Yorn v. Superior Court

• Decision Date: 20 March 1979
• Court: California Court of Appeals Court of Appeals
• Parties: James YORN, Petitioner, v. SUPERIOR COURT of the State of California FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Louise HESEMEYER, Real Party in Interest. Civ. 45049.

Page 295

153 Cal.Rptr. 295

90 Cal.App.3d 669

James YORN, Petitioner, v. SUPERIOR COURT of the State of California FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent Louise HESEMEYER, Real Party in Interest.

Civ. 45049.

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

March 20, 1979.

Hearing Denied May 17, 1979.

Charles O. Morgan, Jr., San Francisco, for petitioner.

Cooper, White & Cooper, Mark L. Tuft, Denis O. Sutro, San Francisco, for real party in interest.

RACANELLI, Presiding Justice.

We issued an alternative writ of mandamus in order to examine the questions presented by the pretrial order disqualifying petitioner's privately retained counsel in a criminal proceeding. We conclude that neither jurisdictional excess nor abuse of discretion is manifested as claimed. Accordingly, the relief requested is denied. ¹

Facts

The record discloses the following salient circumstances:

Petitioner Yorn and real party Hesemeyer are codefendants in a grand jury indictment charging them with crimes of conspiracy (Pen.Code, § 182), embezzlement (Pen.Code, § 504) and grand theft (Pen.Code, § 487, subd. 1); Yorn is additionally charged with fraudulently issuing worthless checks (Pen.Code, § 476a); the charges stem from a series of escrow transactions over a several-months' period involving aggregate disbursements of $433,000 made to Yorn by Hesemeyer as local manager of National American Title Insurance Company (hereafter National). Hesemeyer filed a pretrial motion to disqualify Yorn's privately retained defense counsel, Charles O. Morgan, Jr., on grounds of a prior attorney-client relationship and conflict of interests. In her supporting declaration Hesemeyer alleged that: (1) Morgan has professionally represented and advised her in certain personal and business matters continuously since January 1976; (2) in the course of such attorney-client relationship, she has confided information germane to the pending charges; (3) during the same time interval, Morgan also provided legal advise to Hesemeyer and her employer, National, concerning some of the escrow transactions related to the criminal charges. A supporting declaration filed by Hesemeyer's present attorney substantiated Morgan's receipt of confidential information from Hesemeyer and further recited Morgan's offer to withdraw as Hesemeyer's counsel in related civil litigation on grounds of conflicting interests. ²

In his opposing declaration, Morgan while acknowledging a prior unrelated period of representation of Hesemeyer and National concedes that on two occasions he advised Hesemeyer on escrow transactions related to the charges and that he received confidential information from her which "could be germane to some of the charges . . . ." ³

Following a hearing, the trial court granted Hesemeyer's motion to disqualify Morgan as Yorn's counsel and continued the matter two weeks to allow Yorn to retain new counsel. The instant proceedings ensued in the interim.

Contentions

Yorn argues that the challenged order violates his constitutional right to be represented by counsel of his own choice and constituted an act in excess of jurisdiction. Contrawise, Hesemeyer asserts that the Sixth Amendment guarantee does not include the unqualified right to be represented by any particular attorney; that under the circumstances reflected, her codefendant's limited right to be represented by counsel of his own choosing must yield to the paramount concern to maintain inviolate the confidences obtained during the preexisting attorney-client relationship. For the reasons we explain, we find that assertion and its underlying premises to be valid.

I Propriety of Extraordinary Review

We first consider the preliminary question whether the challenged order is subject to scrutiny by means of extraordinary review.

It is well established that a pretrial order substantially affecting a defendant's right to a fair trial in criminal proceedings may be appropriately reviewed by mandamus. (Maine v. Superior Court (1968) 68 Cal.2d 375, 379, 66 Cal.Rptr. 724, 438 P.2d 372.) Interlocutory orders affecting a defendant's constitutional right to counsel have been consistently treated as properly reviewable in mandamus proceedings. (Harris v. Superior Court (1977) 19 Cal.3d 786, 140 Cal.Rptr. 318, 567 P.2d 750; Drumgo v. Superior Court (1973) 8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007 (right to appointed counsel of defendant's choice); Magee v. Superior Court (1973)8 Cal.3d 949, 106 Cal.Rptr. 647, 506 P.2d 1023 (defendant's right to associate pro hac vice counsel); Smith v. Superior Court (1968) 68 Cal.2d 547, 68 Cal.Rptr. 1, 440 P.2d 65 (power to remove appointed counsel); Ward v. Superior Court (1977) 70 Cal.App.3d 23, 27, fn. 1, 138 Cal.Rptr. 532 (order disqualifying county counsel in civil litigation).) In light of such precedent, we conclude that mandamus properly lies herein to review the order disqualifying Morgan as petitioner's retained counsel.

II Right to Chosen Counsel

The constitutional right to the effective assistance of counsel embraces the right to retain counsel of one's own choice. (People v. Holland (1978) 23 Cal.3d 77, 86, 151 Cal.Rptr. 625, 588 P.2d 765; People v. Byoune (1966) 65 Cal.2d 345, 348, 54 Cal.Rptr. 749, 420 P.2d 221; accord Chandler v. Fretag (1954) 348 U.S. 3, 9, 75 S.Ct. 1, 99 L.Ed. 4; Powell v. Alabama (1932) 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158; People v. Douglas (1964) 61 Cal.2d 430, 438, 38 Cal.Rptr. 884, 392 P.2d 964.) However, that particularized choice is not absolute (People v. Crovedi (1966) 65 Cal.2d 199, 207, 53 Cal.Rptr. 284, 417 P.2d 868; United States v. McMann (2d Cir. 1967) 386 F.2d 611), and can be "constitutionally . . . 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." (People v. Crovedi, supra, 65 Cal.2d, at p. 208, 53 Cal.Rptr., at p. 290, 417 P.2d, at p. 874.)

Although some dispute is revealed in the conflicting declarations concerning the nature and extent of the past and present attorney-client relationship, the trial court's findings based upon such conflicting evidence are conclusive on appeal. (Big Bear Mun. Water Dist. v. Superior Court (1969) 269 Cal.App.2d 919, 927, 75 Cal.Rptr. 580; Jacuzzi v. Jacuzzi Bros., Inc. (1963) 218 Cal.App.2d 24, 27-28, 32 Cal.Rptr. 188.) Such implied findings clearly demonstrate a classic confrontation between an accused's limited right to be represented by a particular attorney and that attorney's duty to preserve the confidentiality of, and to refrain from undertaking employment adverse to, his former (and, in some respects, current) client. (See Bus. & Prof.Code, § 6068, subd. (e); Rules of Professional Conduct, rule 4-101.) ⁴

Few precepts are more firmly entrenched than that the fiduciary relationship between attorney and client is of the very highest character (Alkow v. State Bar (1971) 3 Cal.3d 924, 935, 92 Cal.Rptr. 278, 479 P.2d 638; Lee v. State Bar (1970) 2 Cal.3d 927, 939, 88 Cal.Rptr. 361, 472 P.2d 449; Clancy v. State Bar (1969) 71 Cal.2d 140, 146, 77 Cal.Rptr. 657, 454 P.2d 329; Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 567, 7 Cal.Rptr. 109, 354 P.2d 637; Tomblin v. Hill (1929) 206 Cal. 689, 693-694, 275 P. 941) and, even though terminated, forbids (1) any act which will injure the former client in matters involving such former representation or (2) use against the former client of any information acquired during such relationship. (Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 15 P.2d 505.) Under the promulgated rules governing professional conduct, which apply in criminal and civil cases alike (Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, 535-536, 112 Cal.Rptr. 478), the ethical prohibition against acceptance of adverse employment involving prior confidential information includes Potential as well as actual use of such previously acquired information. (Galbraith v. The State Bar (1933) 218 Cal. 329, 332-333, 23 P.2d 291.)

Rule 4-101 (formerly rule 5, Rules of Professional Conduct) is designed not only to prevent dishonest conduct but to avoid placing the honest practitioner "in a position where he may be required to choose between conflicting duties, or . . . attempt to reconcile conflicting interests, . . . " (Earl Scheib, Inc. v. Superior Court (1967) 253 Cal.App.2d 703, 706, 61 Cal.Rptr. 386, 388 (citing Anderson v. Eaton (1930) 211 Cal. 113, 116, 293 P. 788); cf. Goldstein v. Lees (1975) 46 Cal.App.3d 614, 620, 120 Cal.Rptr. 253.) Pragmatically, its rationale is analogous to that underlying the right of separate counsel in certain multiple-defendant criminal cases to remove any possibility of potential compromise of tactical decisions due to divided or conflicting loyalties. (See Glasser v. United States (1942) 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680; People v. Douglas, supra, 61 Cal.2d 430, 436, 438, 38 Cal.Rptr. 884, 392 P.2d 964.)

The record herein demonstrates that Hesemeyer privately consulted with Morgan in seeking and obtaining his professional advice on certain matters directly related to the pending criminal charges. Not only has Morgan acknowledged receipt of such confidential information, and conceded its potential relevance to the charges and the likelihood of conflicting defenses, but it also appears that during the same time interval Morgan purported to render advice concerning a similar subject-matter area to the now-alleged Victim itself (National). In light of such uncontroverted circumstances disclosing a clear conflict of interests, it is at least questionable whether Morgan was not obliged to Voluntarily withdraw as counsel for Yorn. (See Pennix v. Winton (1943) 61 Cal.App.2d 761, 773, 143 P.2d 940; Bus. & Prof.Code, § 6068, subd. (e); Rules of Professional Conduct, rules 2-111(B)(2), 4-101, 5-102(A), (B).) Viewing Morgan's plural...