In this case, the Second District affirmed a Los Angeles County trial court’s order granting D’s motion to disqualify P’s attorney—who was also P’s mother and D’s ex-wife—under the advocate witness rule,
“arguing that she would be a key witness in the parties’ dispute concerning whether he had exploited his marriage with Lee to sexually abuse her daughter and that, regardless of whether appellant had consented to Lee’s representation, Lee’s dual role as advocate and witness would prejudice Yim and the integrity of the judicial process. In opposition, appellant argued the advocate-witness rule did not prohibit Lee from representing her at any stage of the litigation, both because the rule is inapplicable to pretrial activities, and because appellant had provided informed written consent to Lee’s dual role at trial. Following a hearing, the trial court granted the motion to disqualify Lee from representing appellant in all phases of litigation, relying primarily on the advocate-witness rule. In disqualifying Lee from representing appellant even in pretrial activities, the court relied on a finding that Lee’s potential misuse of confidential information obtained through her 17-year marriage with Yim would prejudice Yim and the integrity of the judicial process.”
“On appeal, appellant contends the trial court abused its discretion in disqualifying Lee as her counsel because: (1) the advocate-witness rule does not apply to pretrial activities, and the court failed to make sufficient findings regarding the parties’ competing interests to warrant Lee’s disqualification at trial in the face of appellant’s consent to Lee’s dual role; and (2) no substantial evidence supported the court’s finding that Lee had acquired confidential information through her marriage to Yim that she could use to appellant’s advantage. Finding no error, we affirm. As discussed below, the court reasonably concluded that Lee is nearly certain to be a key witness at trial. Therefore, to effectuate the advocate-witness rule’s purpose of avoiding factfinder confusion, the court acted within its discretion in applying the rule to disqualify Lee not only at trial, but also in (1) depositions; and (2) pretrial evidentiary hearings at which Lee is likely to testify. The court also acted within its discretion in disqualifying Lee from representing appellant in all other phases of the litigation on the ground of Lee’s potential misuse of confidential information obtained through her 17-year marriage with Yim.”
Read the full court opinion here.
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