Howitt v. Superior Court, D013700

• Decision Date: 28 February 1992
• Docket Number: No. D013700,D013700
• Citation: 5 Cal.Rptr.2d 196,3 Cal.App.4th 1575
• Court: California Court of Appeals Court of Appeals
• Parties: John R. HOWITT, Petitioner, v. The SUPERIOR COURT of Imperial County, Respondent; COUNTY OF IMPERIAL, et al., Real Parties in Interest.

Page 196

5 Cal.Rptr.2d 196

3 Cal.App.4th 1575

John R. HOWITT, Petitioner, v. The SUPERIOR COURT of Imperial County, Respondent COUNTY OF IMPERIAL, et al., Real Parties in Interest.

No. D013700.

Court of Appeal, Fourth District, Division 1, California.

Feb. 28, 1992.

[3 Cal.App.4th 1577] Daniel J. Sullivan, San Diego, for petitioner.

Thomas M. Fries, County Counsel and Carolyn S. Janzen, Deputy County Counsel, for respondent and real parties in interest.

WIENER, Acting Presiding Justice.

This petition for extraordinary relief presents another facet of attorney disqualification in the public sector. For the reasons set forth we will deny the petition without prejudice to further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner John Howitt, an Imperial County deputy sheriff, became embroiled in a dispute with the sheriff's department regarding Howitt's transfer from the Winterhaven station to the El Centro jail and summary suspension without pay. Howitt contended the retransfer and suspension were punitive in nature and sought an administrative hearing before the Imperial County Employment Appeals Board (Board). (See Govt.Code, § 3304, subd. (b).) The Board is a quasi-independent administrative tribunal established by County ordinance and charged with adjudicating After first rejecting Howitt's request for a hearing, the County represented by the county counsel's office eventually conceded the point and a hearing was scheduled. Howitt then discovered that not only was the sheriff's department to be represented at the hearing by a deputy county counsel; in addition, the county counsel Thomas Fries would advise the Board at the hearing and throughout the decision-making process as well as prepare the Board's written decision.

certain disputes between the County and County employees.

Possessed of this information, Howitt requested the county counsel's office disqualify itself from advising the Board with regard to his administrative hearing. When county counsel refused, Howitt unsuccessfully petitioned for writ of mandate in the superior court.

DISCUSSION

In Civil Service Com. v. Superior Court (1984) 163 Cal.App.3d 70, 209 Cal.Rptr. 159, a case involving employees of the County of San Diego, we recognized the problem presented by this case. The Civil Service Commission in San Diego County performs a function analogous to the Employment Appeals Board in Imperial County. In a footnote, we explained:

"The attorney who represents a client with interests adverse to another current client encounters the very real danger 'that he will be tempted, perhaps unconsciously, to favor the interests of a particularly important client over the adverse or potentially adverse interests of a less favored client.' (Developments in the Law--Conflicts of Interest in the Legal Profession (1981) 94 Harv.L.Rev. 1244, 1296.) Here, there is every reason to believe that county counsel would be tempted to favor the interests of the County in giving advice to the Commission. The Commission's primary, if not sole function, is to pass judgment on the conduct of the County toward its employees. Every Commission decision has the potential of being adverse to one of the County's constituent agencies. Because county counsel is directly responsible to the board of supervisors, it is difficult to conceive how any member of the county counsel's office can render independent advice to the Commission. The structure of the system would appear necessarily to skew such advice in favor of the County and against the county employees. And even in those circumstances where county counsel renders advice to the Commission favoring the employee, such advice places him in a position adverse to his client, the County." (163 Cal.App.3d at pp. 78-79, fn. 1, 209 Cal.Rptr. 159.)

Needless to say we had no occasion there to consider the broad context of the problem we recognized or to suggest a possible solution. Civil Service Commission was a case in which the County challenged a Commission decision by filing a mandate petition in the superior court. Having previously advised the Commission, county counsel sought to represent the County against the Commission in court. Relying on the Rules of Professional Conduct which prevent a lawyer from representing interests adverse to a former client in a matter substantially related to the former representation, we held the Commission was entitled to request the disqualification of county counsel. Referring to our earlier footnote commentary, we concluded, "To the extent that county counsel is ever permitted to place himself in such a position in the first place (see ante, fn. 1), it is clear if the situation escalates to litigation, he cannot remain as counsel for one of his clients in opposition to the other." (Id. at p. 81, 209 Cal.Rptr. 159.)

I

This case presents the foundational question left open in Civil Service Commission whether a county counsel's office "is ever permitted to place [it]self in [the] position" of acting as an advocate for one party in a contested hearing while at the same time serving as the legal advisor for the decision-maker.

As we shall explain, we answer the question "yes" provided there is compliance with the guidelines set forth in this opinion.

Unlike the issue in Civil Service Commission, the answer to the question in this case is not provided by rules of ethics and professional responsibility for lawyers. ¹ Although the California Rules of Professional Conduct, rule 3-310(B) provides that a lawyer "shall not concurrently represent clients whose interests conflict," the conflict may be waived by the clients' "informed written consent." As we noted in Civil Service Commission, there is every reason for the decision-maker to be concerned with the independence of the advice it is receiving under such circumstances and the record here does not reflect that the Employment Appeals Board has waived the conflict. Nonetheless, the rule is obviously not designed to deal with the situation in which one of the clients is a party to a dispute and one is the decision-maker. The fact that the represented party and the decision-maker are willing to waive a conflict does precious little for the remaining party who must face an adversary with unequal access to the tribunal.

Accordingly we must pursue other avenues of assistance in resolving this issue. The parties have directed us to various cases which have addressed contentions that the overlapping functions of members of or lawyers for an administrative agency violated the due process rights of a party appearing before the agency. As a general proposition these cases recognize a due process entitlement to an impartial decision-maker but conclude that overlapping functions do not amount to a constitutional violation absent specific evidence of bias.

Chief among these cases is the United States Supreme Court's decision in Withrow v. Larkin (1975) 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712, involving the suspension of a doctor's license by an Examining Board of practicing physicians. The Board was empowered to review complaints against doctors by conducting an "investigative hearing" at which the doctor had limited ability to participate. If the investigative hearing yielded significant evidence of wrongdoing, the Board would notice a "contested hearing" to decide whether the doctor's license should be suspended. A doctor under investigation challenged the Board's procedure as violative of due process because the combination of investigative and adjudicatory functions deprived him of an impartial tribunal. Characterizing the issue as a "substantial" one (id. at p. 51, 95 S.Ct. at p. 1466), the Court nonetheless refused to adopt a blanket rule "that agency members who participate in an investigation are disqualified from adjudicating." (Id. at p. 52, 95 S.Ct. at p. 1467.) "No specific foundation has been presented for suspecting that the Board has been prejudiced by its investigation or would be disabled from hearing and deciding on the basis of the evidence to be presented at the contested hearing. The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing." (Id. at p. 55, 95 S.Ct. at p. 1468.)

The California Supreme Court employed a similar analysis in Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 264 Cal.Rptr. 100, 782 P.2d 239, rejecting a judge's argument that the Commission's combination of investigative and adjudicatory functions constituted a denial of due process. The Kloepfer court emphasized that the Commission's functions involve considerably less overlap than the Examining Board's in Withrow. Specifically, while the Commission's staff initially Both Withrow and Kloepfer exemplify administrative procedures which depart to some extent from the pure adversary model of a passive and disinterested tribunal hearing evidence and argument presented by partisan advocates. The departure is perhaps more dramatic in Withrow, where the functions of investigation and adjudication are effectively merged in the same persons, than in Kloepfer, where the Commission's staff conducted an initial investigation. Nonetheless, these decisions and numerous others stand for the proposition that the pure adversary model is not entitled to constitutionally enshrined exclusivity as the means for resolving disputes in "[t]he incredible variety of administrative mechanisms [utilized] in this country...." (Withrow, supra, 421 U.S. at p. 52, 95 S.Ct. at p. 1467.) The mere fact that the decision-maker or its staff is a more active participant in the factfinding process--similar to the judge in European civil law systems--will not render an administrative procedure unconstitutional.

investigates complaints against judges, the prosecutorial responsibility shifts to the Attorney...