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Court of Appeal:
Lawyer Wrongly Barred From Representing Client at Trial
Panel Says That Advocate-Witness Rule Was Incorrectly Applied
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reversed an order barring a lawyer from representing his client at a civil trial on the ground that he will be a key witness, holding that the advocate-witness rule upon which the trial court relied does not apply where the client has consented in writing to the dual roles and there is no discernible prejudice to the opposing party or the judicial process.
Presiding Justice Dennis M. Perluss of Div. Seven authored the opinion. It reverses—and criticizes—a Sept. 20, 2021 order by Los Angeles Superior Court Judge Mark A. Young.
Young’s order barred attorney Jeffrey Konvitz from acting as primary counsel for Blue Rider Finance, Inc. at the trial of its cross complaint against Geringer Capital, Inc., Roger Geringer and Tricycle Entertainment, LLC. Konvitz—who, in addition to being a lawyer, is an author of best-selling books and a film producer, has represented Blue Rider in its battle with the Geringer parties for more than 16 years.
Blue Rider is proceeding on a cross-complaint which had been dismissed and was reinstated by Div. Seven’s Dec. 20, 2017 unpublished opinion, by Perluss. Blue Rider is seeking to show that the Geringer parties sneaked terms into the final draft of a 2010 settlement agreement to which it had not assented.
The 2017 opinion also affirmed a summary judgment in favor of Blue Rider, as defendant. The Geringer parties sought to recover $300,000 paid to Blue Rider in 2009 but Los Angeles Superior Court Judge Lawrence Cho ruled that their cause of action was time-barred and the Court of Appeal agreed.
Disqualification Unjustified
The presiding justice said in yesterday’s decision:
“[T]he general rule is that an attorney may serve as both advocate and witness, testifying at trial concerning disputed issues, if the client has provided its informed written consent. Disqualification of counsel when consent has been given must be based on a convincing showing of prejudice to the opposing party or the potential for palpable injury to the judicial process. Here, the record is devoid of the evidence necessary to support disqualification of Blue Rider’s chosen counsel. To the contrary, the timing of the motion and the fact the Geringer parties initially sought to preclude Konvitz’s testimony, not to disqualify him, strongly suggest the motion was filed for purely tactical reasons.”
He declared:
“This is not even a particularly close case. It was error for the trial court not to resolve the Geringer parties’ motion in favor of allowing Blue Rider to be represented by Konvitz, its counsel of choice.”
Rule 3.7
Young ordered Konvitz’s disqualification pursuant to Rule 3.7 of the California Rules of Professional Conduct. 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.”
A comment to the 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.”
Young’s Ruling
Young said that the evidence does show that Blue Rider “would be prejudiced if Konvitz were entirely disqualified from participating as trial counsel.” He noted that the parties were in agreement “that Konvitz’s testimony is central to the litigation.”
He noted that he was “concerned with the age of this case and the five-year rule, and the time necessary to get another counsel up to speed,” but said that Konvitz and Blue Rider “should have themselves identified this issue earlier themselves, and taken appropriate action to comply with the rules of professional responsibility and California law.”
Perluss commented that Young “improperly discounted” the significance of the prejudice by saying that Konvitz and his client should have “taken appropriate action” sooner. He wrote:
“It is by no means clear what the trial court believed Blue Rider and Konvitz should have done, let alone why it was Blue Rider’s responsibility—not the Geringer parties’—to have promptly addressed any concern about Konvitz’s potential dual roles as advocate and witness. Unless and until the Geringer parties or the court raised an issue, as long as Konvitz had the informed written consent of the client, there was nothing under either the Rules of Professional Conduct or California law for Blue Rider or Konvitz to address.”
He continued:
“And, of course, no court action was necessary for Blue Rider to provide its informed written consent, which, under the circumstances here, it undoubtedly would have done at any time it was required. Rather, it was up to the Geringer parties to assert, notwithstanding Konvitz’s full compliance with Rule 3.7, that the trial court should nonetheless exercise its discretion to preclude his acting in both capacities.”
Cross-Defendants’ Delay
The trial judge remarked in his order that while the motion “should have been brought months if not years ago,” Blue Rider “did not explicitly state that it would call Konvitz as a witness” until earlier, so that “this motion is not untimely.”
Perluss said that Young “erred in failing to adequately consider whether the extended delay in bringing the motion indicated, as Blue Rider argued, that the motion had been filed for purely tactical reasons.” As he sized it up:
“The true, tactical purpose of the motion was strongly suggested by the fact that the motion, presented long after Konvitz’s central role in the negotiation and execution of the 2010 settlement agreement was well known to the Geringer parties, initially sought only to preclude Konvitz from testifying, not to disqualify him from serving as trial counsel.”
He quoted Presiding Justice Lester Wm. Roth (now deceased) as saying in the 1979 case of White v. Superior Court that the advocate-witness rule was not intended “to permit an adversary litigant to corrode, prostitute and defeat the objective of the rule by what amounts to no more than trial tactics.”
The cross-defendants argued that allowing Konvitz to act as a lawyer at trial would impair their ability to impeach his credulity as a witness. Perluss responded that “the trial court made no finding of prejudice to the Geringer parties, and “detriment to the opponent” was not a factor in its decision to disqualify Konvitz.”
Judicial Process Prejudiced
As Young saw it, disqualification was necessary to prevent prejudice to the judicial process. He said:
“The role of a witness and the role of an advocate are two irreconcilable roles. The witness is to provide facts only, without argument. The advocate takes facts that are in evidence and makes arguments in favor for or against certain positions.”
Young buttressed his assertion with comments to the American Bar Association’s version of the rule, and observed:
“The sort of mental gymnastics that the advocate-witness would need to perform to keep the roles straight impermissibly risks error and confusion. In addition, the trier of fact will constantly keep wondering whether the advocate witness is acting under the appropriate role such that it will distract from the arguments and evidence presented.”
(Young will himself be the trier of fact at the forthcoming bench trial.)
Perluss Faults Analysis
Critiquing the analysis, Perluss wrote:
“We certainly do not disagree with the underlying rationale for Rule 3.7. Nor do we suggest it is normally a good idea for a client to consent to one of its lawyers serving as both trial counsel and a witness testifying to disputed issues. But the generic concerns expressed here by the court apply to any case in which a lawyer acts as both advocate and witness. Notwithstanding those potential problems.”
He added:
“Rule 3.7—unlike ABA Model Rule 3.7 upon which most of the trial court’s analysis was based—specifically excepts situations in which the client has given its informed written consent….[I]n those instances, disqualification is not justified absent a convincing demonstration by the moving party of a potential for injury to the integrity of the judicial process…—a showing that must be based on an adequate factual record, not overarching statements of policy or conclusory allegations by the party seeking disqualification….No such evidentiary showing was made here, and the trial court made none of the required factual findings.”
The case is Geringer v. Blue Rider Finance, Inc., B316718.
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