By Eric R. Deitz
Ethical rules, statutes and case law prescribe and proscribe the conduct of California lawyers. In a recent decision, the Court of Appeal, Second District, interpreted the attorney-witness rule and concluded it applies not only at trial but also in the context of pretrial activities.
In Jane CL Doe v. Yim,[1] decided October 5, 2020, the Second District Court of Appeal affirmed a trial court decision that because Doe’s mother and counsel was “nearly certain to be a key witness at [the] trial …” of Doe’s case against Yim for sexual abuse and other claims during the early part of his marriage to Tiffanie Lee, attorney Lee was disqualified from representing her daughter. The Court of Appeal determined the trial court acted within its discretion when disqualifying Lee from representing the appellant in all phases of the litigation on the ground of Lee’s potential misuse of confidential information obtained through her 17-year marriage with Yim.
In October of 2018, less than a year after Lee and Yim ended their 17-year marriage, Lee filed suit on behalf of her daughter related to the alleged sexual abuse of Doe by Yim between 2002 and 2006, when Doe was nine to 13 years old. In her suit, Doe alleged — among other claims — a breach of fiduciary duty because Yim represented himself to Doe and to the public as appellant’s stepfather, which gave rise to an alleged fiduciary relationship and breaches thereof.
Yim answered the complaint, and denied all allegations. He asserted he had no fiduciary relationship with Doe.
Yim moved to disqualify Lee as Doe’s counsel less than two months after the litigation began. He described Lee as a “crucial” witness to events during their marriage, which encompassed the entire period of the alleged abuse, and asserted Lee’s dual role as counsel and witness would violate Rule 3.7 of the Rules of Professional Conduct, which 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”
When rejecting Doe’s informed consent to representation by Lee, the trial court noted: “[I]t is not [appellant] who would suffer prejudice if Lee acts as both advocate and witness. [Yim’s] interest in the integrity [of] the judicial process is also at issue.” (Jane CL Doe v. Yim, 2020 Cal. App. LEXIS 932, at *8.) Noting the “near certainty” that Lee would be a witness at trial, the trial court found Lee’s continued representation “would undermine the integrity of the judicial process ….” (Id.)
The Court of Appeal mirrored the findings of the trial court. It noted that while neither California’s advocate-witness rule nor the official comments specify how the dual role of an attorney-witness may mislead the finder of fact, the analogue ABA Model Rule does.
Rule 3.7, comment 2, of the ABA Model Rules of Professional Conduct notes that: “A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” Applying the above to the facts of the case, the court held “Lee’s dual role posed the risk that the jury would be misled into accepting Lee’s assertions during closing argument as evidence based on her personal knowledge as a witness.” (Jane CL Doe v. Yim, 2020 Cal. App. LEXIS 932, at *18.)
Although the Court of Appeal found no California authority directly on point, it concluded the trial court did not abuse its discretion by disqualifying Lee from appearing as Doe’s counsel in pretrial proceedings that carry a risk of revealing an attorney’s dual role to a jury. Such occasions include depositions, which may be utilized at trial.
Lee could not “scrub” from her mind the confidential information she learned as Yim’s spouse. The risk that Lee would utilize this confidential information in connection with discovery and when negotiating settlement warranted a prophylactic and comprehensive disqualification of Lee as counsel for Doe. The court also noted that any attorney who replaced Lee as Jane Doe’s counsel would need to abide by his or her own ethical duties and avoid soliciting confidential information from Lee.
[1] Jane CL Doe v. Yim (Oct. 5, 2020, No. B299856) ___Cal.App.5th___ [2020 Cal. App. LEXIS 932, 2020 WL 5904454 ].