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Court of Appeal:
Judge Erred in Barring Woman as Her Daughter’s Lawyer
Factors—Including Mother’s Services Being Available for Free—Weren’t Properly Weighed, Opinion Says
By a MetNews Staff Writer
The Third District Court of Appeal has reversed an order disqualifying an attorney from representing her daughter in a parentage action because the judge didn’t lend adequate attention to factors favoring deference to the client’s wishes—including the mother’s willingness to provide services gratis.
Justice Aimee Feinberg authored the unpublished opinion, filed Friday. It remands the case for further consideration as to whether the daughter, Averie Arroyo, is entitled to have her mother, Sacramento attorney Mia Perez-Arroyo, act as her trial counsel.
In ordering the disqualification on her own motion, Sacramento Superior Court Judge Kimberly Parker cited the 1981 decision from Div. Two of the Fourth District Court of Appeal in Lyle v. Superior Court. The plaintiff in that case wished to be represented by then-attorney Eileen Moore (now a justice of Div. Three of the Fourth District Court of Appeal).
The court held that although the Rules of Professional Conduct had been changed to permit an attorney who is apt to testify to represent a party where that person had given informed consent, the judge “still has discretion to order withdrawal of counsel.”
Parker’s Reasoning
Parker said that Perez-Arroyo must step aside because “the risk that the trier could be misled into accepting counsel’s assertions during argument as evidence based on her personal knowledge as a witness.”
She observed that “[a]lthough the parties have a strong interest in being represented by counsel of their own choice, the expense and effort involved in replacing counsel should be relatively low…because the case is in its early stages.”
The judge explained that it “may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof,” and remarked that “confusion would undoubtedly affect the integrity of the judicial process” and prejudice father.
Feinberg’s Opinion
In her opinion reversing the order, Feinberg said that Parker recognized that Arroyo has an interest in being represented by counsel of her choice but did not accord “great weight” to that factor, as required by case law. She wrote:
“The court also discounted mother’s interest in retaining counsel of her choice, noting that ‘the expense and effort involved in replacing counsel should be relatively low...because the case is in its early stages.’ Mother’s desire to keep counsel as her attorney, however, did not relate to the time or effort required to find new counsel. Rather, mother’s declaration averred that counsel was representing her free of charge and mother would not be able to afford alternate representation. The trial court does not appear to have taken this important fact into consideration.”
Feinberg noted that while Perez-Arroyo had said she did not intend to call herself as a witness, Sacramento attorney Geoffrey A. Sutliff, who represented the opposing party, Trent Henry Gray, had advised that he would “likely” require Perez-Arroyo’s testimony. The justice said Parker did not consider whether whatever testimony Sutliff wished to elicit from Perez-Arroyo could be obtained from another source, such as Arroyo’s father.
The case is T.G. v. A.A., C098765.
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