Too Close for Combat

Doe v. Yim, No. B299856 (D2d4 Oct. 5, 2020) 

Eight months after her divorce became final, Mother, an attorney, represents her adult Daughter in an action alleging that her Ex-Husband sexually abused Daughter during the marriage while Daughter was a minor. Ex moves to DQ Mother, both under the attorney-witness rule and because Mother was privy to various marital confidences during her 17-year marriage to Ex. The trial court granted the motion.

The advocate-witness rule, currently codified as Rule of Professional Conduct 3.7, says an attorney cannot be an advocate in a trial where she is likely to be a witness unless the issue is minor or related to her fees. There’s an informed consent of the client exception, but the commentary explains that client consent isn’t enough of the representation will potentially mislead the jury or prejudice the opposing party. This can occur when, for instance, there can be confusion over when the attorney is testifying as to personal knowledge versus making arguments as an advocate. Further, although the rule is facially limited to trial representations, it has also been expanded to cover pre-trial testimony, as well as situations where it would reveal to the jury that a trial witness was, at one point, an advocate for one of the parties, such as taking and defending depositions. 

Here, there was no doubt that Mother would be a key trial witness on any number of highly contested topics. Given that, it was reasonable for the trial court to find that permitting her to participate as an advocate would be confusing to the jury or prejudicial, notwithstanding that Daughter might have given informed written consent. It was thus appropriate to DQ Mother from representing Daughter at trial, as well as in any pre-trial evidentiary hearings or depositions in the case.

Further, disqualification can also be ordered to protect against a lawyer’s running afoul of non-lawyer confidential or fiduciary relationships. Here, there is little doubt that much of what Mother knows and could testify to was obtained through communications over which Ex could invoke the martial communications privilege. See Evidence Code § 980. As an advocate, she further could use that knowledge to a strategic advantage in the litigation. Under the circumstances, disqualifying Mother as an attorney for Daughter was an appropriate prophylactic measure to prevent the potential misuse of confidential marital information.

Affirmed.