Opinion
March 9, 1995
Appeal from the Supreme Court, New York County (William J. Davis, J.).
Defendants seek the disqualification of plaintiffs' attorney(s) based upon no more than the counterclaim of malicious prosecution that was asserted against him/them. However, "the advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, not binding authority, for courts in determining whether a party's law firm, at its adversary's instance, should be disqualified during litigation". (S S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 440.) A civil litigant has a fundamental right to the legal counsel of choice (Lightning Park v. Wise Lerman Katz, 197 A.D.2d 52, 54), and we are not unmindful that disqualification motions are frequently used as a litigation tactic (Talvy v. American Red Cross, 205 A.D.2d 143, 149; Solow v Grace Co., 83 N.Y.2d 303, 310).
Absent a violation of an ethical precept, plaintiffs' right to the lawyer of their choice should not be abridged. While defendants do allege the existence of a conflict of interest between plaintiffs and their lawyers, something more than an affirmation by defendants' attorney, who has no personal knowledge of the facts and states only that counsel "will likely be necessary on the issues of actual malice and probable cause", is required to justify such a drastic action as disqualification of the opposing parties' lawyers.
We have considered defendants' remaining arguments and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Kupferman, Asch and Mazzarelli, JJ.