Court of Appeal:
Ethics Rule Didn’t Justify Total Disqualification of Lawyers
Father-Son Attorneys Were Improperly Barred, Under Attorney-Advocate Rule, From Doing Any Legal Work on Their Firm’s Action Against Ex-Clients, Lawyer, Opinion Says, Affirming Order As to Representation at Trial
By a MetNews Staff Writer
The two members of a father-and-son law firm were properly barred from representing the firm in its fraud/breach-of-contract action against two former clients who failed to pay for services and a lawyer, the Fifth District Court of Appeal held yesterday, but declared that there was no reason to order that they play no role in the trial preparation.
Presiding Justice Brad Hill said in an unpublished opinion:
“We hold the trial court acted within its discretion in disqualifying the Firm’s attorneys from representing the Firm at trial because they will likely be called as witnesses, carrying a significant risk of juror confusion and prejudice to the defendants. However, the trial court abused its discretion by disqualifying the Firm’s attorneys from representing the Firm in all pretrial phases of the litigation without making any findings as to how their continued behind-the-scenes activities preceding trial would undermine the purposes of the advocate-witness rule.”
It was Stanislaus Superior Court Judge John D. Freeland who barred Michael J. Dyer and Dustin J. Dyer from doing any legal work for their Stockton firm, The Dyer Law Firm, in its action against ex-clients Karla Sam-Sin and Fernando Sam-Sin and Modesto attorney Mark S. Nelson.
The Dyer Law Firm was representing the San-Sins in litigation. Nelson was allegedly in complicity with the San-Sins in causing the Dyers to change a portion of their retainer agreement with the Sam-Sins to mirror the arrangement the clients supposedly had with their previous lawyer not to charge for a certain portion of the work, although there was no such arrangement.
Nelson moved for the disqualification of the Dyers pursuant to Rule 3.7 of the Rules of Professional Conduct. That rule says that “[a] lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless…the lawyer has obtained informed written consent from the client.”
The client—their law firm—had consented, the Dyers pointed out, alleging hypocrisy because Nelson, until recently, had been representing himself. They asserted a waiver because Nelson waited a year-and-a-half before making the motion.
Ruling on Nelson’s motion, Freeland said that “the informed-consent exception contained in 3.7 is inapplicable under the circumstances, due to the risk of prejudice to the defendants and to the integrity of the judicial process.” The judge specified that the Dyers were barred from doing any work on the case.
The Dyers exercised their right of direct appeal (though Hill remarked in a footnote that seeking a writ is a faster way of securing a resolution).
In his opinion partially reversing and partially affirming the order, the presiding justice said:
“[T]his is not a matter of the Dyers representing themselves, as Nelson often puts it; nor is this a matter of the Firm representing itself, as the Dyers sometimes frame it. Despite the Firm being a closely held corporation owned and directed exclusively by the Dyers, this is still a case with a client (the Firm) being represented by counsel (the Dyers). This is not a case of self-representation.
“The distinction matters because, if the Dyers were truly representing themselves in propria persona, there would be a good argument that the advocate-witness rule would not apply. Various appellate courts around the country—though none in California, to our knowledge—have held that a ‘lawyer-litigant’ has a right to appear pro se and should not be disqualified from doing so under the advocate-witness rule.”
Hill noted that when Nelson represented himself, he did so as a “lawyer-litigant.”
Rejecting the contention that Nelson waived a disqualification motion by waiting 21 months before bringing it, the jurist said that “[a]bsent a prima facie showing of extreme prejudice caused by the delay, there was no waiver of the right to seek disqualification,” and no such showing was made. He remarked:
“This was not an eleventh-hour, eve-of-trial motion (nor a midtrial motion…).New counsel will have plenty of time to get up to speed, and the Firm will not be duplicating any expenses in the process of replacing counsel because the Dyers had been representing the Firm for free.”
He declared that Nelson’s motion “clearly has merit with respect to protecting the integrity of the judicial process at the forthcoming trial” because “having the Dyers serve as both attorneys and witnesses at trial carries an unnecessary risk of confusing the jury and biasing the jury.”
Second District Opinions
Freeland went too far, however, in barring the Dyers from any pre-trial representation of their firm, Hill said. In reaching that conclusion, he considered two recent opinions from this district’s Court of Appeal, one of which upheld a complete bar on any participation in the litigation, the other finding total disqualification to be unwarranted.
Both opinion were authored by Div. Four’s then-presiding justice, Nora Manella, now retired.
In Doe v. Yim, decided on Oct 5, 2020, the court affirmed an order by Los Angeles Superior Court Judge Mark C. Kim prohibiting attorney Tiffanie Lee from playing any role in her daughter’s sexual-abuse lawsuit against Lee’s ex-husband. Manella wrote:
“[T]he court reasonably concluded that Lee is nearly certain to be a key witness at trial. Therefore, to effectuate the advocate-witness rule’s purpose of avoiding factfinder confusion, the court acted within its discretion in applying the rule to disqualify Lee not only at trial, but also in (1) depositions; and (2) pretrial evidentiary hearings at which Lee is likely to testify. The court also acted within its discretion in disqualifying Lee from representing appellant in all other phases of the litigation on the ground of Lee’s potential misuse of confidential information obtained through her 17-year marriage with Yim.”
In Lopez v. Lopez, decided July 20, 2022, Manella wrote for Div. Four in reversing a total-disqualification order by Los Angeles Superior Court Judge Jon R. Takasugi. She said:
“We conclude the court abused its discretion in disqualifying Boone from all phases of the litigation because it failed to apply the proper legal standards, viz., Rule 3.7’s informed-consent exception and limitation to trial.”
Manella explained that “Yim does not support Boone’s categorical disqualification from all pretrial activities” because “Yim is distinguishable” in that the “record before us here is materially different.” In a footnote, she provided a reminder that Yim entailed “the potential misuse of confidential information” which was not a factor in the present case. She added that Takasugi “failed to demonstrate that it had properly considered appellant’s heightened interest in remaining represented by Boone, who had gained mastery over the case by litigating it for over four years, and who was providing his services pro bono or at a discounted rate.”
Hill observed that notwithstanding Yim, “[w]hen the same court in Lopez later reviewed a categorical pretrial disqualification ordered exclusively under the advocate-witness rule—that is, without the independent confidential information ethics concerns that underlay Yim—it did not hesitate to reverse.”
He noted various errors on the part of Takasugi which Manella had spotlighted and said that “although the trial court here avoided many of the pitfalls noted in Lopez, its extension of the disqualification to all pretrial activities without explanation was an abuse of discretion unto itself.”
Hill set forth:
“Accordingly, we reverse the trial court’s order insofar as it disqualifies the Dyers from representing the Firm in all pretrial activities; and we remand with instructions for the trial court to enter a new order disqualifying the Dyers from representing the Firm at trial and from representing the Firm in any pretrial activities which carry the risk of revealing either attorney’s dual role to the jury. Such an order will, at minimum, disqualify the Dyers from taking and defending future depositions and from representing the Firm at future evidentiary hearings. The trial court shall retain discretion to, on defendants’ motion or on its own motion, disqualify the Dyers from other specific pretrial litigation activities based on findings that doing so will further the policies underlying Rule 3.7.”
The case is The Dyer Law Firm v. Nelson, F085152.
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