Doe v. Yim

Case Number: B299856

Court: Cal. Ct. App.

Date Filed: 2020-10-06

Case Brief – Doe v. Yim

Court: COURT OF APPEAL OF THE STATE OF
Date: 2025-09-04
Case Number: B299856
Disposition: The appellate court affirmed the trial court’s order disqualifying Tiffanie K. Lee from representing appellant Jane C.L. Doe in any phase of the litigation and awarded costs to defendant Charles Kwangsoo Yim.

Holding

The court held that, notwithstanding the plaintiff’s informed written consent, the trial court did not abuse its discretion in applying California’s advocate‑witness rule and the inherent power to disqualify counsel; the rule’s purpose of preventing fact‑finder confusion and protecting the integrity of the judicial process justified disqualifying Lee from all pre‑trial and trial activities, and the court’s finding that Lee possessed potentially confidential information from her 17‑year marriage to Yim was supported by substantial evidence.

Narrative

Lead – In a rare intersection of family drama and professional ethics, the California Court of Appeal upheld a sweeping disqualification of a mother‑lawyer who also happened to be the ex‑wife of the defendant in a sexual‑abuse suit. The decision underscores the courts’ willingness to prioritize the integrity of the adversarial process over a client’s preference for counsel, even when the client has signed an informed‑consent waiver.

Procedural backdrop – Jane C.L. Doe filed her complaint on October 1, 2018 in Los Angeles Superior Court, alleging that Charles Kwangsoo Yim sexually abused her from ages nine to thirteen while he was married to her mother, Tiffanie K. Lee. The complaint asserted seven tort causes of action, two of which (breach of fiduciary duty and negligent infliction of emotional distress) hinged on the allegation that Yim, as a step‑parent, owed Doe a fiduciary duty. Yim denied the allegations and moved, within two months of filing, to disqualify Lee under California’s advocate‑witness rule (Rule 3.7(a), California Rules of Professional Conduct). The trial court granted the motion, ordering Lee’s disqualification from all phases of the litigation, including depositions, pre‑trial evidentiary hearings, and trial. Doe appealed, arguing (1) the rule applies only to trial advocacy, not to pre‑trial work, and (2) her written consent to Lee’s dual role cured any conflict, while also contending that the court lacked substantial evidence that Lee possessed confidential information from her marriage to Yim.

Key facts – The factual matrix is stark. Lee and Yim were married from May 27, 2000 to January 28, 2018—a period that fully encompasses the alleged abuse. Lee is Doe’s mother and, by virtue of the marriage, was a “spousal confidant” of Yim for 17 years. The complaint and the parties’ pleadings make it clear that Lee’s testimony would be material: she could be called to describe her presence (or lack thereof) at alleged abuse sites, to recount when and how Doe first disclosed the abuse, and to explain the dynamics of the step‑parent relationship. Lee herself acknowledged in a declaration that she expected to be called as a witness. The trial court found that Lee’s “near certainty” of testifying created a substantial risk of juror confusion and of prejudice to Yim, and that her marital communications with Yim were presumptively confidential under Evidence Code §§ 917 and 980.

Issues presented – The appellate panel addressed two intertwined questions:

1. Whether California’s advocate‑witness rule, which expressly bars a lawyer from acting as an advocate in a trial where the lawyer is likely to be a witness, can be extended to pre‑trial activities such as depositions and evidentiary hearings.

2. Whether the trial court’s finding that Lee possessed confidential marital information sufficient to prejudice Yim satisfied the “substantial evidence” standard required for reviewing a discretionary disqualification.

Court’s analysis –

Advocate‑witness rule scope – The court noted that the rule’s text limits the prohibition to “trial,” but that California precedent interprets “trial” broadly to include any pre‑trial hearing where testimony is taken on contested factual issues. Citing Younger v. Superior Court (86 Cal.App.3d 180, 196 (1978)) and the ABA Model Rules’ commentary, the court held that the rule’s purpose—preventing fact‑finder confusion and protecting the opposing party from prejudice—demands that a lawyer who is “near certain” to testify be barred from participating in any pre‑trial activity that could reveal the dual role to the trier of fact. Accordingly, Lee’s participation in depositions or evidentiary hearings would risk “juror confusion” and “misleading the jury” if her statements were later framed as advocacy.

Informed‑consent exception – While Rule 3.7(a) permits a lawyer to act as both advocate and witness with the client’s informed written consent, the rule’s official comment expressly reserves the court’s discretion to disqualify a lawyer “to protect the trier of fact from being misled or the opposing party from being prejudiced.” The appellate panel found that the trial court properly exercised that discretion. The court emphasized that the “risk of prejudice” to Yim was not speculative; Lee’s marital relationship gave her “special knowledge” of Yim’s whereabouts, finances, and personal attitudes—information that could be used to shape discovery, settlement negotiations, or trial strategy in ways unavailable to replacement counsel.

Confidential information – The court turned to the evidentiary privilege framework. Evidence Code §§ 917, 918, 919, and 980 create a rebuttable presumption that communications between spouses are confidential. The trial court’s finding that Lee “acquired confidential information” through a 17‑year marriage was therefore supported by “substantial evidence”—the undisputed fact of the marriage, the presumption of confidentiality, and the nature of the allegations (sexual abuse within the marital home). The appellate panel cited O’Gara Coach Co. v. Ra (30 Cal.App.5th 1115, 1129 (2019)) and Roush v. Seagate Technology (150 Cal.App.4th 210, 219 (2007)) to affirm that a court may disqualify counsel when the lawyer’s non‑lawyer confidential relationships create a realistic danger of misuse.

Discretionary standard – Under Code of Civil Procedure § 128(a)(5) and the controlling case In re Charlisse C. (45 Cal.4th 145, 159 (2008)), a trial court’s disqualification order is reviewed for abuse of discretion. The appellate panel found no abuse: the trial court identified the relevant factors (likelihood of testimony, potential for prejudice, and the client’s interest in counsel of choice), made explicit findings, and balanced them against the public interest in preserving judicial integrity. The court therefore affirmed the order in its entirety.

Closing analysis – Doe v. Yim delivers a clear message to California practitioners: the advocate‑witness rule is not a narrow, trial‑only injunction but a flexible tool that can reach into the pre‑trial arena whenever a lawyer’s personal relationship makes her “near certain” to testify. Even an informed‑consent waiver does not guarantee immunity from disqualification when the court determines that the risk of juror confusion or the misuse of confidential marital information outweighs the client’s preference for counsel. The decision aligns with a line of authority—Younger, Kennedy v. Eldridge, People v. Donaldson—that treats the rule as a safeguard of the adversarial process rather than a procedural technicality.

For litigators, the ruling underscores the importance of early conflict‑of‑interest screening, especially in family‑law contexts where spouses, former spouses, or close relatives may later become parties to the same litigation. Counsel should anticipate potential advocate‑witness issues and, where appropriate, consider proactive withdrawal or substitution before the case reaches the discovery stage. Moreover, the opinion reaffirms that courts will look beyond the formal language of a consent waiver to the substantive risk of prejudice, particularly when the attorney’s non‑lawyer relationship is as intimate as a 17‑year marriage.

Unresolved questions remain, however. The opinion did not address whether a “hardship” exception—allowing a lawyer to remain on the case despite the risk of confusion—could ever apply in a scenario where the lawyer’s testimony is central to the plaintiff’s claims. Additionally, the court’s broad reading of “trial” to include any evidentiary hearing may invite future disputes over the precise boundary between pre‑trial and trial activities, especially in complex civil actions where depositions are routinely used for impeachment. Practitioners should monitor how lower courts apply this expansive interpretation in the coming years.

Referenced Statutes and Doctrines

• California Rules of Professional Conduct, Rule 3.7(a) – Advocate‑witness rule; informed‑consent exception and judicial discretion.
• California Rules of Professional Conduct, Rule 1.0, Comment 4 – Use of other jurisdictions’ rules as persuasive authority.
• California Code of Civil Procedure § 128(a)(5) – Court’s inherent power to disqualify counsel.
• Evidence Code §§ 917, 918, 919, 980 – Spousal communications privilege and presumption of confidentiality.
• California Probate Code § 6068 – Attorney’s duty to uphold the integrity of the judicial process.

Key Cases Cited

• Younger v. Superior Court, 86 Cal.App.3d 180 (1978) – “Trial” includes pre‑trial evidentiary hearings.
• Kennedy v. Eldridge, 201 Cal.App.4th 1197 (2011) – Advocate‑witness rule’s purpose and discretion.
• People v. Donaldson, 93 Cal.App.4th 916 (2001) – Jury confusion from dual‑role counsel.
• In re Charlisse C., 45 Cal.4th 145 (2008) – Abuse‑of‑discretion standard for disqualification.
• O’Gara Coach Co. v. Ra, 30 Cal.App.5th 1115 (2019) – Disqualification where attorney possesses confidential non‑lawyer information.
• Roush v. Seagate Technology, 150 Cal.App.4th 210 (2007) – Ethical duty to avoid misuse of confidential information.
• Jarvis v. Jarvis, 33 Cal.App.5th 113 (2019) – Court’s power under § 128(a)(5).
• McDermott Will & Emery LLP v. Superior Court, 10 Cal.App.5th 1083 (2017) – Review of discretionary disqualification.