The so-called Dead Man's Statute, as codified in CPLR 4519, applies in a disciplinary context, or so said the First Department, in Matter of Zalk, which was decided on August 23, 2007. Charged with taking from his escrow account funds which, if not for his claim to them, would otherwise belong to his recently-deceased client's estate, the attorney was relying on his explanation that his client, before her death, gave him the funds remaining in his escrow account from the sale of her property, as payment for ten years of unpaid legal services.

The court noted that, "for the statute to apply, the testimony in question must be (1) upon the hearing on the merits of a special proceeding, (2) by a person interested in the event being examined as a witness in his own behalf or interest, (3) against the executor, administrator or survivor of a deceased person, (4) concerning a personal transaction or communication between the witness and the deceased person." The court found all four elements, and determined that the statute clearly applies.

Importantly, though, the court said that the Dead Man's Statute does not apply to the issue of mitigation, and that the attorney's offer of evidence of his conversation with his deceased client is admissible in the context of determining the nature of the discipline to be imposed.

There was a brief but pointed dissent which expressed puzzlement at that, and which would have found that the statute applies in every aspect of a disciplinary proceeding. The dissent characterized the attorney's evidence as "self-serving and otherwise unsupported," and would not have admitted it.