Marriage of Pfaff CA4/1

Opinion

Filed 9/17/26 Marriage of Pfaff CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of KENYON PFAFF D086904 and NIMFA PFAFF.

KENYON PFAFF, (Super. Ct. 24FL003865N) Appellant, v.

NIMFA PFAFF,

Respondent.

APPEAL from an order of the Superior Court of San Diego County, Renee Stackhouse, Judge. Reversed. Law Office of Stephen C. Pfaff and Stephen C. Pfaff for Appellant. No appearance for Respondent. This case involves a dissolution action between Kenyon Pfaff and Nimfa Pfaff. Kenyon retained his brother, attorney Stephen Pfaff, to represent him pro bono. On its own motion, the trial court disqualified Kenyon’s counsel after concluding that his argument during hearings and in his filings strayed too far into witness territory and that he could be called to testify as a witness. Kenyon appeals the disqualification order, contending that the court erred in disqualifying his counsel of choice by failing to consider the appropriate factors and make specific findings on the record as required under the law. We agree and therefore reverse the order. FACTUAL AND PROCEDURAL BACKGROUND Kenyon and Nimfa Pfaff were married for 16 years. Kenyon filed a petition for dissolution of the marriage in April 2024. Kenyon originally intended to resolve the case without private attorneys, using the services of the North County Family Law Facilitator, given the parties’ limited financial resources and assets. After Nimfa hired an attorney using the parties’ joint credit card, Kenyon felt forced to ask his brother, an attorney, to assist him. In June 2024, Kenyon’s brother Stephen Pfaff (counsel) substituted in as Kenyon’s attorney, agreeing to take the case pro bono. In September 2024, the court held a Family Resolution Conference (FRC) hearing. The court received an FRC statement from Nimfa’s attorney but not from Kenyon’s counsel, and Kenyon’s counsel did not appear at the hearing. The court continued the FRC and set an Order to Show Cause (OSC) for counsel’s failure to appear for October 2024, when the spousal support hearing was set. In October 2024, attorneys for both parties appeared before the trial court, and the court made arrears and spousal support orders. The court grew increasingly concerned during the hearing that (1) Kenyon’s counsel may have “a financial interest in the case” because he stated that “he was helping Petitioner out financially” and (2) he had a conflict because he could be called to testify as a witness at trial. The court also “raised concerns that Attorney Pfaff was not familiar with the rules of Family Law” and “cautioned him that he should not risk his reputation [] engaging in the practice of law 2 without competence, even if it was a favor,” as Rule 1.1 of the California Rules of Professional Conduct1 requires competence. The main reasons the court gave for its competence concerns—including that counsel had without reason failed to appear for the FRC and allegedly failed to file an FRC statement—turned out to be unfounded, as counsel provided proof that he had (1) timely notified Nimfa’s attorney he could not attend the FRC and requested an extension, and (2) timely filed the FRC statement. In December 2024, Kenyon filed a motion for reconsideration of the court’s spousal support ruling, with the hearing scheduled for May 2025. At the May hearing, the court stated that it could not hear the motion, as it had already noted that there was a conflict in representation and had expected a substitution of attorney to be filed. The court thus found it would be inappropriate for counsel to argue the motion. It advised counsel that his argument at the previous two hearings “had crossed the line into testifying as a percipient witness,” and it set an OSC regarding the perceived conflict sua sponte. In July 2025, Kenyon filed a response to the OSC supported by declarations from Kenyon and counsel. Kenyon argued that there was no conflict but that, even assuming a conflict, Rule 3.7 allows a client to provide informed written consent. He further argued that he would be prejudiced if counsel were disqualified, as he could not afford to hire another attorney. After holding a hearing in August 2025, the court issued an order adopting its tentative ruling and disqualifying counsel from representing Kenyon. The court noted its concerns that counsel’s argument at hearings and in his declarations had repeatedly “crossed the line into testifying as a 1 All further undesignated rules references are to the California Rules of Professional Conduct. 3 percipient witness” and found that counsel “may well be called upon to testify at trial” regarding Kenyon’s request for permanent spousal support. The court further found that counsel’s failure to withdraw had “caused an undue delay in the proceedings and an undue consumption of the Court’s time.” It therefore disqualified counsel from representing Kenyon and set an OSC regarding sanctions. Kenyon timely appealed the disqualification order. Nimfa took no position on the disqualification issue in the trial court and filed no respondent’s brief on appeal. DISCUSSION I A trial court’s authority to disqualify an attorney comes from its inherent power “to control the conduct of its ministerial officers and of all other persons connected with its proceedings in furtherance of justice.” (Doe v. Yim (2020) 55 Cal.App.5th 573, 581 (Yim); Code Civ. Proc., § 128, subd. (a)(5).) “Disqualification may be ordered as a prophylactic measure against a prospective ethical violation likely to have a substantial continuing effect on future proceedings.” (Yim, at p. 581.) The mere appearance of impropriety by itself, however, will not support an attorney’s disqualification. (In re Jasmine S. (2007) 153 Cal.App.4th 835, 843.) A disqualification may be based on an attorney’s dual roles as an advocate and a witness. Rule 3.7, the advocate-witness rule, provides that “[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.” (Rules Prof. Conduct, 4 rule 3.7(a), fn. omitted.) As Comment 3 to Rule 3.7 notes, the informed- consent exception is not absolute: “Notwithstanding a client’s informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being prejudiced.” (Geringer v. Blue Rider Finance (2023) 94 Cal.App.5th 813, 821–822 (Geringer).) But the “court’s discretion to disqualify a likely advocate-witness notwithstanding client consent—the exception to the exception—has been judicially interpreted to be permissible only upon ‘a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.’ ” (Id. at p. 822, quoting Lyle v. Superior Court (1981) 122 Cal.App.3d 470, 482 (Lyle).) In deciding whether to exercise its discretion to disqualify counsel under the advocate-witness rule, the trial court “must consider”: (1) whether the attorney’s testimony is genuinely needed; (2) the possibility that the opposing party is using the motion to disqualify for purely tactical reasons; and (3) “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, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 580–581 (Smith); Yim, supra, 55 Cal.App.5th at p. 583.) “In light of the importance the law places on clients’ ability to retain an attorney of their choice and waive any potential conflict, . . . trial judges must indicate on the record they have considered the appropriate factors and make specific findings of fact when weighing the conflicting interests involved” in the potential disqualification. (Smith, at p. 582, citing Lyle, supra, 122 Cal.App.3d at pp. 482–483.)

5 We generally review the court’s decision to disqualify counsel for abuse of discretion. (In re Charlisse C. (2008) 45 Cal.4th 145, 159.) We review any disputed factual issues to determine whether substantial evidence supports the trial court’s fact findings. (Ibid.) “The importance of the policy concerns underlying a disqualification order mandates ‘careful review of the trial court’s exercise of discretion.’ ” (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 352 [quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144].) II There is no indication from the record before us that the trial court recognized the importance of Kenyon’s interest in being represented by the attorney of his choice and his waiver of any potential conflict under Rule 3.7, or that it otherwise considered the appropriate factors when contemplating counsel’s disqualification under the advocate-witness rule. (Smith, supra, 60 Cal.App.4th at p. 582; Lopez v. Lopez (2022) 81 Cal.App.5th 412, 424 (Lopez).) First, the trial court did not grapple with whether counsel’s testimony was “genuinely needed.” (Smith, supra, 60 Cal.App.4th at pp. 580–581; Yim, supra, 55 Cal.App.5th at p. 583.) The court instead focused on its finding that counsel had, during prior hearings, “made representations to the court based on his personal knowledge and personal actions in the case at hand.” Further, the court found, counsel’s “declarations which accompany his pleadings are under oath and are his testimony.” Specifically, the court pointed to counsel’s “personal observations” in his declarations regarding Kenyon’s medical issues and disability status. The court noted in passing that counsel “may well be called upon to testify” regarding whether his client had worked for him, as it could relate to the question of permanent spousal 6 support, but otherwise did not address the issue of whether counsel’s testimony was necessary. We find there is no substantial evidence in the record demonstrating that counsel’s testimony would be genuinely needed. (Smith, supra, 60 Cal.App.4th at pp. 580–581; Yim, supra, 55 Cal.App.5th at p. 583.) The court made no finding that Nimfa intended to call counsel as a witness or that he intended to testify. Any necessary testimony regarding Kenyon’s work history or medical background could easily be provided by other percipient witnesses, such as healthcare professionals, or Kenyon himself. And even assuming counsel would be a necessary witness, this would not automatically compel his disqualification. Absent prejudice to the opposing party or risk of misleading the fact finder, an attorney is permitted to act as both advocate and witness in a client’s case where the client has given informed written consent, and “ ‘the fact that the client has consented to the dual capacity must be given great weight.’ ” (Smith, supra, 60 Cal.App.4th at p. 580.) The trial court erred in failing to recognize this. The second factor, the possibility that the opposing party is using the motion to disqualify for purely tactical reasons, does not apply here. Nimfa did not move to disqualify counsel or take a position on the issue; the trial court raised the issue on its own. (See Yim, supra, 55 Cal.App.5th at p. 583.) Third, the trial court failed to address the strong interest Kenyon has in representation by counsel of his choice, and “in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.” (Smith, supra, 60 Cal.App.4th at p. 580; Geringer, supra, 94 Cal.App.5th at p. 822.) This is particularly important here, where Kenyon repeatedly raised the issue of his lack of financial resources with the court. In the disqualification order, the court recognized counsel’s concern 7 that he could not ethically substitute out of the case without finding someone to take over Kenyon’s representation, which would be difficult given Kenyon’s limited resources. But the court minimized this concern by asserting that whether counsel should be disqualified and whether Kenyon could hire counsel to replace him “are separate and distinct issues.” We disagree. The decision to disqualify counsel under the advocate-witness rule required consideration of the prejudice and financial hardship Kenyon would face if his attorney of choice was disqualified. (See Lopez, supra, 81 Cal.App.5th at p. 427 [“court failed to demonstrate that it had properly considered appellant’s heightened interest in remaining represented by [counsel], who had gained mastery over the case by litigating it for over four years, and who was providing his services pro bono or at a discounted rate”]; Lyle, supra, 122 Cal.App.3d at p. 482 [reversing disqualification order where trial court failed to recognize the “substantial hardship which would befall plaintiff” if pro bono counsel was disqualified].) Counsel’s declaration stated that he was representing Kenyon pro bono and that Kenyon would not be able to afford alternate representation. Kenyon’s declaration detailed his financial hardship and that he was “forced to ask” his brother for help given his low income—limited to monthly Social Security disability payments—and lack of assets. The trial court does not appear to have taken this important fact into consideration. We therefore conclude that the trial court failed to give sufficient weight to Kenyon’s strong interest in representation by counsel of his choice. We also find that the trial court abused its discretion when it disqualified counsel from the case without finding that the disqualification would effectuate the rule’s purpose of avoiding fact finder confusion and 8 prejudice to the opposing party. (Lopez, supra, 81 Cal.App.5th at pp. 424– 425.) In rejecting Kenyon’s argument that he could provide consent to overcome any potential conflict, the trial court relied on the exception in Comment 3 to Rule 3.7 to conclude that it retained “the discretion to take action” notwithstanding a client’s informed written consent. (Rules Prof. Conduct, rule 3.7(a), com. 3; see also Yim, supra, 55 Cal.App.5th at pp. 581– 582.) But the court’s order failed to address the second requirement of the exception: courts retain discretion to take action, but only “ ‘to protect the trier of fact from being misled or the opposing party from being prejudiced.’ ” (Ibid.) Here, “the court made no finding of a risk of fact finder confusion[.]” (Lopez, supra, 81 Cal.App.5th at p. 425.) We find that any risk of confusing or misleading the trier of fact at trial is substantially diminished, if not eliminated, given that the fact finder here is the court. Nor did the court make any finding of prejudice to Nimfa or the judicial process should counsel continue to represent Kenyon, much less “ ‘a convincing demonstration of detriment.’ ” (Geringer, supra, 94 Cal.App.5th at p. 822 [reversing disqualification order where it was unsupported by any evidence of prejudice to the moving parties or detriment to the judicial process].) Because the court’s disqualification of counsel was not supported by reasoned findings concerning Rule 3.7’s purpose, we conclude it constituted an abuse of discretion. (Lopez, supra, 81 Cal.App.5th at pp. 425– 426.) We appreciate the trial court’s concerns that counsel’s argument at times strayed into “witness territory” where he made assertions based on his personal knowledge. However, the court was required to weigh its concerns 9 against Kenyon’s strong interest in remaining represented by counsel before ordering the severe remedy of disqualification. DISPOSITION The order disqualifying attorney Stephen Pfaff from representing Kenyon Pfaff is reversed. Because the respondent did not appear in this appeal, neither party shall recover costs. (Cal. Rules of Court, rule 8.278(a)(5).)

BUCHANAN, Acting P. J.

WE CONCUR:

CASTILLO, J.

RUBIN, J.