By Edward McIntyre
Eight months after her marriage ended, a lawyer sued her former husband on behalf of her adult daughter, alleging he had sexually abused her daughter throughout a four-year period of their 17-year marriage when the daughter was a minor, only 9 to 13 years old. The suit sought damages on several tort theories, including alleged breach of fiduciary duty to her daughter as stepparent and caregiver.
The former husband moved to disqualify the lawyer/former spouse under the advocate-witness rule (Rules of Professional Conduct, rule 3.7(a)).1 He argued she would be a key witness whether he had exploited his marriage with her to sexually abuse her daughter and, even if her daughter had given informed consent to the representation, the lawyer’s dual role as advocate and witness would prejudice the integrity of the judicial process—specifically, he contended, her role would confuse the jury particularly with respect to any argument she made as lawyer about her own testimony as witness; and would create a conflict between her duty as a witness to tell the truth, even where the truth might harm her daughter’s interests, and her duty as lawyer to advocate for her daughter’s interests.
The lawyer argued she had her daughter’s informed consent and that rule 3.7(a) only applied to trial, not pre-trial activities.
The trial court granted the motion to disqualify the lawyer from the case in its entirety; in disqualifying the lawyer from trial and certain pretrial events, the court relied on the advocate-witness rule; in disqualifying the lawyer from representing her daughter at all, the trial court found that the lawyer’s potential misuse of confidential information she obtained through her 17-year marriage with the defendant would prejudice him and the integrity of the judicial process.
The court of appeal affirmed. It agreed that the lawyer was nearly certain to be a key witness at trial and the trial court acted within its discretion to give effect to the advocate-witness rule—to avoid factfinder confusion—to disqualify the lawyer not only at trial but also in deposition and also pretrial evidentiary hearings at which she was likely to testify. The appellate court also agreed the trial court acted within its discretion to disqualify the lawyer from all other phases of the litigation because of the potential misuse of confidential information obtained during her marriage to the defendant.
The appellate court noted Comment to rule 3.7(a) that makes clear that a client’s informed consent is not absolute: “Notwithstanding a client’s informed 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 bring prejudiced.”
One purpose of the advocate-witness rule is to prevent factfinder confusion: is an advocate-witness’s statement to be considered proof or argument? It also avoids the risk a jury would tie a lawyer’s persuasiveness as advocate to the lawyer’s credibility as witness. In short, it would harm the opposing party and judicial integrity when a lawyer testifies, on a key issue in a case on which there is conflicting testimony, and the lawyer then argues to the jury why the lawyer’s testimony is more credible than the opposing testimony. The appellate court found no abuse of discretion in the trial court’s application of the advocate-witness rule at trial and certain pretrial activities: depositions and any pretrial hearing at which the lawyer would likely testify.
The appellate court also found that the trial court did not abuse its discretion disqualifying the lawyer from the balance of the litigation based on potential misuse of confidential information she had obtained during her 17-year marriage to the defendant, citing Rouse v. Seagate Technology, LLC (2007) 150 Cal.app.4th 210, 219 (A lawyer “may be disqualified where counsel has obtained the secrets of an adverse party … because the situation implicates the attorney’s ethical duty to maintain the integrity of the judicial process.”) Here, the lawyer had obtained confidential information from the defendant that she could use in drafting discovery requests and responses, preparing her daughter and other witnesses for deposition, formulating deposition questions, even if disqualified from taking or defending the depositions themselves, and negotiating settlement. The court also cited, among other authorities, McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083 (Law firm disqualified to prevent prejudice to opposing party from its exploitation of privileged email, where firm had formulated deposition questions based on email’s contents and quoted email in depositions and interrogatory responses).
The court found the total disqualification of the lawyer was a proper prophylactic measure.
The case is Doe v. Yim (2020) 55 Cal.App.5th 573.
Editor’s Note: An earlier Ethic in Brief also addressed this case, focusing on the advocate-witness rule. Because the court approved total disqualification based on confidential information obtained during the marriage, we thought separate treatment appropriate.