*1 No. 31162. Jan. 1982.] [L.A. Petitioner, MAXWELL,
BOBBY JOE COUNTY, ANGELES OF LOS THE SUPERIOR COURT Respondent; PEOPLE, in Interest. Party
THE Real
Counsel Lawson, &
Laidley Pierpont M. Fred Laidley, Alschuler and Walter Alschuler for Petitioner. Larson,
John H. Counsel, Farrell, County John P. Deputy County Counsel, for Respondent.
No appearance for Real Party Interest.
Opinion
NEWMAN, J. One due process is requirement that individual charged with serious crime be represented competent and indepen- dent counsel. Another is that courts generally must not interfere with defendant’s informed conclusions toas how his defense ought to be con- lawsuit, ducted. In this which involves an indigent defendant accused of murder, capital requirements conflict; those two to appear we must decide which one commands more deference. when, not erred is the trial court issue whether precise his counsel and it recused retained protest,
withstanding petitioner’s contract, giv that the fee the ground counsel—on substitute appointed life created story, petitioner’s to exploit counsel the retained ing that petitioner knowing We conclude of interest. an intolerable conflict and, therefore, that the potential prejudice waived ly intelligently did err. the trial court (Pen. Code, 211) counts robbery is with four charged
Petitioner § circumstances 187), involve special some which (§ and ten of murder 190.2). He (§ he sentenced to will be death raising possibility criminal defense seem to be experienced who attorneys retained lawyers. counsel, their to as assigns he irrevocably
The contract provides interest, kind, title, nature and de- fee, and all “any right, entire life in and the story the world scription throughout [his] He and commercial exploitation rights. ...” all entertainment including exploitation. the “net amount” realized receive 15 percent efforts and not disclose exploitation promises cooperate He as law required by with counsel’s consent or story except to others *5 or his defense. and invasion-of-privacy
In the contract he waives all defamation from the Counsel are against may exploitation. claims counsel that arise representation and and appeal, appellate not to undertake an obligated of later negotiation.1 declared to be subjects fees therefor are right designed provisions to ensure counsel’s to receive and ex includes 1The contract waive, agrees petitioner’s In to ploit on rights paragraph life. he confidential material about demand, “any privileges attorney-client privilege and and all other and his counsel’s complete full and exercise” of counsel’s interests. In prevent which would (1) give has to promises “pertaining counsel all materials he paragraph 33 he to [his] (2) his efforts to obtain and turn over such materials in experiences,” life use best and others, (3) [they] as often as shall reason and “confer with ... hands of [counsel] his from all details” of life. ably require so as to enable to elicit [him] [them] Code, (see confidentiality Evid. privilege of subd. A client surrender his §§ (a), 954), gives permission to reveal is not a “secret” the law- lawyer a fact he and Code, However, 6068). yer preserve (see Bus. & Prof. counsel conceded oral must § Moreover, rely it. and disclaimed intent to on argument paragraph 37 overreaches waived, similarly was we think it cannot be invoked until paragraph or not whether after these Though become final. counsel contracted re- proceedings criminal have trial, present only through the State Bar’s Rules of Professional Conduct and petitioner fairness, diligent loyalty, agreement impose duties of undivided and defense. itself reasonably withdrawing employment act (See (A)(2) [lawyer must rules 2-111 client], [lawyer may acquire not interest adverse to client ex- prejudice to 5-101 avoid The contract reflects extensive disclosure of conflicts and possible (1) It declares that counsel wish to create prejudice. damaging value, (2) publicity to enhance avoid mental defenses be- exploitation cause, successful, if to make they might suggest petitioner’s incapacity contract, and see him convicted and even sentenced to death for other, value. But a publicity catch-all paragraph—after reciting unforseen conflicts may also arise—reads: “The will raise Lawyers ev- ery which in their best they, based their judgment upon defense is warranted experience evidence and at their feel information which, and disposal taking into consideration the trial and trial flow of tactics, is in Maxwell’s best interests. The will all Lawyers conduct as- Maxwell pects as would a reasonably competent defense of (Italics added.) acting as conscientious diligent advocate.” In another paragraph is told of his petitioner coun- appointed (because sel he is indigent), and he is to seek urged independent legal advice about It is matter. recited that retained counsel have sup- him plied them, (2) a list of known the address lawyers telephone service, number of the bar county referral a photo- copy of in the “Attorneys” listings for the yellow pages Los Angeles area. 9, 1979,
On April was petitioner court. He arraigned municipal not pleaded and reserved the guilty plead reason guilty by of insanity. April On 26 counsel notified the court his indigency and of the retainer contract. Judge Gutierrez him and questioned received his proffered (closed waiver of all conflicts. After preliminary hearing at counsel’s request) petitioner was bound over for trial. He reiterated his municipal court pleas, a defense psychiatrist an investigator *6 were appointed.
At the 14 September on his own hearing Judge Malone motion in- quired into the and contract examined petitioner. questions Via answers he literate, established that was petitioner had an eighth-grade education, contract, had read and the entire had signed ini- separately tialed critical knew he many could consult an paragraphs, independent on attorney, and his own chose not to do The so. called his atten- judge tion specifically to the conflicts and paragraphs disclosing potential cept reasonable]; Agreement, 14(d), 17.) pars. as fair and cf. Those duties would be during if prejudicial, violated counsel disclosed at time confidential material proceedings. criminal each entry. and understood carefully had read petitioner
confirmed that he with coun- if remained satisfied when asked affirmatively He replied sel’s conduct. submitted in confidence reports the psychiatric
After considering had (1) counsel, petitioner knowingly willingly that ruled judge his representa- advice and was satisfied with chosen not to seek outside issue, contract, (2) competency counsel’s was not and the tion the inherent disqualified because of (3) but counsel nonetheless must later, still confirming petitioner conflict created. Four days after Malone recused Judge his retained proceed lawyers, wished to mandate counsel. Petitioner seeks them and substitute appointed overturn the rulings. May Counsel? Defendant Demand “Deficient”
When (the Court, county represented by Los Angeles Superior Respondent counsel2) contrary that the fee contract effected conflict contends standards, counsel, effective violated ethical constitutional guarantees process. of the judicial jeopardized integrity I section 15 of article guaranteed counsel, effective and effec contemplate does California Constitution be defi competence. Lawyering may than mere tiveness means more loyalty interest the client undivided deprives cient when conflict of (See Cal.App.3d v. Corona and effort. [145 75-76 315 U.S. Glasser United States 894]; cf. Cal.Rptr. 680, 701-702, 457].) 62 S.Ct. L.Ed. This counsel is essential. defendant’s loyal Protection of a that their ensuring the burden of trial assume court has said that judges de in a do not “result defendants indigent of counsel appointments ”. (People conflict... possible because some of effective-counsel nial 148]; v. Cook 335, 346-347 (1980) 446 U.S. v. Sullivan Cuyler but cf. is attacked a conviction
333, 345-346, When S.Ct. con influenced by was lawyer an appointed on the ground validly in nice “‘indulge court appellate interest flict of *7 the con- [resulting] prejudiceand to the amount of calculations as interest, nei position on the recusal order in party in have taken a People, real 2The appellate nor courts. ther trial
613 “informed speculation” viction must be reversed if record supports (1968) v. that the conflict was Chacon prejudicial. (People 765, 776-777, 10, 3 P.2d see too Cal.Rptr. 106]; and fn. 447 [73 Glasser, 60, 680, 702].3) 76 315 U.S. L.Ed. supra, [86
Yet effective
is
assistance
linked
counsel
closely
representation by
When
choice.
clients and
lack
confidence
lawyers
rapport and mutual
it
quality
representation
so undermined as to render
an
empty
Hence
formality.
many precedents
that
constitu-
recognize
tional
right
counsel
includes
opportunity
reasonable
for those
defendants who have the
resources to
necessary
control the designation
of their
(1958)
Crooker v.
legal representatives.
(E.g.,
357
California
433,
1448,
U.S.
439
1453-1454,
L.Ed.2d
78 S.Ct.
overruled on
1287],
[2
other
(1966)
grounds, Miranda v. Arizona
California decisions are in accord. While that acknowledging chosen counsel absolute they limit severely judge’s discretion to intrude on defendant’s choice of counsel in order to elimi- conflicts, nate potential ensure adequate or representation, serve judicial convenience. (1966) Crovedi Cal.2d held that a court abused its discretion by a continuance denying
868] during retained counsel’s temporary clear,” it is incapacity. “[T]hough Crovedi, said “that defendant has no absolute to be represented aby particular attorney omitted], still the courts should make all [fn. reasonable efforts to ensure that defendant able to retain financially his own can be choosing represented attor ... ney. ... state should to a keep minimum its necessary [¶] [T]he interference with the individual’s desire defend himself whatever best, manner he deems using any legitimate means within his re- Supreme 3The Court has ruled that the requires federal Constitution automatic re versal when defendant shows change the trial court improperly refused a sought by conflict, timely potential defendant after disclosure or that an actual, “adversely unwaived conflict performance. (Cuyler, supra, affected” counsel’s 446 U.S. 346]; Holloway L.Ed.2d Arkansas 435 U.S. 426, 436-438, 488-489 98 S.Ct. *8 to constitutionally yield be forced . that desire can ..
sources—and to the defendant himself prejudice it will result in significant when only under unreasonable justice of of disruption orderly processes or in a the 207-208, italics first (Pp. case.” particular the of the circumstances original.) has this court with prejudice” that concern
Despite “significant conflict or incompetence finding potential stressed that the judge’s Court Superior removal. Smith v. does not court-ordered usually justify that a P.2d concluded 65] his even not, recuse objection, lawyer over defendant’s trial court could had become convinced observation where the judge preliminary for a unanimous court Justice the incompetence. Speaking lawyer’s his “the must be on the to counsel protect right judge Mosk said that to his to the defendant’s counsel upon neither to guard infringe (P. 559.) choice, of the bar... .” nor the compromise independence to the for unanimous spoke again A few months later Justice Mosk that court no to re- power “We a has recently court: held Smith] [in of both the defendant and move a defense over the attorney, objections is that the latter because attorney, upon finding ‘incompetent’ that ... particular law case. A ignorance try fortiori, to purported ground less of the remove an on far relevant attorney court cannot him and his To do nature of the financial between client. arrangement Smith, would, so as the defendant’s to counsel of infringe upon of the defen- his choice and bar. When a compromise independence counsel, to it is clear court has no appears power dant retained condition, financial to determine personal into the defendant’s inquire fee, to he is to his chosen an ‘adequate’ that unable pay represented court-appointed order that he be instead counsel or when a defendant with a public omitted]; appears public defender [fn. client eligible defender who is satisfied from his own his is inquiry services, for such with their would judicial relationship interference Smith, ‘the is inde- explained be less tolerable. As we relationship no an compensation, of the source of for pendent attorney’s responsibility than person represent is to the he has undertaken rather the indi- the service.... It that once vidual or which follows agency pays defendant, an appointed represent indigent [or undertakes] it public private whether be the defender or volunteer attorney, enter which is no less inviola- parties attorney-client relationship into if ble than counsel had been retained. To hold otherwise would discrimination to an unwarranted invidious subject relationship
615 Justice v. (Ingram arising merely poverty of the accused.’” 832, Court (1968) 410, 650, 69 Cal.2d 840 Cal.Rptr. 36 [73 1391].) A.L.R.3d
Still later this court observed without “the dissent that involun removal of is a severe a tary attorney limitation on defendant’s all, to counsel at right may if in the most justified, only flagrant circumstances of misconduct or when incompetence all other (Cannon controls v. Commission on Judicial judicial have failed. ...” Qualifications 678, 778, 537 Cal.Rptr. P.2d 898].) Cook, supra, Cal.3d 663 rejected defendants’ contention
of prejudice to retained relating joint counsel’s representation several codefendants. This court explained that judge’s to avoid obligation appointments of conflicted counsel does not apply where counsel has “Indeed,” court, been retained. said the “it is doubtful that extremely defendants’ retain right to counsel of their own choice could or should be challenged the trial 671-672.) court.” (Pp.
Protection of defendant’s
right
reject unwanted counsel has pro-
gressed also on other fronts. We now know that a mentally competent
counsel,
defendant who
waives
duly
may
lawyer
dismiss his
and repre-
sent himself no matter how much the
doubts
judge
his legal ability.
(Faretta U.S.
819-821
California
572-574, 95
S.Ct.
And if he timely
substitution
requests
of ap-
pointed counsel the
court
a minimum must
into the
inquire
reasons
for
displeasure
with his attorney.
(People
v. Marsden
Cal.3d
122-124
Contrasting Views *10 un- fee are inherently prejudicial, It is contracts argued life-story has the ethical, power judge and that against public policy and, thus, in trial confidence the ju- of the duty protect integrity to a defendant’s outweigh single Do those concerns perhaps dicial process. interest in chosen counsel? tempt criticized. It is said law they
Contracts of this kind are widely
to the client’s
adversely
or
subconsciously
yers, consciously
(See,
interests,
e.g.,
the defense
for commercial
reasons.
to tilt
786, 793,
(2d
cert.
v. United States
1977) 550 F.2d
den.
Wojtowicz
Cir.
(6th
v. Rose
1071,
2938]; Ray
Cir.
431
97 S.Ct.
U.S. 972
L.Ed.2d
[53
629,
1976)
966, 974,
den.,
97
cert.
Some
a court’s
to recuse an
so
precedents
power
attorney
recognize
help
as to
ensure a fair
Comden v.
preserve judicial
integrity.
trial
Court
A.L.R.4th order that withdraw approved attorneys judge’s 562] a civil case because a member of their firm would be a witness. likely noted that and American majority both California Bar generally Association standards of an in those required withdrawal cir- *11 cumstances. the issue involves conflict a “[Ultimately a between right client’s to counsel his of choice and the need to maintain ethical standards of professional ‘The preservation public of trust responsibility. both in the administration of in scrupulous justice and the of integrity the bar is paramount .... client’s recognizably important [The of however, his yield, must to considerations of ethics choice] which run to (P. very 915.) our integrity judicial ...” process.’ {Greer) (1977)
People
Court
Superior
Occasionally this court has isolated in instances which appointed counsel faced potential conflicts so inherent and serious as to invalidate Conduct, 6California Rules of Professional provides: rule 5-101 “A member of the State Bar shall not enter into a business knowingly transaction with a client or acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless (1) the transaction and terms in which the acquires member the State Bar the inter est are fair and fully reasonable to the client and disclosed transmitted in writing to the client in manner and terms which should reasonably have been under client, (2) given stood the client is opportunity a reasonable to seek the advice of independent transaction, counsel of the choice client’s on the the client consents writing in thereto.” The disclosure the attorney-advice provisions of the contract in this case are a patent attempt comply with the California rule. providing 7Several states any proceeds have laws exploitation from commercial paid of one’s crimes state-supervised shall be into escrow for funds disbursement to vic legal 13-4201, 13-4202; tims for (E.g., defense. Ariz.Rev.Stats. Ga.Code §§ 27-3401; (1981 ¶ Supp.) (1981-1982 Ann. Supp.) Ill.Ann.Stats. 403 et seq.; § (1980-81 632-a.) N.Y.Exec.Law Supp.) A proposal similar failed in the California § Legislature. (Assem. (1977-1978 Reg. Sess.).) Bill No. 2635 effect on conviction, of adverse proof subsequent regardless 3d v. Rhodes (1974) 12 Cal. People case. counsel’s performance with that a city attorney 524 P.2d held Cal.Rptr. 363] indigent defend appointed prosecutorial responsibilities Barboza criminal And in defendants. “inherent and irreconcil we found 188] de discouraged public scheme that
able conflicts” in budgetary multiple-representation his own disqualification fender urging (P. 381.) cases. dismissal here. In Greer
None cases or authorizes a compels of those motion; dis- question there was no of any defendants filed recusal their chosen missal or of intrusion on objection over their Moreover, prosecutor justified biased was disqualification counsel. his extended those of the ground beyond typical on duties far he represented paramount respon- advocate. Because sovereignty was fundamental to the impartiality fairness sibility penal (19 Cal. 3d at justice system. the criminal truth-finding goal 266-267.) pp.
Rhodes and Barboza addressed defendants’
to
posttrial challenges
their
with
appointed counsel.
no interference
chosen
Again
legal repre-
stressed in Barboza that the hidden conflict
sentatives was involved. We
inherent
there at issue “would be more
provisions
in the budget
readily
(P. 379.)8
attorneys.
to defendants who had retained their
apparent”
a
for
Barboza was
“direct ...
financial disincentive
budget system
8The
attacked in
investigate
potential
or
public
to
or declare the existence
actual
defender either
(29
379.)
p.
of other
Cal.3d at
requiring employment
counsel.”
conflicts
conflict was not “tenuous” because the
interest
budget
“directly
income
af
defender’s
and
were
(id.,
380),
p.
exists ...”
by
of whether a conflict of interest
fected
his determination
professional
financial mo
creating a
insoluble tension” between counsel’s
and
“real and
381).
(p.
tives
contract
life-story agreement
no such inherent or inevitable conflict. The
A
creates
story might
long,
from a
sensational
petitioner’s
value of
benefit
here discloses that the
unlikely, though,
not
self-
leading
and
It seems
that counsel’s
trial
interests
to conviction
death.
careful, diligent
or
served
defense that avoids conviction
might
best be
a
story
quiet strategy
may
well make a better
penalty. A
succeeds
minimizes the
professional and commer-
reputation,
precious
failure.
flamboyant
than a
Counsel’s
asset,
enhanced;
demeaning
professional discipline and
criticism
and the risks of
cial
Also,
commercially prudent
keep lurid facts
until
may be
to
confidential
are reduced.
it
legal
ended.
battle has
dissenting
Appeal
experience
particularly apt:
“Al-
in the Court of
Justice Files’
remarks
attorneys,
for
the kind
though
not a
literary
contract is
common
[Ajlmost any
arrangement
fee
be-
here is
at all unusual....
of ‘conflict’ discussed
tween
attorney
may give
An
who received a flat
client
rise to ‘conflict.’
attorney
quickly
‘conflicting
dispose
interest’
of the case as
as
have a
to
fee in advance would
possible,
daily
hourly
disadvantage;
attorney employed
and an
at a
or
the client’s
to
Comden,
supra,
20 Cal. 3d
in civil
suggested
matters
the..
to chosen counsel
weighed strictly against competing con-.
interest,
ethics,
siderations
of conflict of
professional
judicial
conclude, however,
that,
We now
integrity.9
set
exceptions
forth in this
the mere
opinion,
of a conflict does not warrant
possibility
criminal
pretrial
removal of
in a
competent
case over defen
dant’s informed
When the
objection.10
conflict
possibility
significant
has been
to the court’s attention and the
brought
danger
proceeding
with chosen
defendant,
counsel has been disclosed
to
he
generally
insist on
retaining
if he waives the conflict
attorneys
knowingly
intelligently
purposes of the criminal
trial.* To the extent
Court
Municipal
(Wolfe)
719-720
Cal.App.3d
suggests
conclusion it is
contrary
disapproved.
235]
rate
‘conflicting
would have a
drag
interest’
beyond
the case on
point
of maxi-
mum benefit to the client.
contingent
“The
fee contract so
litigation
common in civil
creates a ‘conflict’ when
either
would
quick
or the client needs a
settlement while the other’s interest
be better served
pressing on
hope
greater recovery.
in the
of a
The variants of
this kind of ‘conflict’
Fortunately
are infinite.
attorneys
most
serve their clients honor-
ably despite the opportunity
profit by neglecting
betraying
or
the client’s interest.”
application
9Comden’s
even to civil cases is
by developments
weakened
response
1, 1979,
this
opinion.
court’s
Effective November
the State Bar has liberalized the rule
on attorney-witnesses.
longer
Counsel need no
withdraw from either a civil or criminal
case if the client
of the
writing
consents in
to continued representation after
full disclosure
implications
witness,
of counsel’s dual role as
advocate and
opportuni
ty to
independent legal
seek
advice—protections analagous
petitioner
to those accorded
(Rules
Conduct,
here.
2-111(A)(4),
Prof.
amended.)
rule
as
Thus the State Bar has
fully
concluded that a
client’s
outweighs potential
chosen counsel
informed
or threat
integrity posed by
to trial
appearance
counsel’s
as witness. And it
conflict
has determined also that counsel’s
participation
dual
under the circumstances is not
*13
unethical.
deprive
10Wedo not
power
the trial court of
to act when an actual conflict material
during
izes
proceedings, producing
obviously
performance.
an
deficient
Then the
power
court’s
duty
preserve
to ensure
credibility
judgments
fairness and
of its
defendant,
reason,
extends to recusal even when an informed
cooperat
for whatever
is
ing
(See
in counsel’s tactics.
Qualifications,
Cannon v. Commission on
supra,
Judicial
697;
678,
Court,
547,
14 Cal.3d
Superior
supra,
559.)
Smith v.
68 Cal.2d
No such
appear
facts
here.
11 Prior
right
California decisions seem to assume
by
that the
to counsel unhindered
may
(See,
870,
conflicts
Cal.Rptr.
e.g.,
(1970)
be waived.
In re Hochberg
2 Cal.3d
878 [87
681,
Chacon,
765,
1];
774.)
471 P.2d
People
supra,
v.
Cal.2d
69
The federal
and, waived,
They
decisions are clearer.
no federal
may
affirm that conflicts
be
provide
waived
if
Arkansas,
ground
(Holloway
constitutional
for attack on a conviction.
v.
su
475, 483,
426,
pra, 435
433];
U.S.
fn. 5
L.Ed.2d
Georgia (1981)
see also Wood v.
[55
220,
Sullivan,
1097];
As in other cases
forfeiture of
from
not be inferred
a silent record.
may
waiver of
conflicts
potential
506,
70,
(Carnley (1962) 369
516-517
Cochran
U.S.
Chacon,
765,
77-78,
774.)
Cal.2d
When
supra,
82 S.Ct.
sub
884];
the court’s attention before trial
brought
stantial risks of conflict
to
an
of
effective-assistance
cannot
adequate
but
waiver
defendant’s
record,
he
presume
be obtained on the
the court must
that
has not
with
chosen to
retained counsel.
intelligently
proceed
knowingly
614,
v. Carter
(See
Cal.Rptr.
People
then
the record and defendant’s
214].) The court may
protect
(See
to effective assistance
counsel’s withdrawal.
by requiring
Re
(3d
1182; Geer,
United States Dolan
1978)
570 F.2d
Cir.
Criminal
Interest
presentation
Multiple
Conflicts of
of
Defendants:
Attorney
and the
Responsibilities
Professional
of
Defense
119, 148-151.)12
62 Minn.L.Rev.
P.2d
S.Ct. 3066] potential counsel’s conflicts of inter- power that defendant lacks waive indicates 889] est. Chadd held to statutory disability only capital defendant cannot circumvent that 746-755; Code, 1018.) Pen. Stan- guilty (Pp. see plead without consent counsel. § statutory duty to of its and constitutional ruled no one divest this court worth review Code, that Cal.Const., VI, 11; 832-834; see Pen. judgment against (Pp. art. a death him. § overriding public in- (b).) In has asserted subd. both cases state § sentences, charges person even where the capital terest in full examination parallel no de- resist. The state has demonstrated or condemned wishes not to accused who, information, vigorous make a full chooses to a defendant sire defense overrule special through in whom he has confidence. waived, argue re- appeal on that he validly defendant still When conflict Because of the unrelated the conflict. ineffective assistance reasons ceived isolating has created difficulty conflicts and because defendant errors motivated counsel, should on knowing the burden be problem by his insistence on conflicted conflict. he did not arise that deficiencies later asserts him show justify does not contra holding unwaived conflicts recusal 12Our that disclosed but Smith, Chacon, Cook, sponte sua supra. Smith dealt with an unreasonable vene conclusion or incompetent; there we saw no need for court counsel was the trial recusal, objections to the issue of Though repeated we removal. waiver stressed defendant’s suggestion judges may never in arose. Cook’s effective assistance never dictum the case concerned trial choice conflicted counsel was since terfere with a preju In Chacon we held that Again the of waiver was confronted. prejudice. dice issue appeal. on But there a representation could asserted arising from conflicted *14 waived, and trial had not been forced conclusion that the conflict silent record attempted conflicted counsel. had not to remove court reaffirm that Supreme Court we now guidance from the United States With recent unless, here, as the is- affecting inquire conflicts retained judges need not about to advise both client party. responsiblity Counsel has the is raised counsel or a sue and trial that duty this is breached they as soon as arise. Where potential court conflicts of waiver, argue may of course formal defendant proceeds without disclosure and (Cuyler v. in his behalf. adversely did affect counsel’s efforts a conflict of interest
621 conflicts aris about case, disclosures pretrial extensive In this to both petitioner the record were made on the fee contract ing Did with his counsel. insisted on proceeding Yet petitioner court. re waiver, counsel’s precluding an adequate that insistence constitute it did. We believe that moval?
In in knowing, whether a waiver of conflicts determining potential unconditional, must telligent, adroitly the trial court “navigate between the defendant to determine his Scylla of denying (See own fate and the his to counsel. ...” Charybdis violating Carter, 667.) 66 Cal.2d at Some federal cases have supra, p. implied that the court’s must each foreseeable con inquiry separately explore flict and and that defendant’s waiver extend consequence only matters discussed in detail on the United States v. (E.g., Eaglin record. (9th 1977) 1069, Cir. 571 F.2d 1086 A.L.R.Fed United 786]; [49 Dolan, 1177, 1181-1182; States v. 570 F.2d United States v. supra, (5th 1975) 272, Garcia 278.) Cir. 517 F.2d It also has been suggested that defendant must in his own words his of what express understanding Garcia, (Dolan, 1182; he has been told. at p. 517 F.2d supra, supra, 272, 278; cf., Proc., 11.) Fed. Rules Crim. rule Not neither nor workable. necessary
Rules are that strict seem all a conflict that inheres consequences life-story imaginable Indeed, much the information contract can be before trial. predicted needed to assess the the conflict on defendant’s case impact Dolan, Cook, (See 672, 7; 13 Cal. 3d at fn. privileged. supra, p. supra, 1181-1182; 148-151.) Geer, at In the pp. pp. Minn.L.Rev. supra, area of waivers have been deemed sufficient parallel self-representation, where defendant was warned of the on general danger proceeding (See, 103, (1979) 23 108-109 own. v. Teron Cal.3d e.g., People [151 773]; Cal.App.3d P.2d Lopez 568, 573 Cal.Rptr. 36].) here, think,
The trial court’s we established procedure sufficiently was to waive his The examined petitioner competent rights. judge evaluation, and the record neither mental nor emo- psychiatric suggests (See tional both also judge Teron incapacity. Lopez, supra.) acted the disclosure of the properly provisions agreement by referring Sullivan, Arkansas, supra, 333, 346]; Holloway su- U.S. L.Ed.2d Cook, pra, 435 435-436]; U.S. 485-486 13 Cal.3d at supra, 670; Chacon, p. supra, 775-776.) pp. 69 Cal.2d at *15 understood each had read and that petitioner determining carefully eco- counsel’s basic problem—that explained Those provisions
one. They trial concerns. to petitioner’s run counter might nomic motivations sabotage pe- ways in specified be tempted might warned that counsel could be not all problems also cautioned defense. They titioner’s inad- was not conflict potential consequences Waiver of the foreseen. undertook the agreement the court nor neither because equate simply ramifi- conceivable separately every of explaining burden impossible recusing trial court’s order that the conclude cation. We therefore overturned. must be chosen counsel
Conclusion ethical approval no moral or connotes opinion We stress that our this narrow question: addressed only We have fee contracts. life-story crimes) be denied (here with capital charged defendant a criminal May poten- because of counsel simply retained representation asserted, after when he has concerns even or ethical tial conflicts his cho- risks, with proceed that he wishes to disclosure of the extensive is No.13 Our answer sen and no others? lawyers its court to vacate directing respondent issue Let a writ of mandate Alschuler, and Walter Laidley, M. Pierpont Messrs. order discharging Los Angeles defendant record for the attorneys Fred Alschuler as enter and all orders and to No. A350010 Court action Superior in that action. attorneys as defense reinstate them necessary Tobriner, J.,* J., Mosk, J., Broussard, concurred. lead the result reached in Justice Newman’s
KAUS, J. concur in I find lan- that our would harsher hoped opinion I had opinion, although its as well as the “life contract’s story” propriety guage respecting disagree American “I do not with EC 5-4 of the Files observed below: 13As Justice kind of Responsibility, which declares that the of Professional Bar Association’s Code scrupulously avoided.’ But we are here deal involved ‘should be contract which is here theory. attorneys defendant and his have made the ing not a The with a fact and defendant, charged capital four of this question now is whether contract. fenses, attorneys accept the trial court’s chosen and forced to deprived shall be of his who, through ‘“represents” only the defendant the Faretta court: choice in the words of legal unacceptable fiction.”’ a tenuous and sitting assignment by Supreme Court under Justice of the Associate *Retired Council. Chairperson of the Judicial *16 If we indicated not the contract is enforceability. only ethically flawed, but also that we doubt its as a vehicle for efficacy compensating counsel, the issue before us now would never recur. probably reason for in the result reached Justice Newman’s
My joining I opinion do not it to be the of trial courts to act as perceive duty an arm of the professional State Bar Court and enforce eth- specifically (See ics by counsel. dis. of Justice Manuel in Comden v. recusing opn. (1978) 906, 9, Court 576 P.2d Superior Cal.Rptr. [145 971, 5 562].) A.L.R.4th it
Although appears to me that Maxwell has waived adequately contract, that, conflict inherent in the I am under no illusion if convict- ed, he will not raise the conflict as a It will ground for reversal. have to be dealt with at that time. The notion that trial courts can prophylacti- cally prevent issues from raised on or in attorney-client appeal being is, collateral proceedings unfortunately, Utopian.
BIRD,
J.,C.
to counsel of one’s
Concurring
Dissenting.
The right
(See
own choice is one
this
nation’s most fundamental
freedoms.
625,
(1978)
v.
People
Cal.Rptr.
Holland
Cal.3d
86 [151
P.2d
This court has been
in its efforts to ensure that all
765].)
diligent
citizens,
life,
our
be
of their status in
have the
regardless
opportunity
(See
defended
counsel of
Harris v.
Court
their choice.
Superior
750];
In our criminal have two choices. poor basically justice system, can make some They accept arrangement counsel or court-appointed will receive some remu- private counsel that ensures that counsel this case neration One of the problems for the services rendered. or properly completely underscores is the fact that our courts do result, if As a perform. for the work compensate appointed they a court accepts appoint- of the law practice attorney private than ment, fully compen- will be less it means that the usually sated her or work. court, it before the
In case such as the one and serious complex a court appoint- to accept not be feasible for counsel economically be able to Therefore, indigent may in which an way ment. the only a “life story” arrangement. secure his choice through counsel of *17 to hold “life its con- any story” agreement, regardless For this court tents, the be to foreclose to the impermissible indigent perhaps would he to secure of his choice. At the have counsel only opportunity time, the the same counsel should not circumstances which exploit is the finds himself. the accused has only “money” poten- accused If the scrupulous his be profit story, any tial from should publishing and poor powerless of this of the agreement type. Exploitation retainer However, the legal profession is not to this members of unique society. in our are sworn to and defend the enumerated Constitu- uphold rights should a to their violation. party tion. never be They which hold that I with those agree majority opinion portions which a by is not an means impermissible a “life story” agreement (2) the accused accused of retain an but crime person the potential waive the record must and on “knowingly intelligently” ante, 619.) p. from this flowing arrangement. (Maj. opn., conflicts to waive I have about an accused grave misgivings permitting . understandable, been and detailed informa- given specific, if he has not untrained in the law to make a person truly tion sufficient enable a A mere of “the basic intelligent prob- decision. statement knowing be foreseen” problems might lem” and a recitation that “not all could However, by if the decision were to be made scholar. legal suffice when the decision-maker is a criminal de- they woefully inadequate fendant unschooled in the law. (Cf., Faretta
The Faretta line of cases is Cali- inappropriate here. 95 S.Ct. Petition- U.S. fornia himself is a He does not seek to for he layman. represent er Maxwell competent he is under- does not believe—even superficially—that with without the assistance of counsel. stand or deal the legal system assistance. Where arise as to questions He needs and wants skilled legal assistance, Maxwell cannot be ex- very in that a potential inadequacy of the problem and ramifications to be aware pected magnitude Further, he skilled in law. cannot the assistance someone without to obtain that knowledge. be deemed to have his right waived case present highlight prob- deficiencies in record of these been told by accepting parti- has point lem. At no petitioner interests, he be could conflicting their attorneys potentially cular he on For could example, issues appeal. assert certain losing inadequacy reversal on the basis of obtaining precluded him at claim waived upon counsel if that were based the conflicts be a limitation of petitioner’s the trial court level. This could substantial been of it. An appellate intelligent he has not informed rights, yet was never waiver those elicited. knowing Moreover, well petitioner may the “life story” agreement signed by he In section affect other otherwise adversely protections might enjoy. 37 of the has “waive upon demand agreement, petitioner agreed all Lawyers so called other attorney-client privilege *18 and and privileges prevent which would the full exercise complete (Italics of the exploitation to herein.” add- rights granted Lawyers ed.) No specific mention has been made to of the petitioner impact self-incrimination, this provision on indeed has privilege against nor the been elsewhere. attorney-client privilege explained law,
To a person trained in the a host problems come legal easily to mind. for convicted, is the Suppose, example, petitioner but con- viction is reversed on appeal and remanded for retrial. the Under terms of the these ajgreement, counsel are not to him at obligated represent any stage the beyond present superior court If decide proceedings. they not to him in represent the retrial demand that proceedings, they may he waive his privilege prior to retrial.
Indeed, if counsel speak petitioner with time after their repre- sentation terminates—the seems allow agreement to counsel to demand such cooperation—no will protect privilege statements to petitioner’s them. The prosecution obtain those statements simply by serving subpoena on the attorneys.
None of these issues was ever explored petitioner, either in the written agreement or at the court on issue of recusal. In hearing sum, I do believe record this establishes a and intelli- knowing gent waiver petitioner of his to a counsel whose are interests not in potential conflict with his own.
A writ peremptory should issue the trial court conduct directing further at which hearings would petitioner advise- given adequate ment of all Then, the conflicts and potential consequences. petitioner may decide whether or not he wishes to be represented by particu- these (See lar (3d United attorneys. 1978) States v. Dolan Cir. 570 F.2d 1177, 1180-1182; (7th United 1976) States Gaines Cir. 529 F.2d (5th 1043-1044; 1975) Cir. 517 F.2d v. Garcia United States
272, 276-278.) re- RICHARDSON, 19-page attorney dissent. The J. I respectfully created, defendant’s attorneys tainer drafted agreement fully of interest which irreconcilable conflicts moment of its inception, view, In as recusing attorneys. my trial action in court’s justified the court’s duty of choice and defendant’s between interests, the latter free of representation conflicting assure defense more important. fea question troubling contains several agreement
The retainer absolute full (1) Attorneys ownership, “irrevocably, are given tures: forever,” unlimited as to type story, life ly story, defendant’s duration, use, territory exploitation, nature of media geographic (¶ events,” life “all and future Maxwell’s past, present covering real 28); (2) proceeds of the net percent receive attorneys *19 (¶ 15 to percent ized defendant’s life and is to defendant story, go (¶ 39); 24); (4) de (3) services not include an appeal the do attorneys’ arises vests in compensation immediately fendant’s and obligation (¶ 22); (5) “attorney- the defendant waives the attorneys irrevocably all and which would privileges rights client and other privilege full, exploitation immediate and exercise prevent complete (¶ 37); (6) all defendant waives granted lawyers” to or else privacy “anything by claims for defamation for intrusion on (¶ 38). reason of contained anything story” life] [his There are such an should not be sanc- why agreement several reasons It and the reality appearance fatally tioned. contains both contract, terms if would performed, interests. The conflicting defendant and future deny present procedural protections. significant Contracts of this kind have been condemned on ethical widely general If such the in- grounds. implemented, seriously would erode agreements contract as a judicial The should invalidated tegrity system. declared rule of criminal judicially procedure. Right Chosen Counsel
While his own is important defendant’s counsel of choice right is neither nor It right constitutionally it ordained absolute. must yield when weightier considerations necessary preserve judicial integrity public and assure for the administration of Due respect justice. process (Reece that assistance principles require of counsel must be “effective.” (1955) 85, 77, v. 83, 350 U.S. Georgia L.Ed. 76 S.Ct. 167], [100 added; italics (1942) 60, see Glasser v. United States 315 U.S. 70 [86 680, 699, Moreover, L.Ed. 62 S.Ct. “We 457].) have held repeatedly that constitutional and statutory guarantees not violated by ap pointment of an other than the one requested defendant.” 930, v. (Drumgo Superior Court Cal.Rptr. [106 den., cert. 1007], U.S. 979 94 S.Ct. 272]; People Hughes Cal.2d 98-99 Cal.Rptr.
Defendant faces the most serious of criminal with the charges gravest of possible counsel, consequences. He requires not of only unquestioned professional competence Pope Cal.3d 423- (People 1]), A.L.R.4th but also coun sel whose to him allegiance subtle, is total and free of the unalloyed, opposing magnetic of pull self-interest or adverse pecuniary advantage. This, the majority refuses to assure. Conflicting
The Interests What are the interests conflicting which are created this retainer agreement? The itself agreement it frankly acknowledges “may create a conflict of interest between Maxwell and the and that lawyers, the provisions this the agreement may give inter- lawyers monetary est adverse to the interests of Maxwell.” in Interestingly, fashion describe three areas specific 14 in novel and clinical
paragraph of conflict: The an interest to create which would publicity
“a. have lawyers the a result this get agreement, increase which as money they might if this hurt Maxwell’s defense. publicity even an certain defenses “b. The have interest not to raise lawyers may would or mental Maxwell because question sanity capacity which the this between agreement lawyers raise these defenses make might and Maxwell or voidable Maxwell. void be convicted Maxwell having The have interest
“c. lawyers publicity so that there would increased sentenced death even as result money more lawyers that the would might get which mean however, (¶ 14(d)), that they then promise of this Counsel agreement.” interests, adverse pursue any defendant or advantage will not take will they try I have doubt that serve him. no but rather will diligently faith in Moreover, testing per their question good do I do not so. drawn, al they which have limits the instrument missible ethical caused delay thereby lengthy procedural I though deplore very this case. the trial of the merits of The solemn
Nonetheless, the line of propriety. crosses agreement 14(d) op- commercial to resist the expressed paragraph assurances are promises of its taint. Such the instrument portunities do purge noth- requires, adding what the law already commitments to do simply The duties. opportuni- preexisting fiduciary to counsel’s continuing, ing of, pres- twin evils here. for, mischief and the ty appearance which provides an agreement self-interest generated by sure of the commercial exploita- will come from compensation counsel’s only created at self-interest thus This story. defendant’s life tion of if unconsciously, to sway, is ever present of the contract inception trial. *21 pretrial during both decisions numerous divided loyalties prompt a similar tension Very recently arising 375, (1981) in v. Barboza Cal.3d ed us People which relationship by a contractual 188], disapprove professional interests opposing terms created financial personal its own it is that counsel avoid re necessary “‘any We stressed that obligation. his entire to his energies him from prevent devoting which would lation v. Eaton interests,’. (Id., Anderson quoting at p. client’s . .” with a In invalidating agreement P. Cal. 116 him in a situa that “the contract places defender we emphasized public administration of for the implications tion with consequences grave there is also a of impropriety,’ Not is there an only ‘appearance justice. the defend tension, contract between real and insoluble created by 381.) (Id., reasoning applies Similar p. er’s interests.” conflicting here, are at stake. where, interests of counsel as financial personal fashion, be- In like a similar posttrial literary agreement examining client, (1978) 80 the court in v. Corona Cal. tween counsel and stating; reversed a conviction App.3d Cal.Rptr. 894], contract is into indisputable by entering literary “[I]t trial counsel which him from prevented devoting created a situation undivided and service to his client. From that moment requisite loyalty on, inter- trial counsel was devoted to two masters with conflicting the best ests—he was forced to choose between his own pocketbook client, interests of his the accused.” of the conflicts “built in” scope to the exceeds those agreement in
acknowledged by themselves 14. The real attorneys paragraph vice of the most in certain tac- arrangement appears clearly considering tical decisions which confront trial Suppose counsel. before trial, through plea defendant’s life bargain, saved an in- formed counts, of a certain entry guilty plea to of the multiple including murder, with which he is Should counsel charged. recommend such a should, bargain? Perhaps but would they they, that the sales knowing value of a book or television would decline if there was no manuscript dramatic trial elicited? How testimony will counsel be really objective exploring opportunities for trial without attendant avoiding if the publicity commercial value of defendant’s life is re- story thereby duced tried, or If destroyed? defendant should he be called as a witness to tell his or exercise his “story,” constitutional to remain silent, “the thereby prosecution to its the sales putting proof”? Surely, value of defendant’s would be affected If story decision. defen- dant takes the stand trial would the during areas of direct examina- affected, tion be however counsel’s fi- subtly, perhaps unknowingly, by nancial interest in the drama and of his As antici- salability testimony? pated 14(b), paragraph would the existence of the contract affect a decision to assert an defense with its inherent insanity threat to the va- of the lidity agreement? *22 be motives by and affected
In decisions summary, strategy counsel. basic to effective which are antithetical to defendant’s Moreover, defendant understands fully there clear evidence that is no waiver. purported the of legal implications faith assur- counsel’s Accepting good The case is before us pretrial. by afforded them their will not they exploit any opportunities ances The Unit- how know if so restrain themselves? they will we agreement, the Court, the role in plea on Supreme focusing attorney’s ed States alone, v. Arkansas Holloway noted in function bargaining 1173], 98 S.Ct. would U.S. 490-491 “[I]t a the the of conflict on attor- impact be difficult to judge intelligently the client. And to assess conflict of impact of a ney’s representation tactics, and in plea negotia- interests on the decisions attorney’s options, fashion, is a In similar how trial impossible.” tions would virtually court, motives, trace the selfish or honestly and and fairly, identify altruistic, and at myriad pretrial hidden or behind the decisions express, inescapable in a murder case? The fact multiple trial made the trial knowing, is that defendant will have no and neither nor way court better position judge. appellate 5-101, Bar of Rule Rules of Professional Conduct the State Cali- fornia, in relevant binding provides part: on all California lawyers, A of the State shall not enter Adverse Interest. member Bar “Avoiding into a business client or owner- knowingly acquire transaction to a or other interest adverse client ship, possessory, security pecuniary (1) the in which the of the unless transaction and terms member State and acquires Bar the interest are and reasonable to the client fair to the in manner disclosed and transmitted in client and fully writing client, (2) terms which been the should have understood reasonably the client is to seek the advice of inde- given opportunity a reasonable transaction, the and counsel of the client’s choice on pendent (Italics added.) client consents in thereto.” writing of the Court of majority Appeal rejected present agreement and strictures applied foregoing “fair reasonable” rule which “Maxwell 5-101 to contract’s recites: does paragraph upon waive demand the so hereby agree by Lawyers called other attorney-client any and all privilege privileges which would exercise and prevent complete exploitation full herein.” The court rights granted Lawyers appellate appropriate- “an waiver provides noted advance ly paragraph [which] *23 retained well inhibit Maxwell from to his might fully disclosing lawyers The all information that could be his defense. confidential helpful between and client at the heart of relationship attorney proper of of this compelled our A waiver functioning judicial system. privilege for the of the fee interest of the cannot be purpose advancing tolerated.” (ante, 1) fn. recites that “counsel con
Although p. majority overreaches,” ceded that ... neither the extent nor the effect of [¶ 37] Moreover, the concession is clear. the contract re paragraph of In mains. it “promises, defendant covenants and to assist the agrees at lawyers and all times and in and all any any law ways permissible by exercise, in the protection, of their to the exploitation rights Story.” Defendant to disclose additionally agrees relevant material to fully any the lawyers or their to designated lawyers’ further the agents rights Thus, his story. there remains the substance of a waiver of the attor ney-client privilege.
Further, I am unable to reconcile language spirit para 33 with graph following mandate Business and Professions Code (e) section 6068: “It is the of an duty ... To maintain attorney: in [¶] confidence, violate the and at every peril preserve himself secrets, of his client.”
Finally, another inescapable fact have remains—attorneys agreed to represent Maxwell only trial. What is to them during prevent from pub- bit licly utilizing every information have they gleaned during trial preparation and trial at the same time that defendant is appealing from judgment of conviction? appellate briefs the second at- torney be filed a book of the first simultaneously attorneys aimed the best seller list. Aside the profound implications such a situation would for the have what is judicial system general, there defendant’s protect sub- during process appellate sequent retrial? At he will no point be the “owner” of his longer life story, which will instead be in the hands of his former attorneys whose only remaining interest be the promotion sales. Integrity
Erosion of Judicial and Professional As a of the intrinsic ethical difficulties raised consequence contract, it me seems to self-evident that its will judicial inevi- approval *24 the bar. Not does only the of both bench and
tably integrity damage invite, decisions be may indeed and tactical which permit, legal contract interests, the the client’s best but contrary appear- and to self-serving noted, As an ethical of taints the arrangement. ance further impropriety shadow is the relationship. cast over lawyer-client
Both and of the between arrangement the the financial reality image human attorneys being and client nature and suspect, temptation the what are. Contracts the herein will to they type presented appear of of the as from run-of- eye layman indistinguishable ear average view, the-mill or relations In public agreements. my commercial agency the this the will dilute inevitably of device on engrafting judicial process fi- public of founded on a acceptance understanding advocacy legal of trust between duciary relationship complete confidentiality and client which is directed toward the advancement attorney solely of the fiscal advan- legal rights, vindication client’s counsel’s hat of or tage. simultaneously literary Counsel cannot wear the a hat of a goal theatrical whose is commercial and the agent promotion counselor at law who is strict ethical constraints. guided which has been a contractual
My colleagues approve arrangement (ABA) Code condemned the American Bar Association specifically code, Ethical of The ABA Consideration Professional Responsibility. If, (EC) repre- more “EC 5-4 in the of his could not be course explicit; client, receive his client a sentation lawyer permitted of the matter publication rights relating subject ownership beneficial he subordinate interests tempted be employment, For example, lawyer his client own pecuniary gain. to his anticipated radio, television, his motion in a case who obtains from client criminal book, re- or other picture, newspaper, magazine, publication rights to a unconsciously, be or spect influenced, consciously to the case his publication rights course enhance value conduct will in- these prevent differing To potentially to the client. prejudice of terests, prior avoided should arrangements scrupulously such rise to employment, the matter aspects giving termination of all (Italics added.) has ended.” previously even his employment though Model of Profes- Draft of ABA Rules the latest Discussion Similarly, standards. Conduct, professional upon substantially higher sional insists arrange- of contractual this form prohibit outright rules proposed ment, “An declaring: which a agreement by lawyer acquires literary rights concerning matter of the subject in representation involves compatible standards for the one lawyer’s performance, effective being ness in the client and other representing being that has performance (Comment, value.” literary 1.9(d), U.S.L.Week, Proposed Rule No. p. added.) Feb. italics One court federal de recently scribed life-story arrangements between and client as “a *25 (United which practice judicial deserves condemnation.” States v. (N.D.Cal. 1978) 1068, Hearst 466 F.Supp. 1083 A.L.R. 110], Fed. [53 (9th affd. in part 1980) 1190, vacated in part Cir. 638 F.2d cert. den., nom., (1981) sub v. United Hearst States U.S. 451 938 L.Ed. [68 325, 2d added.) 101 S.Ct. italics 2018],
The rejection such contracts is not new. Ten ABA years ago Justice, Standards Criminal the Prosecution De- Function and the Function, fense 1971, Draft Approved section supplement provided: 3.4 “It is conduct for a unprofessional lawyer, prior to conclusion of all as- pects of the matter rise to his to enter giving employment, into any or agreement with a client or a understanding prospective client by which acquires he an interest publication to the respect (Italics subject matter his or employment proposed employment.” added.) me,
To these collective ethical are strongly persuasive. We judgments should affix not our seal of on which judicial that “should be approval avoided,” on that scrupulously or which “involves stan- incompatible dards.” We cannot sanction as “fair and reasonable to client” under Conduct, 5-101, Rules California of Professional rule that “practice which deserves judicial condemnation” which involves “unprofes- sional conduct for a citizens entitled lawyer.” California to ethical standards for their which lower those of are no than lawyers practition- ers nationwide.
The maintenance of has been fixed judicial integrity principle (Elkins (1960) 206, our v. 364 215 United States U.S. jurisprudence. 1669, 1676, In we L.Ed.2d 80 S.Ct. California have 1437].) recently [4 that emphasized “‘It is essential that have absolute confi public dence system in the of our of criminal integrity impartiality 255, (Greer) (1977) v. Court 19 Cal.3d 268 justice.’” (People Superior 476, P.2d v. Rhodes Cal.Rptr. 1164], People 561 quoting [137 (1974) 185 Cal.Rptr.
The
to recent
majority’s
contrary
conclusion
also
decisions
both
this
court and the federal
In
courts.
Chadd
3d
Cal.
nom.,
(cert. den.,
P.2d
sub
837]
California
Chadd
California courts
benefit, he
not
his own
which exist for
waive rights
fendant may
v. Wer
public generally.” (People
to the
which
also
belong
waive
v. Stan
494,
704]; People
P.2d
Cal.App.2d
wee
therein.) We have
cited
worth,
and cases
833-834
supra,
Massie v. Sum
enunciated in
to the basic principle
adhered
previously
(cert.
(1981)
Not
is it the
decision,
court which must make the ultimate
but
as we have
summarized:
previously
“[Ultimately
issue involves a
*27
conflict between a client’s right to counsel of his choice
the
and
need to
maintain ethical
of
standards
professional
‘The
responsibility.
preserva
public
tion of
trust both in the scrupulous administration
justice
of
in the
of the
integrity
paramount
bar is
....
client’s recognizably
[The
important right
however,
to counsel
his
must yield,
to consid
choice]
erations
ethics which run to the
very integrity
judicial
our
(Comden
process.’”
906,
Court
Superior
915 [145
9,
den.,
A.L.R. 4th 562], cert.
Faretta I find unpersuasive the majority’s argument, to Faretta v. by analogy California, supra, U.S. that because an independent right of exists, self-representation a defendant therefore the compel trial court to accept his waiver of conflict-free counsel. Here defendant does Faretta, counsel, is
not the issue a trial waive but desires it. Unlike be court’s insist that conflict-free. power representation to defendant’s
Conclusion position, we clear ethical Long very established for California ago which ever since. This standard should be has bench and bar guided firm, immovable, obli that “One of the mandating principal fixed and is that of attorney maintaining which bind an gations fidelity, him, in him those who reposed employ inviolate the confidence at to secrets of his client. to himself every peril preserve [Citations is one.... virtue very high stringent By This obligation omitted.] is relation which assuming any this rule an from precluded entire to his client’s inter prevent devoting energies would him from and motives of the attorney ests. Nor does it matter intention prevent prac are rule alone to the dishonest honest. The designed conduct, from but as well to honest preclude titioner fraudulent where he be re practitioner putting position himself duties, to an attempt between or led quired conflicting choose interests, to their extent reconcile rather than conflicting enforce full (Anderson alone the interest which he should represent.” Eaton, Cal., added.) These p. principles italics supra, we err when we as were 50 today years ago seriously sound as they depart from them. not approve to insist it “does
It is not enough majority 621.) (Ante, With due it seems me p. respect, ‘life contracts.” story’ agreement. and sanction the approve does that the inescapable majority on defen binding will be defendant’s “waivers” the contract and Surely, does not majority here. If the dant after if we condone them trial in can it should *28 present agreement, and declares invalid the “approve” both defendant parties, the interested dor so declare in order that counsel, be under no misapprehension. should with criminal of charged those public that both
Believing invalidate I would protection, entitled to greater fenses in California a ju as agreements retainer all similar and disapprove Barboza, supra, v. (People procedure. rule of criminal declared dicially Rhodes, Cal.3d, at 186- pp. supra, 381; Cal.3d, People p. (1972) 8 Cal.3d 187; v. Vickers People
Accordingly, would sustain the action of the trial court in relieving
counsel for defendant’s protection.