Giuseppe Pampena, et al. v. Elon Musk

Background

Plaintiffs moved to disqualify Alex Spiro as Defendant Elon Musk’s trial counsel. They argued that Spiro was a key fact witness and that his serving as both lawyer and witness would violate the advocate-witness rule.

Spiro had worked with Musk during the Twitter acquisition and had firsthand knowledge about statements at the center of the case. The opinion gives examples including Spiro’s discussion with Musk about a May 13 tweet and Spiro’s work engaging data-science firms to analyze fake or spam Twitter accounts. Spiro had served as Musk’s lead trial counsel since December 2022. Plaintiffs identified him as a potential witness in February 2024, deposed him for about 95 minutes on August 20, 2025, and filed their motion in September 2025.

Musk opposed disqualification. He argued that removing his lead trial counsel so late in the case would be unfair and stated that he had given Spiro informed written consent to continue as counsel even if called as a witness.

Legal standard

The court applied California law. California’s advocate-witness rule generally prevents a lawyer from acting as both trial advocate and witness, but permits that role when the client gives informed written consent, among other exceptions. Even with consent, the court retains discretion to disqualify counsel to protect the jury from being misled or the opposing party from being prejudiced.

Under the standard described by the court, disqualification despite client consent requires a convincing showing of detriment to the opposing party or harm to the integrity of the judicial process. The moving party carries a heavy burden. The court considered whether Spiro’s testimony was genuinely needed, whether plaintiffs were pursuing disqualification for purely tactical reasons, and the parties’ interests in chosen counsel and avoiding duplicated expense and delay.

Court’s analysis

The court recognized plaintiffs’ concern that a jury might confuse Spiro’s arguments with evidence based on his personal knowledge. But it found that concern general to cases involving a lawyer who also serves as a witness and insufficient by itself to establish the required prejudice. The court also rejected plaintiffs’ argument that Spiro’s cross-examination of witnesses could create substantial prejudice, finding no basis to suggest that Spiro’s presence would cause witnesses to commit perjury.

The court found that plaintiffs made only a weak showing that Spiro’s testimony was genuinely needed. Although the subjects plaintiffs identified were relevant, the court said other witnesses could testify about most of them and that attorney-client privilege could limit what plaintiffs could obtain from Spiro about some subjects.

The court was not convinced that plaintiffs acted for purely tactical reasons. Although plaintiffs waited about a year after identifying Spiro as a potential witness before stating their intent to seek disqualification, the court found their explanation that discovery disputes caused the delay sufficient. The court also concluded that the choice-of-counsel factor favored Musk because parties have a strong interest in being represented by counsel of their choice.

The court noted that it could control Spiro’s questioning and arguments and give the jury limiting instructions if needed. It also noted Musk’s proposal that other trial counsel could cross-examine witnesses whom plaintiffs believed presented a high risk of conflict.

Disposition

The court determined that plaintiffs had not made a sufficient showing to disqualify Spiro and DENIED plaintiffs’ motion to disqualify Alex Spiro as trial counsel.