IN RE: the Accounting of SU-LIEN CHEN

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Surrogate's Court, Broome County, New York.

IN RE: the Accounting of SU-LIEN CHEN, as Administrator Estate of Jung-Chao Liu, Deceased.

Decided: July 16, 2008

Harvey D. Mervis, Esq., Hinman, Howard & Kattell, LLP, Binghamton, Attorney for James Liu, Mark Liu and Jean Liu. Susan L. English, Esq. and Beth E. Westfall, Esq., Coughlin & Gerhart, Binghamton, Attorney for Administratrix, Su-Lien Chen.

Decedent, Jung-Chao Liu, at his death owned assets in both the U.S. and Taiwan necessitating procedures in Taiwan for payment of the estate tax in Taiwan.   James, Mark and Jean Liu object to the accounting of Su-Lien Chao, as administrator of her deceased husband's estate alleging, among other grounds, that Ms. Chao delayed the estate tax proceedings in Taiwan resulting in a decline in value of the assets of the estate.   Objectants are represented in this contested accounting proceeding by the Binghamton firm of Hinman, Howard & Kattell.   It has been represented to the court that under Taiwan law no assets can be sold or distributed until the tax is paid and the tax is apportioned among the beneficiaries of the estate.

Objectants retained the Taiwanese law firm of Lee & Li to represent their interests in the Taiwanese estate tax proceedings.   Objectants have proposed in their expert disclosure pursuant to CPLR § 3101(d) to call an attorney from the firm of Lee & Li to testify as an expert that the Administratrix “delayed the Taiwan estate administration;  and that said delays caused damages to the estate under Taiwan law.”   Administratrix has moved to preclude objectants from calling any member of the firm of Lee & Li as an expert and also to preclude objectants from calling any expert at trial for failure to comply with this court's scheduling order.

The primary ground for disqualification alleged by objectants is the advocate witness rule of DR5-102A.   It provides that a lawyer should not be both the advocate on behalf of a client before any tribunal and also be called as a witness at the trial.

 In the present case objectants will be represented at trial by their New York attorneys from the firm of Hinman, Howard & Kattell.   No attorney from Lee & Li will be trial counsel and thus an advocate before the court.   Rather the attorney from Lee & Li will only be an expert witness.  “The plain meaning of DR5-102(A) applies to attorneys intending to act as an advocate on issues of fact before any tribunal.” '  Occidental Hotels v. Westbrook Allegro, 440 F.Supp.2d 303 (S.D.N.Y.2006).   In that case the former general counsel for defendant, who would be a witness, was also a former associate of the firm representing defendants as trial counsel.   Since the former general counsel would not serve as trial counsel the court held that the argument for his disqualification as a witness was without merit.

In Nemia v. Nemia, 124 A.D.2d 407, 507 N.Y.S.2d 768 (3d Dept.1986), a matrimonial action, the Third Department held there was no reason to apply the advocate witness rule.   The purposes of the rule “are not implicated when a lawyer is a litigant as well as a witness, but not an advocate, even though a member of his or her (law) firm is trial counsel”.

The effective holding of these cases is that where an attorney is neither an advocate nor trial counsel in the case on trial that the attorney may testify as a witness.   That attorney may also be an expert witness.

 An analogous situation is that of a treating physician who also testifies as an expert.  Andrew v. Hurh, 34 A.D.3d 1331, 824 N.Y.S.2d 546 (4th Dept.2006);  Diarassouba v. Urban, 24 A.D.3d 602, 808 N.Y.S.2d 344 (2d Dept.2005);  Matter of DeFilippo, 149 Misc.2d 598, 564 N.Y.S.2d 667 (Surr. Ct. Chemung Co.1990). Here Lee & Li in its representation and advice to objectants on the Taiwan estate proceedings are in a similar situation to the treating physician in that they advised objectants about how to treat the estate tax in Taiwan.   Thus Lee & Li can similarly testify as an expert, subject to proof of the attorney's qualification as an expert.

 Since Lee & Li previously represented objectants in this matter the attorney testifying would be subject to cross examination as to bias.   In calling such attorney as an expert objectants would also be waiving any claim of attorney client privilege in testimony by that attorney about advice given to them on the Taiwan estate proceedings.   The weight to be accorded the expert's testimony, based upon his qualifications, is for the trier of fact.   Borawski v. Huang, 34 A.D.3d 409, 824 N.Y.S.2d 362 (2d Dept.2006);  Beizer v. Schwartz, 15 A.D.3d 433, 789 N.Y.S.2d 724 (2d Dept.2005).

The administratrix also seeks to preclude objectants calling any expert because of alleged failure to comply with this court's scheduling order.   The claimed failure is that the expert disclosure lacks the specificity required by CPLR 3101(d).  That section requires disclosure of “the substance of the facts and opinion on which each expert is expected to testify ․ and a summary of the grounds for each expert's opinion.”

 It is clear that CPLR 3101(d) sets no time limit for responding to the demand for expert disclosure.  Siegel, New York Practice, 4th ed.   § 348A, at pp. 564-5.   The court agrees that the statement in objectant's disclosure lacks specificity.   Merely stating that administratrix delayed the Taiwan estate proceedings is simply stating the conclusion of objectant's claim.  Brossoit v. O'Brien, 169 A.D.2d 1019, 565 N.Y.S.2d 299 (3d Dept.1991).   Objectants must state the precise nature of the claimed delay by Administratrix, when and for how long it occurred and the grounds for the expert's opinion.   To remedy this default in specificity objectants shall disclose such additional information within 10 days from the date hereof.

This decision is the Order of the court.

EUGENE E. PECKHAM, J.