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, Gov. Code, § 3500 et seq.) extends to attorneys who are employed in the office of the Santa Clara County Counsel (County Counsel), or whether the duty of loyalty imposed upon these attorneys towards their client, the County of Santa Clara (County), precludes such a suit. We conclude that the MMBA authorizes the suit, and that the suit is not prohibited for any constitutional reason. Further, we conclude that the County is statutorily forbidden from discharging attorneys for exercising their right to sue under the MMBA, although the County is still free to rearrange assignments within the County Counsel's office in order to ensure that it receives legal representation in which it has full confidence. Because
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 (Gov. Code, § 26526) and by practice, acts as the primary legal adviser to the County Board of Supervisors. In addition to serving as counsel to the board, deputies in the County Counsel's office advise and represent various administrative departments of the county in matters ranging from land use law to social service benefits. The County Counsel's office is also charged with representing special districts within the county (id., § 27645), representing the state at guardianship proceedings (id., § 27646), and representing superior and municipal court judges (id., § 27647).
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 Gov. Code, § 3507.5.) However, the following year, the deputy County Counsel attorneys petitioned to be placed in a separate bargaining unit. The stated reason for the petition was that the attorneys, unlike the deputy district attorneys and public defenders, were in a "confidential attorney-client relationship with the Board of Supervisors and county management," and therefore "should not be included with attorneys and others not in such a relationship." The petition was granted, and the Association became a recognized employee association under the MMBA.
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
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...." (Gov. Code, § 3500.)
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.)
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.
2. The Right to Sue Under the MMBA
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.
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...."
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
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 [255 Cal.Rptr. 688], 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.
Other cases in which we used California Constitution, article VI separation of powers doctrine to declare a statute or a portion of it unconstitutional are few and far between. In Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724 [147 Cal.Rptr. 631, 581 P.2d 636], we held that former Code of Civil Procedure section 90, giving non-attorney representatives of corporations the right to appear in municipal court, unconstitutionally infringed on the judiciary's exclusive right to grant admission to the practice of law. In In re Lavine (1935) 2 Cal.2d 324, 329 [41 P.2d 161], this court held unconstitutional a statute that automatically reinstated to the bar attorneys who were convicted felons, once they received a full gubernatorial pardon. The statute encroached upon "the inherent power of this court to admit attorneys to the practice of the law and [was] tantamount to the vacating of a judicial order by legislative mandate." (Ibid.) These cases, as with Hustedt v. Workers' Comp. Appeals Bd., supra, 30 Cal.3d 329, entail statutes that impinge on the court's traditional power to control admission, discipline and disbarment of attorneys.
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.)
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. [172 Cal.Rptr. 487, 624 P.2d 1215].) 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 [113 Cal.Rptr. 175, 520 P.2d 991]; 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
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/employee
2. The Common Law Duty of Loyalty and the Prohibition on the Right to Sue
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
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,
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.
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.
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
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.
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.
We therefore hold that the MMBA creates an exception to the general rule found in Code of Civil Procedure section 284 and case law, that a client may discharge an attorney at will. That exception is a prohibition on terminating an attorney solely or chiefly because he or she has engaged in protected activity under the MMBA. As discussed in part II.A.2. of this opinion, ante, a suit by an employee organization to enforce such collective bargaining rights is an example of such protected activity, and may not be punished by the attorney's discipline or discharge. Attorneys who believe they have been discriminated against for protected activity may bring an antidiscrimination action in the manner available to other employees. (See Public Employees Assn. v. Board of Supervisors, supra, 167 Cal.App.3d 797, 807; Fun Striders, Inc. v. N.L.R.B. (9th Cir.1981) 686 F.2d 659, 661-662.)
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.
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 (Code Civ. Proc., § 1085) somehow supersedes our inherent power to regulate the bar, unlike the other statutes that have come into conflict with that power. The majority asserts that the petition for mandate, "[a]s a statutory right, ... is for the Legislature to delineate" and that "[t]here is therefore no room for a common law limitation on the right to writ relief." (Maj. opn., ante, at p. 542.) But the majority's reasoning is faulty. This court's power to regulate the practice of law is grounded in article VI of the state Constitution rather than the common law. (Hustedt v. Workers' Comp. Appeals Bd., supra, 30 Cal.3d at p. 336 & fn. 5.) When the Constitution conflicts with a statute, the former must control.
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.
Yet even this interpretation of rule 3-310(C) does not make the rule apply to the present situation. A rule that an attorney must refrain from redressing a legal wrong done to him or her by a client requires a different, and greater, kind of self-abnegation than that compelled by rule 3-310(C)'s stricture that an attorney must refrain from representing a potential client for the sake of current client loyalty. Again, although the former sacrifice may be required by the general duty of loyalty to the client, it is not necessitated by rule 3-310(C).
In this case the record reveals that the contemplated writ of mandate action, concerned with the duty to meet and confer, will not lead to the revelation or use of confidential information. Nor is a Jones situation implicated in this case. The Attorneys represent the County in numerous areas outside the labor relations field, and the County has the flexibility to reassign counsel in the few matters where a more direct conflict exists between the attorney's subject matter of representation and the present lawsuit. (See pt. II.C. of this opinion, post.) Finally, the suit is brought under a statutory, not a common law theory, and this court may not limit a statutory remedy on public policy grounds (see pt. II.A.2. of this opinion, ante).