Wednesday, October 7, 2020
Court of Appeal:
Justice Manella Says Advocate-Witness Rule Disqualifies Attorney in Action Against Client’s Stepfather
By SANDRA HONG Staff Writer
A judge acted within his discretion in disqualifying a defendant’s ex-wife as counsel in all phases of litigation under the advocate-witness rule, as a means to guard against the potential misuse of confidential information and preserve the “integrity of the judicial process,” the Court of Appeal for this district held yesterday.
The opinion by Presiding Justice Nora M. Manella of Div. Four affirms an order by Los Angeles Superior Court Judge Mark C. Kim. Kim granted a motion to disqualify downtown Los Angeles attorney Tiffanie Lee from representing her adult daughter in an action alleging that her stepfather sexually abused her when she was a minor, early in his 17-year marriage to Lee.
“The disqualification order was a proper prophylactic measure,” Manella said in her opinion, joined by Justices Audrey B. Collins and Brian S. Currey.
Rule of Court
Lee argued that a “mere relationship” with her former husband, Charles Yim, did not warrant disqualification and that claims of possible prejudice were speculative. She also argued the advocate-witness rule, as set out at Rule 3.7 of the California Rules of Professional Conduct, does not apply to pretrial activities.
That rule provides:
“A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: [¶] (1) the lawyer’s testimony relates to an uncontested issue or matter; [¶] (2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or [¶] (3) the lawyer has obtained informed written consent from the client.”
Trial Court Order
Kim expressly rejected Lee’s argument that disqualification should be limited to trial because her spousal relationship to Yim made her privy to information that could be used against him. In granting Yim’s disqualification motion, Kim wrote:
“The court strongly disagrees with Lee that the ‘mere relationship’ as an ex-wife is insufficient to support disqualification. The term ‘mere’ is a serious understatement—a spousal relationship enjoys special privileges because it is one of the most substantial of human relationships while it exists.”
“The claim of prejudice is not, as Lee puts it, speculative; it is palpable. Lee has special knowledge of facts which can be exploited at deposition or trial.”
Motion to Disqualify
The action against Yim was filed about eight months after his marriage to Lee ended. It seeks damages based on tort theories of liability, including fiduciary duty as a caregiver.
Yim denied the allegations and moved to disqualify Lee, arguing her dual role as attorney and witness would prejudice him and confuse the jury.
Yim further asserted informed written consent by Lee’s daughter, which Lee argued was sufficient to excuse her from the advocate-witness rule, was not a cure to prejudice.
Manella determined that Kim’s order disqualifying Lee was not an abuse of discretion, calling the former couple’s marriage an “undisputed fact” that supports a finding of Lee having confidential information that could be used in all phases of litigation to her client’s advantage.
“Obviously, Lee could not scrub such confidential information from her mind, or cordon it off from information obtained from other sources. She was thus uniquely positioned to take advantage of confidential information to which she alone was privy, in violation of her duties to uphold the integrity of the judicial process and support state laws….
“The disqualification order was a proper prophylactic measure. There is no reason to suspect replacement counsel will attempt to solicit confidential information from Lee, in violation of that counsel’s ethical obligations and Lee’s duties of confidentiality.”
Manella said Kim reasonably concluded Lee is “almost certain” to be a key witness at trial to testify on a range of issues related to the allegations. Manella added it also was reasonable to conclude Lee’s dual role “posed a risk of misleading the jury and prejudicing Yim.”
Lee argued her disqualification would “open the floodgate of abusive disqualification motions,” to which Manella found little merit.
“We trust trial courts to detect—and reject—abuses of the advocate-witness rule and duties of confidentiality, particularly where the targeted attorney’s personal relationships with the parties are not so close, or so closely related to the subject matter of the parties’ dispute, as Lee’s relationships with her ex-husband and his alleged victim.”
The case is Doe v. Yim, B299856.
Lee was counsel on appeal for her daughter. Representing Yim was Eugene V. Zech of Newport Beach.
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