Comden v. Superior Court

• Citation: 20 Cal.3d 906,576 P.2d 971,145 Cal.Rptr. 9
• Court: United States State Supreme Court (California)
• Decision Date: 11 April 1978
• Parties: , 576 P.2d 971, 5 A.L.R.4th 562 Barry COMDEN et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, DORIS DAY DISTRIBUTING COMPANY et al., Real Parties in Interest. L.A. 30787.

Page 9

145 Cal.Rptr. 9

20 Cal.3d 906, 576 P.2d 971, 5 A.L.R.4th 562

Barry COMDEN et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, DORIS DAY DISTRIBUTING COMPANY et al., Real Parties in Interest.

L.A. 30787.

Supreme Court of California,In Bank.

April 11, 1978.

Rehearing Denied May 25, 1978.

Loeb & Loeb, Robert A. Holtzman and Peter Niemiec, Los Angeles, for petitioners.

Herbert M. Rosenthal and Ronald W. Stovitz, San Francisco, as amici curiae, on behalf of petitioners.

Cooper, Epstein & Hurewitz, Richard D. Agay and Brian Kaufman, Beverly Hills, for real parties in interest.

CLARK, Justice.

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' firm ought to be called as a witness for plaintiffs at trial of the cause. ¹ We conclude the court acted within its discretion in ordering withdrawal.

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 activities. In support of petitioners' application, Greene filed a declaration detailing his meetings with representatives of DDDC as he and Chernoff attempted to resolve matters. Greene stated he had heard Anthony Strammiello, a DDDC investor, say he had received a 50 percent equity interest in the company in return for a $150,000 investment. The contract between petitioners and DDDC explicitly prohibited such transfer of interest in DDDC. In a second declaration another Loeb and Loeb attorney stated in support of the application that DDDC representatives had refused to allow the inspection of corporate books as authorized by the contract.

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."

An examination of the purposes underlying rule 2-111(A)(4) supports the court's ruling. An attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate. While the harm recedes when the attorney-witness is not himself trial counsel but only a member of trial counsel's firm, the opportunity still exists for opposing counsel to argue the attorney-witness' stake in the litigation through his law firm influences his objectivity. (See ABA Code of Prof. Responsibility, EC 5-9; Sutton, The Testifying Advocate (1963) 41 Tex.L.Rev. 477.)

Significantly, the prohibition seeks to avoid the appearance of attorney impropriety. The language of rule 2-111(A)(4) closely parallels that of ABA 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 ABA 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.)

Petitioners argued before respondent court that the order was premature, suggested that subsequent discovery might eliminate need to call Greene as a witness, and offered voluntary withdrawal by Loeb and Loeb if discovery failed to rule out the usefulness of Greene's testimony. Petitioners thus suggest the likelihood of the need of an attorney's testimony is the essential factor governing withdrawal. This is the main ingredient which the court must consider. However, the rule requires withdrawal when the attorney "knows or should know that he . . . ought" to testify. ² (Cal.Rules Prof.Conduct, rule 2-111(A)(4), fn. 1, ante; J. P. Foley & Co., Inc. v. Vanderbilt (2d Cir. 1975) 523 F.2d 1357, 1359.) We deem the rule to require that the court first consider whether the attorney's testimony will be necessary to protect his client's interests and, if it concludes such testimony will likely be necessary, that it order a timely withdrawal consistent with minimizing prejudices which may result from the substitution of counsel. Whether an attorney ought to testify ordinarily is a discretionary determination based on the court's considered evaluation of all pertinent factors including, inter alia, the significance of the matters to which he might testify, the weight his testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established. (See Miller Elec. Const., Inc. v. Devine Lighting Co., Inc. (W.D.Pa.1976) 421 F.Supp. 1020, 1021, fn. 2.)

Mandamus will not lie to control discretion of a court or to compel its exercise in a particular manner except in the rare instance when the facts command discretion be exercised in but one way. (O'Bryan v. Superior Court (1941) 18 Cal.2d 490, 496, 116 P.2d 49; 5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, § 79, p. 3856.) Attorney Greene's declaration was to the effect he had heard statements which, if true, establish a breach of contract by DDDC. While others present at the meeting also reported hearing the statements described by Greene, it cannot be said that under the facts the trial court could only have concluded Greene's testimony would not be necessary at trial, particularly when Strammiello denied having made the statement reported by Greene and contradictory declarations were offered by DDDC.

When it is impractical to determine with certainty whether an attorney ought to testify, the trial court ordinarily must make a determination notwithstanding the uncertainty, as delay in making a decision may well prejudice the client. (See Miller Elec. Const., Inc. v. Devine Lighting Co., Inc., supra, 421 F.Supp. 1020, 1023; ABA Code of Prof. Responsibility, EC 5- 10.) Although the court in Miller determined that delaying a withdrawal decision would not under the circumstances in that case prejudice any party, the court's contrary conclusion here was clearly within the scope of its discretion, the trial judge stating "delaying the decision creates the issue of hardship."

Petitioners urge in the prevailing circumstances, rule 2-111(A)(4) is inapplicable under one or more of the exemptions provided. However, Greene's anticipated testimony does not relate to an uncontested matter (Cal.Rules Prof.Conduct, rule 2-111(A)(4), subd. (a)), nor solely to a matter of formality (id., subd. (b)), nor solely to the nature and value of legal services rendered in the case (id., subd. (c)). His testimony will be challenged by more than one opposing witness, and will tend to establish a breach of contract and a basis for its termination.

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); emphasis 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...