Chaleff v. Superior Court of L.A. Cty.

69 Cal. App. 3d 721, 138 Cal. Rptr. 735, 1977 Cal. App. LEXIS 1457

• Court: California Court of Appeal
• Decided: March 17, 1977
• Docket: Civ. 47919
• Status: Published

Opinions

Opinion

THOMPSON, J.

This is a petition for writ of review to test the validity of trial court action adjudicating a deputy public defender in contempt of court for refusal to act as an adviser to a defendant who had been granted permission to proceed in propria persona in a criminal proceeding. It raises the issue of the obligation of a deputy public defender to accept an appointment in that capacity over his objection. Concluding that the petitioner in the case at bench established reasons for his refusal to accept the appointment pursuant to rule 2-111 of the California Rules of Professional Conduct, we issued our writ of review annulling the action of the trial court.

John L. Miller was charged with murder by an information filed in the Los Angeles Superior Court. Gerald L. Chaleff, a deputy public defender, was appointed to represent him over Miller’s objection. Miller sought permission to appear in propria persona. After a series of hearings to determine Miller’s capacity for self-representation during the course of which Miller indicated a desire for advisory counsel, the trial court granted Miller permission to represent himself. Confirming that Miller still desired advisory counsel, the court appointed “the public defender” in that capacity. (People v. Mattson (1959) 51 Cal.2d 777, 797 [336 P.2d 937].)

Chaleff stated, “I would have, to respectfully decline.” He gave as his reasons: (1) the failure of Government Code section 27706 to authorize the public defender to act in an advisory capacity; (2) the adverse consequences to his other case load of being required to appear in court on a schedule dictated by Miller; (3) Miller’s refusal to permit a workable relationship of attorney and client to be established; (4) the relationship was one in which Miller would not permit Chaleff to present defenses which Chaleff believed were available; and (5) “severe ethical problems in relation to being an advisor in that what [was] asked of [Chaleff]” could put him in a position where he would “have to come to the court and report to the court that [he felt] the conduct by . . . Miller was wrong.” Chaleff amplified his fourth reason, stating: “I’m referring to . . . issues [other than Miller’s decision to testify] such as witnesses or other types of conduct that may come about that may cause me to feel that it violates my ethical responsibilities as an attorney.”

Chaleff further noted to the court a conflict with Miller over presentation of the defense, adding: “I might say that I’m sort of handcuffed explaining to this court because of the attorney-client privilege and the fact that Mr. Miller has stated that he would like me to ... retain confidential anything he’s told me ... 1

Despite Chaleff’s objection and explanation, the court insisted in its order, and when Chaleff did not agree to serve as ordered, found him in contempt. The trial court then appointed private counsel to advise Miller. Chaleff filed the petition for writ of review which brings the . contempt matter to this court.

Public defenders and their deputies are subject to the Rules of Professional Conduct governing the action of lawyers no less than other members of the State Bar. Rule 2-111 of the Rules of Professional Conduct permits a lawyer to withdraw from representation of a client if the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by a good faith argument for extension, modification, or reversal of existing law (subd. (C)(1)(a)), or if the employment creates a situation in which it is unreasonably difficult for the member of the State Bar to cany out his employment effectively (subd. (C)(1)(d)).

On its face and in its spirit, rule 2-111 is applicable to an attorney appointed to act as an adviser to a defendant conducting his own defense. The language of the rule contains no exception. The spirit of the rule exemplifies the proposition that while the attorney’s duty is to his client, he cannot be placed in the position where discharging that duty impinges upon his ethical responsibility as a member of the bar. (See People v. Mattson, supra, 51 Cal.2d 777, 793.)

Here Chaleff called to the court’s attention the fact that his representation of Miller could place him in an untenable ethical position. Here Chaleff went as far as he could go in the disclosure without divulging privileged information. In that situation, rule 2-111 permitted Chaleff to withdraw from the representation of Miller. The court, by holding Chaleff in contempt, placed upon Chaleff a burden beyond that allowed by the rule.² The court in so doing exceeded its authority.

The judgment of contempt is annulled.

Lillie, Acting P. J., concurred.

1 Evidence well after the fact shows that a significant difference between Miller, and Chaleff was Miller’s self-destructive urge to so conduct the defense as to receive the death penalty. That evidence was not before the trial court when it made its ordér and hence cannot be considered in testing the trial court’s action.

2 Because we rest our decision upon rule 2-111 of the Rules of Professional Conduct, we indicate neither agreement nor disagreement with the holding of Ligda v. Superior Court (1970) 5 Cal.App.3d 811 [85 Cal.Rptr. 744] to the effect that a deputy public defender may, with his consent, be appointed as advisory counsel despite the absence of authority for such an appointment in Government Code section 27706 which defines the authority of the public defender without mentioning or implying that the authority includes service as an adviser to a person conducting his own defense.