This Court confronts the delicate question of whether disqualification of the Husband's Counsel is a necessary and appropriate remedy based upon the Husband's Counsel's exclusive personal knowledge of material facts disputed in this matrimonial action. This Court holds that on the facts presented, the Court is compelled to disqualify the Husband's Counsel as he has [*2]inserted himself beyond the role of the advocate in this proceeding and now is a material and necessary witness to dispose of the parties' equitable distribution and counsel fee claims.

A court's role in sua sponte inquiring as to whether counsel should be disqualified is well established. (See HSBC Bank USA, N.A. v Santos, 185 AD3d 475, 477 [1st Dept 2020]["To be sure, a court has the authority to act sua sponte to disqualify counsel if it finds a conflict interest warranting disqualification."]; In re Janel E., 173 AD2d 413 [1st Dept 1991]; Flushing Sav. Bank v FSB Properties, Inc., 105 AD2d 829 [2d Dept 1984]). In proceeding sua sponte, the Courts have allowed counsel to submit memoranda on the issue, as the Court did here. (See Global Horizon Funding LLC v Prestige Trucking Global LLC, 2024 NY Slip Op 50021[U][Sup Ct, NY Cnty 2024, Lebovitz, J.][Sua sponte disqualifying counsel for violating advocate-witness rule after permitting counsel for each party to brief the issue]). It is also of note that earlier argument on the issue was had on the record when the Court announced it would be directing briefing on the issue.

The purpose of the witness advocate rule is "to avoid the unseemly situation where an attorney must both testify on behalf of a client and argue the credibility of her or her own testimony at trial." (De Luca v Smith, 1476 AD3d 732, 733 [1st Dept 2017] citing, Weksler v Weksler, 81 AD3d 401, 403 [1st Dept 2011]). Here, the Husband's Counsel's has made himself a material witness based on his sworn statements and numerous statements on the record that he was a "crime victim" based upon disputed events that occurred at the marital residence during a court-ordered period of access for the Wife to remove property therefrom. Further telling is that the Husband's Counsel has submitted multiple affirmations on this issue covering extensive and troublesome factual assertions including, inter alia, the Wife's Counsel hiding evidence, the Wife stealing the Husband's property, the Wife threatening and menacing the Husband's counsel, and the Wife spreading feces on the Husband's property during her period of access. It is undisputed the Husband was not present for any of these events — this is also evident from the fact that there are no affidavits from the Husband related to these issues in contrast to the numerous affirmations from his counsel.

Rule 3.7 of the Rules of Professional Conduct (the Rule) provides, "[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." (22 NYCRR 1200.0, R. 3.7[a]). The Rule sets forth exceptions for disqualification when "(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.).

This determination is not mechanical due to its implication of the constitutional right to counsel of one's choice; rather, it is based upon the circumstances of the specific case and specific issues of fact and their materiality that are implicated. (See S&S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 443-446 [1987]). Indeed, it is well-settled that the ultimate determination on the issue is in this Court's sound discretion. (Soklow v Lacher, 299 AD2d 64, 74 [1st Dept 2002]["On the issue of disqualification, we conclude that the IAS court properly exercised its discretion in disqualifying Lacher from representing the defendants in the client cases."]).

The rule applies in either of two scenarios: When "the testimony of plaintiff's attorney will be necessary to establish the claim or prejudicial in the event the attorney is called" by the opposing party. A party seeking disqualification is not "required to show that [an advocate-witness's] continued representation would prejudice his clients; such a showing is required only when the attorney is called as a witness for the adverse party." (Prestige Global Trucking LLC, supra at *4 [internal citations omitted]),

The determination of whether testimony will be "necessary" is determined with reference to "such factors as the significance of the matters, weight of the testimony, and availability of other evidence." (S&S Hotel Ventures Ltd. Partnership, supra at 446). On these facts, the inescapable conclusion is that the Husband's Counsel's testimony will be "necessary" to determine the parties' claims for equitable distribution and counsel fees. (See DRL § 170[7]).

The salient facts herein are related to one incident during this long and toxic litigation. The Husband was previously awarded exclusive use and occupancy of the marital residence. The allegations each party makes against the other are too numerous to recount. However, many of the allegations relate to marital waste, theft or improper taking of marital art, and the theft or improper taking of various items from the marital residence, including a computer. A significant amount of time and energy has been dedicated to the preservation/sale of the marital residence and marital artwork. In other words, the issue of whether either or both parties have engaged in marital waste or other bad acts is central to this case, and will inform the equitable distribution of assets, and any award of counsel fees.

The parties ultimately sold the marital residence during the pendency of the action. Prior to the sale, the Wife obtained an order from this court granting her unimpeded access to the marital residence to remove her "undisputed" property. The Order further provided that the Husband's Counsel could be present (although it prohibited him from intervening or interfering), as this was a request made by the Husband's Counsel at the court appearance prior to the issuance of the access order. At the same time, the parties and counsel battled over how and where to store marital art that was located in the marital residence.

What occurred during the Wife's period of access is sharply disputed. The Husband's Counsel has said on the record and in multiple affirmations that he was subject to criminal activity at the hands of the Wife and has claimed he is now a "crime victim." Indeed, the Husband's Counsel states unequivocally in his affirmation dated October 29, 2024, "[t]he fact remains that I was a crime victim on October 11, 2024." (NYSCEF Doc. No. 173). In that same document, he references the Wife's alleged "threats to safety of an ethical advocate for one of the divorce litigants" which is clearly referring to the Husband's Counsel.

The Husband's Counsel alleges the following based upon his own personal knowledge,

This is what happened on October 11, 2024: the defendant wife repeatedly threatened and menaced me. The defendant wife's lengthy temper tantrums that day included throwing objects, stealing the plaintiff-husband's clothes and smearing dog feces on his property. (Id. ¶ 7).

Based on the contents of the file in this divorce action I expect the defendant to deny that she showed up without movers, acted very badly, threatened Your Affirmant, and as I later learned, stole some of my client's clothes and smeared dog feces on his other belongings. (Smith affim. dated November 6, 2024 ¶3 [NYSCEF Doc. No. 187)

I became a crime victim on October 11, 2024, subjected to threats and attempts and intimidation by the defendant wife. I had first informed the defendant wife's legal counsel that I was about to call the police. My composure, courtesy and attempt to prevent escalation of the ugly and undignified conflict caused by the defendant wife's belligerence was rewarded by the Court by suppressing the audiotapes made by the defendant wife, which will likely be required at a future trial to cross examine the defendant wife[ . . . ](Smith affm. dated November 12, 2024¶14 n.13 [NYSCEF Doc. No. 196]).

On October 11, 2024 when I was present at the former marital residence to observe the defendant's removal of her "undisputed" personal belonging, the defendant wife repeatedly threatened and menaced me. The defendant wife's lengthy temper tantrums at the former marital residence that day included throwing objects, stealing the plaintiff-husband's clothes and smearing dog feces on his property. The defendant wife told me that I had to be present there all night. (Id. ¶ 16).

I did not immediately call the police on October 11, 2024. I texted the defendant wife's attorney Evan Wiederkehr, Esq. to notify him that I was about to call the police. (Id. ¶ 17).

On October 11, 2024 the defendant wife showed up, an hour late, she had not hired movers to comply with the court order and she brought a different person as her "expert", named Jeffrey Scott, who lacks documented credentials. (Id. ¶ 21 n. 16).

The Wife denies this conduct occurred and otherwise asserts the Husband's Counsel interfered with her access during the access-period in contravention of the clear terms of the Court's Order. (Wife's affm. dated October 30, 2024 [NYSCEF Doc. No. 168]).

The Husband's counsel also alleges that the Wife emptied a small safe located in the apartment and removed five works of art from the residence during her access period.

First, the factor of significance of the factual matter which would require the attorney's testimony weighs in favor of disqualification. The accusations made by the Husband's Counsel through numerous statements both on the record and in sworn affirmations include his repeated statement that he was the victim of a crime at the hands of the Wife during her court-ordered access period to the marital residence. In addition, he affirms his personal knowledge of the Wife's Counsel attempting to hide evidence, removing art and the contents of a safe, that the Wife threw objects and broke things during her period of access, and the Wife lying to this Court about there being a "marital" safe. Importantly, the conduct alleged by the Husband's Counsel to have been committed by the Wife directly relates to issues this Court must resolve under statute to dispose of this divorce action, specifically, equitable distribution and counsel fees. (DRL § 170[7]["No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, [. . .] the payment of counsel and experts' fees and expenses [. . .] have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."]; see also, M.B.P. v M.P., 2024 NY Slip Op 51447[U][Sup Ct, NY County 2024]). The truth or lack thereof of these disputed claims will be significant in determining both how to equitably distribute property and resolving counsel fees. As to equitable distribution, the allegedly destructive and "criminal" conduct of the Wife directly implicates the issue equitable distribution because it would amount to clear proof of marital waste and would otherwise be a case-specific factor considered in the final disposition of marital [*3]property. (DRL § 236[B][5][d][12], [16]). Thus, the significance of these factual issues weighs in favor of disqualification.

Second, as to the weight of the testimony, the Husband's Counsel has exclusive personal knowledge of these material factual issues for which he may also be a "crime victim." There is now a situation where the Husband's Counsel is the only witness that is not the Wife or an agent of her that can testify as to this significant event. Thus, rendering his own counsel's testimony absolutely necessary for him to have any chance at prevailing on these material factual issues. His testimony as to these material factual issues will require this Court to examine the credibility of his testimony — especially given the lack of documentary or physical evidence related to these issues and their complete denial by the Wife. The need for a credibility determination on these material factual issues and the exclusive position of the Husband's Counsel as a witness demonstrates this factor also strongly weighs in favor of disqualification.

Third, as previously stated, the Husband's Counsel is the only source of evidence not from the Wife or her agents that concerns the issues of fact during the access period incident and the accusations against the Wife's Counsel. The Husband did not even submit an affidavit concerning any of these issues. Furthermore, the only other persons present with personal knowledge of this are affiliated with the Wife thus rendering the Husband's Counsel the only witness without some affiliation against the Husband's interests. Accordingly, the lack of evidence to support the Husband's position from other sources weighs in favor of disqualification.

As noted above, issues relating to marital waste and the removal of various property, including art, from the marital residence are at the crux of this matter, and thus the very serious allegations made by the Husband's Counsel, and his testimony, are critical to the resolution of the matter.

Other factors specific to this case that this Court finds relevant to the issue of disqualification is the duration of counsel's retention, the procedural maturity of the case, and the number of issues which counsel was involved.

While the case commenced by Summons with Notice on or around April of 2023, most of this case has involved contentious non-stop motion practice, there now being eleven motion sequences in this docket. The Husband's Counsel has only been counsel to this matter for a period of around six (6) months. Likewise, much of his involvement in the case concerned two issues (which were inextricably intertwined in one another) - the sale of the marital residence and sale and storage of marital artwork.^[FN1]

Further, this divorce action is far from conclusion. There is no Note of Issue. There is no Preliminary Conference Order. There is no Complaint. Unfortunately, despite eleven (11) motion sequences and an appeal, this case is still procedurally nascent.

The strong weight of the factors specific to this case and those stated by the Court of Appeals in S&S Hotel demonstrate that disqualification is necessary and appropriate in this case.

The Husband's Counsel argues that prejudice need be shown to sustain a disqualification; this is not an accurate description of the law as applied to the facts of this case. Indeed the First Department has established, "[n]or was [the movant] required to show that [counsel sought to be disqualified]'s continued representation would prejudice his clients; such a showing is required only when the attorney is called as a witness for the adverse party a situation we need not address because we have already found that [the attorney's] testimony is necessary on behalf of his own clients." (Lacher, supra at 76; see, Martinez v Suozzi, 186 AD2d 378, 379 [1st Dept 1992]). Here, the Husband's Counsel is the only witness that can testify in the Husband's favor on the issues surrounding the occurrences during the access period. This testimony on these issues, as noted above, is directly material to a court's determination of the issue of equitable distribution and counsel fees. Notwithstanding, there is clear prejudice to the Husband by, inter alia, having his counsel's credibility examined amidst a trial. (See e.g., Weksler v Weksler, 81 AD3d 401, 403 [1st Dept 2011]["The purpose of the advocate-witness rule is to avoid the unseemly situation where an attorney must both testify on behalf of a client and argue the credibility of his or her testimony at trial."]).

Thus, this Court finds the Husband's Counsel's continued representation of the Husband violates the witness-advocate rule and no exceptions under Rule 3.7 apply, requiring disqualification. Accordingly, it is hereby:

ORDERED, that the Husband's Counsel, Robert G. Smith, Esq., is DISQUALIFIED from representing Plaintiff-Husband, T.D.L., in this matrimonial action; and it is further

ORDERED, that the Court's sua sponte motion to disqualify is GRANTED; and it is further

ORDERED, that this proceeding is STAYED sua sponte for sixty (60) days to permit Plaintiff-Husband to retain new counsel.