United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION TO DISQUALIFY
RE: DKT. NO. 26
J. DAVILA, UNITED STATES DISTRICT JUDGE.
Saeed Yousuf is the former Chief Operating Officer of
Defendant Robert A. Bothman, Inc. (“RAB”). In
2016, Plaintiff was terminated from his employment during a
meeting with an attorney representing RAB, John Fox.
Plaintiff later filed this action in state court for breach
of contract, wrongful termination, failure to pay wages and
violation of the Employee Retirement Income Security Act of
1974. RAB, through Fox and his law firm - Fox, Wang &
Morgan, P.C. - removed the action. Fox has continued to
represent RAB in this court.
jurisdiction arises under 28 U.S.C. § 1331. Plaintiff
now moves to disqualify Fox and his firm from representing
RAB. Dkt. No. 26. Unsurprisingly, RAB opposes. The court
finds this matter suitable for decision without oral argument
and will vacate the hearing scheduled for November 9, 2017.
Plaintiff has not shown that Fox's representation of RAB
is injurious either to him or to the judicial process in
which this case appears, his motion will be denied for the
reasons explained below.
courts have inherent powers to manage their own proceedings
and to control the conduct of those who appear before
them.” Erickson v. Newmar Corp., 87 F.3d 298,
303 (9th Cir. 1996); Optyl Eyewear Fashion Int'l
Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1047-48 (9th
Cir. 1985) (“The primary responsibility for controlling
the conduct of attorneys rests with the district
court.”). These powers encompass the ability to
disqualify counsel, which is defined by state law.
Id.; Reading Int'l, Inc. v. The Malulani
Grp., Ltd., 814 F.3d 1046, 1049 (9th Cir. 2016). Thus,
this court is guided by “the reasoned view of the state
supreme court when it has spoken on the issue.” In
re Cty. of Los Angeles, 223 F.3d 990, 995 (9th Cir.
California Supreme Court has recognized that a motion to
disqualify a party's counsel “may implicate several
important interests, ” which must be examined carefully
“to ensure that literalism does not deny the parties
substantial justice.” People ex rel. Dep't of
Corps. v. SpeeDee Oil Change Sys., Inc., 20 Cal.4th
1135, 1144 (1999). “Depending on the circumstances, a
disqualification motion may involve such considerations as a
client's right to chosen counsel, an attorney's
interest in representing a client, the financial burden on a
client to replace disqualified counsel, and the possibility
that tactical abuse underlies the disqualification
motion.” Id. at 1145. But the “paramount
concern must be to preserve the public trust in the
scrupulous administration of justice and the integrity of the
bar.” Id. Thus, the right to counsel of
one's choice, while important, “must yield to the
ethical considerations that affect the fundamental principles
of our judicial process.” Id.
court is also mindful that “[t]he cost and
inconvenience to clients and the judicial system from misuse
of the rules for tactical purposes is significant.”
Optyl Eyewear, 760 F.2d at 1050. Disqualification
motions are consequently subjected to “particularly
strict judicial scrutiny” as a check on potential
abuse. Id. (citing Rice v. Baron, 456
F.Supp. 1361, 1370 (S.D.N.Y. 1978)).
advocates for the disqualification of Fox and his firm
because Fox is a potential fact witness. To that end,
Plaintiff alleges that he had a lunch meeting with Fox prior
to his departure from RAB and that Fox presented Plaintiff
with a 90-day Notice of Termination during the meeting.
Plaintiff and Fox continued to discuss Plaintiff's
departure after the meeting, and Plaintiff alleges that Fox
“opined on 409A issues and implied tax
ramifications” related to deferred compensation. In
addition, Plaintiff alleges that contrary to the position
taken by RAB in discovery, Fox explained to Plaintiff that he
could resign from RAB but not did tell Plaintiff he was
terminated for cause.
this factual predicate in mind, the court turns to the more
particular legal authority governing Plaintiff's request.
In 1978, the California Supreme Court upheld an
attorney's disqualification under a former professional
conduct rule prohibiting counsel from serving as a trial
witness, recognizing that “ultimately the issue
involves a conflict between a client's right to counsel
of his choice and the need to maintain ethical standards of
professional responsibility.” Comden v. Super.
Ct., 20 Cal.3d 906, 915 (1978)
(“Comden”). The Comden court
observed that “[a]n attorney who attempts to be both
advocate and witness impairs his credibility as witness and
diminishes his effectiveness as advocate, ” and that
the rule of professional conduct addressing the issue should
be applied to “avoid the appearance of attorney
impropriety.” Id. at 912. And the court was
similarly mindful “that testimony by a member of trial
counsel's firm may lead the public to be skeptical of
lawyers as witnesses, thereby diminishing the public's
respect and confidence toward the profession.”
concerns have not changed since 1978, but the rule has. In
adopting the current version of the Rules of Professional
Conduct of the State Bar of California, the California
Supreme Court approved Rule 5-210, which now provides:
member shall not act as an advocate before a jury which will