Raffaeli, 51 Misc 3d 1226[A], 2016 NY Slip Op 50830[U] [Sup Ct, Westchester County 2016] [paralegal billed 534 hours at one party's attorney's firm then moved to the other party's attorney's firm]; USA Recycling, Inc. v Baldwin Endico Realty Assoc., Inc., 147 AD3d 697 [1st Dept 2017] [paralegal worked for both sides and arguably had obtained confidential knowledge]).{**73 Misc 3d at 596}

Thus, these Rules of Professional Conduct apply to non-attorneys where the employee is privy to confidential information and then moves to the firm representing the other party. Or, in other words, the rules apply when there is an actual conflict of interest. That is not the case here.

Respondents do not cite a single case where a nonlawyer employee of a firm was barred from testifying in similar circumstances.^[FN*] On the other hand, courts have not applied the advocate-witness rule to non-attorney employees (see NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 6 Misc 3d 275, 279 [Civ Ct, Kings County 2004] [a strict reading of "the rule refers to lawyers and not to 'lawyers, their agents, servants, or employees.' From this, we may infer that the disqualification rules governing lawyers do not apply to 'nonlawyer' employees of a law firm"]; M.K.B. v Eggleston, 414 F Supp 2d at 471 ["As for the paralegals and interns, they are in principle no different from the office investigators that law firms typically call to testify to disputed facts"]).

Based on the foregoing, respondents' motion is denied in all respects.