Maxwell v. Superior Court

• Decision Date: 28 January 1982
• Docket Number: No. L,No. 31162,L,31162
• Citation: 30 Cal.3d 606,639 P.2d 248,180 Cal.Rptr. 177
• Court: California Supreme Court
• Parties: , 639 P.2d 248, 18 A.L.R.4th 333 Bobby Joe MAXWELL, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. A.

Page 177

180 Cal.Rptr. 177

30 Cal.3d 606, 639 P.2d 248, 18 A.L.R.4th 333

Bobby Joe MAXWELL, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent The PEOPLE, Real Party in Interest.

No. L.A. No. 31162.

Supreme Court of California In Bank.

Jan. 28, 1982.

Laidley & Lawson, Pierpont M. Laidley, Fred Alschuler and Walter Alschuler, Los Angeles, for petitioner.

John H. Larson, County Counsel, and John P. Farrell, Deputy County Counsel, Los Angeles, for respondent.

No appearance for real party in interest.

NEWMAN, Justice.

One due process requirement is that an individual charged with serious crime be represented by competent and independent counsel. Another is that courts generally must not interfere with defendant's informed conclusions as to how his defense ought to be conducted. In this lawsuit, which involves an indigent defendant accused of capital murder, those two requirements appear to conflict; and we must decide which one commands more deference.

The precise issue is whether the trial court erred when, notwithstanding petitioner's protest, it recused his retained counsel and appointed substitute counsel--on the ground that the fee contract, giving retained counsel the right to exploit petitioner's life story, created an intolerable conflict of interest. We conclude that petitioner knowingly and intelligently waived the potential prejudice and, therefore, that the trial court did err.

Petitioner is charged with four counts of robbery (Pen.Code, § 211) and ten of murder (§ 187), some of which involve special circumstances raising the possibility that he will be sentenced to death (§ 190.2). He retained attorneys who seem to be experienced criminal defense lawyers.

The contract provides that irrevocably he assigns to counsel, as their fee, "any and all right, title, and interest, of any kind, nature and description throughout the world in and to the story of [his] entire life ..." including all entertainment and commercial exploitation rights. He is to receive 15 percent of the "net amount" realized by the exploitation. He promises to cooperate in the exploitation efforts and not to disclose his story to others except with counsel's consent or as required by law or his defense.

In the contract he waives all defamation and invasion-of-privacy claims against counsel that may arise from the exploitation. Counsel are not obligated to undertake an appeal, and appellate representation and fees therefor are declared to be subjects of later negotiation. ¹

The contract reflects extensive disclosure of possible conflicts and prejudice. It declares that counsel may wish to (1) create damaging publicity to enhance exploitation value, (2) avoid mental defenses because, if successful, they might suggest petitioner's incapacity to make the contract, and (3) see him convicted and even sentenced to death for publicity value. But a catch-all paragraph--after reciting that other, unforseen conflicts may also arise--reads: "The Lawyers will raise every defense which they, in their best judgment based upon their experience feel is warranted by the evidence and information at their disposal and which, taking into consideration the flow of trial and trial tactics, is in Maxwell's best interests. The Lawyers will conduct all aspects of the defense of Maxwell as would a reasonably competent attorney acting as a diligent conscientious advocate." (Italics added.)

In another paragraph petitioner is told of his right to appointed counsel (because he is indigent), and he is urged to seek independent legal advice about the matter. It is recited that retained counsel have supplied him with (1) a list of lawyers known by them, (2) the address and telephone number of the county bar referral service, and (3) a photocopy of "Attorneys" listings in the Yellow Pages for the Los Angeles area.

On April 9, 1979, petitioner was arraigned in municipal court. He pleaded not guilty and reserved the right to plead not guilty by reason of insanity. On April 26 counsel notified the court of his indigency and of the retainer contract. Judge Gutierrez questioned him and received his proffered waiver of all conflicts. After preliminary hearing (closed at counsel's request) petitioner was bound over for trial. He reiterated his municipal court pleas, and a defense At the September 14 hearing Judge Malone on his own motion inquired into the contract and examined petitioner. Via questions and answers he established that petitioner was literate, had an eighth-grade education, had read and signed the entire contract, had separately initialed many critical paragraphs, knew he could consult an independent attorney, and on his own chose not to do so. The judge called his attention specifically to the paragraphs disclosing potential conflicts and confirmed that petitioner had read carefully and understood each entry. He replied affirmatively when asked if he remained satisfied with counsel's conduct.

psychiatrist and an investigator were appointed.

After considering the psychiatric reports submitted in confidence by counsel, the judge ruled that (1) petitioner knowingly and willingly had chosen not to seek outside advice and was satisfied with his representation and the contract, and (2) counsel's competency was not at issue, but (3) counsel nonetheless must be disqualified because of the inherent conflict created. Four days later, after confirming that petitioner still wished to proceed with his retained lawyers, Judge Malone recused them and appointed substitute counsel. Petitioner seeks mandate to overturn the rulings.

WHEN MAY DEFENDANT DEMAND "DEFICIENT" COUNSEL?

Respondent (the Los Angeles Superior Court, represented by county counsel ²) contends that the fee contract effected a conflict contrary to constitutional guarantees of effective counsel, violated ethical standards, and jeopardized the integrity of the judicial process.

The right to counsel guaranteed by section 15 of article I of the California Constitution does contemplate effective counsel, and effectiveness means more than mere competence. Lawyering may be deficient when conflict of interest deprives the client of undivided loyalty and effort. (See People v. Corona (1978) 80 Cal.App.3d 684, 720, 145 Cal.Rptr. 894; cf. Glasser v. United States (1942) 315 U.S. 60, 75-76, 62 S.Ct. 457, 467, 86 L.Ed. 680.)

Protection of a defendant's right to loyal counsel is essential. This court has said that trial judges assume the burden of ensuring that their appointments of counsel for indigent defendants do not "result in a denial of effective counsel because of some possible conflict...." (People v. Cook (1975) 13 Cal.3d 663, 671, 119 Cal.Rptr. 500, 532 P.2d 148; but cf. Cuyler v. Sullivan (1980) 446 U.S. 335, 346-347, 100 S.Ct. 1708, 1717-18, 64 L.Ed.2d 333.) When a conviction is attacked validly on the ground that an appointed lawyer was influenced by conflict of interest the appellate court may not "indulge in nice calculations as to the amount of [resulting] prejudice...," and the conviction must be reversed if the record supports "informed speculation" that the conflict was prejudicial. (People v. Chacon (1968) 69 Cal.2d 765, 776-777, and fn. 3, 73 Cal.Rptr. 10, 447 P.2d 106; see too Glasser, supra, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680. ³ )

Yet effective assistance is linked closely to representation by counsel of choice. When clients and lawyers lack rapport and mutual confidence the quality of representation may be so undermined as to render it an empty formality. Hence many precedents recognize that the constitutional right to counsel includes a reasonable opportunity California decisions are in accord. While acknowledging that the right to chosen counsel is not absolute they limit severely the judge's discretion to intrude on defendant's choice of counsel in order to eliminate potential conflicts, ensure adequate representation, or serve judicial convenience.

for those defendants who have the necessary resources to control the designation of their legal representatives. (E.g., Crooker v. California (1958) 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448, overruled on other grounds, Miranda v. Arizona (1966) 384 U.S. 346, 86 S.Ct. 1602, 16 L.Ed.2d 694, rehg. den., 385 U.S. 890, 87 [639 P.2d 252] S.Ct. 11, 17 L.Ed.2d 121; Chandler v. Fretag (1954) 348 U.S. 3, 9, 75 S.Ct. 1, 4, 99 L.Ed. 4; Willis v. United States (9th Cir. 1979) 614 F.2d 1200, 1202; United States v. Bragan (4th Cir. 1974) 499 F.2d 1376, 1379.)

People v. Crovedi (1966) 65 Cal.2d 199, 53 Cal.Rptr. 284, 417 P.2d 868 held that a court abused its discretion by denying a continuance during retained counsel's temporary incapacity. "[T]hough it is clear," said Crovedi, "that a defendant has no absolute right to be represented by a particular attorney [fn. omitted], still the courts should make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.... [p ] ... [T]he state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources and ... that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case." (Pp. 207-208, 53 Cal.Rptr. 284, 417 P.2d 868, first italics original.)

Despite that concern with "significant prejudice" this court has stressed that the judge's finding of potential incompetence or conflict usually does not justify court-ordered removal. Smith v. Superior Court (1968) 68 Cal.2d 547, 68 Cal.Rptr. 1, 440 P.2d 65 concluded that a trial court could not, over defendant's objection, recuse his lawyer even where the judge from preliminary observation had become convinced of the...