Geringer v. Blue Rider Finance ( 2023 )

Filed 8/22/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ROBERT GERINGER et al., B316718
Cross-complainants and (Los Angeles County
Respondents. Super. Ct. No. SC121803)
v.
BLUE RIDER FINANCE,
Cross-defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark A. Young, Judge. Reversed.
Law Offices of Jeffrey S. Konvitz and Jeffrey Konvitz for
Cross-defendant and Appellant.
Law Offices of Richard A. Kober, Richard A. Kolber; and
Jeffrey A. Greene for Cross-complainants and Respondents
Geringer Capital, Inc., Robert Geringer and Tricycle
Entertainment.
___________________________
Geringer Capital, Inc., Roger Geringer and Tricycle
Entertainment, LLC (collectively Geringer parties) moved to
preclude Jeffrey Konvitz, Blue Rider Finance, Inc.’s counsel of
record, from testifying at trial in support of Blue Rider’s claim
that the Geringer parties fraudulently induced Blue Rider to
enter into a settlement agreement that did not accurately reflect
the terms negotiated by the parties. The Geringer parties
subsequently clarified that their motion should be considered, in
the alternative, a motion to disqualify Konvitz. Although Blue
Rider had provided its informed written consent to Konvitz’s
acting as both its key witness and trial counsel, the court granted
the motion and disqualified Konvitz, finding the integrity of the
judicial process would be impaired if Konvitz served in dual roles.
On appeal Blue Rider contends the court should have denied the
motion due to the Geringer parties’ excessive delay in raising the
issue (an implied waiver) and the order precluding Konvitz from
representing it at trial was not supported by any evidence of
prejudice to the Geringer parties or detriment to the judicial
process. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Bridge Loan, the Settlement Agreement and Blue
Rider’s Fifth Amended Cross-complaint
The background of the Geringer-Blue Rider dispute was
detailed in this court’s opinion in Geringer Capital, Inc. v. Blue
Rider Finance, Inc. (Dec. 20, 2017, B269378) [nonpub. opn.]
(Geringer I)). In brief, in August 2006 Blue Rider made a
$4.2 million bridge loan, personally guaranteed by Geringer, the
principal of Geringer Capital, and his colleague Craig
Baumgarten, to several production companies to fund
preproduction of a motion picture. After the production
2
companies defaulted on the bridge loan and Blue Rider sought to
enforce the personal guarantees, Geringer and Baumgarten
proposed that Geringer Capital purchase the loan from Blue
Rider for $1.3 million, with $300,000 to be paid on signing and
$1 million paid within 120 days thereafter. In early 2009, after
months of negotiations, the Geringer parties delivered a series of
payments totaling $300,000 to Blue Rider in anticipation of Blue
Rider’s acceptance of the terms of a purchase loan agreement.
When the deal fell through, Blue Rider informed Geringer
Capital it was retaining the money as partial payment of the
outstanding debt owed by Geringer and related parties as
guarantors. Blue Rider then sued Geringer and Baumgarten to
enforce their personal guarantees. That lawsuit was resolved
with a settlement agreement executed in December 2010.
In December 2013 Geringer Capital sued Blue Rider
seeking return of the $300,000 paid in 2009, more than four years
earlier. Blue Rider answered the complaint and filed a cross-
complaint against the Geringer parties, alleging causes of action
for fraud, reformation based on unilateral mistake and
declaratory relief, arising from the parties’ dispute concerning the
scope of the release in the 2010 settlement agreement. The
Geringer parties asserted the 2010 settlement agreement
encompassed not only the personal guaranty obligations but also
all remaining bridge loan obligations. Blue Rider insisted the
settlement agreement was limited to the guaranty obligations,
but alleged, if not, Geringer and his affiliated companies had
defrauded Blue Rider into signing a document that did not
accurately reflect Blue Rider’s expressed intentions.
In June 2015 Blue Rider moved for summary judgment on
Geringer Capital’s complaint on the ground all causes of action
3
were barred by the applicable statutes of limitation. The trial
court granted the motion. The court also sustained without leave
to amend the Geringer parties’ demurrer to what was then Blue
Rider’s second amended cross-complaint. On appeal this court
affirmed the order granting summary judgment in favor of Blue
Rider on Geringer Capital’s complaint and reversed the order
sustaining the demurrer to Blue Rider’s cross-complaint without
leave to amend and directed the trial court to allow Blue Rider to
amend the second amended cross-complaint to allege, if it could
in good faith, facts supporting a damage remedy (which it had
said was its desired remedy) and justifying its delay in seeking
rescission. (Geringer I, supra, B269378.)
After two more rounds of demurrers, on November 16, 2018
Blue Rider filed the operative fifth amended cross-complaint,
naming as cross-defendants Geringer, Geringer Capital and
Tricycle Entertainment, a limited liability company controlled by
Geringer that had been named as a Doe defendant in the original
cross-complaint.1 Blue Rider asserted causes of action for fraud
against Geringer, civil conspiracy against Geringer, Geringer
Capital and Tricycle Entertainment (that is, that Geringer and
the two entities conspired to commit the fraud effected by
Geringer), unilateral mistake and declaratory relief. The
pleading alleged that Geringer had fraudulently induced Blue
Rider to sign the 2010 settlement agreement, which contained
terms that the parties had not agreed to include, and that Blue
Rider made a unilateral mistake when it signed the settlement
agreement without noticing the improperly inserted provisions.
1 Baumgarten had been named in the original cross-
complaint but not in any of its subsequent iterations.
4
Following additional pleading practice, the Geringer parties filed
an answer, and the case was at issue.
2. The Motion To Preclude Konvitz from Testifying at Trial
At a case management conference in September 2020 the
court set a September 27, 2021 trial date. On August 19, 2021
Blue Rider filed a notice of association of counsel and a notice
(with an attached declaration from Walter Josten, the senior
officer of Blue Rider) of Blue Rider’s consent to Konvitz acting as
its counsel in the case notwithstanding his role as a key witness.2
According to a declaration by Richard A. Kolber, counsel for the
Geringer parties, the prior day Konvitz had emailed him to say
that a new lawyer was associating into the case “‘as I cannot ask
myself questions as a witness.’”
On August 24, 2021 the Geringer parties filed an ex parte
application to preclude Konvitz from testifying at trial or for an
order shortening time for a noticed hearing on the matter. In its
memorandum in support of the application, the Geringer parties
2 In his declaration, after explaining that Konvitz had
represented Blue Rider since the inception of the litigation, which
was more than 16 years old and involved thousands of pages of
documents, Josten stated, “Mr. Konvitz gave us the option of
seeking independent counsel to try the case advising us of
relevant sections of the Rules of Professional [C]onduct.
However, [Blue Rider,] which is basically insolvent and whose
only asset is its interest in the Picture, did not and does not have
the wherewithal to retain fully independent counsel or to do so
now and it would have taken independent counsel many months,
if not longer, to get up to speed even if [Blue Rider] could have
afforded one. [¶] . . . We have asked Mr. Konvitz to act as our
counsel in this case notwithstanding his role as a key witness and
[Blue Rider] has given its informed written consent thereto.”
5
argued Konvitz’s testimony would violate rule 3.7 of the
California Rules of Professional Conduct (Rule 3.7), explaining
that the comments to that rule stated, notwithstanding the
client’s informed written consent, courts retained discretion to
take action to protect the trier of fact from being misled or the
opposing party from being prejudiced by a lawyer seeking both to
testify and to serve as an advocate. The application attached as
exhibits Blue Rider’s consent to Konvitz acting as trial counsel
and witness; Blue Rider’s notice of association of new counsel;
and Kolber’s declaration, which attached excerpts from Konvitz’s
August 2015 deposition and stated, “[Blue Rider’s] action seeks to
rescind a 2010 Settlement Agreement on the grounds that it was
fraudulently induced to enter into the agreement. Konvitz
testified at deposition to his belief that he was duped by Cross-
Defendants and their attorney, who Konvitz claims substituted
terms into the agreement that caused [Blue Rider] to release
financial obligations they did not intend to release.”
In its opposition to the ex parte application Blue Rider
argued the Geringer parties had known Konvitz would provide
testimony and try the case for eight years prior to filing their
motion. He explained he had been a witness and trial counsel in
the lawsuit to enforce Baumgarten’s and Geringer’s personal
guarantees, which led to the disputed settlement agreement, and
noted a case management conference statement filed in March
2014 stated that Konvitz would try the pending action. The
opposition also suggested that, rather than precluding Konvitz
from testifying, if the court determined Konvitz should not serve
as both witness and trial counsel, then the matter should be
continued to allow Blue Rider to obtain new representation. Blue
6
Rider also urged the court to set the matter for a hearing, rather
than decide it based on ex parte papers.
Although observing that the Geringer parties’ motion
“could and should have been filed months if not years ago,” the
court on August 26, 2021 granted the alternative request to
shorten time to hear the matter after full briefing. The court set
the hearing for September 20, 2021, the date of the final status
conference. The Geringer parties’ ex parte application was
accepted by the court as its moving papers.
On September 3, 2021 the parties stipulated to waive a
jury, agreeing the case would proceed as a court trial. On the
same day Blue Rider filed its opposition to the motion, including
a declaration from Konvitz explaining in detail (with supporting
exhibits) that the Geringer parties had known for years he was a
key witness to the negotiation of the 2010 settlement agreement
and also was Blue Rider’s trial counsel in the matter (including
his designation as such in a case management conference
statement filed in January 2018 after this court’s decision in
Geringer I returned the cross-complaint to the trial court and
another filed in September 2020 prior to the conference at which
the court set the September 27, 2021 trial date).
In their reply memorandum, although continuing to refer to
the motion as one to preclude Konvitz from testifying, the
Geringer parties argued Konvitz needed to elect between being
Blue Rider’s star witness or its counsel. Konvitz’s intention to
blend the roles of advocate and witness, they contended, quoting
from Kennedy v. Eldringe (2011) 201 Cal.App.4th 1197, 1210,
“‘robs the trial of that appearance of fairness which should
characterize every court hearing.’” They also argued that they
intended to present evidence that Konvitz committed malpractice
7
when negotiating and reviewing the terms of the settlement
agreement and that they would be prejudiced in attacking
Konvitz’s credibility if he were not only a witness but also trial
counsel. Finally, although conceding they had long understood
Konvitz was Blue Rider’s counsel during the litigation and also
its central witness, they argued they were not required to
anticipate—and thus did not waive the right to challenge—
Konvitz’s intention to violate Rule 3.7 by acting as counsel at
trial while also testifying on disputed issues on behalf of Blue
Rider.3
3. The Trial Court’s Ruling Disqualifying Konvitz
The trial court, noting that the Geringer parties had
clarified in their reply papers that disqualification would be
appropriate if Blue Rider insisted on having Konvitz testify,
granted the motion and disqualified Konvitz as counsel for Blue
Rider. Evaluating the factors identified in case law to be
considered when ruling on a motion to disqualify counsel who
intends to appear as a witness at trial, the court first confirmed
that Konvitz’s testimony was “needed and crucial.” The court
then dismissed Blue Rider’s contention the motion had been
made by the Geringer parties for purely tactical reasons,
reiterating that the motion could have been presented sooner, but
concluding the motion was not untimely because Blue Rider did
not explicitly state it would call Konvitz as a witness until Blue
3 Whether in an effort to mislead the trial court or simply to
cast aspersions on Konvitz, the Geringer parties persistently
referred in their papers in the trial court to Konvitz’s violation of,
or intent to violate, Rule 3.7 despite elsewhere acknowledging the
rule expressly allowed an attorney to act as both advocate and
witness with the client’s informed written consent.
8
Rider filed and served on August 19, 2021 the notice of consent to
Konvitz acting as its counsel in the case notwithstanding his role
as a key witness.
The court agreed with the Geringer parties’ position that
permitting Konvitz to serve as advocate-witness would impair the
integrity of the judicial process. Quoting the portion of People v.
Donaldson (2001) 93 Cal.App.4th 916, 927-928 that had quoted
from the former American Bar Association (ABA) Model Code of
Professional Responsibility, the court noted that counsel opposing
an advocate-witness “‘may be handicapped in challenging the
credibility of the lawyer” and additionally observed the “mental
gymnastics that the advocate-witness would need to perform to
keep the roles straight impermissibly risks error and confusion.”
Finally, the court recognized that Blue Rider had a strong
interest in being represented by counsel of its choice and found
that Blue Rider would be prejudiced by Konvitz’s disqualification.
Yet while this factor, as well as the age of the case and the time
necessary for new counsel to become prepared to try the matter,
were of concern, the court determined it was not decisive, noting
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.”
In a nunc pro tunc order filed the following day, the court added
that the motion was also granted to prevent prejudice to Blue
Rider.
The court continued the trial to April 4, 2022. After Blue
Rider filed a timely notice of appeal,4 the trial court approved the
4 An order disqualifying counsel is appealable. (Militello v.
VFARM 1509 (2023) 89 Cal.App.5th 602, 612, fn. 6; URS Corp. v.
9
parties’ stipulation to stay the trial pending the outcome of the
appeal.
DISCUSSION
1. Standard of Review
A trial court’s decision to grant or deny a motion to
disqualify counsel is generally reviewed for abuse of discretion.
(People v. Suff (2014) 58 Cal.4th 1013, 1038; In re Charlisse C.
(2008) 45 Cal.4th 145, 159; People ex rel. Dept. of Corporations v.
SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143
(SpeeDee Oil).) “As to disputed factual issues, a reviewing court’s
role is simply to determine whether substantial evidence
supports the trial court’s findings of fact . . . . As to the trial
court’s conclusions of law, however, review is de novo; a
disposition that rests on an error of law constitutes an abuse of
discretion.” (Charlisse C., at p. 159; see Haraguchi v. Superior
Court (2008) 43 Cal.4th 706, 711-712; Lopez v. Lopez (2022)
81 Cal.App.5th 412, 422.) While the trial court’s “‘application of
the law to the facts is reversible only if arbitrary and capricious’”
(Charlisse C., at p. 159), “where there are no material disputed
factual issues, the appellate court reviews the trial court’s
determination as a question of law.” (SpeeDee Oil, at p. 1144;
accord, Militello v. VFARM 1509 (2023) 89 Cal.App.5th 602, 612;
Wu v. O’Gara Coach Co., LLC (2019) 38 Cal.App.5th 1069, 1079;
California Self-Insurers’ Security Fund v. Superior Court (2018)
19 Cal.App.5th 1065, 1071.)
Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 880;
see Meehan v. Hopps (1955) 45 Cal.2d 213, 215-216.)
10
2. Rule 3.7 and the Factors Affecting Disqualification
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.”
(Fn. omitted.) Comment 3 to Rule 3.7, citing Lyle v. Superior
Court (1981) 122 Cal.App.3d 470, 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.”
The court’s discretion to disqualify a likely advocate-
witness notwithstanding client consent—the exception to the
exception—has been judicially interpreted to be permissible only
upon “a convincing demonstration of detriment to the opponent or
injury to the integrity of the judicial process.” (Lyle v. Superior
Court, supra, 122 Cal.App.3d at p. 482; accord, Lopez v. Lopez,
supra, 81 Cal.App.5th at p. 423; Doe v. Yim (2020) 55 Cal.App.5th
573, 582; Smith, Smith & Kring v. Superior Court (1997)
60 Cal.App.4th 573, 579.) As explained in Lyle, the case cited to
support the comment to Rule 3.7 at issue in this case, “[T]he trial
court can disqualify counsel only where it is confronted with
manifest interests which it must protect from palpable prejudice.”
(Lyle, at p. 482; see also Maxwell v. Superior Court (1982) 30
Cal.3d 606, 619, fn. 9 [“the State Bar has concluded that a fully
informed client’s right to chosen counsel outweighs potential
conflict or threat to trial integrity posed by counsel’s appearance
11
as witness”], disapproved on another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.)
“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 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 and make
specific findings of fact when weighing the conflicting interests
involved in recusal motions.’” (Doe v. Yim supra, 55 Cal.App.5th
at pp. 583-584; accord, Lopez v. Lopez, supra, 81 Cal.App.5th at
p. 424; cf. SpeeDee Oil, supra, 20 Cal.4th at pp. 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”].)
3. The Trial Court Erred in Disqualifying Konvitz
To reiterate, the 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
12
disqualify him, strongly suggest the motion was filed for purely
tactical reasons.
a. Blue Rider’s right to counsel of its choice
As discussed, one side of the balance in determining a
recusal motion is a client’s right to be represented by counsel of
its choice, as well as the financial burden created when
disqualified counsel must be replaced. The trial court
acknowledged these interests, finding Blue Rider would be
prejudiced by Konvitz’s disqualification. Indeed, as the
declarations in opposition to the motion demonstrated, Konvitz
represented Blue Rider in the litigation that led to the 2010
settlement agreement at issue in the current lawsuit and
represented Blue Rider in this action even before he filed the
cross-complaint on its behalf in October 2014, preparing Blue
Rider’s answer to Geringer Capital’s 2013 lawsuit, indicating in
an early (March 2014) case management conference statement
that he would be Blue Rider’s trial counsel,5 and actively
participating in discovery. That extensive involvement fully
supports a finding not only of prejudice, but extreme prejudice if
he were disqualified. (Cf. Liberty National Enterprises, L.P. v.
Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 848 [prejudice
if counsel were disqualified would be “extreme”; the lawyer not
only knew his client as a result of having represented it for many
years, but also gained mastery of this case as it was being
developed; “[w]hile it is of course possible to learn a case by
reviewing the file, it is not quite the same as having done it as
[the lawyer] did it in this case”].)
5 Although Blue Rider associated appellate counsel for
Geringer I, supra, B269378, Konvitz was cocounsel for his client
in that successful appeal.
13
After recognizing the prejudice to Blue Rider from
disqualification, however, the trial court improperly discounted
its significance with the comment that Blue Rider and Konvitz
should have identified the issue earlier and “taken appropriate
action to comply with rules of professional responsibility and
California law.” 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. 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.6
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.
b. The Geringer parties’ delay and possible motivation
In addition to (improperly) faulting Blue Rider for not
addressing the advocate-witness issue at an earlier date, the trial
6 Although Blue Rider did not file its notice of permission for
Konvitz to serve as both counsel and a principal witness at trial
until a month before the scheduled trial date, nothing in the
record indicates Konvitz had violated any ethical obligations
prior to that time or that he and Blue Rider failed in any way to
fully comply with California law.
14
court found, based on abundant evidence in the record, that it
was readily apparent Konvitz would likely be a key witness at
trial and the Geringer parties should have brought their motion
“months if not years ago.” Nonetheless, the trial court
determined the motion was not untimely because it had been
filed shortly after Blue Rider first served documents expressly
stating it would call Konvitz as a witness.
That conclusion is, at best, questionable. (See White v.
Superior Court (1979) 98 Cal.App.3d 51, 55-56 [“where other
circumstances do not require a different result, a party who seeks
to challenge the qualification of counsel to represent the
adversary party must . . . proceed at the first reasonable
opportunity by proper motion to achieve that end”]; see also
Liberty National Enterprises, L.P. v. Chicago Title Ins. Co., supra,
194 Cal.App.4th at pp. 844-845 [“[T]he majority view appears to
be that attorney disqualification can be impliedly waived by
failing to bring the motion in a timely manner. [Citation.] [¶]
It appears that, at least in California, the delay has to be extreme
or unreasonable before it operates as a waiver”].) But even if it
were correct, the trial court 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. 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. As our colleagues in Division Two of this court bluntly
stated more than four decades ago in White, at page 55, the
15
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.”
c. Prejudice to the Geringer parties
The Geringer parties argued in the trial court and repeat
on appeal that allowing Konvitz to act as both advocate and
witness would somehow impair their ability to challenge the
credibility of his testimony that they committed fraud in inducing
Blue Rider to enter the 2010 settlement agreement and would
give Konvitz the opportunity to change or add to his prior
testimony while examining other witnesses or arguing the case.
The first point is never explained. Indeed, the case they cited for
this contention in the trial court, Kennedy v. Eldridge, supra,
201 Cal.App.4th 1197, noted a lawyer who is both counsel and
witness is more easily impeachable for interest and may be a less
effective witness. (Id. at p. 1209.)7 The second ignores the ability
of the trial judge to control counsel’s questioning and argument,
particularly in a bench trial, as will occur in this case. In any
event, 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.
d. Injury to the judicial process
In Kennedy v. Eldridge, supra, 201 Cal.App.4th 1197, a
child custody and support case, the court of appeal affirmed the
disqualification of the child’s paternal grandfather from
7 The potential prejudice to Blue Rider from Konvitz serving
as both advocate and witness was an issue for Blue Rider, which,
consistent with Rule 3.7, made an informed choice to authorize
Konvitz to serve in both capacities, as discussed in the Josten
declaration. (See footnote 2.)
16
representing his son, the child’s father, against the child’s mother
because of the potential misuse by the grandfather-lawyer of
confidential information concerning the mother obtained by his
law firm during an earlier representation (id. at pp. 1206-1208)
and, as an additional ground, because it was likely the
grandfather would appear as a percipient witness in the dispute
concerning the child’s care and custody (id. at pp. 1208-1210). In
explaining its decision on the second ground, the court quoted a
1997 law review article, which in turn had quoted from a 1968
opinion from the Arkansas Supreme Court: “‘[T]he disorder to
the judicial system does not result solely from the confusion
caused by one person serving in multiple capacities at trial.
Rather, the roles of advocate and witness are entirely
irreconcilable and should not be undertaken by a single
individual. . . . [T]he advocate-witness dilemma “puts counsel in
the position of both advocate and witness, one of which requires
the lawyer to be partisan and the other of which requires him to
be factual. It thus robs the trial of that appearance of fairness
which should characterize every court hearing.”’” (Kennedy, at
p. 1210.)
In concluding Konvitz’s representation of Blue Rider at
trial while also testifying on its behalf would “detract from the
proper administration of justice,” the trial court quoted this
general description of the basis for the advocate-witness rule, as
well as comments explaining the parallel rule in the ABA Model
Rules of Professional Conduct (ABA Model Rule 3.7) and in the
ABA’s former Model Code of Professional Responsibility, all
pointing to the conclusion that the roles of advocate and witness
are inconsistent. The court then added its own observation that
these dual roles create the risk of error and confusion, and “the
17
trier of fact [here, the court itself] 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.”
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, 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. (See generally Lopez v. Lopez, supra,
81 Cal.App.5th at p. 424 [the ABA rule lacks any informed-consent
exception].)8 As discussed, in 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 (e.g., Lopez, at p. 423; Lyle v. Superior Court, supra,
122 Cal.App.3d at p. 482)—a showing that must be based on an
adequate factual record, not overarching statements of policy or
conclusory allegations by the party seeking disqualification. (See
Lopez, at p. 425; Smith, Smith & Kring v. Superior Court, supra,
8 Rather than the exception in California’s advocate-witness
rule for cases in which the client has given its informed written
consent, rule 3.7(a)(3) of the ABA Model Rules of Professional
Conduct allows a lawyer to act as an advocate at a trial in which
the lawyer is also likely to be a necessary witness when
“disqualification of the lawyer would work substantial hardship
on the client.”
18
60 Cal.App.4th at p. 582; see also Doe v. Yim, supra,
55 Cal.App.5th at p. 584 [trial court must make specific findings of
fact when deciding recusal motions under Rule 3.7].) No such
evidentiary showing was made here, and the trial court made none
of the required factual findings.
The court in Lyle v. Superior Court, supra, 122 Cal.App.3d
470, in issuing a peremptory writ of mandate directing the
superior court to vacate its order disqualifying a law firm because
two of its members intended to testify at trial, advised, “[T]he
trial court, when balancing the several competing interests,
should resolve the close case in favor of the client’s right to
representation by an attorney of his or her choice.” (Id. at
p. 482.) 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.
DISPOSITION
The September 20, 2021 order granting the motion to
disqualify Konvitz is reversed. Blue Rider is to recover its costs
on appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
MARTINEZ, J.
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