Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 200 

 

 

BACKGROUND 

This case involves a dispute over parking spaces.  Plaintiff Toni Kopek and Richard Lee live in a condominium building in Pacific Palisades and claim ownership of two parking spaces, G114 and G116.  They contend Defendants Bagram and Susanna Mardirossian are illegally occupying their parking spaces.  Richard Lee represents both himself and Ms. Kopek.   

This hearing is on Defendants’ motion to disqualify Richard Lee from appearing as both counsel and witness.  Defendants argue that allowing Lee to serve as both advocate and witness will violate the advocate-witness rule set forth in¿California Rule of Professional Conduct 3.7.  Defendants claims that if Lee were to serve in a dual role, the jury will be confused as to whether his statements are based on his personal knowledge or are arguments of counsel, resulting in prejudice to Defendants. 

 

LEGAL STANDARD 

The advocacy witness rule is set forth in California Rules of Professional Conduct, Rule 3.7, which states as follows:  

 

“(a) 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.” 

It is recognized that a trial court may disqualify counsel for a party based on a violation of Rule 3.7. ¿(Doe v. Yim (2020) 55¿Cal.App.5th¿573, 581-582.)  And the trial court’s determination will not be disturbed unless there is an abuse of discretion.¿ (Forrest v. Baeza (1997) 58¿Cal.App.4th¿65; see also,¿Kennedy v. Eldrige (2011) 201 Cal.App.4th 1197, 1203¿(“The trial court’s ruling is presumed correct, and reversal is permissible only when there is no reasonable basis for the trial court’s decision.”) 

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.” (Smith, Smith & Kring v. Superior Court (1997) 60¿Cal.App.4th¿573, 580-581.)  “[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.” (Yim, 55 Cal.App.5th at 582.)  

Further, while the advocacy witness rule provides that a lawyer can serve as both witness and counsel if he or she has obtained informed written consent from the client, a comment to the rule 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.” (Yim, 55 Cal.App.5th at 581-582; Lyle v. Superior Court (1981) 122 Cal.App.3d 470.)  In other words, a court retains discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is “a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.” (Lyle, 122 Cal.App.3d at 482.) 

Neither California’s advocate-witness rule nor its official comments specify how an advocate-witness’s dual role might mislead the trier¿of fact or prejudice the opposing party.¿However, this topic is addressed in an official comment to the rule’s national counterpart,¿rule 3.7 of the ABA Model Rules of Professional Conduct, addressing why the opposing party or the tribunal may have “proper objection” to the dual role: “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.” (ABA Model Rules Prof. Conduct, rule 3.7, com. 2.)   

California courts have agreed that one purpose of the advocate-witness rule is to prevent factfinder confusion regarding whether an advocate-witness’s statement is to be considered proof or argument.¿(See, e.g.,¿People ex rel. Younger v. Superior Court (1978) 86 Cal.App.3d 180, 196 (“the jury may have difficulty keeping properly segregated the arguments of the attorney acting as advocate and his testimony as a witness”).)¿ 

Courts have identified another, related purpose of avoiding the risk of “the jurors’ tying [counsel’s] persuasiveness as an advocate to his credibility as a witness”.  (Id. at 196; see also¿Donaldson, 93 Cal.App.4th at 928¿(“The very fact of a lawyer taking on both roles will¿affect the way in which a jury evaluates the lawyer's testimony, the lawyer’s advocacy, and the fairness of the proceedings themselves.”); Tuft et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2019) ¶ 8:378 (detriment to opposing party or judicial integrity “may be claimed where the attorney's testimony is on the key issue in the case on which there is conflicting testimony, and the attorney then proposes to argue to the jury why his or her testimony is more credible than the conflicting evidence”).)¿ 

“If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case.  An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.”  (Kennedy, 201 Cal.App.4th at 1208, citations, quotations omitted. 

DISCUSSION 

This case presents the unusual situation of an attorney representing himself as well as another Plaintiff.  Defendants do not challenge Lee’s right to serve as advocate and witness in his own case.  (Motion at 7:26-27.)  Indeed, they would not be able to do so given Lee’s undisputed right to proceed in pro per.  However, they claim Lee should not be allowed to serve in this dual role in the case brought by Ms. Kopek.  But Lee’s testimony is not necessary to Ms. Kopek’s case, which is based on a separate set of facts involving a separate parking space.  Accordingly, the first factor supporting application of the advocate-witness rule (whether counsel’s testimony is, in fact, genuinely needed) is not present here. 

Additionally, the motion to disqualify appears to be brought for purely tactical reasons, which weighs against granting the motion.  This case has been pending since 2019.  Defendants were fully aware that Lee was both representing himself and representing Ms. Kopek, and there was a possibility that if the case were tried, Lee would be testifying in his own case while also serving as counsel for Ms. Kopek in her case.  Defendants never brought a motion to sever, which further supports a finding that their motion to disqualify is purely tactical, designed solely to make the litigation more expensive for Ms. Kopek so that she may potentially abandon her claims.   

Finally, there is a strong interest in Ms. Kopek retaining the counsel of her choice, and in avoiding the duplicate expense and time-consuming effort of replacing counsel already familiar with the case.  Lee has been representing Ms. Kopek since the inception of the case, in 2019.  There is no doubt that there will be duplicate expense and prejudice to Ms. Kopek if she were now forced to find new counsel a month before trial (in May 2025).  

Defendants cite Doe v. Yim in support of their position, but Yim is clearly distinguishable.  In Yim, attorney Tiffany sought to represent her daughter Jane Doe in a tort action against her ex-husband, Charles, for Charles’ alleged sexual abuse of Doe.  Charles moved to disqualify Tiffany from acting as counsel for Doe under the advocate-witness rule, arguing that Tiffany would be a key witness in the case, and her dual role would prejudice Charles and the integrity of the judicial process.  There, unlike here, the attorney was not pursuing his own case, in conjunction with representing another Plaintiff.  And here, unlike there, the attorney’s testimony was not necessary to the other Plaintiff’s case.   

CONCLUSION 

Based on the foregoing, the Court DENIES Defendants’ motion for disqualification of Lee as counsel for Ms. Kopek.   

 

IT IS SO ORDERED. 

 

DATED: April 30, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court