Judge: Maurice A. Leiter, Case: 24STCV05886, Date: 2025-04-01 Tentative Ruling

Case Number: 24STCV05886    Hearing Date: April 1, 2025    Dept: 54

Hearing Date: April 1, 2025

Department 54, Judge Maurice Leiter

Motion to Disqualify Counsel

Moving Party: Plaintiff Zetwerk Manufacturing USA, Inc.

Responding Party: None

T/R:      PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL IS GRANTED.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers. No opposition has been received.

Plaintiff moves to disqualify Defendants’ counsel, Michael A Bowse, and his law firm, Bowse Law Group, P.C. from representing Defendants on the ground that Bowse will be percipient witness in this action.

A disqualification motion may be based on an attorney’s dual roles as an advocate and a witness. “The ‘advocate-witness rule,’ which prohibits an attorney from acting both as an advocate and a witness in the same proceeding, has long been a tenet of ethics in the American legal system....” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1208.) Cal. Rules of Professional Conduct Rule 3.7 probits a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (CRPC Rule 3.7(a).)

However, “if a party is willing to accept less effective counsel because of the attorney's testifying, neither his opponent nor the trial court should be able to deny this choice to the party without a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.” (Lyle v. Superior Court (1981) 122 Cal.App.3d 470, 482.) “[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 and not as in Comden, in favor of complete withdrawal of the attorney.” (Id.)

Plaintiff argues that Bowse should be disqualified because he will be required to testify about the purported “sham” bankruptcy petition filed by Bowse on behalf of Defendant Global Merch NV. Plaintiff asserts that this petition was filed to defraud Defendant’s creditors and involved a scheme to get Defendants’ creditors to abandon their creditor claims. Plaintiff represents that Bowse will be a material witness regarding the underlying fraud and may be added as a party to this action as a co-tortfeasor with Defendants.

As an attorney generally cannot act as a witness, the Court will disqualify Bowse. Neither Bowse nor Defendants have filed an opposition to dispute whether Bowse will be a necessary witness, or to establish that Defendants wish to continue representation despite Bowse’s status as witness.

Plaintiff’s motion is GRANTED.