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Case of the Month (from CFLR Monthly)

November 2020
[Archive]

Dual role of witness and advocate might confuse the jury. . .

 

In affirmance, Second District holds that trial court did not err by disqualifying plaintiff's mother from representing her in proceeding alleging sexual abuse by plaintiff's stepfather; the mother was likely to be a witness in the proceeding (in violation of the advocate-witness rule) and was presumed to have acquired confidential information during the marriage that would prejudice the stepfather and the integrity of the trial court.

 

Doe v. Yim

(October 5, 2020)

California Court of Appeal 2 Civil B299856 (Div 4) 55 Cal.App.5th 573, 269 Cal.Rptr.3d 613, 2020 FA 1957, per Manella, PJ (Collins and Currey, JJ, concurring). Los Angeles County: Kim, J, affirmed. For appellant: Tiffanie Lee, (213) 687-2650. For respondent: Eugene Zech, (949) 851-8036. CFLP §A.71.51.

 

Attorney Tiffanie Lee was married to Charles Yim from May 27, 2000, to January 28, 2018. Some eight months after the marriage ended, Lee's daughter, Jane CL Doe, represented by Lee, filed an action alleging that Yim had sexually abused her from the time that she was nine years old until she was 13, or from 2002 to 2006. Doe sought damages on several tort theories, including breach of the fiduciary duty that Yim owed her as her former stepfather and caregiver. In response, Yim denied all of the allegations.

 

Yim promptly moved to disqualify Lee from representing her daughter in the matter, citing the advocate-witness rule [Cal Rules of Prof Conduct, rule 3.7(a)], which provides that an attorney shall not act as advocate in a trial in which the attorney is likely to be a witness, except in specified situations. Yim acknowledged that Doe had given written consent to the representation but argued that Lee's continued representation would prejudice him and the integrity of the judicial process by confusing the trier of fact and creating a conflict between Lee's duty as an advocate and her duty as a witness. Doe countered that the rule did not apply to pretrial activities and that the mere fact that Yim had been Lee's husband should not require disqualification. In his reply brief, filed before trial, Yim claimed that Doe should be required to execute a declaration confirming her consent to her mother's representation; he feared that Lee was manipulating Doe and argued that Doe's consent did not cure the prejudice against him. Accordingly, he urged trial court to disqualify Lee from representing Doe in any aspect of the proceeding.

 

After a hearing, the trial court, in a written order, granted Yim's motion and disqualified Lee from representing Doe in any phase of the litigation. The trial court reasoned that it was a near certainty that Lee would be a witness at trial and that her continued representation would undermine the integrity of the judicial process due to the confidential information Lee was presumed to have acquired during her marriage to Yim. The trial court determined that the advocate-witness rule also barred Lee's representation, despite Doe's written consent.

 

After filing unsuccessful objections to the trial court's ruling, Doe appealed the disqualification, but the Second District affirmed.

 

Here, there, and everywhere. . .
Doe renewed her contention that the advocate-witness rule applies only to trial activities and not to pretrial proceedings. The justices didn't agree. They first noted that per a comment to Rules of Prof Conduct, rule 3.7(a), a trial court retains discretion to disqualify an attorney even if the client has given written consent, where disqualification would protect the trier of fact from being misled or the opposing party from being prejudiced. In applying the rule, the panel continued, the trial court must consider whether counsel's testimony is actually needed, the possibility that counsel is seeking disqualification for purely tactical reasons, and the party's strong interest in having representation of the party's choice. It must also take into account the expense and time consumption involved in replacing the existing counsel with a new attorney. The justices noted that the advocate-witness rule did not expressly state whether its prohibition included pretrial proceedings. However, they believed that "to effectuate the rule's purpose of avoiding factfinder confusion," the rule should apply to pretrial proceedings, including depositions and evidentiary hearings.

 

Which is which?. . .
Here, the panel found, the trial court reasonably concluded that Lee was likely to be a key witness at trial on topics relating to whether the alleged acts occurred, when she learned about them, and what medical and psychological treatment Doe required, among other relevant topics. Allowing Lee to act in a dual role of advocate and witness posed a risk of confusing the jury, the panel reasoned, because the jury would be uncertain as to whether Lee was telling them facts as a witness or explaining them as an advocate. The panel was not convinced that, as Doe asserted, the trial court failed to properly consider all of the factors necessary to decide whether to grant the disqualification motion. Summing up, the justices concluded that the lower court did not abuse its discretion in prohibiting Lee from representing Doe in pretrial matters, not just at trial.

 

Tell us another one. . .
The justices then turned to Lee's contention that there was no substantial evidence that she had acquired confidential information during her marriage that could be prejudicial to Yim during the trial. The justices pointed out that Lee could be presumed to have acquired confidential information during her marriage, since per Ev C §917(a), communications between spouses during marriage are presumed to be confidential. Moreover, given that the marriage lasted for 17 years, it was not realistic to assume that Lee hadn't learned things that could be used against Yim. Therefore, the panel found, disqualification was "a proper prophylactic measure" to ensure that no violation of Lee's ethical duty to keep those matters confidential occurred. Accordingly, the panel affirmed the trial court's orders.

 

 

COMMENT:

  

This opinion lays out the various technical and statutory reasons why Lee should be precluded from representing Doe. The justices also mention the allegation that Lee was manipulating Doe by encouraging her to file the action against Yim. That suggests to us a certain level of animosity on Lee's part, which would be expected to exist on these facts, if proven true. Animosity like that can easily cloud an attorney's judgment and performance at trial, to say nothing of turning a trial into an episode of The Jerry Springer Show. Just another reason to let another attorney handle a case that hits a little too close to home.

 

Library References
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶ 1:175

 

 

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