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U.S. Equal Employment Opportunity Commission v. Bay Club Fairbanks Ranch, LLC

United States District Court, S.D. California

November 6, 2019

U.S. EQUAL EMPLOYMENT OPPORTUINITY COMMISSION, Plaintiff,
v.
BAY CLUB FAIRBANKS RANCH, LLC d/b/a FAIRBANKS RANCH COUNTRY CLUB, INC., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION TO DISQUALIFY COUNSEL [DOC. 40]

          HON. THOMAS J. WHELAN, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiff U.S. Equal Employment Opportunity Commission's (“EEOC”) motion to disqualify one of Defendant Bay Club Fairbanks Ranch, LLC d/b/a Fairbanks Ranch Country Club's (“Bay Club”) attorneys. Bay Club opposes. The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS the motion [Doc. 40].

         I. Introduction

         Defendant Bay Club is represented in this lawsuit by attorneys from Buchalter APC, and attorney Mark Koorenny of the Koorenny Law Group. Koorenny has served as Bay Club's general counsel since 2009. (Koorenny Decl. [Doc. 49-2] ¶ 2.)

         In its motion, Plaintiff EEOC seeks to disqualify Koorenny under California Rule of Professional Conduct 3.7(a), which restricts an attorney's ability to act as an advocate in a case where the attorney will also be a witness. (P&A [Doc. 40-1] 1:7-9.) Bay Club opposes the motion on the basis that (1) the EEOC unreasonably delayed in filing the motion, (2) Bay Club will suffer substantial prejudice, (3) it is unclear whether Koorenny will testify at trial, and (4) it has consented to Koorenny's dual role as attorney and witness. For the reasons that follow, the Court will grant the EEOC's motion.

         II. Legal Standard

         “A trial court's authority to disqualify an attorney derives from the power inherent in every court ‘[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” Kennedy v. Eldridge, 201 Cal.App.4th 1197, 1204 (2011) (alterations in original). “[D]isqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility.” Id. “The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.” Id. “The important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process.” Id.

         III. Analysis

         The EEOC moves to disqualify Koorenny under California Rule of Professional Conduct 3.7(a), which 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 . . . .

         Although the rule allows continued representation where the client consents to the attorney's dual role, a trial court has discretion to disqualify counsel. Lyle v. Superior Court, 122 Cal.App.3d 470, 482 (1981). However, “in exercising that discretion, the court must weigh the competing interests of the parties against potential adverse effects on the integrity of the proceeding before it and ‘should resolve the close case in favor of the client's right to representation by an attorney of his or her choice . . . .'” Smith, Smith & Kring v. Superior Court, 60 Cal.App.4th 573, 580 (1997) (quoting Lyle, 122 Cal.App.3d at 482).

         In Smith, 60 Cal.App.4th 573, the California Court of Appeal explained that in evaluating a motion to disqualify under Rule 3.7(a), courts should consider three factors. First, “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.” Smith, 60 Cal.App.4th at 581. “[I]t must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorney's innocent client, who must bear the monetary and other costs of finding a replacement.” Id. (quoting Gregori v. Bank of America, 207 Cal.App.3d 291, 300 (1989)).

         Second, “‘whenever an adversary declares his intent to call opposing counsel as a witness, prior to ordering disqualification of counsel, the court should determine whether counsel's testimony is, in fact, genuinely needed.'” Smith, 60 Cal.App.3d at 581 (quoting Reynolds v. Superior Court, 177 Cal.App.3d 1021, 1027 (1976) (citation omitted)). “In determining the necessity of counsel's testimony, the court should consider ‘the significance of the matters to which he might testify, the weight his testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established.'” Id. (quoting Comden v. Superior Court, 20 Cal.3d 906, 913 (1978)).

         Third, courts should consider the possibility the moving party is using the motion to disqualify for purely tactical reasons. Smith, at 581 (quoting Comden v. Superior Court, 20 Cal.3d at 915). This consideration is important because if counsel was “able to disqualify opposing counsel simply by calling them as witnesses, it would ‘pose the very threat to the integrity ...


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