Legal Malpractice

Multi-National Multi-Attorney Legal Malpractice Case

By (Andrew Lavoott Bluestone)

An Ski-Train fire killed 155 people in Kaprun, Austria and left twelve survivors. American and foreign survivors and relatives brought multiple lawsuits in federal court called "In re Ski Train Litigation").  That case went through some permutations, was certified as a class action, then partially de-certified and in the end, the foreign plaintiff cases were dismissed.  Why and how they were dismissed is now the subject of a legal malpractice case in Southern District of New York.

In a decision this week,Decker v. Nagel Rice LLC, 09 Civ. 9878 Judge Scheindlin denied the request of one attorney to be admitted pro haec vice as a plaintiff's attorney on the Advocate-Witness Rule.  Judge Scheindlin writes:

"Attorneys appearing before this Court must abide by the New York State Rules of Professional Conduct (the "Rules"). 32 Rule 3.7(a) addresses the situation where an attorney may be a witness. Commonly referred to as the "advocate-witness" rule, Rule 3.7(a) states:

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.

The advocate-witness rule is based upon concerns that:

(1) the lawyer might appear to vouch for his own credibility; (2) the lawyer's testimony might place opposing counsel in a difficult position when she has to cross-examine her lawyer-adversary and attempt to impeach his credibility; (3) some may fear that the testifying attorney is distorting the truth as a result of bias in favor of his client; and (4) when an individual assumes the role of advocate and witness both, the line between argument and evidence may be blurred, and the jury confused. 33

"In order to disqualify an attorney on the basis of the advocate-witness rule, a party must demonstrate that the testimony is both necessary and substantially likely to be prejudicial." 34 "Prejudice in this context means testimony that is 'sufficiently adverse to the factual assertions or account of events offered on behalf of the client, such that the bar or the client might have an interest in the lawyer's independence in discrediting that testimony.'"

Full post as published by New York Attorney Malpractice Blog on March 31, 2010 (boomark / email).