United States District Court, S.D. California
U.S. EQUAL EMPLOYMENT OPPORTUINITY COMMISSION, Plaintiff,
BAY CLUB FAIRBANKS RANCH, LLC d/b/a FAIRBANKS RANCH COUNTRY CLUB, INC., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO DISQUALIFY
COUNSEL [DOC. 40]
THOMAS J. WHELAN, UNITED STATES DISTRICT JUDGE
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].
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.)
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.
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.
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 . . . .
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).
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)).
“‘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,
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 ...