attorney is prohibited from acting as an advocate before a tribunal where he or another attorney
from his firm is likely to be called as a witness on a significant issue other than on behalf of its
client, where it is apparent that the testimony may be prejudicial to the client.
"Disqualification during litigation implicates not only the ethics of the profession but
also the substantive rights of the litigants [and] denies a party's right to representation by the
attorney of its choice." S & S Hotel Ventures Limited Partnership v 777 S. H. Corp., 69
NY2d at 443 (citations omitted)." The right to counsel is "a valued right [and] any restrictions
must be carefully scrutinized." Id. Furthermore, where the rules relating to professional
conduct are invoked not at a disciplinary proceeding but "in the context of an ongoing lawsuit,
disqualification...can create a strategic advantage of one party over another" Id. ; see
also, Broadwhite Associates v. Truong, 237 AD2d 162, 163 (1st Dept 1997)(noting
that unless movant meets heavy burden of showing disqualification is warranted, such a motion
should be considered as an effort to obtain strategic advantage).
Thus, the party seeking disqualification "carries a heavy burden of identifying
projected testimony of the advocate-witness and demonstrating how it would be so adverse to
the factual assertions or account of the events offered on behalf of the client as to warrant his
disqualification.'" Broadwhite Associates v. Truong, 237 AD2d 162, 163 (1st Dept 1997),
quoting, Martinez v. Suozzi, 186 AD2d 378, 379 (1st Dept 1992). In addition,
"[u]nder New York law, the mere fact that an attorney was involved in the transaction at issue, or
that his proposed testimony would be relevant or highly useful is insufficient to warrant