Judge Andrew Tarantino Jr.
WCM Plumbing & Heating moved to preclude attorney Bernstein's testimony at trial arguing he could not act as a witness and advocate without violating §3.7 of the Rules of Professional Conduct (RPC). WCM sought payment for services and materials provided Bernstein regarding an oil burner and heating system at his home. Bernstein argued there was no written agreement, and WCM failed to properly winterize the heating system resulting in the need for repairs. Bernstein was representing himself in the instant action. The court noted while §3.7 did not expressly speak to a self-represented attorney, decisional law addressed the issue, holding that a party's entitlement to be represented by counsel of their choice was a valued right that should not be abridged absent a clear showing that disqualification was warranted. The court concluded that while the disciplinary rules precluded an attorney from acting as both a witness and advocate in the same proceeding, such prohibition did not apply where the attorney was a litigant, as here. It noted an attorney had the right, both statutory and constitutional, to represent himself, denying WCM's application to disqualify Bernstein as a witness.
