Filed 7/20/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

CYNTHIA LOPEZ,

Plaintiff and Appellant,

v.

KENNETH LOPEZ,

Defendant and Respondent.

 B315959

 (Los Angeles County

 Super. Ct. No. BC669038)

APPEAL from an order of the Superior Court of Los 

Angeles County, Jon R. Takasugi, Judge. Reversed.

Daniel Boone, for Plaintiff and Appellant.

Law Offices of Dilip Vithlani and Dilip Vithlani, for

Defendant and Respondent.
2

INTRODUCTION

In this opinion, we hold the trial court failed to apply

the proper legal standards, and thereby abused its 

discretion, in disqualifying attorney Daniel Boone from 

representing appellant Cynthia Lopez under the advocatewitness rule. We publish to further clarify the standards

applicable to a disqualification motion under the advocatewitness rule, having previously done so in affirming an 

attorney’s disqualification in Doe v. Yim (2020) 55 

Cal.App.5th 573 (Yim). 

In 2015, appellant, then proceeding pro se, brought this 

action against respondent Kenneth Lopez, her brother, 

alleging he had falsely accused her of committing crimes

against him and their elderly parents. In January and 

February 2016, respondent emailed Boone (appellant’s

husband since June 2015, her former coworker at his law 

firm, and later her counsel in this action), warning that if 

appellant did not settle the action, respondent would file a 

cross-complaint the next day, which he did. The court 

subsequently dismissed respondent’s cross-complaint. In 

May 2017, appellant retained Boone to represent her pro 

bono or at a discounted rate, having been advised by Boone

that he would likely need to testify at trial, and having 

executed informed written consent to Boone’s representation 

notwithstanding his expected dual role as advocate and 

witness. Appellant then filed a first amended complaint, 

adding allegations concerning respondent’s emails to Boone, 

and a claim of malicious prosecution based on respondent’s
3

filing of his dismissed cross-complaint. Boone continued 

representing appellant in this action for over four years.

In August 2021, two months before trial, respondent 

moved to disqualify Boone as appellant’s counsel under 

California’s advocate-witness rule, viz., rule 3.7 of the Rules 

of Professional Conduct (Rule 3.7). Appellant opposed the 

motion, principally relying on Rule 3.7’s exception for cases 

in which the attorney has obtained the client’s informed 

written consent to the attorney’s dual role. Appellant also 

argued respondent’s disqualification motion was untimely 

and tactically motivated. Although neither party specified 

the precise subject matter of Boone’s expected testimony, 

appellant represented his testimony would concern his 

receipt of respondent’s January and February 2016 emails, 

and the emails’ undisputed contents. 

In September 2021, the court held a hearing, issuing in 

advance a tentative ruling disqualifying Boone from all 

phases of the litigation. Appellant observed that the 

tentative ruling failed to apply Rule 3.7 and its informedconsent exception, instead applying rule 3.7 of the ABA 

Model Rules of Professional Conduct (the ABA Rule), which 

was not binding and lacked any informed-consent exception. 

Appellant also argued the tentative ruling was overbroad in 

disqualifying Boone from all phases of the litigation because, 

inter alia, Rule 3.7 is limited on its face to trial. The same 

day, the court adopted its tentative ruling, finding

respondent’s motion timely and not tactically motivated, and 

applying the ABA Rule to disqualify Boone from all phases of 
4

the litigation. The court did not cite Rule 3.7, address the 

rule’s informed-consent exception, or find that Boone’s 

disqualification was necessary “to protect the trier of fact 

from being misled or the opposing party from being 

prejudiced.” (Rules Prof. Conduct, rule 3.7(a), com. 3.) Nor 

did the court address Rule 3.7’s limitation to advocacy “in a

trial.” (Id., rule 3.7(a).)

On appeal from the disqualification order, appellant 

contends the court abused its discretion by (1) failing to 

apply the proper legal standards in disqualifying Boone 

under the advocate-witness rule; and (2) erroneously finding 

that respondent’s disqualification motion was timely and not 

tactically motivated. 

Agreeing with appellant’s first contention, we need not 

reach her second. We conclude the court abused its 

discretion in disqualifying Boone from all phases of the 

litigation because it failed to apply the proper legal 

standards, viz., Rule 3.7’s informed-consent exception and

limitation to trial. Accordingly, we reverse the 

disqualification order.

PROCEEDINGS BELOW

A. Early Litigation and Prior Appeal

In November 2015, appellant, proceeding pro se, 

initiated this action against respondent, her brother,

asserting claims of defamation and infliction of emotional 

distress. (Lopez v. Lopez (June 10, 2019, No. B287383) 2019 

Cal.App.Unpub. LEXIS 3976, at *2 (Lopez I).) Appellant 
5

alleged that in 2014 and early 2015, respondent falsely 

accused her of committing bank fraud and identity theft 

against him and their elderly parents. (Ibid.) In January 

2016, respondent filed a cross-complaint. (Ibid.) In January 

2017, appellant retained attorney Justin Romig to represent 

her in this action. In February 2017, the trial court (Judge 

Richard Rico) dismissed respondent’s cross-complaint. 

(Ibid.)

In May 2017, appellant filed a substitution-of-attorney 

form replacing her former counsel with Boone, her husband 

since June 2015 and her former coworker at Boone’s law 

firm. In June 2017, appellant filed a first amended 

complaint, reasserting her original claims for defamation 

and emotional distress and adding new claims for malicious 

prosecution (based on respondent’s filing of his dismissed 

cross-complaint), abuse of process, and “‘[i]njunctive [r]elief.’” 

(Lopez I, supra, 2019 Cal.App.Unpub. LEXIS 3976, at *2-*3.) 

The first amended complaint newly alleged that in January 

2016, respondent defamed appellant by email to her former 

coworkers. 

In September 2017, respondent filed a special motion 

to strike the first amended complaint under Code of Civil 

Procedure section 425.16 (anti-SLAPP motion). (Lopez I, 

supra, 2019 Cal.App.Unpub. LEXIS 3976, at *4.) In

opposition to the anti-SLAPP motion, appellant submitted, 

inter alia, a declaration from Boone. (Id. at *5.) Boone 

declared that on January 27, 2016 (the day before 

respondent filed his cross-complaint), respondent emailed 
6

Boone at Boone’s law firm (appellant’s former workplace), 

encouraging Boone to advise appellant to settle the matter, 

and indicating respondent would otherwise report the 

matter to various government agencies and file a crosscomplaint.1 On February 15, 2016, respondent again 

emailed Boone, stating in relevant part: “[M]ore evidence 

came to light about your wife that is very damning. Since 

you are married you will ultimately be responsible for any 

judgment’s [sic] against your wife.” Boone declared that 

respondent’s emails were immediately and permanently

accessible not only to Boone but also to all other firm 

employees. 

1

Respondent’s January 2016 email to Boone, submitted as 

an exhibit, read: “I hope [appellant] showed you my settlement 

offer. If not[,] I have provided it as an attachment. Your wife has 

gotten herself into trouble once again. My attorney feels she 

needs some consul [sic] from someone that is rational. I intend to 

go to the district attorney’s office and the FBI tomorrow, as well 

[sic] report this matter to the credit agencies, FINRA and 

Comptroller of the Currency. I also have a [sic] friends with 

various state agencies that deal with this kind of issues regarding 

banks and elderly people. I hope you weigh the cost and benefits 

of continuing with [appellant]’s irrational behavior. E-mails 

containing mine [sic] and my parents[’] financial records were in 

fact disseminated without our written authorization. The 24 

h[ou]rs I gave [appellant] expire at approximately 5 p.m. today.” 

The attachment stated that if appellant did not timely accept 

respondent’s settlement offer, respondent would file a crosscomplaint. As noted, respondent filed his cross-complaint the 

next day.
7

In November 2017, the court denied respondent’s

anti-SLAPP motion. (Lopez I, supra, 2019 Cal.App.Unpub. 

LEXIS 3976, at *6.) Respondent filed an appeal, to which 

appellant responded, still represented by Boone. (Id. at *1.) 

In July 2019, we reversed the anti-SLAPP order with respect 

to one claim immaterial to this appeal, but otherwise 

affirmed the denial of respondent’s anti-SLAPP motion, 

allowing the majority of appellant’s claims to proceed. (Id. at 

*1-*2, *20.)

B. Association and Illness of Co-Counsel

From August 2019 to May 2021, Boone continued to 

represent appellant in moving to recover fees and costs 

incurred in opposing respondent’s anti-SLAPP motion, 

litigating discovery motions, and engaging in discovery. In 

May 2021, three months before trial was set to begin, 

appellant filed an association-of-attorney form signed by 

attorney Michael Trauben, designating Trauben’s law firm 

as Boone’s co-counsel. 

In July 2021, appellant filed an ex parte application for 

a trial continuance, based principally on Trauben’s expected 

unavailability due to a medical emergency that had 

hospitalized him and would require surgery in mid-August. 

In support of the continuance request, Boone declared, inter 

alia, that Trauben’s association as “co-counsel and trial 

counsel” had been necessary because Boone was “expected to 

be a witness at trial.” At a hearing on the request, 

respondent did not oppose a short continuance, but 
8

questioned why Boone could not “do the trial” alone; 

respondent did not acknowledge or object to Boone’s 

expressed intent to testify at trial. 

The court continued the hearing to August 12, 2021. 

On that date, the court found appellant had failed to produce 

sufficient information concerning Trauben’s health to 

establish good cause for a continuance, but nevertheless

continued the trial to October 18, 2021, to account for 

developments in the COVID-19 pandemic. At the conclusion 

of the August 12 hearing, the court held an informal 

discovery conference (IDC) in chambers, which was not 

reported. During the IDC, Boone again stated he intended

to testify at trial.

C. Disqualification Motion

On August 23, 2021, respondent filed a motion to 

disqualify Boone as appellant’s counsel under the advocatewitness rule, viz., Rule 3.7.

2 Respondent acknowledged he 

2

“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 

(Fn. is continued on the next page.)
9

did not know the subject matter of Boone’s expected 

testimony, but asserted, “[I]t hardly takes an evidentiary 

foundation to believe that whatever [Boone] testifies to will 

involve contested issues.” Without attempting to identify 

any contested issue to which Boone’s testimony might be 

relevant, respondent argued that allowing Boone to continue 

representing appellant would prejudice respondent and the 

integrity of the judicial process, because the jury might be 

confused as to whether Boone’s statements at trial were 

evidence or argument. Respondent’s motion papers 

mentioned that Boone was appellant’s husband, but did not 

seek to disqualify Boone on this ground. 

The next day, the court held a hearing on respondent’s

ex parte application to shorten the time for hearing the 

disqualification motion. The court repeatedly stated it was

“shocked” to have learned Boone was married to his client. 

Respondent emphasized that his motion was based on the 

advocate-witness rule. Through an associate from Trauben’s 

firm, appellant represented that Boone’s expected testimony 

would concern only “minor uncontested issues” related to 

“his receipt of a few emails from defendant, and undisputed 

contents therein.” Respondent did not dispute this 

representation, but argued that Boone’s testimony would be 

to both testify and serve as an advocate, to protect the trier of 

fact from being misled or the opposing party from being 

prejudiced.’” (Yim, supra, 55 Cal.App.5th at 581-582.)
10

“predisposed” toward appellant in light of their marriage. 

The court set the motion for hearing on September 16, 2021. 

D. Opposition and Reply

On September 9, 2021, appellant filed a written

opposition to respondent’s disqualification motion, supported 

by declarations from appellant and Boone. Appellant 

declared that in April 2017 (three months after she had 

retained attorney Romig), having found she could no longer 

afford Romig’s services, she asked Boone to represent her 

pro bono or at a discounted rate. According to both 

declarations, Boone advised appellant he would likely need 

to testify at trial, explained potential problems associated 

with his expected dual role as advocate and witness, and

recommended that she obtain independent advice on the 

matter. In May 2017, after obtaining independent advice

from other attorneys, appellant executed informed written 

consent to Boone’s dual role.3Throughout his 

representation, Boone provided his services pro bono or, in 

the case of “extensive motion practice and oral argument,” at 

a discounted hourly rate of $150. 

3

In an attached document, signed by appellant and Boone 

and dated May 1, 2017, appellant attested under penalty of 

perjury that she consented to Boone’s representation, after 

having been fully advised of the potential problems posed by 

Boone’s dual role, and having sought the advice of independent 

counsel. Appellant’s September 2021 declaration “reiterate[d]” 

her consent. 
11

In her opposition brief, appellant argued that under 

Rule 3.7’s informed-consent exception, Boone’s 

disqualification was precluded as a matter of law, or at least 

unwarranted in light of the balance of interests at stake.

Appellant argued she would be prejudiced by Boone’s 

disqualification notwithstanding the association of Boone’s 

co-counsel, because his co-counsel could not prepare for trial 

as successfully or cost-effectively without assistance from 

Boone, whom appellant knew to be capable and who 

provided his services to her pro bono or at a discounted rate.

In contrast, she argued, respondent had failed to show that 

allowing Boone to continue representing her would cause 

any prejudice to respondent or to the integrity of the judicial 

process. Appellant further argued the disqualification 

motion was untimely and tactically motivated, as respondent 

had been put on notice during the anti-SLAPP litigation that 

Boone would likely testify at trial “about [respondent]’s 

email showing malice,” but respondent had raised no 

objection to Boone’s dual role until Boone’s co-counsel 

suffered a medical emergency on the eve of trial. Finally, 

appellant observed that respondent had failed to identify 

any prohibition against an attorney representing the 

attorney’s spouse, as no such prohibition existed.4

4 We note that the Rules of Professional Conduct 

affirmatively imply a lawyer is not prohibited from representing 

the lawyer’s spouse. (See Rules Prof. Conduct, rule 1.8.10(a) [“A 

lawyer shall not engage in sexual relations with a current client 

(Fn. is continued on the next page.)
12

In reply, respondent asserted he was “not arguing that 

Mr. Boone should not represent Plaintiff,” but instead was 

seeking to “disqualify Mr. Boone as counsel because he has 

chosen to testify on his wife’s behalf so that [respondent] can 

get a fair trial . . . .” Respondent implied appellant’s 

informed written consent was defective because it was 

executed before the adoption of Rule 3.7, and argued that in 

any event, her consent did not preclude disqualification to 

avoid prejudice to respondent and to the integrity of the 

judicial process.

5

E. Hearing and Ruling

On September 16, 2021, the court held a hearing on 

respondent’s disqualification motion, confirming at the 

who is not the lawyer’s spouse or registered domestic partner, 

unless a consensual sexual relationship existed between them 

when the lawyer-client relationship commenced” (italics added)].)

5 On appeal, respondent argues appellant’s informed written

consent was defective because it was not given on the record, 

citing the following comment to Rule 3.7: “‘A lawyer’s obligation 

to obtain informed written consent may be satisfied when . . . the 

client gives informed consent on the record in court before a 

licensed court reporter or court recorder who prepares a 

transcript or recording . . . .’” (Rules Prof. Conduct, rule 3.7(a), 

com. 2, italics added.) However, this comment does not require

that informed written consent be given in this manner. In any 

event, the trial court did not find appellant’s informed written 

consent was defective, and it would have erred had it done so for 

the reason advanced by respondent without allowing appellant

an opportunity to give consent on the record.
13

outset that counsel had read its tentative ruling 

disqualifying Boone. Appellant observed that the tentative 

ruling failed to apply Rule 3.7, instead applying the ABA 

Rule, which was not binding and lacked any informedconsent exception.6

 Appellant also requested clarification of 

the scope of the tentative ruling, observing that Rule 3.7 was 

limited on its face to trial, and arguing that respondent’s 

reply brief sought disqualification only at trial (which 

respondent denied). Otherwise, appellant generally 

repeated the arguments in her written opposition.

Respondent submitted on the tentative ruling, but 

additionally asserted that his motion papers sought Boone’s

disqualification “for all purposes,” including representation

“behind the scenes.” The court indicated it would verify 

whether respondent’s motion papers had sought such broad 

disqualification and, if so, disqualify Boone from all phases 

of the litigation, including the preparation of trial material 

such as a witness list or motion in limine. 

6

The ABA Rule provides: “A lawyer shall not act as advocate 

at a trial in which the lawyer is likely to be a necessary witness 

unless: [¶] (1) the testimony relates to an uncontested issue; [¶] 

(2) the testimony relates to the nature and value of legal services 

rendered in the case; or [¶] (3) disqualification of the lawyer 

would work substantial hardship on the client.” (ABA Model 

Rules Prof. Conduct, rule 3.7(a).) As noted by appellant, the ABA 

Rule is not binding in California. (See Frye v. Tenderloin 

Housing Clinic, Inc. (2006) 38 Cal.4th 23, 52, fn. 12.)
14

Later that day, the court issued an order disqualifying 

Boone as appellant’s counsel from all phases of the litigation

under the ABA Rule. The court did not cite Rule 3.7 or its 

informed-consent exception. Although the court noted

appellant had relied on her informed written consent, the 

court did not otherwise discuss her consent. 

In disqualifying Boone under the ABA Rule, the court

acknowledged “it [wa]s unclear what precise testimony Mr. 

Boone intend[ed] to provide.” Without addressing 

appellant’s representations that Boone’s testimony would 

concern respondent’s January and February 2016 emails to 

Boone, the court further stated, “[I]t appears that Mr. Boone 

intends to provide substantive testimony concerning the 

underlying family dispute on behalf of Plaintiff, who is his 

wife.” The court reasoned: “Mr. Boone would not just be 

expected to present objective testimony for a client who he is 

also advocating for, but would [also] be expected to present 

objective testimony for his wife in a highly contested family 

matter while also advocating for her as her attorney. This 

dual role clearly impairs his credibility as a witness and 

diminishes his effectiveness as an advocate. [¶] . . . [¶]

Because Plaintiff already associated with co-counsel in May 

2021, the Court is persuaded that no prejudice will result to 

Plaintiff as a result of this disqualification.” The court did 

not find that Boone’s dual role posed a risk of misleading the 

jury or prejudicing respondent. Nor did the court address 

appellant’s argument that Boone’s co-counsel could not 
15

prepare for trial as successfully or cost-effectively without 

Boone’s assistance.

The court rejected appellant’s arguments that: (1) the 

disqualification motion was untimely and tactically 

motivated; and (2) respondent’s reply brief had limited the 

scope of the requested disqualification to trial. The court did 

not address the ABA Rule’s language limiting its prohibition 

to advocacy at trial (or the corresponding language in Rule 

3.7).7

DISCUSSION

Appellant contends the trial court abused its discretion 

in disqualifying Boone from representing her in all phases of 

the litigation under the advocate-witness rule. As explained 

below, we agree.

7

In a prefatory comment, the court stated: “The Court was 

recently shocked to learn Plaintiff and Plaintiff’s counsel -- in this 

family dispute matter -- were married with the possibility of 

Plaintiff’s counsel reaping personal financial gain in any 

judgment awarded to his wife.” However, the court did not 

purport to disqualify Boone because of the marriage, or because 

of any financial interest Boone might have had in the outcome. 

Nor did it apply a “‘shock’ test,” as appellant contends. It applied 

only the ABA Rule.
16

A. Principles

1. Attorney Disqualification

“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. 

[Citation.] Disqualification may be ordered as a prophylactic 

measure against a prospective ethical violation likely to have 

a substantial continuing effect on future proceedings.” (Yim, 

supra, 55 Cal.App.5th at 581; 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.”’ 

[Citation.] 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.”’” (Yim, supra, 

55 Cal.App.5th at 581.) “However, the trial court’s 

discretion is limited by the applicable legal principles.” 

(People ex rel. Dept. of Corporations v. SpeeDee Oil Change 

Systems, Inc. (1999) 20 Cal.4th 1135, 1144 (SpeeDee Oil); 

accord, In re Charlisse C. (2008) 45 Cal.4th 145, 150 [“we 

conclude the trial court applied the wrong legal standard in 

ordering [public law office]’s disqualification and therefore 

abused its discretion”].) “In any event, a disqualification 
17

motion involves concerns that justify careful review of the 

trial court’s exercise of discretion.” (SpeeDee Oil, supra, 20 

Cal.4th at 1144.) 

2. The Advocate-Witness Rule

Rule 3.7 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 
18

integrity of the judicial process.’”

8 (Yim, supra, 55 

Cal.App.5th at 582, quoting Lyle, supra, at 482.)

Rule 3.7 is limited on its face to trial. (Rules Prof. 

Conduct, rule 3.7(a) [absent specified exception, “A lawyer 

8

Appellant argues the informed-consent exception is 

absolute -- in other words, that “once written informed consent is 

given, the inquiry ends and the disqualification motion should be 

denied.” But the caselaw on which appellant relies is outdated. 

Decades before the adoption of Rule 3.7, our Supreme Court 

commented, in dicta, that in adopting the informed-consent 

exception in 1979, “the State Bar ha[d] concluded that a fully 

informed client’s right to chosen counsel outweighs potential 

conflict or threat to trial integrity posed by counsel’s appearance 

as witness.” (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 

619, fn. 9 (Maxwell), italics omitted, disapproved on another 

ground by People v. Doolin (2009) 45 Cal.4th 390.) More recently, 

but still before the adoption of Rule 3.7, a federal district court

concluded that informed written consent “ends the inquiry,” 

criticizing Lyle, supra, 122 Cal.App.3d 470 for having “invented 

carve-outs that are absent from the language of the rule.” (Real 

Estate Training International, LLC v. Nick Vertucci Companies, 

Inc. (C.D. Cal. 2015) 124 F.Supp.3d 1005, 1006-1007; accord,

Ultimate Fitness Ctr., LLC v. Wilson (S.D.Cal. Nov. 21, 2016, No. 

16-CV-418 JLS (JMA)) 2016 U.S.Dist.LEXIS 161253, *19.) 

Subsequently, however, the State Bar cited Lyle with approval in 

an official comment to Rule 3.7. (Rules Prof. Conduct, rule 3.7, 

com. 3, citing Lyle, supra, 122 Cal.App.3d 470.) In so doing, the 

State Bar confirmed that despite the informed-consent

exception’s seemingly absolute language, even a fully informed

client’s right to chosen counsel does not necessarily preclude 

disqualification, if required “to protect the trier of fact from being 

misled or the opposing party from being prejudiced.” (Rules Prof. 

Conduct, rule 3.7, com. 3.)
19

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)].) 

In Yim, however, “to effectuate the rule’s purpose of avoiding 

factfinder confusion,” we interpreted the rule’s use of the 

term “trial” to encompass a “pretrial evidentiary hearing at 

which counsel is likely to testify.” (Yim, supra, 55 

Cal.App.5th at 583.) Further, finding no California 

authority on point, but agreeing with most courts that had 

considered the issue, we “‘recognize[d] 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.’” (Ibid.) We 

did not consider whether the advocate-witness rule could be

further extended to other pretrial activities. (See id. at 

586.)9

“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 needed’”’; 

(2) ‘the possibility [opposing] counsel is using the motion to 

9 We affirmed the attorney’s disqualification from all other 

pretrial activities, but on an independent ground, viz., the 

potential misuse of confidential information. (See Yim, supra, 55 

Cal.App.5th at 586-589.)
20

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.’ [Citation.] ‘[T]rial 

judges must indicate on the record they have considered the 

appropriate factors . . . .’” (Yim supra, 55 Cal.App.5th at 

583; see also id. at 585-586; cf. SpeeDee Oil, supra, 20 

Cal.4th at 1144-1145 [careful review of disqualification 

orders is mandated by concerns that may include “a client’s 

right to chosen counsel” and “the financial burden on a client 

to replace disqualified counsel”].) 

B. Analysis

We conclude the trial court failed to apply the proper 

legal standards, and thereby abused its discretion, in

disqualifying Boone from representing appellant in all 

phases of the litigation under the advocate-witness rule. 

First, the court failed to apply Rule 3.7’s informed-consent 

exception. Indeed, the court failed even to cite Rule 3.7, 

instead applying the ABA Rule, which is not binding and

lacks any informed-consent exception. Although the court

noted appellant had relied on her informed written consent, 

it did not otherwise discuss her consent or its relevance. Nor 

did the court find that Boone’s disqualification was 

necessary, notwithstanding appellant’s informed written 

consent, in order to “protect the trier of fact from being 

misled or the opposing party from being prejudiced.” (Rules 
21

Prof. Conduct, rule 3.7, com. 3.) The court found only that

Boone’s dual role would impair his credibility as a witness 

(for appellant) and diminish his effectiveness as an advocate 

(for appellant). It made no finding of prejudice to 

respondent, much less of potential confusion. (See Smith, 

Smith & Kring v. Superior Court (Oliver) (1997) 60 

Cal.App.4th 573, 578 [“Where a lawyer representing a party 

in trial is also a witness during the trial, his or her 

effectiveness, both as a lawyer and as a witness, may be 

impaired in the eyes of the fact finder. Such disadvantage 

enures to the detriment of the party being represented by 

the lawyer serving such a dual function”].)

Even had the court found a risk that Boone’s dual role 

would mislead the jury, such a finding would have been

speculative on the limited factual record before the court. 

Although the court stated it “appear[ed]” Boone would 

provide “substantive testimony concerning the underlying 

family dispute,” the court did not expressly reject appellant’s 

contrary representations that Boone’s testimony would 

concern only his receipt of respondent’s January and 

February 2016 emails, and the emails’ undisputed contents. 

Respondent had neither challenged these representations 

nor attempted, through discovery or a request for an offer of 

proof, to discern the substance of Boone’s expected 

testimony. Without further information, the court could not 

reasonably have found a “‘convincing demonstration of 

detriment to the opponent or injury to the integrity of the 

judicial process.’” (Yim, supra, 55 Cal.App.5th at 582, 
22

quoting Lyle, supra, at 482.) In disregarding appellant’s 

informed written consent without finding any such 

detriment, the court failed to acknowledge her consent’s

significance under Rule 3.7, and thereby abused its 

discretion. (See Smith, Smith & Kring v. Superior Court 

(Oliver), supra, 60 Cal.App.4th at 579-582 [trial court abused 

its discretion in disqualifying counsel under advocatewitness rule, where record did not indicate court “recognized 

the importance” of client’s written consent to counsel’s dual 

role, which should have been given “‘great weight’”].) 

The court further abused its discretion in failing to 

apply Rule 3.7’s limitation to advocacy “in a trial.” (Rules 

Prof. Conduct, rule 3.7(a).) The court disqualified Boone 

from all phases of the litigation, without acknowledging this 

limitation (or the corresponding limitation in the ABA Rule), 

and without finding, as we did in Yim, that an extension of 

the rule to specified pretrial activities would effectuate the 

rule’s purpose of avoiding factfinder confusion. (See Yim, 

supra, 55 Cal.App.5th at 577, 583, 585.) Indeed, as 

explained above, the court made no finding of a risk of 

factfinder confusion, which would have been speculative, in 

any event, on the limited factual record before the court. 

Nevertheless, the court extended the advocate-witness rule 

to all pretrial activities, including behind-the-scenes 

activities unlikely to pose any risk of factfinder confusion, 

such as preparing a witness list or motion in limine. 

Because Boone’s categorical disqualification from all pretrial 

activities was not supported by Rule 3.7’s text, or by 
23

reasoned findings concerning the rule’s purpose, we conclude 

it constituted an abuse of discretion. 

Respondent’s reliance on Yim is misplaced.

10 As noted, 

Yim does not support Boone’s categorical disqualification 

from all pretrial activities. Even with respect to Boone’s 

disqualification at trial, Yim is distinguishable. There, a 

mother represented her daughter in suing the mother’s

ex-husband, alleging he had exploited the marriage to 

sexually abuse the daughter when she was a minor. (Yim, 

10 The other advocate-witness cases cited by respondent do 

not assist him, as none addressed whether a trial court properly 

rejected a client’s reliance on the informed-consent exception.

(See Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1205-1213 

[affirming order disqualifying attorney from representing his son 

in dispute over custody of his grandson, without discussing 

whether son had provided informed written consent, in reliance 

on “[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”]; People v. Donaldson (2001) 

93 Cal.App.4th 916, 929-932 [reversing criminal judgment, where 

defense counsel was ineffective in failing to object to prosecutor’s 

dual role as advocate and witness at trial, and prosecutor had not 

obtained proper consent under then-current informed-consent 

exception]; Comden v. Superior Court (1978) 20 Cal.3d 906, 910-

911 & fn. 1 [affirming order disqualifying attorney under pre1979 version of California’s advocate-witness rule, which lacked 

any informed-consent exception]; cf. Maxwell, supra, 30 Cal.3d at 

619, fn. 9 [noting that State Bar’s adoption of informed-consent 

exception in 1979 was in response to Comden, and weakened 

Comden’s precedential value].)
24

supra, 55 Cal.App.5th at 576-577.) Less than two months 

after the suit was filed, the ex-husband promptly moved to 

disqualify the mother under the advocate-witness rule. (Id.

at 577-578.) The trial court applied the rule in disqualifying

the mother at trial, expressly accepting evidence that the

mother had obtained her daughter’s informed written 

consent, but “explaining why it nevertheless deemed the 

informed-consent exception inapplicable due to the risk of 

prejudice to [the ex-husband] and to the integrity of the 

judicial process.” (Id. at 585; see also id. at 579-580.) In 

affirming, we concluded the record showed the mother was 

almost certain to be a key witness concerning her exhusband’s alleged sexual abuse of her daughter and her 

daughter’s resulting damages. (Id. at 584.) We further 

concluded the mother’s dual role posed a risk of misleading

the jury into mistaking her arguments as evidence based on 

her extensive personal knowledge of her ex-husband, which 

could prejudice him. (Id. at 584-585.) Finally, we concluded 

that by explaining why it rejected the daughter’s reliance on 

the informed-consent exception, the court demonstrated it 

had properly considered the daughter’s interest in remaining 

represented by her counsel of choice, particularly because 

she had not asserted that this interest was “heightened by 

any purported burden” in retaining new counsel or in paying 

for duplication of her mother’s efforts, which had not 

progressed beyond the “early stages” of the litigation. (Id. at 

585.)
25

The record before us here is materially different. 

Rather than explain why it rejected appellant’s reliance on

Rule 3.7’s informed-consent exception, the trial court applied

a different, non-binding rule, which lacked any such 

exception. It did so despite its acknowledged uncertainty

regarding the subject matter of Boone’s expected testimony, 

without finding that Boone was likely either to be a key 

witness or to make any argument the jury could perceive to 

be based on his personal knowledge of respondent (if any). 

Finally, the court failed to demonstrate that it had properly 

considered appellant’s heightened interest in remaining 

represented by Boone, who had gained mastery over the case 

by litigating it for over four years, and who was providing his 

services pro bono or at a discounted rate. (See Liberty 

National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 

194 Cal.App.4th 839, 848 [client would have suffered 

“extreme” prejudice from disqualification of counsel who had 

“gained mastery” over case by litigating it for two years]; 

Lyle, supra, 122 Cal.App.3d at 482 [client was entitled to 

trial court’s consideration of asserted financial hardship in 

replacing counsel who was providing services pro bono].) 

Specifically, the court suggested Boone and his recently 

retained co-counsel were interchangeable, without

addressing appellant’s argument that she would be 

prejudiced by Boone’s disqualification because his co-counsel 

could not prepare for trial as successfully or cost-effectively 

without his assistance. In so doing, the court failed to apply 
26

the proper legal standards in disqualifying Boone at trial, 

requiring reversal of the disqualification order.
27

DISPOSITION

The order disqualifying Boone as appellant’s counsel is 

reversed. Appellant is awarded her costs on appeal.

CERTIFIED FOR PUBLICATION

 MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.