In deciding a motion to disqualify a likely advocate-witness notwithstanding client consent, courts are required to consider multiple factors, including: (1) whether counsel’s testimony is, in fact, needed; (2) the possibility of using the motion to disqualify for purely tactical reasons; and (3) any prejudice to the opposing party and potential injury to the integrity of the judicial process. A motion to disqualify should not be granted absent factual findings of potential injury to the judicial process.
The advocate-witness rule in California states that 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. See California Rule of Professional Conduct, Rule 3.7. Comment 3 to Rule 3.7, citing Lyle v. Superior Court (1981) 122 Cal.App.3d 470, 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.”
A recent case, Geringer v. Blue Rider Finance (Cal. Ct. App., Aug. 22, 2023, No. B316718) 2023 WL 5359826, further explains the court’s discretionary power to disqualify a likely advocate-witness notwithstanding client consent—the exception to the exception. In Geringer, Geringer sued Blue Rider for the return of certain payments made prior to a settlement agreement the parties executed in an underlying litigation. Blue Rider filed a cross-complaint (and multiple amended cross-complaints), alleging that Geringer had fraudulently induced Blue Rider to sign the settlement agreement and that Blue Rider made a unilateral mistake when it signed the settlement agreement without noticing improperly inserted provisions. Id. at *2.
Approximately one month before the trial, Blue Rider filed a notice of association of counsel and a notice of Blue Rider’s informed consent to have Jeffrey Konvitz acting as both its trial counsel and a key witness in the case. Id. Geringer then filed an ex parte application under Rule 3.7 of the California Rules of Professional Conduct, specifically the comments to the rule discussing the exception to the client-consent exception, to preclude Konvitz from testifying at trial. The trial court took it under submission as a motion to disqualify and agreed with Geringer’s position, granting the motion, and finding that the integrity of the judicial process would be impaired if Konvitz served as both advocate and witness. Blue Rider appealed, contending that the court should have denied the motion due to Geringer’s excessive delay in raising the issue (and implied waiver) and that the order precluding Konvitz from representing it at trial was not supported by any evidence of prejudice to Geringer or detriment to the judicial process.
In considering the appeal, the court noted that the general rule under Rule 3.7 is that “an attorney may serve as both advocate and witness, testifying at trial concerning disputed issues, if the client has provided its informed written consent.” Id. at *5. “Disqualification of counsel when consent has been given must be based on a convincing showing of prejudice to the opposing party or the potential for palpable injury to the judicial process.” Id.
As the appellate court pointed out:
[I]n 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. [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.
Id. (internal citations and quotation marks omitted.)
Reiterating that the general rule is that an attorney may serve as both advocate and witness if the client has provided informed consent, the appellate court found that the record in Geringer was “devoid of the evidence necessary to support disqualification of Blue Rider’s chosen counsel. To the contrary, the timing of the motion and the fact the Geringer parties initially sought to preclude Konvitz’s testimony, not to disqualify him, strongly suggest the motion was filed for purely tactical reasons.” Id. First, Konvitz’s extensive involvement as counsel to Blue Rider in the underlying litigation supported the finding not only of prejudice, but extreme prejudice if he were disqualified. Second, it was readily apparent, based on the record, that Konvitz would likely be a key witness at trial and Geringer should have brought the motion to disqualify “months if not years ago.” Id. at *6. Third, the trial court erred in disqualifying Konvitz because it made no finding of prejudice to Geringer, and “detriment to the opponent” was not a factor in the trial court’s decision to disqualify Konvitz. Finally, the trial court made no required factual findings of a potential for injury to the integrity of the judicial process.
Based on the foregoing reasons, the trial court’s order granting the motion to disqualify Konvitz was reversed.
Practice Tips
Unlike other conflict-of-interest rules, client consent may not be sufficient to prevent disqualification when a lawyer who will be a witness also wants to serve as an advocate before the tribunal, given that the court has discretionary power to disqualify the lawyer notwithstanding the client’s consent. However, as the Geringer court found, the court’s discretion to disqualify a likely advocate-witness notwithstanding client consent is permissible only upon “a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.”
For further questions or comments on the content of this post, please email Matt Cave at [email protected] or Sara Borjigin at [email protected].
