Doe v. Yim

• Decision Date: 05 October 2020
• Docket Number: B299856
• Citation: 269 Cal.Rptr.3d 613,55 Cal.App.5th 573
• Court: California Court of Appeals Court of Appeals
• Parties: Jane CL DOE, Plaintiff and Appellant, v. Charles Kwangsoo YIM, Defendant and Respondent.

55 Cal.App.5th 573

269 Cal.Rptr.3d 613

Jane CL DOE, Plaintiff and Appellant,

v.Charles Kwangsoo YIM, Defendant and Respondent.

B299856

Court of Appeal, Second District, Division 4, California.

Filed October 5, 2020

Tiffanie K. Lee for Plaintiff and Appellant.

Eugene V. Zech, Newport Beach, for Defendant and Respondent.

MANELLA, P. J.

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 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.

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.

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 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 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 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 5-210² 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...