This is a common affliction of judges, when confronted with a motion to disqualify opposing counsel. ABA Model Rule 3.7 flashes before their eyes, and, like “stout Cortez,” they look “with a wild surmise.” But unlike stout Cortez, they are not silent, whether on “a peak in Darien” or anywhere else.

I’ve blogged this before. See my blogposts “A Non-Christmas Carol,” 12/23/13, “The Worthless Affidavit,” 9/8/14, and “Read the Whole Thing,” 9/25/17.

As USTC is still locked-down and locked-up until some unspecified time on December 28, 2020 (cf. Mark 13:32), I turn to one of our four (count ’em, four) New York State intermediate appellate courts, this one being the busiest appeals court in the United States, the New York State Supreme Court, Appellate Division, Second Department.

Footnote: Don’t try to figure out our New York State court system. It is impervious to logic. Our lowest court of general jurisdiction is the Supreme Court; there is one in and for each of our sixty-two (count ’em, sixty-two) counties. Appeals from these (and some other courts, like Surrogate’s and Court of Claims) go to one of the Appellate Divisions. Our highest State Court is the Court of Appeals. Second Department covers Brooklyn, Queens, Staten Island, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam counties, or jurisdictions comprising rather more than one-half the State’s population.

Howbeit, here’s Empire Med. Svcs. of LI, P.C. v. Sharma, 2020 N.Y. Slip. Op. 07545, 12/16/20. The plaintiff’s attorney is an MD and an attorney, and is representing himself. It’s not a tax case, so the particulars are irrelevant here. What is relevant is that the other side objects.

While right to counsel is not unlimited, a party seeking to toss must show the testimony of the opposing party’s counsel is necessary to his or her case, and such testimony would be prejudicial to the opposing party.

In this case, the defendants failed to show what testimony they would need from plaintiffs’ counsel, and that it would hurt the MD attorney’s clients if he did testify. The clients said otherwise.

“Moreover, in opposition to the motions, C averred that disqualification of X would cause a substantial hardship on him, which constitutes an exception to the rule 3.7 of the Rules of Professional Conduct….” Empire Med. Svcs., op. cit. (Names omitted).

Maybe so Tax Court Judges might could consider if the harm to the petitioner’s case might outweigh the possible impact of the attorney’s testimony. Especially where there’s no jury to be confused or misled.