Lopez v. Lopez ( 2022 )

Filed 7/20/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CYNTHIA LOPEZ, B315959
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC669038)
v.
KENNETH LOPEZ,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Jon R. Takasugi, Judge. Reversed.
Daniel Boone, for Plaintiff and Appellant.
Law Offices of Dilip Vithlani and Dilip Vithlani, for
Defendant and Respondent.
INTRODUCTION
In this opinion, we hold the trial court failed to apply
the proper legal standards, and thereby abused its
discretion, in disqualifying attorney Daniel Boone from
representing appellant Cynthia Lopez under the advocate-
witness rule. 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 (2020) 55
Cal.App.5th 573 (Yim).
In 2015, appellant, then proceeding pro se, brought this
action against respondent Kenneth Lopez, her brother,
alleging he had falsely accused her of committing crimes
against him and their elderly parents. In January and
February 2016, respondent emailed Boone (appellant’s
husband since June 2015, her former coworker at his law
firm, and later her counsel in this action), warning that if
appellant did not settle the action, respondent would file a
cross-complaint the next day, which he did. The court
subsequently dismissed respondent’s cross-complaint. In
May 2017, appellant retained Boone to represent her pro
bono or at a discounted rate, having been advised by Boone
that he would likely need to testify at trial, and having
executed informed written consent to Boone’s representation
notwithstanding his expected dual role as advocate and
witness. Appellant then filed a first amended complaint,
adding allegations concerning respondent’s emails to Boone,
and a claim of malicious prosecution based on respondent’s
2
filing of his dismissed cross-complaint. Boone continued
representing appellant in this action for over four years.
In August 2021, two months before trial, respondent
moved to disqualify Boone as appellant’s counsel under
California’s advocate-witness rule, viz., rule 3.7 of the Rules
of Professional Conduct (Rule 3.7). Appellant opposed the
motion, principally relying on Rule 3.7’s exception for cases
in which the attorney has obtained the client’s informed
written consent to the attorney’s dual role. Appellant also
argued respondent’s disqualification motion was untimely
and tactically motivated. Although neither party specified
the precise subject matter of Boone’s expected testimony,
appellant represented his testimony would concern his
receipt of respondent’s January and February 2016 emails,
and the emails’ undisputed contents.
In September 2021, the court held a hearing, issuing in
advance a tentative ruling disqualifying Boone from all
phases of the litigation. Appellant observed that the
tentative ruling failed to apply Rule 3.7 and its informed-
consent exception, instead applying rule 3.7 of the ABA
Model Rules of Professional Conduct (the ABA Rule), which
was not binding and lacked any informed-consent exception.
Appellant also argued the tentative ruling was overbroad in
disqualifying Boone from all phases of the litigation because,
inter alia, Rule 3.7 is limited on its face to trial. The same
day, the court adopted its tentative ruling, finding
respondent’s motion timely and not tactically motivated, and
applying the ABA Rule to disqualify Boone from all phases of
3
the litigation. The court did not cite Rule 3.7, address the
rule’s informed-consent exception, or find that Boone’s
disqualification was necessary “to protect the trier of fact
from being misled or the opposing party from being
prejudiced.” (Rules Prof. Conduct, rule 3.7(a), com. 3.) Nor
did the court address Rule 3.7’s limitation to advocacy “in a
trial.” (Id., rule 3.7(a).)
On appeal from the disqualification order, appellant
contends the court abused its discretion by (1) failing to
apply the proper legal standards in disqualifying Boone
under the advocate-witness rule; and (2) erroneously finding
that respondent’s disqualification motion was timely and not
tactically motivated.
Agreeing with appellant’s first contention, we need not
reach her second. 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. Accordingly, we reverse the
disqualification order.
PROCEEDINGS BELOW
A. Early Litigation and Prior Appeal
In November 2015, appellant, proceeding pro se,
initiated this action against respondent, her brother,
asserting claims of defamation and infliction of emotional
distress. (Lopez v. Lopez (June 10, 2019, No. B287383) 2019
Cal.App.Unpub. LEXIS 3976, at *2 (Lopez I).) Appellant
4
alleged that in 2014 and early 2015, respondent falsely
accused her of committing bank fraud and identity theft
against him and their elderly parents. (Ibid.) In January
2016, respondent filed a cross-complaint. (Ibid.) In January
2017, appellant retained attorney Justin Romig to represent
her in this action. In February 2017, the trial court (Judge
Richard Rico) dismissed respondent’s cross-complaint.
(Ibid.)
In May 2017, appellant filed a substitution-of-attorney
form replacing her former counsel with Boone, her husband
since June 2015 and her former coworker at Boone’s law
firm. In June 2017, appellant filed a first amended
complaint, reasserting her original claims for defamation
and emotional distress and adding new claims for malicious
prosecution (based on respondent’s filing of his dismissed
cross-complaint), abuse of process, and “‘[i]njunctive [r]elief.’”
(Lopez I, supra, 2019 Cal.App.Unpub. LEXIS 3976, at *2-*3.)
The first amended complaint newly alleged that in January
2016, respondent defamed appellant by email to her former
coworkers.
In September 2017, respondent filed a special motion
to strike the first amended complaint under Code of Civil
Procedure section 425.16 (anti-SLAPP motion). (Lopez I,
supra, 2019 Cal.App.Unpub. LEXIS 3976, at *4.) In
opposition to the anti-SLAPP motion, appellant submitted,
inter alia, a declaration from Boone. (Id. at *5.) Boone
declared that on January 27, 2016 (the day before
respondent filed his cross-complaint), respondent emailed
5
Boone at Boone’s law firm (appellant’s former workplace),
encouraging Boone to advise appellant to settle the matter,
and indicating respondent would otherwise report the
matter to various government agencies and file a cross-
1
complaint. On February 15, 2016, respondent again
emailed Boone, stating in relevant part: “[M]ore evidence
came to light about your wife that is very damning. Since
you are married you will ultimately be responsible for any
judgment’s [sic] against your wife.” Boone declared that
respondent’s emails were immediately and permanently
accessible not only to Boone but also to all other firm
employees.
1
Respondent’s January 2016 email to Boone, submitted as
an exhibit, read: “I hope [appellant] showed you my settlement
offer. If not[,] I have provided it as an attachment. Your wife has
gotten herself into trouble once again. My attorney feels she
needs some consul [sic] from someone that is rational. I intend to
go to the district attorney’s office and the FBI tomorrow, as well
[sic] report this matter to the credit agencies, FINRA and
Comptroller of the Currency. I also have a [sic] friends with
various state agencies that deal with this kind of issues regarding
banks and elderly people. I hope you weigh the cost and benefits
of continuing with [appellant]’s irrational behavior. E-mails
containing mine [sic] and my parents[’] financial records were in
fact disseminated without our written authorization. The 24
h[ou]rs I gave [appellant] expire at approximately 5 p.m. today.”
The attachment stated that if appellant did not timely accept
respondent’s settlement offer, respondent would file a cross-
complaint. As noted, respondent filed his cross-complaint the
next day.
6
In November 2017, the court denied respondent’s
anti-SLAPP motion. (Lopez I, supra, 2019 Cal.App.Unpub.
LEXIS 3976, at *6.) Respondent filed an appeal, to which
appellant responded, still represented by Boone. (Id. at *1.)
In July 2019, we reversed the anti-SLAPP order with respect
to one claim immaterial to this appeal, but otherwise
affirmed the denial of respondent’s anti-SLAPP motion,
allowing the majority of appellant’s claims to proceed. (Id. at
*1-*2, *20.)
B. Association and Illness of Co-Counsel
From August 2019 to May 2021, Boone continued to
represent appellant in moving to recover fees and costs
incurred in opposing respondent’s anti-SLAPP motion,
litigating discovery motions, and engaging in discovery. In
May 2021, three months before trial was set to begin,
appellant filed an association-of-attorney form signed by
attorney Michael Trauben, designating Trauben’s law firm
as Boone’s co-counsel.
In July 2021, appellant filed an ex parte application for
a trial continuance, based principally on Trauben’s expected
unavailability due to a medical emergency that had
hospitalized him and would require surgery in mid-August.
In support of the continuance request, Boone declared, inter
alia, that Trauben’s association as “co-counsel and trial
counsel” had been necessary because Boone was “expected to
be a witness at trial.” At a hearing on the request,
respondent did not oppose a short continuance, but
7
questioned why Boone could not “do the trial” alone;
respondent did not acknowledge or object to Boone’s
expressed intent to testify at trial.
The court continued the hearing to August 12, 2021.
On that date, the court found appellant had failed to produce
sufficient information concerning Trauben’s health to
establish good cause for a continuance, but nevertheless
continued the trial to October 18, 2021, to account for
developments in the COVID-19 pandemic. At the conclusion
of the August 12 hearing, the court held an informal
discovery conference (IDC) in chambers, which was not
reported. During the IDC, Boone again stated he intended
to testify at trial.
C. Disqualification Motion
On August 23, 2021, respondent filed a motion to
disqualify Boone as appellant’s counsel under the advocate-
2
witness rule, viz., Rule 3.7. Respondent acknowledged he
2
“California’s current version of the advocate-witness 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.’ (Rules Prof. Conduct,
rule 3.7(a), fn. omitted.) A comment to the rule clarifies that the
informed-consent exception is not absolute: ‘Notwithstanding a
client’s informed written consent, courts retain discretion to take
action, up to and including disqualification of a lawyer who seeks
(Fn. is continued on the next page.)
8
did not know the subject matter of Boone’s expected
testimony, but asserted, “[I]t hardly takes an evidentiary
foundation to believe that whatever [Boone] testifies to will
involve contested issues.” Without attempting to identify
any contested issue to which Boone’s testimony might be
relevant, respondent argued that allowing Boone to continue
representing appellant would prejudice respondent and the
integrity of the judicial process, because the jury might be
confused as to whether Boone’s statements at trial were
evidence or argument. Respondent’s motion papers
mentioned that Boone was appellant’s husband, but did not
seek to disqualify Boone on this ground.
The next day, the court held a hearing on respondent’s
ex parte application to shorten the time for hearing the
disqualification motion. The court repeatedly stated it was
“shocked” to have learned Boone was married to his client.
Respondent emphasized that his motion was based on the
advocate-witness rule. Through an associate from Trauben’s
firm, appellant represented that Boone’s expected testimony
would concern only “minor uncontested issues” related to
“his receipt of a few emails from defendant, and undisputed
contents therein.” Respondent did not dispute this
representation, but argued that Boone’s testimony would be
to both testify and serve as an advocate, to protect the trier of
fact from being misled or the opposing party from being
prejudiced.’” (Yim, supra, 55 Cal.App.5th at 581-582.)
9
“predisposed” toward appellant in light of their marriage.
The court set the motion for hearing on September 16, 2021.
D. Opposition and Reply
On September 9, 2021, appellant filed a written
opposition to respondent’s disqualification motion, supported
by declarations from appellant and Boone. Appellant
declared that in April 2017 (three months after she had
retained attorney Romig), having found she could no longer
afford Romig’s services, she asked Boone to represent her
pro bono or at a discounted rate. According to both
declarations, Boone advised appellant he would likely need
to testify at trial, explained potential problems associated
with his expected dual role as advocate and witness, and
recommended that she obtain independent advice on the
matter. In May 2017, after obtaining independent advice
from other attorneys, appellant executed informed written
3
consent to Boone’s dual role. Throughout his
representation, Boone provided his services pro bono or, in
the case of “extensive motion practice and oral argument,” at
a discounted hourly rate of $150.
3
In an attached document, signed by appellant and Boone
and dated May 1, 2017, appellant attested under penalty of
perjury that she consented to Boone’s representation, after
having been fully advised of the potential problems posed by
Boone’s dual role, and having sought the advice of independent
counsel. Appellant’s September 2021 declaration “reiterate[d]”
her consent.
10
In her opposition brief, appellant argued that under
Rule 3.7’s informed-consent exception, Boone’s
disqualification was precluded as a matter of law, or at least
unwarranted in light of the balance of interests at stake.
Appellant argued she would be prejudiced by Boone’s
disqualification notwithstanding the association of Boone’s
co-counsel, because his co-counsel could not prepare for trial
as successfully or cost-effectively without assistance from
Boone, whom appellant knew to be capable and who
provided his services to her pro bono or at a discounted rate.
In contrast, she argued, respondent had failed to show that
allowing Boone to continue representing her would cause
any prejudice to respondent or to the integrity of the judicial
process. Appellant further argued the disqualification
motion was untimely and tactically motivated, as respondent
had been put on notice during the anti-SLAPP litigation that
Boone would likely testify at trial “about [respondent]’s
email showing malice,” but respondent had raised no
objection to Boone’s dual role until Boone’s co-counsel
suffered a medical emergency on the eve of trial. Finally,
appellant observed that respondent had failed to identify
any prohibition against an attorney representing the
4
attorney’s spouse, as no such prohibition existed.
4
We note that the Rules of Professional Conduct
affirmatively imply a lawyer is not prohibited from representing
the lawyer’s spouse. (See Rules Prof. Conduct, rule 1.8.10(a) [“A
lawyer shall not engage in sexual relations with a current client
(Fn. is continued on the next page.)
11
In reply, respondent asserted he was “not arguing that
Mr. Boone should not represent Plaintiff,” but instead was
seeking to “disqualify Mr. Boone as counsel because he has
chosen to testify on his wife’s behalf so that [respondent] can
get a fair trial . . . .” Respondent implied appellant’s
informed written consent was defective because it was
executed before the adoption of Rule 3.7, and argued that in
any event, her consent did not preclude disqualification to
avoid prejudice to respondent and to the integrity of the
5
judicial process.
E. Hearing and Ruling
On September 16, 2021, the court held a hearing on
respondent’s disqualification motion, confirming at the
who is not the lawyer’s spouse or registered domestic partner,
unless a consensual sexual relationship existed between them
when the lawyer-client relationship commenced” (italics added)].)
5
On appeal, respondent argues appellant’s informed written
consent was defective because it was not given on the record,
citing the following comment to Rule 3.7: “‘A lawyer’s obligation
to obtain informed written consent may be satisfied when . . . the
client gives informed consent on the record in court before a
licensed court reporter or court recorder who prepares a
transcript or recording . . . .’” (Rules Prof. Conduct, rule 3.7(a),
com. 2, italics added.) However, this comment does not require
that informed written consent be given in this manner. In any
event, the trial court did not find appellant’s informed written
consent was defective, and it would have erred had it done so for
the reason advanced by respondent without allowing appellant
an opportunity to give consent on the record.
12
outset that counsel had read its tentative ruling
disqualifying Boone. Appellant observed that the tentative
ruling failed to apply Rule 3.7, instead applying the ABA
Rule, which was not binding and lacked any informed-
6
consent exception. Appellant also requested clarification of
the scope of the tentative ruling, observing that Rule 3.7 was
limited on its face to trial, and arguing that respondent’s
reply brief sought disqualification only at trial (which
respondent denied). Otherwise, appellant generally
repeated the arguments in her written opposition.
Respondent submitted on the tentative ruling, but
additionally asserted that his motion papers sought Boone’s
disqualification “for all purposes,” including representation
“behind the scenes.” The court indicated it would verify
whether respondent’s motion papers had sought such broad
disqualification and, if so, disqualify Boone from all phases
of the litigation, including the preparation of trial material
such as a witness list or motion in limine.
6
The ABA Rule provides: “A lawyer shall not act as advocate
at a trial in which the lawyer is likely to be a necessary witness
unless: [¶] (1) the testimony relates to an uncontested issue; [¶]
(2) the testimony relates to the nature and value of legal services
rendered in the case; or [¶] (3) disqualification of the lawyer
would work substantial hardship on the client.” (ABA Model
Rules Prof. Conduct, rule 3.7(a).) As noted by appellant, the ABA
Rule is not binding in California. (See Frye v. Tenderloin
Housing Clinic, Inc. (2006) 38 Cal.4th 23, 52, fn. 12.)
13
Later that day, the court issued an order disqualifying
Boone as appellant’s counsel from all phases of the litigation
under the ABA Rule. The court did not cite Rule 3.7 or its
informed-consent exception. Although the court noted
appellant had relied on her informed written consent, the
court did not otherwise discuss her consent.
In disqualifying Boone under the ABA Rule, the court
acknowledged “it [wa]s unclear what precise testimony Mr.
Boone intend[ed] to provide.” Without addressing
appellant’s representations that Boone’s testimony would
concern respondent’s January and February 2016 emails to
Boone, the court further stated, “[I]t appears that Mr. Boone
intends to provide substantive testimony concerning the
underlying family dispute on behalf of Plaintiff, who is his
wife.” The court reasoned: “Mr. Boone would not just be
expected to present objective testimony for a client who he is
also advocating for, but would [also] 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. [¶] . . . [¶]
Because Plaintiff already associated with co-counsel in May
2021, the Court is persuaded that no prejudice will result to
Plaintiff as a result of this disqualification.” The court did
not find that Boone’s dual role posed a risk of misleading the
jury or prejudicing respondent. Nor did the court address
appellant’s argument that Boone’s co-counsel could not
14
prepare for trial as successfully or cost-effectively without
Boone’s assistance.
The court rejected appellant’s arguments that: (1) the
disqualification motion was untimely and tactically
motivated; and (2) respondent’s reply brief had limited the
scope of the requested disqualification to trial. The court did
not address the ABA Rule’s language limiting its prohibition
to advocacy at trial (or the corresponding language in Rule
3.7).7
DISCUSSION
Appellant contends the trial court abused its discretion
in disqualifying Boone from representing her in all phases of
the litigation under the advocate-witness rule. As explained
below, we agree.
7
In a prefatory comment, the court stated: “The Court 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.” However, the court did not
purport to disqualify Boone because of the marriage, or because
of any financial interest Boone might have had in the outcome.
Nor did it apply a “‘shock’ test,” as appellant contends. It applied
only the ABA Rule.
15
A. Principles
1. Attorney Disqualification
“A trial court’s authority to disqualify an attorney
derives from its inherent power, codified at Code of Civil
Procedure section 128, subdivision (a)(5), to control the
conduct of its ministerial officers and of all other persons
connected with its proceedings in furtherance of justice.
[Citation.] Disqualification may be ordered as a prophylactic
measure against a prospective ethical violation likely to have
a substantial continuing effect on future proceedings.” (Yim,
supra, 55 Cal.App.5th at 581; but see In re Jasmine S. (2007)
153 Cal.App.4th 835, 843 [“‘an appearance of impropriety by
itself does not support a lawyer’s disqualification’”].)
“‘“Generally, a trial court’s decision on a
disqualification motion is reviewed for abuse of discretion.”’
[Citation.] Under this standard, the trial court’s legal
conclusions are reviewed de novo, but its factual findings are
reviewed only for the existence of substantial evidence
supporting them, and its ‘“application of the law to the facts
is reversible only if arbitrary and capricious.”’” (Yim, supra,
55 Cal.App.5th at 581.) “However, the trial court’s
discretion is limited by the applicable legal principles.”
(People ex rel. Dept. of Corporations v. SpeeDee Oil Change
Systems, Inc. (1999) 20 Cal.4th 1135, 1144 (SpeeDee Oil);
accord, In re Charlisse C. (2008) 45 Cal.4th 145, 150 [“we
conclude the trial court applied the wrong legal standard in
ordering [public law office]’s disqualification and therefore
abused its discretion”].) “In any event, a disqualification
16
motion involves concerns that justify careful review of the
trial court’s exercise of discretion.” (SpeeDee Oil, supra, 20
Cal.4th at 1144.)
2. The Advocate-Witness Rule
Rule 3.7 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.” (Rules Prof. Conduct, rule 3.7(a),
fn. omitted.) A comment to the rule clarifies that the
informed-consent exception is not absolute:
“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.” (Id.,
com. 3, asterisk omitted, citing Lyle v. Superior Court (1981)
122 Cal.App.3d 470 (Lyle).) “In other words, a court retains
discretion to disqualify a likely advocate-witness as counsel,
notwithstanding client consent, where there is ‘a convincing
demonstration of detriment to the opponent or injury to the
17
integrity of the judicial process.’”8 (Yim, supra, 55
Cal.App.5th at 582, quoting Lyle, supra, at 482.)
Rule 3.7 is limited on its face to trial. (Rules Prof.
Conduct, rule 3.7(a) [absent specified exception, “A lawyer
8
Appellant argues the informed-consent exception is
absolute -- in other words, that “once written informed consent is
given, the inquiry ends and the disqualification motion should be
denied.” But the caselaw on which appellant relies is outdated.
Decades before the adoption of Rule 3.7, our Supreme Court
commented, in dicta, that in adopting the informed-consent
exception in 1979, “the State Bar ha[d] concluded that a fully
informed client’s right to chosen counsel outweighs potential
conflict or threat to trial integrity posed by counsel’s appearance
as witness.” (Maxwell v. Superior Court (1982) 30 Cal.3d 606,
619, fn. 9 (Maxwell), italics omitted, disapproved on another
ground by People v. Doolin (2009) 45 Cal.4th 390.) More recently,
but still before the adoption of Rule 3.7, a federal district court
concluded that informed written consent “ends the inquiry,”
criticizing Lyle, supra, 122 Cal.App.3d 470 for having “invented
carve-outs that are absent from the language of the rule.” (Real
Estate Training International, LLC v. Nick Vertucci Companies,
Inc. (C.D. Cal. 2015) 124 F.Supp.3d 1005, 1006-1007; accord,
Ultimate Fitness Ctr., LLC v. Wilson (S.D.Cal. Nov. 21, 2016, No.
16-CV-418 JLS (JMA)) 2016 U.S.Dist.LEXIS 161253, *19.)
Subsequently, however, the State Bar cited Lyle with approval in
an official comment to Rule 3.7. (Rules Prof. Conduct, rule 3.7,
com. 3, citing Lyle, supra, 122 Cal.App.3d 470.) In so doing, the
State Bar confirmed that despite the informed-consent
exception’s seemingly absolute language, even a fully informed
client’s right to chosen counsel does not necessarily preclude
disqualification, if required “to protect the trier of fact from being
misled or the opposing party from being prejudiced.” (Rules Prof.
Conduct, rule 3.7, com. 3.)
18
shall not act as an advocate in a trial in which the lawyer is
likely to be a witness” (italics added)]; see also ABA Model
Rules Prof. Conduct, rule 3.7(a) [absent specified exception,
“A lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a necessary witness” (italics added)].)
In Yim, however, “to effectuate the rule’s purpose of avoiding
factfinder confusion,” we interpreted the rule’s use of the
term “trial” to encompass a “pretrial evidentiary hearing at
which counsel is likely to testify.” (Yim, supra, 55
Cal.App.5th at 583.) Further, finding no California
authority on point, but agreeing with most courts that had
considered the issue, we “‘recognize[d] that an attorney who
intends to testify at trial may not participate in “any pretrial
activities which carry the risk of revealing the attorney’s
dual role to the jury.” [Citation.] In particular, a testifying
attorney should not take or defend depositions.’” (Ibid.) We
did not consider whether the advocate-witness rule could be
further extended to other pretrial activities. (See id. at
9
586.)
“In exercising its discretion to disqualify counsel under
the advocate-witness rule, a court must consider: (1)
‘“‘whether counsel’s testimony is, in fact, genuinely needed’”’;
(2) ‘the possibility [opposing] counsel is using the motion to
9
We affirmed the attorney’s disqualification from all other
pretrial activities, but on an independent ground, viz., the
potential misuse of confidential information. (See Yim, supra, 55
Cal.App.5th at 586-589.)
19
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.’ [Citation.] ‘[T]rial
judges must indicate on the record they have considered the
appropriate factors . . . .’” (Yim supra, 55 Cal.App.5th at
583; see also id. at 585-586; cf. SpeeDee Oil, supra, 20
Cal.4th at 1144-1145 [careful review of disqualification
orders is mandated by concerns that may include “a client’s
right to chosen counsel” and “the financial burden on a client
to replace disqualified counsel”].)
B. Analysis
We conclude the trial court failed to apply the proper
legal standards, and thereby abused its discretion, in
disqualifying Boone from representing appellant in all
phases of the litigation under the advocate-witness rule.
First, the court failed to apply Rule 3.7’s informed-consent
exception. Indeed, the court failed even to cite Rule 3.7,
instead applying the ABA Rule, which is not binding and
lacks any informed-consent exception. Although the court
noted appellant had relied on her informed written consent,
it did not otherwise discuss her consent or its relevance. Nor
did the court find that Boone’s disqualification was
necessary, notwithstanding appellant’s informed written
consent, in order to “protect the trier of fact from being
misled or the opposing party from being prejudiced.” (Rules
20
Prof. Conduct, rule 3.7, com. 3.) The court found only that
Boone’s dual role would impair his credibility as a witness
(for appellant) and diminish his effectiveness as an advocate
(for appellant). It made no finding of prejudice to
respondent, much less of potential confusion. (See Smith,
Smith & Kring v. Superior Court (Oliver) (1997) 60
Cal.App.4th 573, 578 [“Where a lawyer representing a party
in trial is also a witness during the trial, his or her
effectiveness, both as a lawyer and as a witness, may be
impaired in the eyes of the fact finder. Such disadvantage
enures to the detriment of the party being represented by
the lawyer serving such a dual function”].)
Even had the court found a risk that Boone’s dual role
would mislead the jury, such a finding would have been
speculative on the limited factual record before the court.
Although the court stated it “appear[ed]” Boone would
provide “substantive testimony concerning the underlying
family dispute,” the court did not expressly reject appellant’s
contrary representations that Boone’s testimony would
concern only his receipt of respondent’s January and
February 2016 emails, and the emails’ undisputed contents.
Respondent had neither challenged these representations
nor attempted, through discovery or a request for an offer of
proof, to discern the substance of Boone’s expected
testimony. Without further information, the court could not
reasonably have found a “‘convincing demonstration of
detriment to the opponent or injury to the integrity of the
judicial process.’” (Yim, supra, 55 Cal.App.5th at 582,
21
quoting Lyle, supra, at 482.) In disregarding appellant’s
informed written consent without finding any such
detriment, the court failed to acknowledge her consent’s
significance under Rule 3.7, and thereby abused its
discretion. (See Smith, Smith & Kring v. Superior Court
(Oliver), supra, 60 Cal.App.4th at 579-582 [trial court abused
its discretion in disqualifying counsel under advocate-
witness rule, where record did not indicate court “recognized
the importance” of client’s written consent to counsel’s dual
role, which should have been given “‘great weight’”].)
The court further abused its discretion in failing to
apply Rule 3.7’s limitation to advocacy “in a trial.” (Rules
Prof. Conduct, rule 3.7(a).) The court disqualified Boone
from all phases of the litigation, without acknowledging this
limitation (or the corresponding limitation in the ABA Rule),
and without finding, as we did in Yim, that an extension of
the rule to specified pretrial activities would effectuate the
rule’s purpose of avoiding factfinder confusion. (See Yim,
supra, 55 Cal.App.5th at 577, 583, 585.) Indeed, as
explained above, the court made no finding of a risk of
factfinder confusion, which would have been speculative, in
any event, on the limited factual record before the court.
Nevertheless, the court extended the advocate-witness rule
to all pretrial activities, including behind-the-scenes
activities unlikely to pose any risk of factfinder confusion,
such as preparing a witness list or motion in limine.
Because Boone’s categorical disqualification from all pretrial
activities was not supported by Rule 3.7’s text, or by
22
reasoned findings concerning the rule’s purpose, we conclude
it constituted an abuse of discretion.
10
Respondent’s reliance on Yim is misplaced. As noted,
Yim does not support Boone’s categorical disqualification
from all pretrial activities. Even with respect to Boone’s
disqualification at trial, Yim is distinguishable. There, a
mother represented her daughter in suing the mother’s
ex-husband, alleging he had exploited the marriage to
sexually abuse the daughter when she was a minor. (Yim,
10
The other advocate-witness cases cited by respondent do
not assist him, as none addressed whether a trial court properly
rejected a client’s reliance on the informed-consent exception.
(See Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1205-1213
[affirming order disqualifying attorney from representing his son
in dispute over custody of his grandson, without discussing
whether son had provided informed written consent, in reliance
on “[a] plethora of family entanglements, potential misuse of
confidential information, a conflict posed by the near-certain
prospect that counsel will have to testify, and the preservation of
the integrity of the judicial system”]; People v. Donaldson (2001)
93 Cal.App.4th 916, 929-932 [reversing criminal judgment, where
defense counsel was ineffective in failing to object to prosecutor’s
dual role as advocate and witness at trial, and prosecutor had not
obtained proper consent under then-current informed-consent
exception]; Comden v. Superior Court (1978) 20 Cal.3d 906, 910-
911 & fn. 1 [affirming order disqualifying attorney under pre-
1979 version of California’s advocate-witness rule, which lacked
any informed-consent exception]; cf. Maxwell, supra, 30 Cal.3d at
619, fn. 9 [noting that State Bar’s adoption of informed-consent
exception in 1979 was in response to Comden, and weakened
Comden’s precedential value].)
23
supra, 55 Cal.App.5th at 576-577.) Less than two months
after the suit was filed, the ex-husband promptly moved to
disqualify the mother under the advocate-witness rule. (Id.
at 577-578.) The trial court applied the rule in disqualifying
the mother at trial, expressly accepting evidence that the
mother had obtained her daughter’s informed written
consent, but “explaining why it nevertheless deemed the
informed-consent exception inapplicable due to the risk of
prejudice to [the ex-husband] and to the integrity of the
judicial process.” (Id. at 585; see also id. at 579-580.) In
affirming, we concluded the record showed the mother was
almost certain to be a key witness concerning her ex-
husband’s alleged sexual abuse of her daughter and her
daughter’s resulting damages. (Id. at 584.) We further
concluded the mother’s dual role posed a risk of misleading
the jury into mistaking her arguments as evidence based on
her extensive personal knowledge of her ex-husband, which
could prejudice him. (Id. at 584-585.) Finally, we concluded
that by explaining why it rejected the daughter’s reliance on
the informed-consent exception, the court demonstrated it
had properly considered the daughter’s interest in remaining
represented by her counsel of choice, particularly because
she had not asserted that this interest was “heightened by
any purported burden” in retaining new counsel or in paying
for duplication of her mother’s efforts, which had not
progressed beyond the “early stages” of the litigation. (Id. at
585.)
24
The record before us here is materially different.
Rather than explain why it rejected appellant’s reliance on
Rule 3.7’s informed-consent exception, the trial court applied
a different, non-binding rule, which lacked any such
exception. It did so despite its acknowledged uncertainty
regarding the subject matter of Boone’s expected testimony,
without finding that Boone was likely either to be a key
witness or to make any argument the jury could perceive to
be based on his personal knowledge of respondent (if any).
Finally, the court 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. (See Liberty
National Enterprises, L.P. v. Chicago Title Ins. Co. (2011)
194 Cal.App.4th 839, 848 [client would have suffered
“extreme” prejudice from disqualification of counsel who had
“gained mastery” over case by litigating it for two years];
Lyle, supra, 122 Cal.App.3d at 482 [client was entitled to
trial court’s consideration of asserted financial hardship in
replacing counsel who was providing services pro bono].)
Specifically, the court suggested Boone and his recently
retained co-counsel were interchangeable, without
addressing appellant’s argument that she would be
prejudiced by Boone’s disqualification because his co-counsel
could not prepare for trial as successfully or cost-effectively
without his assistance. In so doing, the court failed to apply
25
the proper legal standards in disqualifying Boone at trial,
requiring reversal of the disqualification order.
26
DISPOSITION
The order disqualifying Boone as appellant’s counsel is
reversed. Appellant is awarded her costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
27