Friday, September 18, 2026
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Court of Appeal:
Judge Erred in Ousting Party’s Brother as Pro Bono Counsel
Opinion Says It Was an Abuse of Discretion to Sua Sponte Disqualify Lawyer Due to Potential-Witness Status Without Giving Significant Weight to Wishes of Client Who Allegedly Could Not Afford Alternative Representation
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal held yesterday that a judge erred in sua sponte disqualifying a man’s attorney-brother from representing him pro bono in divorce proceedings, saying that the fact that the lawyer might be a potential witness with a possible financial interest in the case, based on evidence that he had been helping his sibling out financially, was not enough to overcome the party’s right to the counsel of his choosing.
Acting Presiding Justice Martin N. Buchanan authored yesterday’s unpublished opinion, saying:
“[T]he trial court failed to address the strong interest [the husband] has in representation by counsel of his choice, and ‘in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.’…This is particularly important here, where [the client] repeatedly raised the issue of his lack of financial resources with the court.”
Adding that the trial judge “recognized counsel’s concern that he could not ethically substitute out of the case without finding someone to take over [his client’s] representation, which would be difficult given [his brother’s] limited resources,” he opined:
“The trial court does not appear to have taken this important fact into consideration. We therefore conclude that the trial court failed to give sufficient weight to [the client’s] strong interest in representation by counsel of his choice.”
Advocate-Witness Rule
Buchanan acknowledged that Rule 3.7 of the Rules of Professional Conduct 3.7 specifies that “[a] lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless” his “testimony relates to an uncontested issue,” fees, or the attorney “has obtained informed written consent from the client,” and that “the informed-consent exception is not absolute.”
However, he pointed to jurisprudence establishing that a judge’s discretion to disqualify a likely advocate-witness over the objection of the party is only permissible in limited circumstances after a court weighs the reasons for a potential ouster against the client’s strong interest in securing representation by an attorney of his choosing. He said:
“There is no indication from the record before us that the trial court recognized the importance of [the client’s] interest in being represented by the attorney of his choice and his waiver of any potential conflict under Rule 3.7, or that it otherwise considered the appropriate factors when contemplating counsel’s disqualification under the advocate-witness rule.”
Seeking to have his brother remain on the case was Kenyon Pfaff, who filed a petition for the dissolution of his 16-year marriage to Nimfa Pfaff in April 2024. Kenyon Pfaff, who was purportedly living on monthly Social Security disability payments, indicated that he had planned to resolve the matter without attorneys in light of the parties’ limited financial resources.
Attorneys Selected
After his wife hired an attorney to represent her in the divorce action, Kenyon Pfaff asked his brother, Stephen Pfaff, a Murrieta-area tax attorney, to take the case pro bono.
During the months that followed, San Diego Superior Court Judge Renee Stackhouse expressed conflict-of-interest concerns and cautioned that the attorney should not risk his reputation by representing his brother when he was not familiar with the intricacies of family law. In May 2025, Stackhouse sua sponte set an order to show cause regarding disqualification.
In August 2025, the judge issued an order disqualifying Stephen Pfaff from representing his brother in the case, noting that the lawyer had repeatedly “crossed the line into testifying as a percipient witness” who may be “called upon to testify” about Kenyon Pfaff’s request for permanent spousal support and had caused “an undue consumption of the Court’s time” by failing to withdraw as counsel.
Nimfa Pfeff took no position on disqualification before the trial court and did not file a respondent’s brief on appeal.
Authority to Disqualify
Buchanan recognized that a judge has authority to disqualify an attorney as a prophylactic measure against a prosecutive ethical violation that is likely to have significant effects on future proceedings but said:
“In deciding whether to exercise its discretion to disqualify counsel under the advocate-witness rule, the trial court ‘must consider’: (1) whether the attorney’s testimony is genuinely needed; (2) the possibility that the opposing party is using the motion to disqualify for purely tactical reasons; and (3) ‘the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.’ ”
Applying those factors, he said that “the trial court did not grapple with whether counsel’s testimony was” necessary and instead focused on the fact that the lawyer had “made representations” that he had personal knowledge of his brother’s financial situation. He wrote:
“The court made no finding that Nimfa intended to call counsel as a witness or that he intended to testify. Any necessary testimony regarding Kenyon’s work history or medical background could easily be provided by other percipient witnesses, such as healthcare professionals, or Kenyon himself.”
Automatic Compulsion
Adding that “even assuming counsel would be a necessary witness, this would not automatically compel his disqualification,” he pointed out that a client can give consent to have his attorney continue to represent him and “[t]he trial court erred in failing to recognize this.”
He continued:
“The decision to disqualify counsel under the advocate-witness rule required consideration of the prejudice and financial hardship Kenyon would face if his attorney of choice was disqualified….Counsel’s declaration stated that he was representing Kenyon pro bono and that Kenyon would not be able to afford alternate representation. Kenyon’s declaration detailed his financial hardship….The trial court does not appear to have taken this important fact into consideration. We therefore conclude that the trial court failed to give sufficient weight to Kenyon’s strong interest in representation by counsel of his choice.”
Buchanan further found that “any risk of confusing or misleading the trier of fact at trial is substantially diminished, if not eliminated, given that the fact finder here is the court” and declared:
“We appreciate the trial court’s concerns that counsel’s argument at times strayed into ‘witness territory’ where he made assertions based on his personal knowledge. However, the court was required to weigh its concerns against Kenyon’s strong interest in remaining represented by counsel before ordering the severe remedy of disqualification.”
The case is In re Marriage of Pfaff, D086904.
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