SANTA CLARA COUNTY COUNSEL ATTORNEYS ASSOCIATION, Plaintiff, Cross-defendant and Respondent, v. STEVEN WOODSIDE, as County Counsel, etc., Defendant, Cross-complainant and Appellant; COUNTY OF SANTA CLARA, Defendant and Appellant.
No. S031593
Supreme Court of California
Mar. 31, 1994
7 Cal. 4th 525
Remcho, Johansen & Purcell, Robin B. Johansen, Joseph Remcho, Karen A. Getman and Philip C. Monrad for Defendant, Cross-complainant and Appellant and Defendant and Appellant.
Daniel S. Hapke, Jr., Frederick J. Krebs, O‘Melveny & Myers and George A. Riley as Amici Curiae on behalf of Defendant, Cross-complainant and Appellant and for Defendant and Appellant.
Pillsbury, Madison & Sutro, Kevin M. Fong, Edward P. Davis and J. Donald Best for Plaintiff, Cross-defendant and Respondent.
Daniel F. Moss, Ann Brick, Edward M. Chen, Matthew A. Coles, Margaret C. Crosby and Alan L. Schlosser as Amici Curiae on behalf of Plaintiff, Cross-defendant and Respondent.
OPINION
MOSK, J.—We are asked to decide whether the right of local government employees to sue a public agency for violations of the Meyers-Milias-Brown Act (MMBA,
I. Factual Background
Petitioner Santa Clara County Counsel Attorneys Association (Association) consists of approximately 20 out of 40 attorneys (Attorneys) in the County Counsel‘s office. The County Counsel‘s office, by statute (
In order to understand the relevant circumstances of this case, it is helpful to recount briefly the history of the Association.
In 1973, the Santa Clara County Criminal Attorneys Association, which included deputy district attorneys and deputy public defenders, filed a petition to form an attorney bargaining unit, pursuant to provisions of the MMBA. The County Board of Supervisors (the Board) placed the deputy County Counsel attorneys in the same bargaining unit as these attorneys. At the same time, the County removed the attorneys’ status as classified employees who, under the MMBA, have certain restrictions placed on their associational rights. (See
There is evidence in the record that in the late 1970‘s the Association attempted to change the status of its members, in effect proposing to disband them as a bargaining unit in exchange for a salary increase 5 percent greater than those of the deputy district attorneys and deputy public defenders. These latter attorneys objected and the proposal was never adopted.
In 1984, the Association joined the deputy public defenders and deputy district attorneys’ unit in a lawsuit against the County. At issue was whether
This brings us to the events leading to the present lawsuit. In 1989, the most recent memorandum of understanding between the County and the Association expired. The Association refused to accept a wage package already approved by the deputy public defenders. Instead, the Association sought to meet and confer independently with the County and the Board to present its own comparative survey data, to support its position that its members deserved higher salaries than those offered by the County. On August 17, 1989, the Association requested that the Board schedule a hearing to set salaries pursuant to County Charter section 709. The Board did not comply with that request. On September 1, 1989, the Association proposed that the rate of pay for its members be set by binding arbitration. The County again did not respond. In November 1989, the County notified the Association that it intended to give the Attorneys the first phase of the increase negotiated with other attorneys. The County offered to meet and confer with them on the implementation of this increase. On December 8, 1989, the Association proposed nonbinding fact-finding by a neutral third party or any other reasonable procedure that would assist the parties in resolving the comparable wage issue. Once again the County did not respond.
In December 1989, the Board enacted its 4 percent wage increase for the Attorneys. The Association at that point notified the County of its intent to file a petition for writ of mandate to enforce its rights under the MMBA and the County Charter. On December 21, 1989, Steven Woodside, the County Counsel, distributed a memorandum to all deputies in the office, setting forth his position with regard to the impending writ action. After a review of various California Rules of Professional Conduct as well as the American Bar Association model rules, Woodside concluded that “litigation against the County on these issues may not be maintained by lawyers employed by the County unless the lawyers cease employment in the County Counsel‘s Office or the County consents.” Moreover, Woodside took certain steps to segregate Association members from confidential meetings and contacts with the Board.
On December 29, 1989, the Association requested that the County waive the conflict of interest or submit the controversy to a court without the filing
The Association asked the court to grant the following relief: (1) to declare that the members of the Association do not have to resign prior to filing a petition for writ of mandate against the County over the wage issue; (2) to declare that such a writ of mandate action does not create a conflict of interest or violate any ethical code which would subject the Attorneys to discipline; (3) for an injunction prohibiting the County from preventing the Attorneys from performing their customary duties, from disciplining or terminating the Attorneys, or from referring the Attorneys to the State Bar for discipline; and (4) to reinstate the Attorneys to their full employment responsibilities, including confidential meetings with the Board and other County policymaking officials. It is worthy of emphasis that the underlying merits of the petition for writ of mandate sought by the Association were not before the trial court, and are not before this court. The only issues argued in the court below were whether the Association‘s contemplated petition was lawful, and whether it could proceed without discipline from either the County or the State Bar. Those are the only questions we decide here.
The trial court found for the Association on most points. It enjoined the County from terminating the Attorneys for filing a writ of mandate action to resolve the salary dispute. It further declared that the members of the Association did not have to resign in order to file the suit, and that the filing of a petition for writ of mandate did not create any conflict of interest in violation of the Attorneys’ ethical code. It declined to enjoin the County, however, from reassigning attorneys so as to exclude them from confidential meetings.
The County appealed. The trial court stayed its judgment pending appeal, but left in effect a preliminary injunction preventing the County from terminating any of the Attorneys for filing the suit. The Court of Appeal reversed, finding in essence that the Association‘s suit did indeed present a grave breach of the Attorneys’ duty of loyalty to their clients. The Court of
II. Discussion
In support of the Court of Appeal‘s holding, the County advances two lines of argument against the Association‘s right to sue. The first of these is a statutory/common law argument based on a construction of the MMBA. The second is a constitutional argument based on the separation of powers between the legislative and judicial branches of government. The constitutional argument claims in substance that the MMBA as applied to these attorneys permits them to violate their settled ethical obligations, and that therefore the statute is in that respect unconstitutional. Each of these arguments will be considered in turn.
A. Statutory Arguments
The Association contends that the Court of Appeal erred when it held that the Attorneys had no right to sue under the MMBA. The County, on the other hand, argues that the MMBA contains no explicit right to sue. It contends that the remedies available to grievants under the MMBA are essentially common law actions created by the courts. The County further maintains that there are compelling public policy reasons for not extending the common law right to sue to attorneys who, as here, are involved in an attorney-client relationship with their employers. The primary public policy reason against allowing such suits is that they would cause an attorney to violate his or her duty of loyalty to the client.
We disagree with the fundamental premise of the County‘s argument. We construe the MMBA to provide a right to petition for writ of mandate to those employees who fall within its protections, including the Attorneys in the present case. Therefore this court has no discretion to deny that remedy on public policy grounds, however strong those grounds may be.
1. Scope of Coverage Under the MMBA
The MMBA was adopted in 1968, after several more modest attempts to regulate labor relations for local government employees. Its stated purpose is to provide “a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment ....” (
The MMBA explicitly includes attorneys within the scope of its protections. Government Code section 3507.3 states that “Professional employees shall not be denied the right to be represented separately from nonprofessional employees by a professional employee organization. . . . ‘Professional employees’ for the purposes of this section, means employees engaged in work requiring specialized knowledge and skills attained through completion of a recognized course of instruction, including, but not limited to, attorneys, physicians, registered nurses, engineers, architects, teachers, and the various types of physical, chemical, and biological scientists.” (Italics added.)
Moreover the MMBA, unlike federal labor law, includes supervisory, management and confidential employees within its scope. “Contrary to federal practice, by virtue of the broad definition of ‘public employee’ in section 3501, subdivision (d), which excludes only elected officials and those appointed by the Governor, MMBA extends organizational and representation rights to supervisory and managerial employees without regard to their position in the administrative hierarchy.” (Organization of Deputy Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331, 338.) Government Code section 3507.5 permits a public agency to adopt rules for the designation of management and confidential employees, and for “restricting such employees from representing any employee organization, which represents other employees of the public agency,” but does not prohibit such employees from forming, joining or participating in an employee organization.
Thus, under federal labor law, the Attorneys in this case may well have been excluded from union representation because they would be classified as
But under the MMBA neither exclusion is applicable. By choosing to explicitly include supervisorial, managerial, and confidential employees within the realm of the MMBA‘s protections, the Legislature implicitly decided that the benefits for public sector labor relations achieved by including managerial employees outweighed the potential divided loyalty dilemmas raised.1 We therefore note at the outset that any argument which contends that MMBA protections should not apply to certain managerial employees because of problems with divided loyalty must be viewed with skepticism, for that argument follows precisely the legislative road the MMBA declined to take.
2. The Right to Sue Under the MMBA
The County‘s statutory argument is premised on what it considers the lack of an express right to sue under the MMBA. Its argument begins with our statement in International Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 197 (hereafter City of Gridley), that the MMBA “furnishes only a ‘sketchy and frequently vague framework of employer-employee relations for California‘s local government agencies.’ [Citation.] A product of political compromise, the provisions of the act are confusing, and, at times, contradictory.” From there, the County points to the lack of any stated right to sue under the MMBA, and concludes that “the Legislature deliberately left important provisions of the Act to court interpretation, including any provisions for enforcement.”
That being the case, the County‘s assertion that the MMBA contains no express right to sue is irrelevant. The Legislature, in order to create a right to sue under the MMBA, need not have included language concerning the right to sue within the act itself. It was enough for the Legislature to endow the public employers and employees with substantive rights and duties which limited public employers’ discretion, and then to allow employees to enforce their rights by means of traditional mandamus, under
Code of Civil Procedure section 1085 declares that a writ may be issued “by any court to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ....” The availability of writ relief to compel a public agency to perform an act prescribed by law has long been recognized. (See, e.g., Berkeley Sch. Dist. v. City of Berkeley (1956) 141 Cal.App.2d 841, 849 [mandamus appropriate against city auditor to compel release of fund to schools pursuant to city charter provision].)
What is required to obtain writ relief is a showing by a petitioner of “(1) A clear, present and usually ministerial duty on the part of the respondent. . . ; and (2) a clear, present and beneficial right in the petitioner to
The MMBA, at Government Code section 3505, created a clear and present duty on the part of the County to meet and confer with the Association in good faith on the fixing of the Association members’ salary and other conditions of employment, and created in Association members the corresponding beneficial right to meet and confer. (See, e.g., Holliday v. City of Modesto (1991) 229 Cal.App.3d 528, 540; Social Services Union v. Board of Supervisors (1990) 222 Cal.App.3d 279, 285; American Federation of State etc. Employees v. City of Santa Clara (1984) 160 Cal.App.3d 1006, 1009-1010.) If, as the Association alleges, there has been a violation of that duty, then a writ of mandate will be available to remedy the violation.
The County cites no authority for the proposition that, once the Legislature has created a duty in a public agency, a court may limit, on public policy grounds, the availability of a writ of mandate to enforce that duty. It appears elementary that courts may not frustrate the creation of a statutory duty by refusing to enforce it through the normal judicial means. What public policy reasons there are against enforcement of a statutory duty are reasons against the creation of the duty ab initio, and should be addressed to the Legislature.
On the contrary, when the Legislature creates a public duty but wishes to limit the use of a writ of mandate to enforce it, it has done so affirmatively. Thus, in other public employment legislation, where the Legislature has created the Public Employment Relations Board as the principal means of enforcing the statutory duties and rights of employers and employees, it has under certain limited instances circumscribed writ relief. In these various labor relations statutes, the availability of a writ of mandate to review a Public Employment Relations Board determination of a bargaining unit‘s composition is limited to two circumstances: (1) instances in which the
The case law in this state is indeed unanimous that a writ of mandate lies for an employee association to challenge a public employer‘s breach of its duty under the MMBA. (See Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 810; see also San Francisco Fire Fighters Local 798 v. Board of Supervisors (1992) 3 Cal.App.4th 1482; Social Services Union v. Board of Supervisors, supra, 222 Cal.App.3d 279; American Federation of State etc. Employees v. City of Santa Clara, supra, 160 Cal.App.3d 1006; Public Employees of Riverside County, Inc. v. County of Riverside (1977) 75 Cal.App.3d 882.) The County cites no contrary authority.2
Nor do we find persuasive the County‘s attempt to analogize limitations on the right to sue with limitations on the right of public employees to strike. In support of the proposition that “the extent of a public employee‘s enforcement rights under the MMBA depends very much on the type of work he or she performs,” the County cites City of Santa Ana v. Santa Ana Police Benevolent Assn. (1989) 207 Cal.App.3d 1568, in which it was held that police were prohibited from engaging in a strike or slowdown. Therefore, the County reasons, just as there are circumstances in which one traditional method of enforcing employee rights—the right to strike—may be limited, so the right to sue may be limited in some circumstances when the suit would gravely interfere with the functioning of county government.
Under closer scrutiny, however, the analogy falls apart. In County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564
The availability of the writ of mandate remedy in this case, on the other hand, is statutory, and is unambiguous. Unlike the right of public employees to strike, their right of access to courts has not been seriously questioned. As a statutory right, it is for the Legislature to delineate. There is therefore no room for a common law limitation on the right to writ relief.
We conclude that the MMBA inherently provides the Association with a right to bring a mandamus action against the County for breach of its duty to bargain in good faith, and that there are no statutory or common law grounds for limiting that right.
B. Constitutional Separation of Powers Arguments
The conclusion that the MMBA gives the Association the statutory right to sue does not end our inquiry. The County argues, and the Court of Appeal implicitly held, that even if the MMBA does grant the Association the right to sue, that right is nonetheless superseded by the attorney‘s duty of loyalty, as delineated in several Rules of Professional Conduct, and in general common law principles. The County asserts that to the extent a statute authorizes a violation of the Rules of Professional Conduct, or other professional obligation, it violates the constitutional separation of powers inherent in article VI of the California Constitution, which implicitly vests the power to govern the legal profession in the judiciary. The Association, on the other hand, claims that the Court of Appeal erred in holding the suit barred by the Attorney‘s duty of loyalty.
In order to assess the merit of the parties’ constitutional arguments, a brief review of the separation of powers doctrine under article VI of the California Constitution is needed. In California, “the power to regulate the
Other cases in which we used
On the other hand, “this court has respected the exercise by the Legislature under the police power, of ‘a reasonable degree of regulation and control over the profession and practice of law...’ in this state.” (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at p. 337.) The standard for assessing whether the Legislature has overstepped its authority and thereby violated the separation of powers principle has been summarized as follows. “The legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions.” (Id. at p. 338, citing Brydonjack v. State Bar (1929) 208 Cal. 439, 444.)
In the field of attorney-client conduct, we recognize that the judiciary and the Legislature are in some sense partners in regulation. Side by
We also note that the Legislature, in enacting the MMBA, was acting well within its police powers to regulate employer-employee relations. (See generally, Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 186 et seq.) The Legislature has established statutory regimes for vast numbers of employees not covered by federal labor legislation, including agricultural workers, public education employees, and state workers, as well as local government employees.
We have never held a statute of general application, which does not affect the traditional areas of attorney admission, disbarment and discipline, unconstitutional. Nonetheless, we recognize that in the field of attorney-client conduct, as in these other areas, this court has the inherent power to provide a higher standard of attorney-client conduct than the minimum standards prescribed by the Legislature. (See Emslie v. State Bar (1974) 11 Cal.3d 210, 225; In re Lavine, supra, 2 Cal.2d at p. 328.) We also recognize that any statute which would permit an attorney to act in such a way as to seriously violate the integrity of the attorney-client relationship, so as to “materially impair” the functioning of the courts (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at p. 339), would be constitutionally suspect.
But a ruling that a statute affecting attorney-client relations is unconstitutional on separation of powers grounds will not be lightly made. Those raising such a claim must at least show that a direct and fundamental conflict exists between the operation of the statute in question, as it applies to attorneys, and attorneys’ settled ethical obligations, as embodied in this state‘s Rules of Professional Conduct or some well-established common law rule. As will appear below, the County fails to make that showing in the present case.
1. Violation of the Rules of Professional Conduct
In determining whether a statute regulating attorney conduct violates the separation of powers, we begin with whether the statute in question would permit or require an attorney to contravene one of the Rules
Rule 3-300 does not allow an attorney to “knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client,” without undergoing an extensive protocol for gaining the client‘s consent. The County contends that a lawsuit against the client would be tantamount to “acquiring” a “pecuniary interest” adverse to the client. The language of the rule and the intent behind it do not support that interpretation.
Rule 3-300 was intended to regulate two types of activity: business transactions between attorneys and clients and the acquisition by attorneys of pecuniary interests adverse to clients. (See State Bar, Request that the Supreme Court of Cal. Approve Amendments to the Rules of Professional Conduct of the State Bar of Cal., & Memorandum Supporting Documents in Explanation (1987) at p. 33.) Clearly, the present lawsuit is not a business transaction. Nor can we stretch the meaning of the term “acquire . . . a pecuniary interest” to encompass the filing of a petition for writ of mandate.
Although some petitions filed to enforce the MMBA could be labeled, in a certain sense, “pecuniary,” in that their object is monetary gain, others have as their aim the attainment of injunctive or declaratory relief related to conditions of employment without any immediate economic payoff. (See, e.g., Independent Union of Pub. Service Employees v. County of Sacramento (1983) 147 Cal.App.3d 482, 487 [195 Cal.Rptr. 206].) Indeed, the very use of the word “acquire,” which cannot sensibly be applied to the filing of a lawsuit or a petition for writ of mandate, demonstrates that such actions are not intended to be included within the scope of rule 3-300. As the few cases concerned with applying rule 3-300‘s “pecuniary interest” (as opposed to “business transaction“) provision illustrate, the term “acquire a . . . pecuniary interest” is intended to signify the pursuit of some business or financial interest as conventionally understood, rather than an attempt to redress some legal wrong through the courts. (See, e.g., Brockway v. State Bar (1991) 53 Cal.3d 51, 63-65 [278 Cal.Rptr. 836, 806 P.2d 308] [attorney violated predecessor rule by taking ownership interest in client‘s property in excess of attorney fees].) Thus, the filing of the present petition is not addressed by rule 3-300.
The language of rule 3-310(B)(4), adopted by this court in the 1991 amendments to the Rules of Professional Conduct, applies only to conflicts that arise over “the subject matter of the representation” that the attorney undertakes for the client, and not to conflicts the attorney and client may have outside this subject matter. The primary purpose of this prophylactic rule is to prevent situations in which an attorney might compromise his or her representation of the client in order to advance the attorney‘s own financial or personal interests.
In this case, the lawsuit by the Association does not, in general, present a conflict with the client on matters in which the Attorneys represent the County. Stated concretely, when deputy County Counsel attorneys represent the County in a nuisance abatement action, or advise the County in a land-use matter, they will face no temptation to compromise their representation of the County in order to further their own interests. The outcome of most of the matters for which the Attorneys have undertaken representation will not affect, nor be affected by, the outcome of the Association‘s lawsuit. The lawsuit will not disable the Attorneys from objectively considering, recommending, or carrying out an appropriate course of action in their representation of the County. An attorney/employee may experience ill will towards the client/employer, and vice versa, as is sometimes the case when employer/
Implied in the position of the County that rules 3-300 and 3-310 are violated by the Attorneys is an a fortiori argument. The County appears to contend that, if the duty of loyalty that an attorney owes a client requires the attorney to refrain from engaging in a business transaction with a client without informed consent, or in representing clients with conflicting interests without disclosure, then it must surely prohibit an attorney from suing a current client. This argument ignores the distinct policy considerations inherent in the different types of conflict. It is one thing to require an attorney, for the sake of client loyalty, to forgo a business opportunity or a potential client. It is another thing to require an attorney, for loyalty‘s sake, to forgo his or her statutory rights against a client to redress a legal injury. While such a sacrifice may indeed be required in some circumstances, that requirement is not to be found in the specific proscriptions set forth in rules 3-300 or 3-310.6 Rather, it is to be located in a general, common law duty of
2. The Common Law Duty of Loyalty and the Prohibition on the Right to Sue
Although the question of an attorney‘s suit against a present client is not explicitly covered in the Rules of Professional Conduct, or by any statute, arguably it may be prohibited by the general duty of loyalty recognized at common law. It is clear that the duties to which an attorney in this state are subject are not exhaustively delineated by the Rules of Professional Conduct, and that these rules are not intended to supersede common law obligations. (See rule 1-100, and accompanying discussion.)
This court‘s statement of the attorney‘s duty of loyalty to the client over 60 years ago is still generally valid: “It is . . . an attorney‘s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter‘s free and intelligent consent. . . . By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client‘s interests.” (Anderson v. Eaton (1930) 211 Cal. 113, 116 [293 P. 788].) We have also decided that the duty of loyalty for an attorney in the public sector does not differ appreciably from that of the attorney‘s counterpart in private practice. (See People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 157 [172 Cal.Rptr. 478, 624 P.2d 1206] [Attorney General‘s role as ” ‘guardian of the public interest’ ” does not exempt him from conflict of interest rules applicable to other attorneys].)
No reported appellate cases in this state have considered the extent to which an attorney‘s duty of loyalty to a client prohibits the attorney
The attorney‘s duty of loyalty to the client has led the Los Angeles County Bar Association to conclude that an attorney in a fee dispute with a client must withdraw from representing a client prior to filing suit against a client. (Los Angeles County Bar Ethics Opns., opn. No. 212 (1953).) Indeed, courts in some jurisdictions have concluded that attorneys may not sue their ex-clients in some circumstances, such as for retaliatory discharge, where the lawsuit would disrupt the confidentiality of the attorney-client relationship. (See Balla v. Gambro, Inc. (1991) 145 Ill.2d 492 [164 Ill.Dec. 892, 584 N.E.2d 104, 16 A.L.R.5th 1000] [former in-house counsel may not sue for retaliatory discharge]; but see Parker v. M & T Chemicals, Inc. (1989) 236 N.J.Super. 451 [566 A.2d 215] [retaliatory discharge suit permitted].)
But we do not decide here generally the extent to which the duty of loyalty precludes an attorney‘s lawsuit against a current client. Rather, we seek to determine whether an attorney‘s lawsuit to enforce rights granted pursuant to a statutory scheme of public employer-employee bargaining is fundamentally incompatible with the essentials of the duty of loyalty. In order to answer this question, we must decide another, more fundamental, issue: to what extent is the collective bargaining relationship between an attorney/employee and a client/employer itself compatible with the attorney‘s duty of loyalty?
3. Duty of Loyalty and Collective Bargaining
At the heart of the conflict between attorney rights and responsibilities posed by this case is the conflict between the attorney-client relationship on the one hand, and the collective bargaining relationship between employer and (organized) employees on the other. Until relatively recently, the legal profession looked askance at attorneys joining unions or other employee associations. In 1966, the American Bar Association Committee on Ethics and Professional Responsibility (hereinafter the ABA Committee) opined that a United States government attorney could not, consistent with
One year later, however, the ABA Committee essentially reversed its position. In informal opinion No. 986, the ABA Committee acknowledged that “Generally speaking, the idea of lawyers belonging to or joining together in labor unions is basically contrary to the spirit of the Canons of Ethics” because of the conflict with the duty owed the client. (2 ABA Informal Ethics Opns., opn. No. 986 (July 3, 1967) p. 144.) However, the ABA Committee recognized that the general principle was no longer universally applicable.
“[I]t is realized that the number of lawyers who represent single employer clients, for example governmental agencies and corporations, has increased substantially in recent years and will undoubtedly continue to increase in the future. The relationship of a lawyer who is employed by a corporation or by a governmental agency to his client in terms of compensation is different from that of the lawyer who represents in his daily practice . . . a number of different clients. . . . Such lawyers have one client only, do not charge fees for their individual work and their compensation generally is not related to particular individual assignments they perform, but is rather related to the overall services which they perform. This differentiates them from those lawyers employed in a general practice of law where they perform services for a number of different clients.
“It is our opinion, therefore, that lawyers who are paid a salary and who are employed by a single client employer may join an organization limited solely to other lawyer employees of the same employer for the purpose of negotiating wages, hours, and working conditions with the employer client so long as the lawyer continues to perform for his employer client professional services as directed by his employer in accordance with the provisions of the Canons of Ethics. Such a lawyer would not have the right to strike, to withhold services for any reasons, to divulge confidences or engage in any other activities as a member of such a union which would violate any Canon” (2 ABA Informal Ethics Opns., opn. No. 986, supra, p. 45; accord,
Cal. Compendium on Prof. Responsibility, L.A. County Bar Assn. Formal Opn. No. 337 (June 14, 1973) p. 35.)
In 1975, the ABA Committee again revisited the ethical questions related to an attorney‘s union activities. In informal opinion No. 1325, the ABA Committee considered the propriety of strikes by attorneys who are employed by a single employer in public or private practice. The ABA Committee began by recalling its neutral position on the question of attorney membership in employee associations consisting only of attorneys. That position had since been codified in the American Bar Association‘s Model Code of Professional Responsibility, EC 5-13, which now states in part that “Although it is not necessarily improper for a lawyer employed by a corporation or similar entity to be a member of an organization of employees, he should be vigilant to safeguard his fidelity as a lawyer to his employer, free from outside influences.”
As informal opinion No. 1325 explains, while joining an employee organization violates no specific American Bar Association disciplinary rule, there is the potential of violating several rules, such as “DR 6-101 (A)(3), proscribing neglect of a legal matter entrusted to a lawyer, DR 7-101 (A)(2), forbidding a lawyer to intentionally fail to carry out a contract for employment with a client, and DR 7-101 (A)(3), prohibiting a lawyer to intentionally prejudice or damage his client during the course of the professional relationship.” (ABA Recent Ethics Opns., informal opn. No. 1325 (Mar. 31, 1975) p. 2.) The ABA Committee thereupon adopted what may be called a pragmatic approach to the question of strikes and other collective bargaining matters. If the attorney‘s strike leads to the neglect or intentional sabotage of the employer/client‘s affairs, then the attorney would have violated his or her professional obligations as embodied in the disciplinary rules cited above, and would be subject to discipline. However, “in some situations participation in a strike might be no more disruptive of the performance of legal work than taking a two week‘s vacation might be.” (Ibid.)
Although we do not necessarily endorse the ABA Committee‘s position on the permissibility of strikes for government attorneys, we find its approach to the question of employee organization among these attorneys to be essentially correct. First, we do not find that government attorneys who organize themselves into associations pursuant to statute and who proceed to bargain collectively with their employer/clients are per se in violation of any duty of loyalty or any other ethical obligation. The growing phenomenon of the lawyer/employee requires a realistic accommodation between an attorney‘s professional obligations and the rights he or she may have as an employee.
In other words, in determining whether an action taken by an attorney or employee association violates the attorney‘s ethical obligations, we look not to whether the action creates antagonism between the attorney/employee and the client/employer, since such antagonism in the labor relations context is unfortunately commonplace; rather, we seek to ascertain whether an attorney has permitted that antagonism to overstep the boundaries of the employer/employee bargaining relationship and has actually compromised client representation.
The County concedes that the Association and its members do have rights under the MMBA, but claims that these do not include authority to sue when their rights are violated. To fend off the argument that these collective bargaining guaranties would be meaningless without a judicial remedy, the County argues the Association has alternative effective means for enforcing the rights of its members, most notably by virtue of the fact that the attorneys have “unparalleled access” to county officials, “which they can use to [exert] pressure on the County to reach an agreement regarding wages.”
Whether or not sound, that argument is beside the point. The ability of the Attorneys to influence the Board by informal means is one that predates, and exists independently of, the formal rights granted them under the MMBA. If the Attorneys are deprived of any formal means to enforce their rights, then these “rights” are no more meaningful than they were prior to the passage of the MMBA. Indeed, if the County‘s logic were followed, the Attorneys could be discharged for simply joining an employee association under the
Therefore, the denial of the Attorneys’ right to sue for MMBA violations would represent not a compromise between collective bargaining rights and professional obligations, as the County contends, but a de facto judicial nullification of those rights. The only realistic accommodation between the enforcement of statutory guaranties under the MMBA and the enforcement of the Attorneys’ professional obligations in this situation is to permit a petition for writ of mandate, as would be permitted to other public employees, while at the same time holding the Attorneys to a professional standard that ensures that their actual representation of their client/employer is not compromised.
We therefore hold that attorneys employed in the public sector, who exercise their statutory right to sue to enforce rights given them by the MMBA, do not in such capacity violate their ethical obligations to their employer/client.8 In so holding, we emphasize that attorneys in such circumstances are held to the highest ethical obligations to continue to represent the client in the matters they have undertaken, and that a violation of their duty to represent the client competently or faithfully, or of any other rule of conduct, will subject those attorneys to the appropriate discipline, both by the employer and by the State Bar.9
In announcing this rule, we are not unmindful of the fact that attorneys suing their clients, in any circumstance, put a strain on the attorney/client
C. The Right of the Client to Discharge the Attorney
Finally, we must address a point not raised explicitly by the County, but one nonetheless before us because of the nature of the relief
There is no question that the MMBA prohibits employers from discharging employees who exercise lawful employee rights of representation.
This freedom from sanction obviously includes the right not to be discharged for lawful union activity. The right to participate in employee self-organization and collective bargaining would be meaningless if an employee could be discharged simply for engaging in such lawful activity. (See Portland Williamette Co. v. N.L.R.B. (9th Cir. 1976) 534 F.2d 1331, 1334 [discharge of employee engaged in union activity “inherently destructive” of union activity and therefore presumed to be discriminatory].) And as we have already concluded, in part II.A.2. of this opinion, ante, a suit by an employee association to enforce its rights under the MMBA is a form of lawful, protected activity. Under normal circumstances, therefore, the filing of such a suit may not lead to the discriminatory discharge or discipline of an employee.
The question before us, then, is how that right to be free from discriminatory discharge for lawfully participating in activities sanctioned by the MMBA may be reconciled with the rule of
In determining the manner in which partially conflicting statutes are to be construed, we look first to the intent of the Legislature. (Woods v. Young (1991) 53 Cal.3d 315, 323 [279 Cal.Rptr. 613, 807 P.2d 455].) As a rule, a later, more specific, statute will prevail over an earlier, more general one. (Id. at p. 324.) In this case, the general rule permitting a client to discharge her attorney has been modified by the subsequent explicit inclusion of certain attorneys within the scope of a statutory labor relations scheme which inherently limits the right of public employers to terminate their employees at will. We do not believe the Legislature intended to explicitly confer these rights to organize and bargain collectively on attorneys employed by cities and counties, without also intending that these attorneys be protected from discharge for pursuit of these rights.
Moreover, even if the rule of a client‘s right to discharge an attorney is one that predates, and has validity independent of, its enactment into statute, the legislative modification of the rule does not raise constitutional separation of powers issues.12 The Legislature could legitimately decide that this rule—based on the principle that the client‘s interest in receiving satisfactory
We therefore hold that the MMBA creates an exception to the general rule found in
In so holding, we note here that the trial court, though deciding that an attorney cannot be discharged or disciplined for participating in the filing of this petition, declined to grant the Association‘s request to reinstate the Attorneys to their full employment responsibilities, e.g., to entitle them to attend confidential meetings from which they were excluded by the County Counsel once they announced their intention to sue. The trial court decided this matter correctly. Although the County may not punish the Attorneys for suit over an MMBA matter, there is no reason why the County should not be accorded great flexibility in reorganizing the County Counsel‘s office to respond to the lawsuit. This may include, as the trial court below suggested, the reassignment of Association members to matters of representation outside the field of labor relations. Nothing in the MMBA prohibits the Board and its members from asserting their rights, as clients, to refuse representation from the Association attorneys on any given matter, and to make use of non-Association attorneys or outside counsel in sensitive matters, so long as such reassignment is done nonpunitively. By allowing the County this flexibility, the trial court properly balanced the County‘s need for obtaining representation in which it has full confidence with the Attorneys’ statutory employment rights.
The judgment of the Court of Appeal is reversed, with directions to affirm the judgment of the trial court.
Lucas, C. J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.
PANELLI, J.,* Dissenting.---The majority concludes that, at least in this case, an attorney‘s interest in suing a present client takes precedence over the client‘s right to discharge an attorney who no longer enjoys the client‘s full trust and confidence. I do not agree.
My primary objection is not to the majority‘s interpretation of statutes and disciplinary rules but, rather, to its failure to see the problem from the client‘s perspective. This failure is evident in the majority‘s belief that there can be “general antagonism between lawyer and client” due to litigation between them without “actually compromis[ing] client representation.” (Maj. opn., ante, at pp. 547, 552.) Experienced attorneys may have no difficulty meeting as friends after facing each other as adversaries in court. But the same is not to be expected of clients, who justifiably feel that they are entitled to their advocates’ unquestioned loyalty. “When a client engages the services of a lawyer in a given piece of business he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and his champion. If, as in this case, he is sued . . . by his own attorney, who is representing him in another matter, all feeling of loyalty is necessarily destroyed, and the profession is exposed to the charge that it is interested only in money.” (Grievance Com. of Bar of Hartford County v. Rottner (1964) 152 Conn. 59 [203 A.2d 82, 84].)
Because clients do expect loyalty, I find no reason to doubt the sincerity of the members of the board of supervisors who testified that being sued by their own attorneys has “greatly affected” their “level of trust and confidence” in the latter. The majority, I submit, tacitly concedes that the supervisors’ fears are reasonable by holding that the supervisors, “to respond to the lawsuit,” may reorganize the county counsel‘s office and reassign members of the Association to matters outside the field of labor relations. (Maj. opn., ante, p. 557.) What is the point of such a reorganization unless the supervisors have actually lost confidence in their attorneys’ ability to represent the county effectively, at least in the area of labor relations, on
The majority, in concluding that these attorneys may sue their clients, places far too much weight on the absence of a specific disciplinary rule to the contrary. If anything can be inferred from the absence of such a rule it is not that this court, or the bar, implicitly endorses such conduct. Instead, the more reasonable inference is that in most cases no rule is necessary. From my experience, any lawyer in private practice so bold as to sue his client can expect to be fired on the spot. As one court put it, “[t]he almost complete absence of authority governing the situation . . . indicates to us that the common understanding and the common conscience of the bar is in accord with [the view] that such a suit constitutes a reprehensible breach of loyalty . . . .” (Grievance Com. of Bar of Hartford County v. Rottner, supra, 152 Conn. 59 [203 A.2d at p. 85].)
In the rare cases in which an attorney has become the client‘s adversary in litigation, the resulting appearance of impropriety has been found too serious to countenance. Thus, we have enjoined the Attorney General from suing the Governor, his client, on the ground that he was bound by the same ethical principles that prevent other attorneys from representing adverse interests. (People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 155-160 [172 Cal.Rptr. 478, 624 P.2d 1206].) Similarly, other courts have held that a criminal defendant who was sued by his attorney for fees while in jail awaiting sentencing was entitled to have his conviction reversed on account of ineffective assistance without proving that the lawsuit actually affected his counsel‘s performance (Clark v. State (1992) 108 Nev. 324 [831 P.2d 1374, 1377]), and that an in-house attorney who represented a corporation on employment matters was properly terminated for filing a discrimination suit against the corporation (Jones v. Flagship Intern. (5th Cir. 1986) 793 F.2d 714, 726, cert. den. (1987) 479 U.S. 1065 [93 L.Ed.2d 1001, 107 S.Ct. 952]).
The county‘s brief nicely illustrates how the appearance of impropriety arises in such cases and why it is so serious: “the County will be greatly disadvantaged in defending itself against the Association‘s proposed lawsuit. The Association members have been privy to the most confidential internal communications within the County government for years. As plaintiffs, they will have an awareness of their defendants’ strategies, resources and legal opinions that would be protected from any other plaintiff by the attorney-client privilege. This insider‘s familiarity will give the Association an invaluable advantage in making legal argument, but particularly in pursuing settlement. The County will be put in the untenable position of having to rely on outside counsel that knows less about the Supervisors and the inner workings of the County client than does the party suing it.”
It is unfortunate that today the majority takes a step backwards by concluding that the general statute authorizing courts to issue the writ of mandamus (
Finally, I doubt whether the majority‘s holding will be good for governmental and other in-house attorneys. In recent years the status of in-house attorneys has improved as governments and businesses have increasingly relied upon them in their drive to save legal costs. This is good for society, because attorneys with intimate knowledge of and constant access to their clients are in an excellent position to advise responsible behavior and compliance with the law. However, in-house attorneys enjoy this trust and confidence in large measure because they have been held to the same high ethical standards as all other attorneys. If, through decisions such as this, the perception arises that in-house attorneys are not being held to the same ethical standards, their professional standing and usefulness to their clients and society will diminish to the detriment of attorney and client alike.
I would affirm the judgment of the Court of Appeal.
Respondent‘s petition for a rehearing was denied May 19, 1994.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.