Surrogate Edward McCarty III
In this petition to settle accounts of the executor, Anne Florio, a motion was made to disqualify the executor’s attorneys. Anne and brother, Michael Florio, were the sole estate beneficiaries. Michael sought to disqualify Anne’s attorneys arguing one of them was a necessary witness whose testimony would be prejudicial to the client. It was alleged the attorney’s testimony was necessary regarding a deposit of estate assets into an account in Anne’s and decedent’s name as joint tenants. The attorney stated an estate account was not opened as letters testamentary were not issued. The court stated where advice of counsel was raised as a defense, the attorney would be expected to testify on behalf of his client, not against the client. Disqualification was appropriate if an attorney was a necessary witness on behalf of his client, but as there was no issue of fact as to the commingling of funds, as Anne admitted to same, the attorney need not be disqualified where testimony related only to an uncontested issue. The court ruled as advice of counsel was not raised as a defense to the alleged commingling, and the attorney was not a necessary witness on Anne’s behalf, disqualification was unwarranted, and denied.
