Informed Written Consent

Geringer v. Blue Rider Finance, No. B316718 (D2d7 Aug. 22, 2023).

This is a very long-running dispute over some film financing. It purportedly settled back in 2010, but then a dispute over the settlement led to more litigation. The Lawyer who inked the settlement for Plaintiff is still its litigator, all these years later. Which poses a problem, because he’s now also a key witness.

Under Rule of Professional Conduct 3.7, a lawyer can’t try a case in which he or she is likely to be a witness unless: (1) the testimony is about something uncontested; (2) the lawyer is testifying about the nature and value of the services he rendered; or (3) the client gives informed written consent. Here, Lawyer informed the court of the issue, associated in a counsel to conduct his examination, and submitted a declaration from client that said client was aware of all the facts, and given that the lawyer has had the case for 16 years and the client’s near-insolvency, client had neither the time nor the wherewithal to hire another lawyer to get up to speed for a trial. 

Notwithstanding the informed written consent of the client, Defendant moved, first to exclude the testimony, and then to DQ. Defendant argued that it would be prejudiced and that the testimony of Lawyer would impair the judicial process. The trial court granted the motion.

If you know anything about California legal ethics, you know that California takes a client’s right to counsel of choice very seriously. There are very few things that limit that, provided there is informed written consent. Short of representing opposite sides of the same litigation, almost all conflicts are waivable. Same thing with Rule 3.7, which deviates from the national model rule on the point. 

If a client gives informed written consent, the fact that its trial lawyer is a witness can only lead to a DQ if the other side would be severely prejudiced or if it would seriously threaten the integrity of the judicial process. There’s a very messy family law case from 2011 where it happened. Once.

There’s no prejudice here to defendant. The anticipated trial was a bench trial, so there’s not even a jury to get confused. And on the other hand the prejudice to plaintiff would be enormous. Further, the record showed that Defendant knew Lawyer was going to be a witness for years. Yet they only raised the issue on the verge of trial and as an alternative remedy to excluding Lawyer’s testimony. That smacks of a strategic DQ, which is something that California legal ethics is very much not about.

Reversed.