advocate-witness rule in California

2013Rather, Luster's representation, and supporting evidence showing, that Franceschi acted as Midway's manager during the period of time it took actions that arguably could provide a defense for Luster are sufficient to show Franceschi is a material witness for purposes of the advocate-witness rule. 9 adverse impact on the opposing party. ( Donaldson, supra, 93 Cal.App.4th at pp. 927- 929; Lyle, supra, 122 Cal.App.3d at p. 480 .) Opposing counsel may be handicapped in cross-examining and in arguing the credibility of trial counsel who also acts as a witness.

2013Rather, Luster's representation, and supporting evidence showing, that Franceschi acted as Midway's manager during the period of time it took actions that arguably could provide a defense for Luster are sufficient to show Franceschi is a material witness for purposes of the advocate-witness rule. 9 adverse impact on the opposing party. ( Donaldson, supra, 93 Cal.App.4th at pp. 927- 929; Lyle, supra, 122 Cal.App.3d at p. 480 .) Opposing counsel may be handicapped in cross-examining and in arguing the credibility of trial counsel who also acts as a witness.

2026(People v. Morris, supra, 53 Cal.3d at p. 190 .) 18 18 Defendants argue for the first time on appeal that like the advocate-witness rule, California Rules of Professional Conduct, rule 3.7, the court should have first considered whether Glass’s testimony was genuinely needed.

2025(In re Jasmine S. (2007) 153 Cal.App.4th 835, 843 .) The prospective ethical violation at issue here was violation of the “advocate-witness rule,” which “prohibits an attorney from acting both as an advocate and a witness in the same proceeding.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1208 .) The advocate-witness rule is codified in California Rules of Professional Conduct, rule 3.7, which provides in relevant part: “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

2025Nonetheless, regardless of whether the prosecutor’s actions are characterized as prosecutorial misconduct or a violation of the advocate- witness rule, the record does not reveal any prejudice to defendants. 6 Prosecutorial error is evaluated under the Chapman standard of prejudice when a prosecutor’s behavior “ ‘ “is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, [such that] the federal Constitution is violated.” ’ ” (People v. Shazier (2014) 60 Cal.4th 109, 127 .) Under that standard, “the [app

2025(People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 .) “A victim’s statement of economic loss is prima facie evidence of loss.” (People v. Grandpierre (2021) 66 Cal.App.5th 111 , 115; People v. Keichler, supra, 129 Cal.App.4th at p. 1048 [“statements 6 Though neither party addressed this precise issue, the parties’ briefs note the relevant facts and the burden-shifting framework in restitution hearings, and arguments concerning the effect of the challenged statements on the restitution orders are fairly included within the issue of prejudice.

2025Nonetheless, regardless of whether the prosecutor’s actions are characterized as prosecutorial misconduct or a violation of the advocate- witness rule, the record does not reveal any prejudice to defendants. 6 Prosecutorial error is evaluated under the Chapman standard of prejudice when a prosecutor’s behavior “ ‘ “is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, [such that] the federal Constitution is violated.” ’ ” (People v. Shazier (2014) 60 Cal.4th 109, 127 .) Under that standard, “the [app

2024(Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59 , 73–74.) Applicable here, rule 3.7 prohibits an attorney from acting as an 7 advocate in a trial in which the lawyer is likely to be a witness, unless one of the following three exceptions applies: “(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.” (Rule 3.7(a).) When ruling on a motion to disqualify counsel b

2024Rule 3.7(b) provides that “a lawyer may act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by [Rules of Professional Conduct,] rule 1.7 or 1.9.”8 (See Wu v. O’Gara Coach Co., LLC (2019) 38 Cal.App.5th 1069 , 1084– 1085 [that attorney might testify at trial does not warrant disqualification of other lawyers at attorney’s firm under the advocate-witness rule].) The sole basis for Vafaei’s disqualification is his dual role as advocate-witness.

2024Rule 3.7(b) provides that “a lawyer may act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by [Rules of Professional Conduct,] rule 1.7 or 1.9.”8 (See Wu v. O’Gara Coach Co., LLC (2019) 38 Cal.App.5th 1069 , 1084– 1085 [that attorney might testify at trial does not warrant disqualification of other lawyers at attorney’s firm under the advocate-witness rule].) The sole basis for Vafaei’s disqualification is his dual role as advocate-witness.

2023(See, e.g., Rosenthal Furs, Inc. v. Fine (2022) 282 N.C.App. 530 [ 871 S.E.2d 153 , 159–160] [addressing rule 3.7 of the North Carolina Rules of Professional Conduct, and citing cases holding the same in Louisiana, South Carolina, and Utah]; Presnick v. Esposito (1986) 8 Conn.App. 364 [ 513 A.2d 165, 167 ] [holding none of the reasons for the advocate-witness rule applies “where the attorney seeks only to represent himself in his own case”].)7 7 Each of the cited cases address their own state’s version of Rule 3.7, all modeled after rule 3.7 of the American Bar Association Model Rules of Profe

2023(See, e.g., Rosenthal Furs, Inc. v. Fine (2022) 282 N.C.App. 530 [ 871 S.E.2d 153 , 159–160] [addressing rule 3.7 of the North Carolina Rules of Professional Conduct, and citing cases holding the same in Louisiana, South Carolina, and Utah]; Presnick v. Esposito (1986) 8 Conn.App. 364 [ 513 A.2d 165, 167 ] [holding none of the reasons for the advocate-witness rule applies “where the attorney seeks only to represent himself in his own case”].)7 7 Each of the cited cases address their own state’s version of Rule 3.7, all modeled after rule 3.7 of the American Bar Association Model Rules of Profe

2023(See Hetos Investments, Ltd. v. Kurtin, supra, 110 Cal.App.4th at pp. 49–51 [rejecting appellant’s contention that the trial court failed to make the required “ ‘specific findings of fact when weighing the conflicting interests,’ ” where there were no material factual disputes].) The Firm argues that the motion must have been brought as a litigation tactic because (i) despite knowing of their likely dual roles, Nelson did not object to the Dyers’ representation for almost two years, including while they were taking and defending depositions; (ii) defendants, themselves, had long benefited from

2023Engineers, Inc. v. Municipal Court, supra, 21 Cal.3d at p. 731 [“a corporation not itself being a natural person, can make a court appearance only through a natural person”]; Gutierrez v. G & M Oil Co., Inc. (2010) 184 Cal.App.4th 551, 564 [“unlike an attorney who represents himself [citation], a corporation must be represented in court by an attorney”]; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898 .) Thus, even when the corporation is a law firm being represented by its own shareholder attorneys, the advocate-witness rule remains in play if those shareholder attorneys are also serving as

2023(See Harris & Hilton, P.A., at p. 284; cf. Premium Products, Inc., at p. 437 [“The proposition that a corporation has no right to pro se representation holds just as true for small, closely-held plaintiffs as for 8 At least one state’s high court has held to the contrary (see National Child Care, Inc. v. Dickinson (Iowa 1989) 446 N.W.2d 810 , 811–812), but we are not persuaded by that decision’s conclusory holding that a sole shareholder representing his corporation does not present the usual dangers of harm to the opponent and to the integrity of the judicial process. 12.

2021“Cases are not authority for propositions not considered therein.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 614 .) We decline to impose such a duty in this case.

2021(People v. Ballard (1980) 104 Cal.App.3d 757, 762 .) Moreover, although defendant relies on People v. Donaldson (2001) 93 Cal.App.4th 916 , a case in which the appellate court held defense counsel provided constitutionally deficient assistance by failing to object to a prejudicial violation of the advocate-witness rule, defendant here does not specifically argue ineffective assistance of counsel in his briefing on appeal and has therefore forfeited such an argument.

2021(People v. Ballard (1980) 104 Cal.App.3d 757, 762 .) Moreover, although defendant relies on People v. Donaldson (2001) 93 Cal.App.4th 916 , a case in which the appellate court held defense counsel provided constitutionally deficient assistance by failing to object to a prejudicial violation of the advocate-witness rule, defendant here does not specifically argue ineffective assistance of counsel in his briefing on appeal and has therefore forfeited such an argument.

2021Analysis “It is generally prohibited for a prosecutor to act as both an advocate and a witness. [Citation.] ‘Within the criminal justice system, the prohibition against a 15 prosecutor’s acting as both advocate and witness addresses “the concern that jurors will be unduly influenced by the prestige and prominence of the prosecutor’s office and will base their credibility determinations on improper factors.” ’ [Citation.]” (People v. Linton (2013) 56 Cal.4th 1146, 1185-1186 .) As a preliminary matter, we note defendant has forfeited any claim the prosecutor engaged in misconduct by violating th