Chaleff v. Superior Court
| Decision Date | 17 March 1977 |
| Citation | 138 Cal.Rptr. 735,69 Cal.App.3d 721 |
| Parties | Gerald L. CHALEFF, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent. Civ. 47919. |
| Court | California Court of Appeals Court of Appeals |
No appearance for respondent.
This is a petition for writ of review to test the validity of trial court action adjudicating a deputy public defender in contempt of court for refusal to act as an adviser to a defendant who had been granted permission to proceed in propria persona in a criminal proceeding. It raises the issue of the obligation of a deputy public defender to accept an appointment in that capacity over his objection. Concluding that the petitioner in the case at bench established reasons for his refusal to accept the appointment pursuant to Rule 2--111 of the California Rules of Professional Conduct, we issued our writ of review annulling the action of the trial court.
John L. Miller was charged with murder by an information filed in the Los Angeles Superior Court. Gerald L. Chaleff, a deputy public defender, was appointed to represent him over Miller's objection. Miller sought permission to appear in propria persona. After a series of hearings to determine Miller's capacity for self-representation during the course of which Miller indicated a desire for advisory counsel, the trial court granted Miller permission to represent himself. Confirming that Miller still desired advisory counsel, the court appointed 'the public defender' in that capacity. (People v. Mattson (1959) 51 Cal.2d 777, 797, 336 P.2d 937.)
Chaleff stated, 'I would have to respectfully decline.' He gave as his reasons: (1) the failure of Government Code section 27706 to authorize the public defender to act in an advisory capacity; (2) the adverse consequences to his other case load of being required to appear in court on a schedule dictated by Miller; (3) Miller's refusal to permit a workable relationship of attorney Chaleff further noted to the court a conflict with Miller over presentation of the defense, adding: 'I might say that I'm sort of handcuffed explaining to this court because of the attorney-client privilege and the fact that Mr. Miller has stated that he would like me to . . . retain confidential anything he's told me . . ..' 1
and client to be established; (4) the relationship was one in which Miller would not permit Chaleff to present defenses which Chaleff believed were available; and (5) 'severe ethical problems in relation to being an advisor in that what (was) asked of (Chaleff)' could put him in a position where he would 'have to come to the court and report to the court that (he felt) the conduct by . . . Miller was wrong.' Chaleff amplified his fourth reason, stating: 'I'm referring to . . . issues (other than Miller's decision to testify) such as witnesses or other types of conduct that may come about that may cause me to feel that it violates my ethical responsibilities as an attorney.'
Despite Chaleff's objection and explanation, the court insisted in its order, and when Chaleff did not agree to serve as ordered, found him in contempt. The trial court then appointed private counsel to advise Miller. Chaleff filed the petition for writ of review which brings the contempt matter to this court.
Public Defenders and their deputies are subject to the Rules of Professional Conduct governing the action of lawyers no less than other members of the State Bar. Rule 2--111 of the Rules of Professional Conduct permits a lawyer to withdraw from representation of a client if the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by a good faith argument for extension, modification, or reversal of existing law , or if the employment creates a situation in which it is unreasonably difficult for the member of the State Bar to carry out his employment effectively .
On its face and in its spirit, Rule 2--111 is applicable to an attorney appointed to act as an adviser to a defendant conducting his own defense. The language of the rule contains no exception. The spirit of the rule exemplifies the proposition that while the attorney's duty is to his client, he cannot be placed in the position where discharging that duty impinges upon his ethical responsibility as a member of the bar. (See People v. Mattson, supra, 51 Cal.2d 777, 793, 336 P.2d 937.)
Here Chaleff called to the court's attention the fact that his representation of Miller could place him in an untenable ethical position. Here Chaleff went as far as he could go in the disclosure without divulging privileged information. In that situation, Rule 2--111 permitted Chaleff to withdraw from the representation of Miller. The court, by holding Chaleff in contempt, placed upon Chaleff a burden beyond that allowed by the rule. 2 The court in so doing exceeded its authority.
The judgment of contempt is annulled.
I concur with the majority opinion that the trial court exceeded its authority and that the judgment of contempt should be annulled. However, I have serious reservations I arrive at the same result by addressing directly what I perceive to be the critical issue presented by the record. The key issue as I see it is whether or not the trial court in a criminal case where the defendant has demanded and been granted the right of self-representation pursuant to Farretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, is empowered to appoint a public defender to serve in the capacity of 'advisory counsel' at (1) defendant's request OR (2) under the inherent power of the court.
in arriving at that conclusion, from this record, based on Rule 2--111 of the California Rules of Professional Conduct as discussed in the majority opinion. 1
A more detailed treatment of the underlying criminal case and the contempt order as disclosed by the record may serve to sharpen the root issue.
The record discloses that in the case of People v. Miller (John Lawrence), Los Angeles Superior Court No. A016192, defendant Miller was charged with the murder of his parents in violation of Penal Code section 187 on October 21, 1975.
On October 30, 1975, defendant Miller was arraigned and the court appointed Deputy Public Defender Chaleff (hereafter attorney Chaleff) as his defense counsel despite his statement that he did not need an attorney. Attorney Chaleff also represented defendant Miller over the defendant's objection at the preliminary hearing on November 12, 1975.
Special hearings were conducted on November 26, December 1, 5, 22, and 23, 1975, to determine whether or not defendant Miller could represent himself in propria persona. The court after fully advising defendant Miller of the pitfalls, dangers and consequences of acting as his own counsel and determining that he was mentally capable, literate, fully informed and had made (both orally and in writing) a voluntary, intelligent and understanding waiver of his right to representation by appointed counsel granted him the right to represent himself in propria persona after the December 23 hearing.
Defendant Miller at the November 26 hearing had indicated he would like 'advisory counsel' and that the public defender would be acceptable to serve in that capacity. The court at the December 23 hearing, after granting defendant Miller the right to represent himself, said: 'Now, in conformance with what you've told me previously, I take it that you're asking the Court to appoint a lawyer to act as advisory counsel. ( ) Is that correct? ( ) THE DEFENDANT: Yes, that's correct. ( ) THE COURT: And I take it that you still do not have funds to employ your own lawyer for this purpose? ( ) THE DEFENDANT: That's correct. ( ) THE COURT: Very well, the public defender is appointed as advisory counsel to aid the defendant if and when he requests help And to be available to represent the defendant should the Court find it necessary at any time to terminate the defendant's right of self-representation (due) to the misconduct of the defendant pursuant to Penal Code Section 987, Subdivision a, Faretta versus California, and this Colloquy between the court and attorney Chaleff brought out that Chaleff would not be responsible for conduct of the trial, would not be Miller's investigator or runner, but Chaleff's 'duties would be to render legal advice and counsel if and when the defendant requested it And in the event that the defendant's pro per privileges were terminated to then conduct the trial of the case.' (Emphasis added.) While attorney Chaleff would not initiate on his own any legal matters (motions, etc.), he could volunteer to defendant who could accept or reject.
Court's inherent power to conduct this proceedings in an orderly and expeditious manner.' (Emphasis added.)
Following a recitation of his reasons for his refusal to act as 'advisory counsel' set forth in the majority opinion, attorney Chaleff respectfully declined and the court found him in contempt and fined him $50 with a 'stay' to purge himself of contempt by agreeing to act as 'advisory counsel' or unless sentence was further stayed by a higher court. 2
The contempt order adjudicating attorney Chaleff guilty of contempt satisfies the technical requirements of Code of Civil Procedure section 1211 3 which are jurisdictional and contains sufficient facts to constitute a legal contempt (see Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348, 357, 60 Cal.Rptr. 575) Provided the court was empowered to appoint attorney Chaleff as 'advisory counsel.'
Does defendant Miller have a legal right to 'advisory counsel' having requested and been granted the...
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...826, 85 Cal.Rptr. 744, which upheld an order directing a public defender to serve as advisory counsel, with Chaleff v. Superior Court (1977) 69 Cal.App.3d 721, 725, 138 Cal.Rptr. 735 which held a public defender was not in contempt for refusing to so serve.) The federal courts also endorse ......
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