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Yousuf v. Robert A. Bothman, Inc.

United States District Court, N.D. California, San Jose Division

November 7, 2017

SAEED YOUSUF, Plaintiff,
ROBERT A. BOTHMAN, INC., et al., Defendant.




         Plaintiff 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.

         Federal 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.

         Because 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.


         “Federal 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. 2000).

         The 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.

         The 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)).


         Plaintiff 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.

         With 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.” Id.

         These 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:

         A member shall not act as an advocate before a jury which will hear ...

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