Unreported / Non-Citable
Background
Abbie Gougerchian sued Mohamad Ali Googerchian, Patrick Gogerchin, and Bianca Kaveh over an alleged family partnership involving MGM Transformer Company, Online Power, other entities, and apartment buildings. His February 2025 verified complaint sought declarations that he was an equal partner and entitled to half the proceeds of a $400 million MGM sale made without his knowledge. Shortly after defendants filed a demurrer, Abbie filed an ex parte application to disqualify their attorney, Faryan Andrew Afifi, and Afifi Law Group, invoking conflict rules and the advocate-witness rule and asserting that Afifi had represented him and partnership entities and knew their structure, management, and finances. Afifi denied knowing of the partnership or having access to personal financial information.
The superior court rejected the current-client, former-client, and mediation grounds but granted disqualification under rule 3.7, finding limited replacement costs at that early stage, a plausibly nontactical motion, and potentially useful testimony from an objective observer. It declined to strike Afifi's pleadings because Abbie identified no confidential information unavailable to defendants independently. Defendants moved for reconsideration with informed written consents citing the court's ruling, explaining that the likely testimony had not been identified earlier. The court denied reconsideration, reasoning that consents could have been executed before the hearing. Defendants timely appealed.
The Court’s Holding
The Second District, Division Three, assumed for argument that the trial court applied the correct standard and that substantial evidence supported Afifi being a likely witness, but held that denying reconsideration was an abuse of discretion. Rule 3.7(a)(3) permits a lawyer to serve as advocate and likely trial witness with the client's informed written consent. The executed consents were a new fact or circumstance, and defendants reasonably explained their timing: they disputed Afifi's relevance, did not intend to call him, and could not scope the consent before the court identified the testimony at issue. Requiring blanket consent at the outset would risk forfeiting counsel of choice even when no relevant testimony was expected.
The court resolved the remaining issue rather than remanding because the record was insufficient as a matter of law to show detriment to Abbie or injury to judicial integrity. Consent does not eliminate discretion, but disqualification despite consent requires a convincing demonstration of such harm. Unlike cases involving close family ties or confidential information, Afifi was not a party's relative or spouse, and Abbie identified no fact known only to Afifi or evidence unavailable elsewhere. The order disqualifying Afifi and the Afifi Law Group was reversed, with costs on appeal to defendants.
Key Takeaways
- Informed written consent obtained after a disqualification ruling can constitute a new fact or circumstance supporting reconsideration under Code of Civil Procedure section 1008, subdivision (a).
- A client need not execute a blanket advocate-witness consent at the outset of litigation when the attorney's likely testimony and the risks requiring disclosure remain unclear.
- Even with client consent, courts retain discretion to disqualify an attorney-witness, but the record must convincingly demonstrate prejudice to the opponent or injury to the integrity of the judicial process.
- General assertions that counsel knows a partnership's structure and finances do not establish genuinely necessary testimony where documents, parties, accountants, or other lawyers could supply the evidence.
- The record supplied no independent basis to disqualify Afifi Law Group under rule 3.7(b), particularly because the rule 1.7 and rule 1.9 grounds had been rejected.
Why It Matters
The decision distinguishes late consent in an advocate-witness dispute from belated evidence that should have accompanied summary-judgment opposition, and it distinguishes criminal cases involving appointed counsel and public interests: these civil litigants retained chosen private counsel and actually presented executed consents. The opinion ties reconsideration to the practical development of a case, including rulings that clarify the testimony and risks a client must understand before consenting.
The reversal does not hold that consent automatically defeats every disqualification motion; it treats consent as triggering a demanding, evidence-based inquiry into harm to the opposing party or judicial integrity. Because the existing record could not support that finding, the court reversed outright rather than ordering another discretionary assessment. The unpublished opinion restores defendants' chosen counsel without deciding the underlying partnership claims or the pending demurrer.