Department 58

Hearing Date: September 23, 2024

Case Name: Lisa Whitman v. Lisa de Morales, et al.

Case No.: 24STCV14312

Motion: Motion to Disqualify Counsel Scott Whitman

Moving Parties: Defendants/Cross-Complainants Thomas K. Britt and Lisa de Moraes (erroneously sued as Lisa de Morales)

Responding Party: Plaintiff/Cross-Defendant Lisa Whitman

Tentative Ruling: The motion to disqualify counsel Scott Whitman is denied.

This is an action between neighbors who share a common boundary in the rear of their properties. Plaintiff Lisa Whitman (Plaintiff) accuses neighbors Lisa de Moraes (de Moraes) and Thomas K. Britt (Britt) (collectively, Defendants) of assaulting her after her husband, Scott L. Whitman (Whitman), painted a fence that Plaintiff alleges separates the parties’ properties.

On June 7, 2024, Plaintiff filed a Complaint for (1.) assault, (2.) false imprisonment, and (3.) intentional infliction of emotional distress.

On June 30, 2024, Defendants filed a Cross-Complaint against Plaintiff and Whitman for (1.) assault, (2.) trespass, (3.) trespass, (4.) private nuisance, (5.) nuisance per se, (6.) declaratory relief, (7.) elder abuse, and (8.) intentional infliction of emotional distress. The Cross-Complaint alleges that Whitman did not have Defendants’ authorization or permission to paint the fence, which they claim belongs to them alone because it sits on their property.

On August 5, 2024, Defendants filed the instant motion to disqualify Whitman as Plaintiff’s counsel. On September 10, 2024, Plaintiff filed an opposition to the motion. On September 16, 2024, Defendants filed their reply.

Legal Standard

“A judge’s authority to disqualify an attorney has its origins in the inherent power of every court in the furtherance of justice to control the conduct of ministerial officers and other persons in pending judicial proceedings.”¿(Neal v. Health Net, Inc.¿(2002) 100 Cal.App.4th 831, 840;¿Code Civ. Proc., § 128,¿subd. (a)(5).)¿This power, which is ‘“inherent in every court”’ [citation], authorizes a trial court in either a civil or a criminal case to discharge an attorney who has a conflict of interest.” (People v. Noriega (2010) 48 Cal.4th 517, 524.)

“‘Disqualification motions implicate several important interests, among them are the clients’ right to counsel of their choice, the attorney’s interest in representing a client, the financial burden of replacing a disqualified attorney, and tactical abuse that may underlie the motion. [Citations.]” (Sundholm v. Hollywood Foreign Press Association (2024) 99 Cal.App.5th 1330, 1340.)

Discussion

Defendants move to disqualify Plaintiff’s counsel Whitman, arguing that even with Plaintiff’s consent, Whitman should not be allowed to represent Plaintiff in this proceeding because Whitman is Plaintiff’s spouse, a cross-defendant, and a material witness to the allegations in Plaintiff’s Complaint.

In opposition, Plaintiff argues the Court should not disqualify Whitman as her counsel of record because, among other things, (1) Plaintiff gave Whitman informed consent to represent her in this case; (2) Whitman’s testimony as a witness will be limited to uncontested facts (i.e., Whitman will stipulate to Defendants’ second cause of action for trespass since he admits he painted the fence at issue); and (3) Plaintiff has a strong interest in being represented by counsel of her choice and engaging new counsel would impose a financial burden on Plaintiff.

In reply, Defendants contend, among other things, that (1) Plaintiff’s argument that the real property issues in this case are uncontested is untrue; (2) Defendants have text messages showing that Whitman has personal knowledge about the assault incident alleged in Plaintiff’s Complaint; and (3) Plaintiff’s claim that hiring a new attorney would be costly is false because by admitting that Plaintiff hired Whitman on a contingency fee basis, Plaintiff has incurred no costs so far.

The advocate-witness rule

Rule 3.7 of the California Rules of Professional Conduct (Rule 3.7) prohibits a lawyer from “act[ing] 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.” (Emphasis added.)

“Comment 3 to Rule 3.7, … 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.’” (Geringer v. Blue Rider Finance (2023) 94 Cal.App.5th 813, 821–822 (Geringer).)

“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.’ [Citations.]” (Geringer, supra, 94 Cal.App.5th at p. 822 [emphasis added].) “‘[T]he trial court can disqualify counsel only where it is confronted with manifest interests which it must protect from palpable prejudice.’ [Citations.]” (Ibid.; see Maxwell v. Superior Court (1982) 30 Cal.3d 606, 619, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 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 as witness” (italics removed)]; Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4^th 573, 580 [“‘fact that the client has consented to the dual capacity must be given great weight’”].)

“‘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.]” (Geringer, supra, 94 Cal.App.5th at p. 822, quoting Doe v. Yim (2020) 55 Cal.App.5th 573, 583-584.)

“‘[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.’ [Citation.]” (Geringer, supra, 94 Cal.App.5th at p. 826.)

“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.” (Geringer, supra, 94 Cal.App.5th at p. 822 [emphasis added].)

Defendants fail to offer evidence to overcome Rule 3.7’s exception, much less a convincing showing. The first factor, whether counsel’s testimony is genuinely needed, has not been shown. Defendants offer no evidence of the testimony they expect Whitman will offer, and thus cannot show that it is genuinely needed. They also fail to show how such testimony would prejudice them or mislead the finder of fact.

Defendants’ failure to offer evidence is fatal to their motion. (Geringer, supra, 94 Cal.App.5^th at p. 826 [disqualification “must be based on adequate factual record…not conclusory allegations”]; Smith, Smith, supra, 60 Cal.App.4^th at p. 581 [disqualification vacated; “no declaration to demonstrate …how any testimony would be adverse to the integrity of the judicial process”]; Lopez v. Lopez (2022) 81 Cal.App.5^th 412, 425 [party seeking disqualification failed to challenge representation that attorney’s testimony would not concern underlying dispute, or to attempt, through discovery, to discern substance of testimony].) Defendants argue “justice and fairness require that Scott Whitman be disqualified as counsel ….” But to justify disqualification, a “convincing” showing “must be based on an adequate factual record, not overarching statements of policy or conclusory allegations by the party seeking disqualification.” (Geringer, supra, 94 Cal.App.5th at p. 826.) The Court is precluded from disqualifying Whitman on such a “limited factual record.” (Lopez, supra, 81 Cal.App.5^th at p. 425.) This first factor weighs against disqualification.

The second factor, whether disqualification is sought “for purely tactical reasons,” lacks evidence either way.

The third factor (i.e., “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”) also weighs against disqualification. Whitman is undoubtedly familiar with the case, and it will cost less for Plaintiff to retain her husband as counsel than to hire a third party. The fact that Plaintiff hired Whitman on a contingency fee basis does not warrant a different conclusion. After all, the third factor does not ask the Court to only consider Plaintiff’s interest in avoiding the “duplicate expense” of hiring counsel. It also requires the Court to look at Plaintiff’s interest in retaining Whitman as counsel and the time-consuming effort that will be involved in replacing him.

Scope of disqualification

The motion to disqualify also fails because it seeks Whitman’s immediate and total disqualification not only for trial, but for all purposes. Rule 3.7 does not expressly address pretrial representation. Nevertheless, the rule has been interpreted to encompass “a pretrial evidentiary hearing at which counsel is likely to testify.” (Doe v. Yim, supra, 55 Cal.App.5^th at p. 583.) Beyond testifying in court and participating in depositions, Rule 3.7 does not preclude disqualification in other pretrial activities. (Id. at pp. 585-586.) In Doe v. Yim, disqualification from other pretrial activities was affirmed not based on Rule 3.7, but on a finding of potential misuse of confidential information. (Id. at p. 586.) Here, Defendants cannot contend that Whitman acquired confidential information from them in a manner akin to the spousal relationship in Doe v. Yim.

In Lopez, supra, the trial court was found to have abused its discretion by disqualifying the attorney from all phases of litigation without recognizing that Rule 3.7 limits disqualification to advocacy “in a trial.” (Lopez, supra, 81 Cal.App.5^th at p. 425.) In that case, the trial court erroneously “extended the advocate-witness rule to all pretrial activities, including behind-the-scene activities unlikely to pose any risk of fact finder confusion, such as preparing a witness list or motion in limine.” (Ibid.) The Court of Appeal concluded that because the attorney’s “categorical disqualification from all pretrial activities was not supported by Rule 3.7’s text,” the trial court abused its discretion. (Id. at pp. 425-426.) Accordingly, the unjustified scope of Defendants’ motion is a further reason it must be denied.

Defendants have failed to offer evidence to overcome the exception in Rule 3.7 for the client’s informed written consent to her attorney being a potential witness at trial. Defendants have also failed to offer any legal justification for extending disqualification to all pretrial activities. Accordingly, the motion to disqualify Whitman from serving as Plaintiff’s counsel in this matter is denied.

Conclusion

The motion to disqualify counsel Scott Whitman is denied.