John Harris P.C. v. Tobin et al

Filing 47

MEMORANDUM OPINION AND ORDER #107052 re: 39 MOTION to Disqualify defendants' counsel. filed by John Harris P.C. The plaintiff has moved to disqualify attorney Robert Goldstein ("Goldstein"), and Goldstein's law firm, Epstein Becker & Green ("EBG"), from representing the defendants on the purported grounds that Goldstein will be required to be a witness against the defendants, and that his testimony would be prejudicial to the defendants. (As further set forth in this Order.) Accordingly, the motion is denied. (Signed by Judge John G. Koeltl on 2/21/2017) (cf) Modified on 2/21/2017 (ap).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
───────────────────────────────────
JOHN HARRIS P.C.,

16-cv-5610 (JGK)
PLAINTIFF,

MEMORANDUM OPINION AND
ORDER

- AGAINST TOBIN ET AL.,
DEFENDANTS.
____________________________________
JOHN G. KOELTL, District Judge:
The plaintiff, John Harris, P.C., has sued the defendants,
Gerald J. Tobin, Gerald J. Tobin P.A, and Helene Tobin, for
outstanding legal fees. The plaintiff claims that it is owed in
excess of $200,000 in legal fees for representing the defendants
in various litigations.
The plaintiff has moved to disqualify attorney Robert
Goldstein (“Goldstein”), and Goldstein’s law firm, Epstein
Becker & Green (“EBG”), from representing the defendants on the
purported grounds that Goldstein will be required to be a
witness against the defendants, and that his testimony would be
prejudicial to the defendants. The plaintiff argues that EBG
must also be disqualified because the firm is not large enough
to erect sufficient barriers to shield its other attorneys from
Goldstein’s prejudicial taint.
“Motions to disqualify opposing counsel are viewed with
disfavor because they impinge on parties’ rights to employ the

counsel of their choice.” Fulfree v. Manchester, 945 F. Supp.
768, 770 (S.D.N.Y. 1996) (citations omitted). A high standard of
proof is required for disqualification motions because they are
“often interposed for tactical reasons,” and because “even when
made in the best faith, such motions inevitably cause delay.”
Evans v. Artek Sys. Corp., 715 F.2d 788, 791–92 (2d Cir. 1983)
(citations and internal quotation marks omitted); see also
Williams v. Rosenblatt Sec. Inc., No. 14-CV-4390 (JGK), 2016 WL
590232, at *7 (S.D.N.Y. Feb. 11, 2016).
The plaintiff argues that Goldstein and EBG’s
representation of the defendants will run afoul of the “witnessadvocate rule” embodied in Rule 3.7 of the New York Rules of
Professional Conduct, which provides in relevant part 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.” Although instructive, state disciplinary rules
“merely provide general guidance” to federal courts; “not every
violation of a disciplinary rule will necessarily lead to
disqualification.” Hempstead Video, Inc. v. Inc. Vill. of Valley
Stream, 409 F.3d 127, 132 (2d Cir. 2005). “For the plaintiff to
prevail on a motion to disqualify based on the witness-advocate
rule where he allegedly intends to call his adversary’s
attorney, he must demonstrate both that the lawyer’s testimony
is necessary and that there exists a substantial likelihood that

2

the testimony would be prejudicial to the witness-advocate’s
client.” Williams, 2016 WL 590232, at *7 (quoting Goodwine v.
City of N.Y., No. 15-CV-2868 (JMF), 2016 WL 379761, at *4
(S.D.N.Y. Jan. 29, 2016)).
The plaintiff has not come close to meeting the high
standard of proof necessary to justify disqualifying Goldstein
and EBG.
The plaintiff’s motion is primarily based on a dispute
during the period immediately before the end of his
representation of Helene Tobin in a litigation before the Court
of Appeals for the Second Circuit. By June 2016, the working
relationship between the defendants and the plaintiff had broken
down over (among other issues) outstanding legal fees, leading
the plaintiff on June 20, 2016, to move to withdraw as counsel,
a request the Court of Appeals granted on June 29, 2016. See
Tobin v. Gluck, No. 15-3500 (2d Cir.) Dkts. 81, 85. On August 1,
2016, Goldstein was substituted as counsel in that action. Tobin
v. Gluck, No. 15-3500 (2d Cir.) Dkt. 88. The plaintiff argues
that Goldstein will be required to testify about a brief
disagreement during the interim over the filing of a request to
extend the time for Helene Tobin to file an opposition brief
before the Court of Appeals. The issue is not substantial and
therefore would not trigger the witness-advocate rule. In

3

addition, there is nothing about the proposed testimony that
would appear to be prejudicial to the defendants.
The plaintiff also argues that Goldstein’s testimony is
necessary to support its contention that the defendants admitted
that they owed the plaintiff either $100,000 or $30,000 in legal
fees. Goldstein denies personal knowledge of such an admission
or of the alleged discussions between the plaintiff and the
defendants. Goldstein indicates that any second-hand knowledge
that he gained through settlement discussions would likely be
inadmissible pursuant to Rule 608 of the Federal Rules of
Evidence. In addition, as Goldstein correctly points out, any
testimony about the purported admission of liability loses some
of its probative value for the plaintiff (and thus potential
prejudice to the defendants) because the plaintiff claims that
it is owed far more, in excess of $200,000.
The plaintiff has thus failed to show that Goldstein has
any knowledge about a substantial matter, and that any testimony
would be prejudicially adverse to the defendants.
Moreover, the witness-advocate rule primarily concerns the
trial process. See Glueck v. Jonathan Logan, Inc., 653 F.2d 746,
748 (2d Cir. 1981) (disqualification warranted only in
situations where there is a significant risk of trial taint).
The rule does not bar counsel’s participation in pre-trial
proceedings. See Gormin v. Hubregsen, No. 08-CV-7674 (PGG), 2009

4

WL 508269, at *3 (S.D.N.Y. Feb. 27, 2009) (collecting cases);
see also Williams, 2016 WL 590232, at *8. There is no basis for
disqualifying Goldstein at this time, particularly with the
flimsy showing proffered by the plaintiff.
It follows that there is no derivative basis for
disqualifying EBG: there is no taint. To the extent that the
plaintiff argues that a representative of EBG might be called as
a witness regarding the defendants’ payments of EBG’s legal
bills, that is not a basis for disqualification under the
witness-advocate rule. See N.Y. R. Prof’l Conduct 3.7(a)(2)
(permitting testimony by a lawyer if “the testimony relates
solely to the nature and value of legal services rendered in the
matter”). The bills can be authenticated and introduced as
evidence. If necessary, a witness can be called on behalf of EBG
to testify about the bills without disqualifying the firm. See
N.Y. R. Prof’l Conduct 3.7(a)(1) (permitting testimony by a
lawyer if “the testimony relates solely to an uncontested
issue”).
Accordingly, the motion is denied.
SO ORDERED.
Dated:

New York, New York
February 21, 2017

_____________/s/_____________
John G. Koeltl
United States District Judge

5