Comden v. Superior Court

MANUEL, J.

I respectfully dissent from the views presented by the majority. My reason for doing so is my belief that the trial court acted arbitrarily in applying a literal application of rule 2-111 (A)(4) without balancing the equities involved. In so doing, the trial court appears to have been merely enforcing a rule of professional conduct, a function better left to the State Bar, rather than determining if there existed any real impropriety threatening the integrity of the proceeding before it.

It is commonplace for attorneys to participate in the business-legal aifairs of their clients, and this participation should be encouraged as part of the concept of preventive law. The instant case shows this involvement. Greene, a partner in the law firm of Loeb and Loeb and a specialist in their corporate department represented petitioner when the contract in question was first negotiated. His declaration was used in support of petitioner’s application for preliminary injunction. For this prior participation, the trial court held that rule 2-111 (A)(4) of the State Bar of California Rules of Professional Conduct compelled a withdrawal *917 of Loeb and Loeb from the case, the court stating: “I could not see how I could say with any degree of security or in good conscience that Mr. Greene would not be called as a witness.”

Rule 2-111 (A)(4) does not dictate so mechanical a result. 1 The majority states that the purpose of that requirement is to avoid the appearance of attorney impropriety. However, the avoidance of mere appearance should not be permitted to interfere with the substantial right to counsel of one’s choice (1 Witkin, Cal. Procedure (2d ed. 1970) Jurisdiction § 197, p. 728; Golden State Glass Corp. v. Superior Ct. (1939) 13 Cal.2d 384, 396 [ 90 P.2d 75 ]; Evans v. Superior Court (1939) 14 Cal.2d 563, 581 *918 [ 96 P.2d 107 ]; People v. Brady (1969) 275 Cal.App.2d 984, 992 [ 80 Cal.Rptr. 418 ]), where there is no detriment to the opposing party or threat to the integrity and efficiency of the judicial process.

I urge, accordingly, that there was an abuse of discretion in the trial court’s action against Loeb and Loeb. First, the record does not contain any inkling of harm or injury to defendants were the firm to continue its representation; indeed, on oral argument before this court, their counsel could show no prejudice beyond a vacuous statement that he might have had to cross-examine a professional colleague. If there was harm in these circumstances, it was to Greene’s credibility as a witness, given his participation in the negotiations as the Comdens’ attorney. Yet reason suggests that if a party is willing to accept less effective counsel because of the attorney’s testifying, neither his opponent nor the trial court should be able to assert this choice against the party without clear evidence of detriment to the opponent or injury to the integrity of the judicial process. (Harris v. Superior Court (1977) 19 Cal.3d 786 [ 140 Cal.Rptr. 318 , 567 P.2d 750 ]; cf. Martin v. Alcoholic Bev. etc. Appeals Bd. (Hayes) (1961) 55 Cal.2d 867, 875-880 [ 13 Cal.Rptr. 513 , 362 P.2d 337 ]; People v. Brady (1969) 275 Cal.App.2d 984, 992 [ 80 Cal.Rptr. 418 ]; Smith v. Superior Court (1968) 68 Cal.2d 547, 560-562 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ]; People v. Loving (1968) 258 Cal.App.2d 84, 87 [ 65 Cal.Rptr. 425 ]; Cooper v. Superior Court (1961) 55 Cal.2d 291, 301 [ 10 Cal.Rptr. 842 , 359 P.2d 274 ].) Mere recital of the rule should not be enough.

Secondly, if the reason underlying disqualification is primarily opposing counsel’s difficulty in cross-examining a colleague, surely this handicap will exist whether Loeb and Loeb remains as the representing law firm or is suspended. If it is true that Mr. Greene ought to testify, then we can assume that at some point he is going to testify. Defendants have shown no more detriment will occur if.petitioners are at that point represented by Loeb and Loeb, than if some other attorney is substituted *919 in. Whatever hesitancy their counsel may have in the cross-examination of a professional colleague will be present in equal force no matter who represents the plaintiff Comdens.

Thirdly, we are dealing here with an action that is substantially equitable in nature. 2 It would seem that the equitable issues will be heard by a trial judge, presumably competent, sitting without a jury, to filter out and put in true perspective whatever impropriety, real or imagined, might otherwise exist.

Finally, I would mention that we are concerned here with the rules promulgated by the State Bar with the approval of this court which are to govern the conduct of attorneys and provide a basis for disciplinary action. These guidelines are not rules of practice promulgated by the Judicial Council to insure the integrity and efficiency of judicial process. Yet, the trial court has relied upon these Rules of Professional Conduct to impose what amounts to a pro tanto suspension of Loeb and Loeb’s right to practice law. Moreover, the disqualification upheld herein does not preserve the integrity of the attorney-client relationship, (see e.g., Big Bear Mun. Water Dist. v. Superior Court (1969) 269 Cal.App.2d 919 [ 75 Cal.Rptr. 580 ]), but destroys this relationship and deprives petitioners of representation of their own choosing. It is questionable whether the trial court has such authority where, as here, there has been no showing of a threat to the orderly proceeding of the court or to the judicial system. The trial court should not therefore involve itself in a matter better left to the State Bar to decide. (Jacobs v. State Bar (1977) 20 Cal.3d 191 [ 141 Cal.Rptr. 812 , 570 P.2d 1230 ].) 3 I do not accord to this rule such exclusivity that it may be enforced only by the State Bar, but I submit that it can only be applied by a trial court to disqualify counsel where the trial court has manifest and palpable interests to protect. (See People v. Superior Court (Greer) (1977), 19 Cal.3d 255 [ 137 Cal.Rptr. 476 , 561 P.2d 1164 ]; People v. Guerrero, supra, 47 Cal.App.3d 444 ; cf. Gee v. California State Personnel Bd (1970) 5 Cal.App.3d 713 [ 85 Cal.Rptr. 762 ].)

So important is the relation of attorney-client that the court should tread lightly in this area; and indeed, the burden should be on he who *920 would disrupt that relation to provide the need to do so and to point out the precise grounds on which the court may exercise its discretion, if any, in severing the relationship. 4 Such a severance, therefore should only be imposed if to rule otherwise would be unfair to the opposing party or would directly threaten the integrity of the court.

Such considerations being absent from the instant case, I would issue a peremptory writ of mandate requiring respondent court to vacate its order of 10 February 1977 and enter a new and different order denying the motion of the real parties to disqualify the Comdens’ counsel from participation in the case.

Bird, C. J., and Tobriner, J., concurred.

Petitioners’ application for a rehearing was denied May 25, 1978. Bird, C. J., and Manuel, J., were of the opinion that the application should be granted.

The history of rule 2-111(A)(4), as commented on in People v. Guerrero (1975) 47 Cal.App.3d 441, 445, 448 [ 120 Cal.Rptr. 732 ], is illustrative of its purpose and intent. The court therein stated: “In implementing Canon 5 of its Code of Professional Responsibility (‘A lawyer should exercise independent professional judgment on behalf of a client’), the American Bar Association has promulgated this ethical consideration: ‘EC 5-9 Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.’

“The applicable disciplinary rules are DR 5-101(B) and DR 5-102(A): ‘DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment. <6 <

“ ‘(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

“ ‘(1) If the testimony will relate solely to an uncontested matter.

“ ‘(2)- If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

“ ‘(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.

“ ‘(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

“ ‘DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.

“ ‘(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B)(1) through (4).’

“Effective January 1, 1975, new rules of professional conduct were adopted by the Board of Governors of the State Bar of California. We note in particular rule 2-111(A)(4):

“ ‘(4) If upon or after undertaking employment, a member of the State Bar knows or should know that he or a lawyer in his firm ought to be called as a witness on behalf of his client in litigation concerning the subject matter of such employment he shall *918 withdraw from the conduct of the trial and his firm may continue the representation and he or a lawyer in his firm may testify in the . . . [same four] circumstances . . . [as were enumerated in DR 5-101(B)(l) through (4)]’ ”

The court in Guerrero, supra, concludes: “‘The Code of Professional Responsibility takes a firm position that a lawyer should avoid testifying in court when he is the advocate. ABA Code DR 5-102. “Although his zeal as a lawyer might not influence his testimony as a witness, an ever critical public is only too apt to place such a construction upon it. A lawyer should avoid not only all improper relationships but should likewise, in order to maintain the profession in public confidence and esteem, avoid all relationships which may appear to be improper.” ABA Comm, on Professional Ethics, Opinions, No. 50 (1931) (hereinafter cited ABA Opinions). See also Jackson v. United States, 297 F.2d 195, 196 (D.C.Cir. 1961).’ ”

Petitioners sue for declaratory relief, injunctive relief and damages. Should defendants find that even on the legal issues, they will be prejudiced by a jury’s discovering the relationship of Mr. Greene to Loeb and Loeb, perhaps they may make an appropriate motion or objection to prevent this disclosure. (Evid. Code, § 352.)

“. . . the interests of justice in this case involve not only the ethics of the lawyer but also the rights of his client. . . .” (J. P. Foley & Co., Inc. v. Vanderbilt (2d Cir. 1975) 523 F.2d 1357, 1360 , Gurfein, J„ conc.)

Justice Gurfein in his concurring opinion in J. P. Foley & Co., Inc. v. Vanderbilt, supra. 523 F.2d 1357, 1360 .) “After all, in cases that do not involve past representation, the attempt by an opposing party to disqualify the other side's lawyer must be viewed as a part of the tactics of an adversary proceeding. As such it demands judicial scrutiny to prevent literalism from possibly overconiing substantial justice to the parties. . . .”