Doe v. Yim

Filed 10/5/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JANE CL DOE, B299856
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC723608)
v.
CHARLES KWANGSOO YIM,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark C. Kim, Judge. Affirmed.
Tiffanie K. Lee for Plaintiff and Appellant.
Eugene V. Zech for Defendant and Respondent.
INTRODUCTION
Roughly eight months after attorney Tiffanie Lee and
respondent Charles Kwangsoo Yim ended their 17-year
marriage, Lee represented her adult daughter, appellant
Jane CL Doe, in filing this action against Yim. Appellant
alleged Yim sexually abused her throughout a four-year
period early in his marriage to Lee, when appellant was a
minor. She sought damages on several tort theories of
liability, including a breach of Yim’s alleged fiduciary duty to
appellant as a stepparent and caregiver. Yim denied all
allegations and raised an affirmative defense that he had no
fiduciary duty to appellant.
Yim promptly moved to disqualify Lee as counsel 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
2
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.
3
PROCEEDINGS BELOW
A. The Pleadings
On October 1, 2018, appellant -- represented by Lee --
filed this action against Yim. The complaint alleged Yim
sexually abused appellant from 2002 to 2006 (when she was
nine to 13 years old), both in his car and in the home he
shared with appellant’s mother, to whom he was married at
the time. It further alleged that Yim represented himself to
appellant and the public as appellant’s stepfather, giving
rise to a fiduciary relationship, and that his sexual abuse
breached a fiduciary duty to appellant “as a parent and as a
caregiver.” Relatedly, it alleged, “In fear of potentially
breaking up her new family if she were to tell anyone about
what [Yim] did to her, [appellant] tried to maintain her
silence throughout all these years, agonizing over the
incidents and . . . carrying that permanent scar into her
adulthood.” Appellant asserted seven tort causes of action,
including two -- breach of fiduciary duty and negligent
infliction of emotional distress -- premised on Yim’s alleged
fiduciary duty to appellant. She sought damages, including
emotional distress damages, special damages for the costs of
medical and psychological care, and punitive damages.
Yim filed an answer denying all allegations. Among
other affirmative defenses, he asserted that appellant failed
to mitigate damages and that he had no fiduciary
relationship with appellant.
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B. The Motion to Disqualify Lee
Less than two months after the complaint was filed,
Yim moved to disqualify Lee as appellant’s counsel. Yim
declared that Lee was appellant’s mother and his ex-wife, to
whom he had been married from May 27, 2000, to January
28, 2018 (encompassing the entire four-year period of alleged
abuse).1 Arguing that Lee’s relationships with the parties
made clear that she was a “crucial” witness, he moved to
disqualify Lee on the ground that her dual role as counsel
and witness would violate the advocate-witness rule. (See
Rules Prof. Conduct, rule 3.7(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” (fn. omitted)].) He argued that even
if appellant had provided informed consent to Lee’s
representation, Lee should be disqualified because her dual
role would prejudice Yim and the integrity of the judicial
process by, inter alia: (1) confusing the jury, particularly
with respect to any argument Lee made as counsel regarding
1 In her complaint, appellant alleged that Lee and Yim’s
marriage was void on the ground that when they married, Yim
was already married to another woman. The record includes no
evidence supporting this allegation or otherwise challenging
Yim’s declaration that he and Lee were married from May 27,
2000, to January 28, 2018.
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her own testimony as a witness; and (2) creating a conflict
between Lee’s duty as a witness to tell the truth, even where
the truth might harm appellant’s interests, and Lee’s duty
as counsel to advocate for appellant’s interests.
In an opposition filed by Lee, appellant argued the
advocate-witness rule was inapplicable because she had
provided Lee with informed written consent to Lee’s trial
representation even if Lee were to be called as a witness (as
Lee asserted in a concurrently filed declaration). Appellant
further argued that the advocate-witness rule did not bar
Lee from representing appellant in pretrial activities, as the
rule speaks only of trial. She asserted that Lee’s “mere
relationship” to Yim as his ex-wife did not warrant
disqualification, and argued that Yim’s predictions of
prejudice from Lee’s dual role were speculative. In the
course of the latter argument, she objected to Yim’s
implication that Lee’s duty to advocate for her client might
influence her to testify untruthfully, surmising, “Perhaps
[Yim] is so used to lying that he naturally projects his
habitual tendencies to others as well.”
In a reply brief, Yim argued the court should require
appellant to confirm her informed consent to Lee’s dual role
in a declaration of her own, asserting appellant was “being
manipulated by her mother to make false allegations against
[Yim] as part of Ms. Lee’s vindictive course of conduct
following the parties’ acrimonious divorce.” He again argued
that, in any event, appellant’s consent could not cure the
anticipated prejudice to him and the integrity of the judicial
6
process. He argued Lee should be disqualified from
representing appellant not only at trial but also in all
pretrial activities, predicting that she would otherwise
“attempt to avail herself of ABA’s Rule 3.7 hardship
exception to avoid disqualification at the time of trial as well,
arguing that it is too late for another attorney to get up to
speed at that point in the litigation.” (See ABA Model Rules
Prof. Conduct, rule 3.7(a) [“A lawyer shall not act as
advocate at a trial in which the lawyer is likely to be a
necessary witness unless: [¶] . . . [¶] . . . [¶] disqualification
of the lawyer would work substantial hardship on the
client”].)
C. The Trial Court’s Ruling
After a hearing, during which Lee proposed to
withdraw from the case at the time of trial, the trial court
issued a written order granting Yim’s motion to disqualify
Lee from representing appellant in “all phases of this
litigation.” Accepting Lee’s undisputed evidence that she
had obtained appellant’s informed consent to her dual role,
the court nevertheless found the informed-consent exception
to the advocate-witness rule inapplicable, explaining, “[I]t is
not [appellant] who would suffer prejudice if Lee acts as both
advocate and witness. [Yim]’s interest in the integrity [of]
the judicial process is also at issue.” Noting the “near
certainty” that Lee would be a witness at trial, the court
found Lee’s continued representation “would undermine the
integrity of the judicial process,” explaining, “Lee has
7
acquired information about [appellant and Yim] as a mother
and ex-wife and lacks professional distance. Allowing her to
act as advocate for [appellant] would constitute a violation of
Rule 5-210[2] and would also confuse the jury as to Lee’s role
in the action.” It expressly rejected Lee’s argument that her
disqualification should be limited to trial, explaining, “Lee
would not only have a conflict if called as a witness, she has
percipient knowledge which would give her an unfair
advantage against [Yim,] with whom she had a confidential
relationship.” It elaborated, “The court strongly disagrees
with Lee that the ‘mere relationship’ as an ex-wife is
insufficient to support disqualification. The term ‘mere’ is a
serious understatement -- a spousal relationship enjoys
special privileges because it is one of the most substantial of
human relationships while it exists. [¶] The claim of
prejudice is not, as Lee puts it, speculative; it is palpable.
Lee has special knowledge of facts which can be exploited at
deposition or trial. [¶] . . . [¶] . . . Retaining co-counsel does
not solve the problem -- Lee could still . . . direct the
litigation and could use another attorney as a ‘mouthpiece’
for her own tactical decisions.”
Appellant filed objections to the court’s statement of
decision on the ground that the court had neither stated
2 “Former Rule 5-210 has been superseded by Rule 3.7
[citations].” (1 Witkin, Cal. Proc. (5th ed. 2020) Attorneys, § 462.)
Appellant does not challenge the trial court’s analysis on the
basis of its reference to the former version of the advocate-
witness rule.
8
“factual findings to support or justify its decision” nor
addressed Lee’s proposal to withdraw at the time of trial.
The court overruled the objections, stating, “1. The court has
stated all facts necessary to support its decision. [¶] 2. The
court need not address ‘offers’ to withdraw at a later time.
The court found that Tiffanie Lee was disqualified for all
phases of this litigation.”
Appellant timely appealed.
DISCUSSION
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.
A. Disqualification Principles
A trial court’s authority to disqualify an attorney
derives from its inherent power, codified at Code of Civil
Procedure section 128, subdivision (a)(5), to control the
conduct of its ministerial officers and of all other persons
connected with its proceedings in furtherance of justice.
(Jarvis v. Jarvis (2019) 33 Cal. App. 5th 113, 129 (Jarvis).)
Disqualification may be ordered as a prophylactic measure
9
against a prospective ethical violation likely to have a
substantial continuing effect on future proceedings. (City of
San Diego v. Superior Court (2018) 30 Cal. App. 5th 457, 462,
471-472; but see In re Jasmine S. (2007) 153 Cal. App. 4th
835, 843 [“‘an appearance of impropriety by itself does not
support a lawyer’s disqualification’”].)
“‘Generally, a trial court’s decision on a disqualification
motion is reviewed for abuse of discretion.’” (In re Charlisse
C. (2008) 45 Cal. 4th 145, 159.) Under this standard, the
trial court’s legal conclusions are reviewed de novo, but its
factual findings are reviewed only for the existence of
substantial evidence supporting them, and its “‘application
of the law to the facts is reversible only if arbitrary and
capricious.’” (Ibid.)
B. The Advocate-Witness Rule
Appellant contends the trial court abused its discretion
in applying the advocate-witness rule to disqualify Lee as
her counsel, arguing that the rule does not apply to pretrial
activities, and that the court failed to make sufficient
findings to warrant Lee’s disqualification at trial in the face
of appellant’s consent to Lee’s dual role.
1. Principles
“The ‘advocate-witness rule,’ which prohibits an
attorney from acting both as an advocate and a witness in
the same proceeding, has long been a tenet of ethics in the
American legal system, and traces its roots back to Roman
10
Law.” (Kennedy v. Eldridge (2011) 201 Cal. App. 4th 1197,
1208 (Kennedy).) California’s current version of the
advocate-witness rule provides, “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.” (Rules Prof. Conduct, rule 3.7(a), fn.
omitted.) 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.” (Id., com. 3, asterisk omitted, citing Lyle v.
Superior Court (1981) 122 Cal. App. 3d 470 (Lyle).) 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.” (Lyle, supra, at 482.)
Neither California’s advocate-witness rule nor its
official comments specify how an advocate-witness’s dual
role might mislead the trier of fact or prejudice the opposing
party. However, this topic is addressed in an official
comment to the rule’s national counterpart, rule 3.7 of the
ABA Model Rules of Professional Conduct, addressing why
11
the opposing party or the tribunal may have “proper
objection” to the dual role: “A witness is required to testify
on the basis of personal knowledge, while an advocate is
expected to explain and comment on evidence given by
others. It may not be clear whether a statement by an
advocate-witness should be taken as proof or as an analysis
of the proof.” (ABA Model Rules Prof. Conduct, rule 3.7, com.
2.)3 California courts have agreed that one purpose of the
advocate-witness rule is to prevent factfinder confusion
regarding whether an advocate-witness’s statement is to be
considered proof or argument. (See, e.g., People v.
Donaldson (2001) 93 Cal. App. 4th 916, 928-929 (Donaldson)
[quoting from foregoing comment]; People ex rel. Younger v.
Superior Court (1978) 86 Cal. App. 3d 180, 196 (Younger)
[“the jury may have difficulty keeping properly segregated
the arguments of the attorney acting as advocate and his
testimony as a witness”].) They have identified another,
related purpose of avoiding the risk of “the jurors’ tying
[counsel’s] persuasiveness as an advocate to his credibility as
a witness . . . .” (Younger, supra, at 196; see also Donaldson,
supra, at 928 [“‘The very fact of a lawyer taking on both roles
3 “‘[E]specially where there is no conflict with the public
policy of California, the [ABA] Model Rules serve as a collateral
source for guidance on proper professional conduct in California.’”
(Kennedy, supra, 201 Cal. App. 4th at 1210; see also Rules Prof.
Conduct, rule 1.0, com. 4 [“for guidance on proper professional
conduct . . . rules and standards promulgated by other
jurisdictions and bar associations may also be considered”].)
12
will affect the way in which a jury evaluates the lawyer’s
testimony, the lawyer’s advocacy, and the fairness of the
proceedings themselves’”]; Tuft et al., Cal. Practice Guide:
Professional Responsibility (The Rutter Group 2019) ¶ 8:378
[detriment to opposing party or judicial integrity “may be
claimed where the attorney’s testimony is on the key issue in
the case on which there is conflicting testimony, and the
attorney then proposes to argue to the jury why his or her
testimony is more credible than the conflicting evidence” ].)
The advocate-witness rule does not expressly address
pretrial representation. (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)].
Nevertheless, to effectuate the rule’s purpose of avoiding
factfinder confusion, we interpret the rule’s use of the term
“trial” to encompass a pretrial evidentiary hearing at which
counsel is likely to testify. (See Younger, supra, 86
Cal.App.3d at 192-193 [concluding, in dicta, that prosecutor
violated California’s then-current version of
advocate-witness rule, notwithstanding rule’s limitation to
“trial,” by both testifying and arguing about photographic
identification procedures during pretrial hearing; “the word
‘trial’ is broad enough to include a pretrial hearing at which
the testimony of witnesses is taken and a contested fact
13
issue is litigated”].) 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 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)].
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
14
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.” (Smith,
Smith & Kring v. Superior Court (1997) 60 Cal. App. 4th 573,
580-581 (Smith).) “[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. at 582.) The
court’s exercise of discretion must be affirmed on appeal if
there is any fairly debatable justification for it under the law.
(See McDermott Will & Emery LLP v. Superior Court (2017)
10 Cal. App. 5th 1083, 1124 (McDermott).)
2. Analysis
The trial court acted within its discretion in applying
the advocate-witness rule to disqualify Lee from
representing appellant at trial, in evidentiary hearings at
which Lee is likely to testify, and in taking or defending
depositions. The court reasonably concluded that Lee is
almost certain to be a key witness at trial, as the pleadings
support reasonable inferences that the parties will seek
Lee’s testimony on some or all of the following topics: (1)
whether she was present with Yim or appellant at or near
the time of any of the alleged acts of sexual abuse
(potentially relevant to whether the acts occurred); (2) when
15
appellant first told Lee about the alleged sexual abuse
(potentially relevant to appellant’s implied allegation that
her emotional distress was exacerbated by her efforts to
remain silent about the abuse, and to Yim’s anticipated
defense, consistent with his assertion that Lee induced
appellant to fabricate her claims after her divorce from Yim);
(3) what appellant told Lee about the alleged sexual abuse
(potentially relevant to the credibility of appellant’s
testimony regarding the abuse); (4) Lee’s knowledge of
appellant’s claimed damages, including costs of medical and
psychological care that Lee might have arranged or paid
(potentially relevant not only to appellant’s damages claims,
but also to Yim’s affirmative defense of failure to mitigate
damages); and (5) the extent to which Lee invited and
enabled Yim to establish a parental relationship (potentially
relevant to appellant’s causes of action premised on Yim’s
alleged fiduciary duty to her “as a parent and as a
caregiver,” and to her allegation that her efforts to remain
silent were motivated by “fear of potentially breaking up her
new family”).
It was also reasonable for the court to conclude that
Lee’s dual role posed a risk of misleading the jury and
prejudicing Yim, warranting disqualification regardless of
appellant’s consent. (See Rules Prof. Conduct, rule 3.7(a),
com. 3; Lyle, supra, 122 Cal. App. 3d at 482.) Lee’s dual role
posed the risk that the jury would be misled into accepting
Lee’s assertions during closing argument as evidence based
on her personal knowledge as a witness. (See Donaldson,
16
supra, 93 Cal. App. 4th at 929 [“‘It may not be clear whether a
statement by an advocate-witness should be taken as proof
or as an analysis of the proof’”].) Such juror confusion could
prejudice Yim. For example, if Lee were to argue -- as she
asserted in the opposition brief filed on appellant’s behalf --
that Yim is a habitual liar, a juror might mistake this
argument as evidence based on her extensive personal
knowledge of Yim. (See Kennedy, supra, 201 Cal. App. 4th at
1200-1201, 1209 [trial court acted within its discretion in
applying advocate-witness rule, among other considerations,
to disqualify counsel from representing his son in dispute
over custody of his grandson, where counsel was head of
son’s household and nearly certain to testify at trial
regarding material factual disputes, including whether
marijuana was smoked at home; risk of confusion at trial
had been demonstrated in counsel’s assertion during motion
hearing that he prohibited smoking at home, as his assertion
could be viewed as argument, testimony, or offer of proof
concerning his son’s testimony or his own].) Such risks of
factfinder confusion supported Lee’s disqualification from
representing appellant not only at trial, but also in (1)
depositions; and (2) pretrial evidentiary hearings at which
Lee is likely to testify. (See, e.g., Younger, supra, 86
Cal.App.3d at 192-193; Lowe, supra, 328 F. Supp. 2d at 1127;
Dunn v. Miceli (D.Colo. Apr. 22, 2015, Civ. A. No. 14-cv-
03068-MSK-NYW) 2015 U.S.Dist.LEXIS 52786, at *22-*25
[applying advocate-witness rule to disqualify counsel from
representing his daughter “in any pretrial activity that could
17
be admissible at trial” in daughter’s medical malpractice
action, where counsel had long been active participant in
daughter’s medical care].)
Contrary to appellant’s contention, the court’s
statement of decision reflected proper consideration of all
factors germane to its discretion under the advocate-witness
rule. First, as explained above, the court reasonably
concluded that there was a “near certainty” Lee would
testify.4 (See Smith, supra, 60 Cal. App. 4th at 581.) Second,
in concluding that Lee’s dual role would prejudice Yim, the
court impliedly considered and rejected the possibility that
Yim sought to disqualify Lee for purely tactical reasons.
(See ibid.) Finally, in expressly accepting the undisputed
evidence that appellant had consented to Lee’s dual role, and
explaining why it nevertheless deemed the informed-consent
exception inapplicable due to the risk of prejudice to Yim
and to the integrity of the judicial process, the court
demonstrated it had considered appellant’s interest in
remaining represented by counsel of her choice. (See id. at
580.) Appellant did not assert this interest was heightened
by any purported burden in retaining new counsel or in
paying for duplication of Lee’s efforts to date. (See ibid.)
The court was not required to speculate on these matters on
its own motion, particularly given that Yim moved to
4 Appellant did not dispute that Lee would testify; on the
contrary, she conceded her informed written consent to Lee’s dual
role at trial was “required” under the advocate-witness rule.
18
disqualify Lee in the early stages of the litigation. Nor was
the court required to make additional findings of fact, as the
material facts before the court were effectively undisputed.
(See Hetos Investments, Ltd. v. Kurtin (2003) 110
Cal. App. 4th 36, 49-51 [rejecting appellant’s contention that
trial court violated Smith’s requirement to “‘make specific
findings of fact when weighing the conflicting interests,’”
where there were no material factual disputes].)
In sum, in light of the near certainty that Lee will be a
key witness at trial, Yim’s interests and the integrity of the
judicial process would likely be prejudiced were Lee
permitted to participate as counsel at trial, in any
evidentiary hearing at which she is likely to testify, or in
taking or defending a deposition. Thus, notwithstanding
appellant’s consent to Lee’s dual role, the trial court acted
within its discretion in disqualifying Lee from representing
appellant in those activities. We need not address whether
the advocate-witness rule supported the court’s additionally
disqualifying Lee from representing appellant in all other
pretrial activities, as we find an independent ground for that
disqualification below.
C. Potential Misuse of Confidential Information
Appellant contends no substantial evidence supported
the trial court’s finding that Lee had acquired confidential
information through her 17-year marriage to Yim that she
could use to appellant’s advantage in litigating appellant’s
claims of sexual abuse during the marriage, and that the
19
court therefore abused its discretion in relying on that
finding to extend her disqualification to all phases of the
litigation.
1. Principles
“‘The power [to disqualify counsel] is frequently
exercised on a showing that disqualification is required
under professional standards governing avoidance of . . .
potential adverse use of confidential information.’” (Jarvis,
supra, 33 Cal.App.5th at 129.) Even in the absence of an
official standard on point, “counsel may be disqualified
where counsel has obtained the secrets of an adverse
party . . . because the situation implicates the attorney’s
ethical duty to maintain the integrity of the judicial process.”
(Roush v. Seagate Technology, LLC (2007) 150 Cal. App. 4th
210, 219.) The attorney’s duty to uphold the integrity of the
judicial process includes a more specific duty, in judicial
proceedings, to honor obligations of confidentiality arising
from nonlawyer confidential or fiduciary relationships. (See
O’Gara Coach Co., LLC v. Ra (2019) 30 Cal. App. 5th 1115,
1129 (O’Gara Coach) [affirming disqualification of company’s
former president and COO as counsel for former employees
suing company, where counsel’s potential advantageous use
of confidential information obtained in his former nonlawyer
capacity would violate his duty as attorney to maintain
integrity of judicial process]; DCH Health Services Corp. v.
Waite (2002) 95 Cal. App. 4th 829, 832-833 (DCH) [implying
in dicta that because trial court found defense counsel’s wife
20
“had received confidential information pertinent to the
underlying action while she served on the [plaintiff]
foundation’s board,” court would have had discretion to
disqualify counsel had foundation sought disqualification
and shown that counsel received confidential information
from his wife]; cf. In the Matter of Schooler (Review Dept.
2016) 5 Cal. State Bar Ct. Rptr. 494, 502-504 (Schooler)
[recommending that attorney be disbarred in part because
her actions in nonlawyer capacity as trustee and executor of
her parents’ estate and trusts violated fiduciary duties under
Probate Code, thereby violating ethical duty of all attorneys,
codified at Bus. & Prof. Code, § 6068, to support state laws].)
A spouse has a privilege, even after the marriage ends,
“to prevent another from disclosing” the contents of a
communication made in confidence between the spouses
during the marriage. (Evid. Code, § 980.) This privilege
resembles privileges attendant to other confidential
relationships. (See, e.g., Evid. Code, § 954 [client has
privilege “to prevent another from disclosing” confidential
attorney-client communication]; Imwinkelried, The New
Wigmore, Evidentiary Privileges (3d. ed. 2016) § 6.3 [“For
the most part, the [same] general rules . . . apply across the
board to all absolute communications privileges,” including
spousal, attorney-client, clergy-penitent, and
psychotherapist-patient communications privileges].)
Communications between spouses during their marriage are
presumed to be confidential. (Evid. Code, § 917, subd. (a) [“If
a privilege is claimed on the ground that the matter sought
21
to be disclosed is a communication made in confidence in the
course of the lawyer-client, . . . psychotherapist-patient,
clergy-penitent, [or] marital . . . relationship, the
communication is presumed to have been made in
confidence”].) “[T]he opponent of the claim of privilege has
the burden of proof to establish that the communication was
not confidential.” (Ibid.; see also People v. Bryant, Smith
and Wheeler (2014) 60 Cal. 4th 335, 420 [opponent has
burden to rebut presumption that spousal communication is
confidential by preponderance of evidence]; Blau v. U.S.
(1951) 340 U.S. 332, 333-334 [reversing husband’s criminal
contempt conviction for refusing to disclose wife’s
whereabouts to grand jury and court, where husband’s
knowledge of wife’s whereabouts was undisputedly based on
marital communication and government made no effort to
overcome presumption of confidentiality].)5
5 Though the presumption of a spousal communication’s
confidentiality arises only on a showing of preliminary facts,
those facts are limited to the making of the communication
during the marital relationship. (See Imwinkelried, The New
Wigmore, Evidentiary Privileges (3d ed. 2016) § 6.8 [in
jurisdictions like California, that recognize rebuttable
presumption of confidentiality for certain communications, “[t]he
presumption arises when the alleged holder shows both that
there was a communication and that the parties to the
communication stood in a protected relationship such as
spouses”]; cf. Fish v. Superior Court (2019) 42 Cal. App. 5th 811,
818 [“‘Once the claimant establishes the preliminary facts of a
psychotherapist-patient relationship, the burden of proof shifts to
the opponent of the privilege’”]; Roman Catholic Archbishop of
(Fn. is continued on the next page.)
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2. Analysis
We have already concluded the trial court acted within
its discretion in disqualifying Lee from representing
appellant at trial and in certain pretrial activities. We now
conclude the court acted within its discretion in disqualifying
Lee with respect to all remaining activities throughout the
litigation.
The undisputed fact of Lee’s 17-year marriage to Yim,
viewed in light of the pleadings and the unrebutted
presumption that information obtained through spousal
communications is confidential, was substantial evidence in
support of the court’s finding that Lee possessed confidential
information she might use to appellant’s advantage (and
Yim’s disadvantage) throughout the litigation. The court
reasonably could infer that Lee obtained confidential
information from Yim that she could use in drafting
discovery requests and responses, preparing appellant and
other witnesses for deposition, formulating deposition
questions (even if disqualified from taking and defending
depositions herself), and negotiating settlement, including
information on: (1) Yim’s whereabouts during each alleged
act of abuse; (2) Yim’s interactions with and feelings toward
appellant over the years he allegedly functioned “as a parent
and as a caregiver”; (3) Yim’s relations with other
Los Angeles v. Superior Court (2005) 131 Cal. App. 4th 417, 442 &
fn. 12 [similar, regarding clergy-penitent communications
privilege].)
23
prospective witnesses; and (4) Yim’s finances. (See
McDermott, supra, 10 Cal. App. 5th at 1122 [substantial
evidence supported trial court’s finding disqualification was
necessary to prevent prejudice to opposing party from law
firm’s exploitation of privileged email’s contents, where firm
had formulated deposition questions based on email’s
contents and quoted email in depositions and interrogatory
responses]; Kennedy, supra, 201 Cal. App. 4th at 1200, 1205-
1208 [affirming order disqualifying attorney and his firm
from representing his son in dispute over custody of his
grandson, in part based on firm’s potential advantageous use
of confidential information about opposing party and her
household obtained through firm’s prior representation of
opposing party’s father in divorce case].) Obviously, Lee
could not scrub such confidential information from her mind,
or cordon it off from information obtained from other sources.
She was thus uniquely positioned to take advantage of
confidential information to which she alone was privy, in
violation of her duties to uphold the integrity of the judicial
process and support state laws. (See O’Gara Coach, supra,
30 Cal. App. 5th at 1129; DCH, supra, 95 Cal. App. 4th at 832-
833; Schooler, supra, 5 Cal. State Bar Ct. Rptr. at 502-504.)
The disqualification order was a proper prophylactic
measure. There is no reason to suspect replacement counsel
will attempt to solicit confidential information from Lee, in
violation of that counsel’s ethical obligations and Lee’s duties
of confidentiality. (See Addam v. Superior Court (2004) 116
Cal. App. 4th 368, 372 [courts should presume attorneys
24
behave ethically and honor duties of confidentiality].) Thus,
replacement counsel will not be in a position to exploit such
information. (See McDermott, supra, 10 Cal. App. 5th at
1123-1125 [trial court acted within its discretion in
disqualifying law firm that had used privileged email,
notwithstanding court’s separate order precluding further
use of email or documents referencing it, in part because
firm’s attorney with personal knowledge of information
contained in those documents had “greater capacity than any
replacement counsel to exploit the information”].)
In sum, the trial court acted within its discretion in
disqualifying Lee in all phases of this litigation as a
prophylactic measure against prejudice to Yim and the
integrity of the judicial process arising from Lee’s dual role
as an advocate-witness and her potential misuse of
confidential information. The authority appellant herself
identifies as the “most relatable” supports this conclusion.
(See Kennedy, supra, 201 Cal. App. 4th at 1200 [“A plethora of
family entanglements, potential misuse of confidential
information, a conflict posed by the near-certain prospect
that counsel will have to testify, and the preservation of the
integrity of the judicial system all coalesce to support the
trial court’s disqualification order”].) We see no basis for
appellant’s prediction that disqualification of her mother
from representing her in litigation against her former
stepfather and her mother’s ex-husband over events
occurring in the course of the marriage will “open the
floodgate of abusive disqualification motions.” (Cf. People v.
25
Peoples (1997) 51 Cal. App. 4th 1592, 1594, 1598 [trial court
acted within its discretion in disqualifying counsel on
“unique” facts presented, where counsel “appeared on behalf
of her brother, accused of assault with a deadly weapon,
against her former husband and father of her children, who
were themselves percipient witnesses to the altercation”].)
We trust trial courts to detect -- and reject -- abuses of the
advocate-witness rule and duties of confidentiality,
particularly where the targeted attorney’s personal
relationships with the parties are not so close, or so closely
related to the subject matter of the parties’ dispute, as Lee’s
relationships with her ex-husband and his alleged victim.
26
DISPOSITION
The disqualification order is affirmed. Yim is awarded
his costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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