Judge: Michael J. Strickroth, Case: 2021-01208168, Date: 2023-07-31 Tentative Ruling

Motion to Disqualify Attorney of Record

Defendants/Cross-Complainants Sara Razavi and Ahmad Razavi Motion to Disqualify Plaintiffs’ Counsel, Pasha Vafaei and The MVP Law Group, is GRANTED. 

Plaintiffs’ Request for Judicial Notice is unnecessary as the Court need not take judicial notice of published California state cases in order to consider them.  The request for judicial notice is DENIED as to the declaration of Pasha Vafaei.

Rules of Professional Conduct, Rule 3.7 provides: “(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. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed.”

Lopez v. Lopez (2022) 81 Cal.App.5th 412, 423-424 states: “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.’ [Citations.] ‘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.” ’ [Citations.]” [¶] Rule 3.7 is limited on its face to trial. (Rules Prof. Conduct, rule 3.7(a) [absent specified exception, ‘A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness’ (italics added)]; see also ABA Model Rules Prof. Conduct, rule 3.7(a) [absent specified exception, ‘A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness” (italics added)].) In Yim, however, “to effectuate the rule's purpose of avoiding factfinder confusion,” we interpreted the rule's use of the term “trial” to encompass a “pretrial evidentiary hearing at which counsel is likely to testify. (Yim, supra, 55 Cal.App.5th at 583, 269 Cal.Rptr.3d 613.)”

“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.] ‘[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.’ [Citation.]”  Doe v. Yim (2020) 55 Cal.App.5th 573, 583–84.

Yim also provides,

“Further, though the parties cite no California authority on point, and we have found none, “most courts recognize that 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.’ [Citation.] In particular, a testifying attorney should not take or defend depositions.” (Waite, Schneider, Bayless & Chesley Co., L.P.A. v. Davis (S.D. Ohio 2015) 253 F.Supp.3d 997, 1018-1019; see also, e.g., LaFond Family Trust v. Allstate Prop. & Cas. Ins. Co. (D.Colo. Aug. 8, 2019, No. 19-cv-00767-KLM), 2019 WL 3734459, at *4–*7, 2019 U.S.Dist.LEXIS 133523 at *13-*18 [granting motion to disqualify counsel from taking or defending depositions “in furtherance of Rule 3.7’s purpose,” and rejecting asserted need for “separate factual inquiry” into likelihood of revelation at trial of dual role]; Lowe v. Experian (D. Kan. 2004) 328 F.Supp.2d 1122, 1127 (Lowe) [applying advocate-witness rule to disqualify counsel from participating in evidentiary hearings and in taking or defending depositions; “Depositions are routinely used at trial for impeachment purposes and to present testimony in lieu of live testimony when the witness is unavailable. Testimony from an oral deposition could not be easily read into evidence without revealing [counsel's] identity as the attorney taking or defending the deposition. Videotaped depositions present an even greater concern” (fn. omitted)].)”  Id., at 583.

Whether Pahsa Vafaei’s Testimony is Needed

Defendant moves to disqualify Plaintiffs’ counsel of record because discovery responses have revealed attorney Pasha Vafaei is a witness on a critical disputed issue – whether there was a contract or agreement for the sale of the subject property.  Defendants intend on calling attorney Vafaei as a witness because the existence of the agreement is a pivotal issue in this case.  If Pasha Vafaei is allowed to continue as counsel for Plaintiffs, Defendants are concerned he will assert attorney-client privileges and attorney-work product privileges during litigation including depositions of Plaintiffs, himself and other witnesses. 

In opposition, Plaintiffs have submitted declarations giving their informed consent for attorney Vafaei to continue representing them.  Both plaintiffs indicate they will not call Pasha Vafaei as a witness in their case so there is no exposure whatsoever of misleading the jury. 

But the fact that attorney Vafaei does not intend to testify as a witness for Plaintiffs does not mean he is not a key witness in this case.  Defendants dispute entering into an agreement for the sale of the subject property.  Attorney Vafaei purports to be the author of the agreement and witness to its execution.  It is difficult to understand how he would commit himself to not testify in this case especially when Plaintiffs do not dispute he is a key witness.  Plaintiffs know Defendants will call him as a witness. This is evident by the following statement in the opposition:  “…[I]n the event that the opposing counsel should call Mr. Vafaei to testify as to anything at trial, opposing counsel, and opposing counsel’s clients, will thereby have waived any objection to my being a witness at their insistence by their being the proponent of my testimony.”

The Possibility Opposing Counsel is Using the Motion to Disqualify for Purely Tactical Reasons

The motion was not filed as a litigation tactic as there has been only basic discovery in this action (as of the date the Motion was filed).  Defendants were then only recently made aware counsel is asserting to witness the purported agreement based on Plaintiffs’ responses to request for admissions and interrogatories.  Regardless of whether Plaintiffs’ consented to the conflict of interest and the current representation, counsel’s dual role as advocate and witness will prejudice Defendants and the integrity of the judicial process by, (1) confusing the jury, particularly with respect to any argument counsel could make as counsel regarding his own testimony as a witness; and (2) creating a conflict between counsel’s duty as a witness to tell the truth, even where the truth might harm Plaintiffs’ interests, and counsel’s duty to advocate for Plaintiff’s interests.  This confusion will necessarily occur because of counsel’s claimed personal knowledge of the alleged facts underlying this case, coupled with the fact that Plaintiffs are also his parents, will be indistinguishable from his role as an advocate for Plaintiffs.

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

At the time this motion was filed in January, the case was still in the preliminary stages with Plaintiffs not having even been deposed.  Further, Pasha Vafaei is the Plaintiffs’ son so very little, if any, legal fees have presumably been incurred by Plaintiffs.  Therefore, duplication of fees is likely not an issue. 

While Plaintiffs do have a strong interest in having the representation of their choice, and have expressed their informed consent, attorney Vafaei has an apparent conflict of interest in not only being the Plaintiffs’ son, but also a key witness in this case.  Under these circumstances, it will be nearly impossible for attorney Vafaei to act solely in an advocate capacity.

For the foregoing reasons, the Court GRANTS the motion to disqualify Pasha Vafaei and The MVP Law Group as counsel of record for Plaintiffs Hamid Vafaei and Sharareh Bahadin. 

Moving party to give notice.