Doris Day Comden and Barry Comden seek mandate to compel respondent court to vacate its order requiring petitioners' attorneys to withdraw from their representation of petitioners in an action for injunctive relief and breach of contract. The question presented is whether respondent court abused its discretion in ordering withdrawal pursuant to California Rules of Professional Conduct, rule 2-111(A)(4) when the court concluded that a member of the attorneys'
In February 1976 Doris Day Distributing Company (DDDC), the real party in interest, contracted with petitioners to distribute pet products bearing the name and likeness of Doris Day. Petitioners were represented by Attorney Stanley Chernoff throughout contract negotiations with DDDC.
Disagreement soon developed, petitioners claiming DDDC was not meeting its contractual duties to them. In June 1976 Chernoff associated Marvin Greene, corporate law and securities regulations specialist and partner in the law firm of Loeb and Loeb, to assist in resolving petitioners' disputes with DDDC.
In November 1976 petitioners, through Loeb and Loeb Attorney Robert Holtzman, filed in respondent court a complaint alleging breach of numerous contractual covenants and seeking to enjoin DDDC from continuing to use the name and reputation of Doris Day in soliciting potential investors, distributors or customers.
During the course of litigation petitioners sought a preliminary injunction to enjoin DDDC from using Day's name in its business
At the hearing for preliminary injunction DDDC moved for an order disqualifying Loeb and Loeb as petitioners' trial counsel, arguing that members of the firm who had made declarations in support of the application were likely to testify at trial. The court granted DDDC's motion, stating "I cannot see how I can say with any degree of security or in good conscience that Mr. Greene will not be called as a witness."
Significantly, the prohibition seeks to avoid the appearance of attorney impropriety. The language of rule 2-111(A)(4) closely parallels that of American Bar Association, Code of Professional Responsibility Disciplinary Rules, rules 5-101(B), (1) through (4) and 5-102(A) and (B). In disqualifying a law firm pursuant to American Bar Association rule 5-102(A) a federal court has cautioned we must be mindful of the possibility that testimony by a member of trial counsel's firm may lead the public to be skeptical of lawyers as witnesses, thereby diminishing the public's respect and confidence toward the profession. "Where doubt may becloud the public's view of the ethics of the legal profession and thus impugn the integrity of the judicial process, it is the responsibility of the court to ensure that the standards of ethics remain high." (U.S. ex rel. Sheldon El. Co. v. Blackhawk Htg. & Plmg. (S.D.N.Y. 1976) 423 F.Supp. 486, 489.)
Rule 2-111(A)(4) might allow continued representation by Loeb and Loeb if a coerced withdrawal would create substantial hardship for petitioners because of the distinctive value of service by the law firm. (Id., subd. (c).) Petitioners will doubtless be inconvenienced by Loeb and Loeb's withdrawal. However, inconvenience falls short of "substantial hardship ... because of the distinctive value of the ... firm as counsel." (Id., subd. (d); italics added.) Holtzman, while acknowledging some of his work product can be transferred to new counsel, contends his "impressions and rapport with the people involved" cannot be so transferred. He argues petitioners will be forced to incur large legal fees to secure new counsel, and will lose the securities regulations expertise of Greene.
Greene, however, is not petitioners' trial counsel and they will not lose his expertise. To the contrary, withdrawal of Greene's firm should enhance Greene's usefulness as a witness for petitioners as he will no longer be as vulnerable to impeachment for interest. In addition, the ability to establish client and witness rapport and to "form impressions" after legal research is not unique to Holtzman or to other Loeb and Loeb attorneys. If we were to hold that interview, research, and preliminary discussion on trial strategy are sufficient to cloak a firm with such "distinctive value" that a loss of its service results in substantial hardship within the meaning of the rule, the latter will be consumed by exception.
It would be naive not to recognize that the motion to disqualify opposing counsel is frequently a tactical device to delay litigation. (See U.S. ex rel. Sheldon El. Co. v. Blackhawk Htng. & Plmb., supra, 423 F.Supp. 486.) "[J]udicial scrutiny [is required] to prevent literalism from possibly overcoming substantial justice to the parties." (J.P. Foley & Co., Inc. v. Vanderbilt, supra, 523 F.2d 1357, 1360, conc. opn. Gurfein, C.J.)
When trial counsel foresees the possibility his continued representation of a client may fall within the prohibition of rule 2-111(A)(4) because he or a member of his firm ought to testify on behalf of such client at trial, he should resolve any doubt in favor of preserving the integrity of his testimony and against his continued participation as trial counsel. (See ABA Code of Prof. Responsibility, EC 5-10.) Failing
The alternative writ is discharged and the petition is denied.
Mosk, J., Richardson, J., and Newman, J., concurred.
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 affairs 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
Rule 2-111(A)(4) does not dictate so mechanical a result.
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
Thirdly, we are dealing here with an action that is substantially equitable in nature.
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].)
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
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 bracketed language does not appear in the text of the rule as proposed to and adopted by this court. (See Bus. & Prof. Code, § 6076.) The State Bar of California, in its brief as amicus curiae in support of petitioners, claims such language was omitted due to a typographical error which is claimed to have occurred after the rule was drafted by the State Bar and before approval by this court. No challenge is made to such assertion by the State Bar. However, our reading of the rule without the bracketed material is consistent with the text including such material, and we thus deem there to be no issue raised by the omission.
"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.
"`.... .... .... .... .... .
"`(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 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)(1) 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).'"