People ex rel. Deukmejian v. Brown

• Decision Date: 12 March 1981
• Docket Number: S.F. 24252
• Citation: 624 P.2d 1206,172 Cal.Rptr. 478,29 Cal.3d 150
• Court: California Supreme Court
• Parties: , 624 P.2d 1206 The PEOPLE ex rel. George DEUKMEJIAN, as Attorney General, etc., Petitioner, v. Edmund G. BROWN, Jr., as Governor, etc., et al., Respondents; California State Employees' Association et al., Interveners.

Page 478

172 Cal.Rptr. 478

29 Cal.3d 150, 624 P.2d 1206

The PEOPLE ex rel. George DEUKMEJIAN, as Attorney General, etc., Petitioner, v. Edmund G. BROWN, Jr., as Governor, etc., et al., Respondents California State Employees' Association et al., Interveners.

S.F. 24252.

Supreme Court of California, In Bank.

March 12, 1981.

Rehearing Denied April 22, 1981.

George Deukmejian, Atty. Gen., Willard A. Shank and N. Eugene Hill, Chief Asst. Attys. Gen., L. Stephen Porter and Richard D. Martland, Asst. Attys. Gen., Talmadge R. Jones, George J. Roth, Robert Burton, Paul H. Dobson and M. Anthony Soares, Deputy Attys. Gen., for petitioner.

John C. Wakefield, Los Angeles, Larry C. Larsen, Gilles Attia, A. J. Weiglein, Sacramento, A. Roger Jeanson, Haas & Najarian, San Francisco, Thomas A. Farr and Rex H. Reed, Springfield, Va., as amici curiae on behalf of petitioner.

Tuttle & Taylor, Raymond C. Fisher, Barbara L. Stocker, Jeffery M. Hamerling, Los Angeles, J. Anthony Kline, San Francisco, Byron S. Georgiou, San Diego, Barbara T. Stuart, Sacramento, Jerome B. Falk, Jr., Steven L. Mayer, Howard, Prim, Rice, Nemerovski, Canady & Pollak, San Francisco Barry Winograd, Salinas, Kristin Jensen, Robert Miller, William P. Smith, Terry Filliman, Sacramento, Gerald Becker, Martinez, and Ronald Blubaugh, Sacramento, for respondents.

Loren E. McMaster, Bernard L. Allamano, Gary P. Reynolds, Sacramento, Richard Lobel, Van Bourg, Allen, Weinberg & Roger, Stewart Weinberg and Robert J. Bezemek, San Francisco, for intervenors.

Reich, Adell, Crost & Perry, Hirsch Adell, Charles P. Scully, Donald C. Carroll, Charles P. Skully, II, Donald H. Wollett, Ronald Yank, Franklin Silver, Carroll, Burdick & McDonough, Bodkin, McCarthy, Sargent & Smith, Timothy J. Sargent, Kevin W. Horan, Los Angeles, Gillin, Jacobson & Wilson, Ralph L. Jacobson and Cynthia T. Podren, Berkeley, as amicus curiae on behalf of intervenors.

MOSK, Justice.

Before reaching the merits of this litigation in either this case or the companion case of Pacific Legal Foundation v. Brown, 29 Cal.3d 168, 172 Cal.Rptr. 487, 624 P.2d 1215, we address a motion of the Governor to dismiss the petition of the Attorney General herein.

The chronology of events is significant. The 1977 Legislature adopted a State Employer-Employee Relations Act (SEERA). (Gov. Code, §§ 3512-3524.) While the Governor had the measure under consideration the then-Attorney General wrote to him under date of September 20, 1977, urging him to sign what he described as "a standard, well-accepted, existing method of resolving labor/management disputes ... a good step forward." Ten days later the Governor signed the measure into law, and it became effective on July 1, 1978.

On January 23, 1979, the Pacific Legal Foundation and the Public Employees Service Association filed in the Court of Appeal an original petition for a writ of mandate to compel the Governor, the Controller, the Public Employment Relations Board, and the State Personnel Board to perform their constitutional and statutory duties without regard to provisions of SEERA, contending the legislation was unconstitutional.

On January 30, 1979, the present Attorney General, acting through two deputies, met with members of the State Personnel Board, which had been served with summons in the Pacific Legal Foundation suit. At the conference the Attorney General, as counsel to the board, outlined the legal posture of the board and described four legal options available to it. This was a classic attorney-client scenario.

At all times up to that point, the Attorney General was by law the designated attorney for the Governor and the State Personnel Board, as well as for the other state officers and agencies involved herein. Government Code section 12511 provides that the "Attorney General has charge, as attorney, of all legal matters in which the State is interested ...." Section 12512 provides that the "Attorney General shall ... prosecute or defend all causes to which the State, or any State officer is a party in his official capacity; ..." (See also Gov. Code, § 18656.)

On February 7, 1979, however, the Attorney General initiated the present proceeding by filing an independent petition for writ of mandate in the Court of Appeal against the Governor and other state agencies, asking for relief comparable to that sought by Pacific Legal Foundation.

There is no question that at such time as he believed a potential conflict existed, the Attorney General could, as he did, properly withdraw as counsel for his state clients and authorize them to employ special counsel. (Gov. Code, § 11040; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 15, 112 Cal.Rptr. 786.) The issue then becomes whether the Attorney General may represent clients one day, give them legal advice with regard to pending litigation, withdraw, and then sue the same clients the next day on a purported cause of action arising out of the identical controversy. We can find no constitutional, statutory, or ethical authority for such conduct by the Attorney General.

The rules of professional conduct to guide attorneys in their relationship with clients and former clients are well established and generally understood by all attorneys in this state. Rule 5-102 of the State Bar Rules of Professional Conduct (3B West's Ann. Bus. & Prof. Code (1974 ed., 1980 cum. supp.) foll. § 6076, at p. 92) requires that before an attorney may represent interests adverse to a client, he must obtain his client's consent in writing. For violation of this principle with regard to a former client, an attorney has been disciplined by the State Bar. (Galbraith v. State Bar (1933) 218 Cal. 329, 23 P.2d 291.) This court declared in Galbraith that "the subsequent representation of another against a former client is forbidden not merely when the attorney will be called upon to use confidential information obtained in the course of the former employment, but in every case when, by reason of such subsequent employment, he may be called upon to use such confidential information." (Italics in original; id. at pp. 332-333, 23 P.2d 291.)

We took similar disciplinary action in Hawkins v. State Bar (1979) 23 Cal.3d 622, 629, 153 Cal.Rptr. 234, 591 P.2d 524, despite the attorney's claim that his conflicting relationship with another person arose subsequently to the initial legal consultation with his client. The relationships, we found, "arose contemporaneously"; this is comparable in time span to the chronology here between the Attorney General's legal consultation with the Personnel Board and his filing of a lawsuit against the same board.

Conduct of attorneys has also been discussed in contexts other than State Bar discipline. In Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-574, 15 P.2d 505, this court declared that "an attorney is forbidden to do either of two things after severing his relationship with a former client. He may not do anything which will injuriously affect his former client in any manner in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship." (Italics added.) While the record here does not reveal whether the Attorney General acquired any knowledge or information from his clients, the prohibition is in the disjunctive: he may not use information or "do anything which will injuriously affect his former client." Unquestionably the Attorney General is now acting adversely to the position of his statutory clients, one of which consulted him regarding this specific matter.

In Grove v. Grove Valve & Regulator Co. (1963) 213 Cal.App.2d 646, 653, 29 Cal.Rptr. 150, the court enjoined an attorney from appearing against his former clients because "there can be no reasonable doubt that Flehr's present employment as attorney for appellant in this action is adverse to the interests of his former clients, since appellant is suing them over matters which are related to and which Flehr became conversant with during the period in which he represented respondents as their attorney." Here, too, the Attorney General is suing former clients over matters that arose during the period when by law he was counsel for those same clients.

To the same effect is Earl Scheib, Inc. v. Superior Court (1967) 253 Cal.App.2d 703, 706, 61 Cal.Rptr. 386, in which the court declared "The rules which underlie our decision have long been written in the books so that he who runs might read. 'It is the duty of an attorney: ... (e) To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client.' (Bus. & Prof. Code, § 6068.) 'A member of the State Bar shall not accept employment adverse to a client or former client, without the consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client.' " (See also Anderson v. Eaton (1930) 211 Cal. 113, 116, 293 P. 788.)

In State of Ark. v. Dean Foods Products Co., Inc. (8th Cir. 1979) 605 F.2d 380, 384, it was held that the "attorney-client relationship raises an irrefutable presumption that confidences were disclosed." Disqualification of the Attorney General was upheld because of his prior representation of a litigant; whether he "did in fact receive confidential information is irrelevant, the policy considerations of the Code precluding that inquiry." (Id., p. 386.) The same doctrine was enunciated in General Motors Corporation v. City of New York (2d Cir. 1974) 501 F.2d 639, 648, and Emle Industries, Inc. v. Patentex, Inc. (2d Cir. 1973) 478 F.2d 562, 571. Also see Kramer, Appearance of Impropriety (1980) 65 Minn.L.Rev. 243, 255.

But, contends the Attorney General, he is not bound by the rules that control the conduct of other attorneys in the state because he is a protector of the...