Judge: Elaine W. Mandel, Case: 22SMCV00273, Date: 2023-02-08 Tentative Ruling

Case Number: 22SMCV00273    Hearing Date: February 8, 2023    Dept: P

Tentative Ruling
Sofia Wolpert v. Richard Kendrick Slate et al., Case No. 22SMCV00273
Hearing Date February 8, 2023
Defendant Slate’s Motion for Protective Order

Defendant Slate argues plaintiff Wolpert’s husband, Russell Wolpert, Esq. has been taking and defending depositions, though he is not counsel of record. Slate seeks to prevent Mr. Wolpert from participating in depositions under the advocate-witness rule.

California Rule of Professional Conduct Rule 3.7(a) provides that a lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness. Under the advocate-witness rule, “an attorney who intends to testify at trial may not participate in any pretrial activities which carry the risk of revealing the attorney’s dual role to the jury.” In some instances, rule 3.7 prevents a testifying attorney from participating in pretrial litigation, such as a “tak[ing] or defend[ing] depositions.” Doe v. Yim (2020) 55 Cal.App. 5th 573, 583. Rule 3.7 (a)(3) includes an exception for instances where “disqualification of the lawyer would work substantial hardship on the client.”

Defendants intend to depose Mr. Wolpert, and they anticipate he will be called as a witness at trial, and discovery responses indicate Mr. Wolpert is likely to be a trial witness. Therefore, defendants argue Mr. Wolpert should be prevented from taking depositions.

Plaintiff Wolpert presented evidence that prohibiting Mr. Wolpert from taking depositions would “work a substantial hardship,” as she has stage 4 cancer and cannot realistically meet with other attorneys to explain the facts with precision, whereas Mr. Wolpert is already fully informed on the matters to be addressed at the deposition. Wolpert declaration ¶3. Slate does not meaningfully address Wolpert’s likely hardship in the motion or reply.

Mr. Wolpert will not appear as trial counsel, and there is no reason to believe his role in pre-trial discovery would be revealed to the jury. Considering the hardship exception to Rule 3.7(a)(3), the motion is DENIED.