Presiding Justice Manella Says It Was Error to Apply the ABA’s Advocate-Witness Rule Rather Than
California’s Rule Which Contains an Exception Where There Is Informed Written Consent by Client
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reversed an order disqualifying a lawyer from representing his wife in a civil action in which he is expected to be a witness on her behalf, holding that the advocate-witness rule generally does not bar such representation where there is written informed consent by the client and, in any event, the attorney should not have been precluded from handling matters outside the courtroom.
Div. Four’s opinion comes in a case in which Cynthia Lopez is suing her brother, Kenneth Lopez, for defamation, intentional infliction of emotional distress, and other torts. The plaintiff is represented by her spouse, Daniel Boone of the Sacramento firm of Miller, Axline & Sawyer.
In ordering Boone’s recusal on Sept. 16, Los Angeles Superior Court Judge Jon R. Takasugi said he was “recently shocked to learn Plaintiff and Plaintiff s counsel—in this family dispute matter—were married with the possibility of Plaintiff s counsel reaping personal financial gain in any judgment awarded to his wife.”
The judge remarked:
“In this case. Mr. Boone would not just be expected to present objective testimony for a client who he is also advocating for. but would be expected to present objective testimony for his wife in a highly contested family matter while also advocating for her as her attorney. This dual role clearly impairs his credibility as a witness and diminishes his effectiveness as an advocate.”
He cited the American Bar Association’s broad advocate-witness rule—Model Rules, rule 3.7—noting that it has not been has not been adopted in California but quoting California’s Rules of Professional Conduct, rule 1-100, as declaring:
“The prohibition of certain conduct in these rules is not exclusive....Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”
Takasugi also cited the Third District Court of Appeal’s 2011 opinion in Kennedy v. Eldridge as saying that “no California-based policy reason not to apply rule 3.7 of the ABA Model Rules to this Case.”
Client’s Written Consent
Presiding Justice Nora M. Manella, in yesterday’s opinion, put forth a reason why the ABA’s Rule 3.7 should not be applied: California has its own Rule 3.7, which unlike the ABA model rule, has an exception where “the lawyer has obtained informed written consent from the client.”
In his ruling, Takasugi recited:
“In opposition. Plaintiff argues that he has obtained informed written consent from Plaintiff to both represent her and appear as a witness, and thus does not qualify for disqualification.”
However, Manella pointed out, he “did not otherwise discuss her consent or its relevance.”
She noted that a comment to the California rule says:
“Notwithstanding a client’s informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being prejudiced.”
The presiding justice said that Takasugi made no such finding.
Limitation of Rule
Manella added that California’s “Rule 3.7 is limited on its face to trial,” quoting it as saying, with emphasis added by her, that a “lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness” except under specified circumstances.
However, Boone was disqualified in toto from representing his wife in the case.
“Because Boone’s categorical disqualification from all pretrial activities was not supported by Rule 3.7’s text, or by reasoned findings concerning the rule’s purpose, we conclude it constituted an abuse of discretion,” Manella wrote.
The defendant cited Div. Three’s 2020 opinion in Doe v. Yim for the proposition that a lawyer who will be a witness can be disqualified from involvement in all phases of pre-trial litigation. That’s not what was held there, Manella—who authored the opinion in Yim—declared.
In Yim, a lawyer had been disqualified from representing her adult daughter in any phase of an action against the lawyer’s ex-husband. The opinion affirms the order.
It approves of disqualification from representation at trial or in depositions based on the advocate-witness rule, and in other phases based on the lawyer’s “potential misuse of confidential information obtained through her 17-year marriage” to the defendant.
Manella said in yesterday’s opinion that in Yim, there was “an extension of the rule to specified pretrial activities” to “effectuate the rule’s purpose of avoiding factfinder confusion” and that “Yim does not support Boone’s categorical disqualification from all pretrial activities.”
“We publish to further clarify the standards applicable to a disqualification motion under the advocate-witness rule, having previously done so in affirming an attorney’s disqualification in Doe v. Yim….”
The case is Lopez v. Lopez, 2022 S.O.S. 3151.
Boone represented his wife in appealing the disqualification order and Cerritos attorney Dilip M. Vithlani acted for the defendant.
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