Maxwell v. Superior Court

639 P.2d 248, 30 Cal. 3d 606, 180 Cal. Rptr. 177, 18 A.L.R. 4th 333, 1982 Cal. LEXIS 142

• Court: California Supreme Court
• Decided: January 28, 1982
• Docket: L.A. 31162
• Status: Published

Opinions

Opinion

NEWMAN, J.

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 psychiatrist and an investigator were appointed.

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.

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 counsel²) 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 [86 L.Ed. 680, 701-702, 62 S.Ct. 457].)

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 [64 L.Ed.2d 333, 345-346, 100 S.Ct. 1708].) 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] prejudiceand 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 [86 L.Ed. 680, 702].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 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 [2 L.Ed.2d 1448, 1453-1454, 78 S.Ct. 1287], overruled on other grounds, Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], rehg. den., 385 U.S. 890 [17 L.Ed.2d 121, 87 S.Ct. 11]; Chandler v. Fretag (1954) 348 U.S. 3, 9 [99 L.Ed. 4, 9-10, 75 S.Ct. 1]; Willis v. United States (9th Cir. 1979) 614 F.2d 1200, 1202; United States v. Bragan (4th Cir. 1974) 499 F.2d 1376, 1379.)

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.

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. ... [¶] ... [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, 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 lawyer’s incompetence. Speaking for a unanimous court Justice Mosk said that to protect the right to counsel “the judge must be on his guard neither to infringe upon the defendant’s right to counsel of his choice, nor to compromise the independence of the bar... .” (P. 559.)

A few months later Justice Mosk spoke again for the unanimous court: “We recently held [in Smith] that a court has no power to remove a defense attorney, over the objections of both the defendant and that attorney, upon a finding that the latter is ‘incompetent’ because of purported ignorance of the law to try the particular case. ... A fortiori, a court cannot remove an attorney on the far less relevant ground of the nature of the financial arrangement between him and his client. To do so would, as in Smith, infringe upon the defendant’s right to counsel of his choice and compromise the independence of the bar. When a defendant appears with retained counsel, it is clear the court has no power to inquire into the defendant’s personal financial condition, to determine that he is unable to pay his chosen attorney an ‘adequate’ fee, and to order that he be represented instead by court-appointed counsel or the public defender [fn. omitted]; when a defendant appears with a public defender who is satisfied from his own inquiry that his client is eligible for his services, such judicial interference with their relationship would be no less tolerable. As we explained in Smith, ‘the relationship is independent of the source of compensation, for an attorney’s responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the service.... It follows that once counsel is appointed [or undertakes] to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.’” (Ingram v. Justice Court (1968) 69 Cal.2d 832, 840 [73 Cal.Rptr. 410, 447 P.2d 650, 36 A.L.R.3d 1391].)

Still later this court observed without dissent that “the involuntary removal of any attorney is a severe limitation on a defendant’s right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed. ...” (Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697 [122 Cal.Rptr. 778, 537 P.2d 898].)

People v. Cook, supra, 13 Cal.3d 663 rejected defendants’ contention of prejudice relating to retained counsel’s joint representation of several codefendants. This court explained that the judge’s obligation to avoid appointments of conflicted counsel does not apply where counsel has been retained. “Indeed,” said the court, “it is extremely doubtful that defendants’ right to retain counsel of their own choice could or should be challenged by the trial court.” (Pp. 671-672.)

Protection of defendant’s right to reject unwanted counsel has progressed also on other fronts. We now know that a mentally competent defendant who duly waives counsel, may dismiss his lawyer and represent himself no matter how much the judge doubts his legal ability. (Faretta v. California (1975) 422 U.S. 806, 819-821 [45 L.Ed.2d 562, 572-574, 95 S.Ct. 2525].) And if he timely requests substitution of appointed counsel the court at a minimum must inquire into the reasons for his displeasure with his attorney. (People v. Marsden (1970) 2 Cal.3d 118, 122-124 [84 Cal.Rptr. 156, 465 P.2d 44].)

Developments such as those point to the conclusion that chosen representation is the preferred representation. Defendant’s confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.⁴

Contrasting Views

It is argued that life-story fee contracts are inherently prejudicial, unethical, and against public policy and that the judge has power and the duty to protect the integrity of the trial and, thus, confidence in the judicial process. Do those concerns perhaps outweigh a single defendant’s interest in chosen counsel?

Contracts of this kind are widely criticized. It is said they tempt lawyers, consciously or subconsciously and adversely to the client’s interests, to tilt the defense for commercial reasons. (See, e.g., Wojtowicz v. United States (2d Cir. 1977) 550 F.2d 786, 793, cert. den. 431 U.S. 972 [53 L.Ed.2d 1071, 97 S.Ct. 2938]; Ray v. Rose (6th Cir. 1976) 535 F.2d 966, 974, cert. den., 429 U.S. 1026 [50 L.Ed.2d 629, 97 S.Ct. 648]; United States v. Hearst (N.D.Cal. 1978) 466 F.Supp. 1068, 1083 [53 A.L.R.Fed. 110] revd. on other grounds (9th Cir. 1980) 638 F.2d 1190, 1193, cert. den. (1981) 451 U.S. 938 [68 L.Ed.2d 325, 101 S.Ct. 2018]; People v. Corona, supra, 80 Cal.App.3d 684, 720; ABA Code of Prof. Responsibility, EC (Ethical Consideration) 5-4; ABA Proposed Model Rules of Prof. Conduct, rule 1.9(d) and com. thereto.)⁵ They do present a threat that counsel might provide deficient representation. They also raise questions under the California Rules of Professional Conduct.⁶ (Cf. Comment, The Lawyer’s Moral Paradox 1979 Duke L.J. 1335.⁷)

Some precedents recognize a court’s power to recuse an attorney so as to help ensure a fair trial and preserve judicial integrity. Comden v. Superior Court (1978) 20 Cal.3d 906 [145 Cal.Rptr. 9, 576 P.2d 971, 5 A.L.R.4th 562] approved a judge’s order that attorneys withdraw from a civil case because a member of their firm would likely be a witness. The majority noted that generally both California and American Bar Association standards required withdrawal of an attorney in those circumstances. “[Ultimately the issue involves a conflict between a client’s right to counsel of his choice and the need to maintain ethical standards of professional responsibility. ‘The preservation of public trust both in the scrupulous administration of justice and in the integrity of the bar is paramount .... [The client’s recognizably important right to counsel of his choice] must yield, however, to considerations of ethics which run to the very integrity of our judicial process.’ ...” (P. 915.)

People v. Superior Court {Greer) (1977) 19 Cal.3d 255 [137 Cal. Rptr. 476, 561 P.2d 1164] upheld dismissal of a district attorney on grounds of personal bias against defendant. The opinion stressed the trial court’s strong interest in assuring the prosecutor’s impartiality and noted inter alia the American Bar Association’s stricture against prosecutorial conflicts of interest. (Pp. 263-264, 269.)

Occasionally this court has isolated instances in which appointed counsel faced potential conflicts so inherent and serious as to invalidate any subsequent conviction, regardless of proof of adverse effect on counsel’s performance in the case. People v. Rhodes (1974) 12 Cal. 3d 180 [115 Cal.Rptr. 235, 524 P.2d 363] held that a city attorney with prosecutorial responsibilities may not be appointed to defend indigent criminal defendants. And in People v. Barboza (1981) 29 Cal.3d 375 [173 Cal.Rptr. 458, 627 P.2d 188] we found “inherent and irreconcilable conflicts” in a budgetary scheme that discouraged the public defender from urging his own disqualification in multiple-representation cases. (P. 381.)

None of those cases compels or authorizes a dismissal here. In Greer defendants filed the recusal motion; there was no question of any dismissal over their objection or of intrusion on their right to chosen counsel. Moreover, disqualification of a biased prosecutor was justified on the ground that his duties extended far beyond those of the typical advocate. Because he represented a sovereignty with paramount responsibility for penal fairness his impartiality was fundamental to the truth-finding goal of the criminal justice system. (19 Cal. 3d at pp. 266-267.)

Rhodes and Barboza addressed defendants’ posttrial challenges to their appointed counsel. Again no interference with chosen legal representatives was involved. We stressed in Barboza that the hidden conflict inherent in the budget provisions there at issue “would be more readily apparent” to defendants who had retained their attorneys. (P. 379.)⁸

Comden, supra, 20 Cal. 3d 906, suggested that in civil matters the.. right to chosen counsel may be weighed strictly against competing con-. siderations of conflict of interest, professional ethics, and judicial integrity.⁹ We now conclude, however, that, with exceptions set forth in this opinion, the mere possibility of a conflict does not warrant pretrial removal of competent counsel in a criminal case over defendant’s informed objection.¹⁰ When the possibility of significant conflict has been brought to the court’s attention and the danger of proceeding with chosen counsel has been disclosed generally to defendant, he may insist on retaining his attorneys if he waives the conflict knowingly and intelligently for purposes of the criminal trial.* ¹¹ To the extent People v. Municipal Court (Wolfe) (1977) 69 Cal.App.3d 714, 719-720 [138 Cal.Rptr. 235] suggests a contrary conclusion it is disapproved.

As in other cases involving forfeiture of the right to counsel, waiver of potential conflicts may not be inferred from a silent record. (Carnley v. Cochran (1962) 369 U.S. 506, 516-517 [8 L.Ed.2d 70, 77-78, 82 S.Ct. 884]; Chacon, supra, 69 Cal.2d 765, 774.) When substantial risks of conflict are brought to the court’s attention before trial but an adequate waiver of defendant’s effective-assistance rights cannot be obtained on the record, the court must presume that he has not knowingly and intelligently chosen to proceed with retained counsel. (See People v. Carter (1967) 66 Cal.2d 666, 670 [58 Cal.Rptr. 614, 427 P.2d 214].) The court may then protect the record and defendant’s right to effective assistance by requiring counsel’s withdrawal. (See United States v. Dolan (3d Cir. 1978) 570 F.2d 1177, 1182; Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney (1978) 62 Minn.L.Rev. 119, 148-151.)¹²

In this case, extensive pretrial disclosures about conflicts arising from the fee contract were made on the record to both petitioner and court. Yet petitioner insisted on proceeding with his counsel. Did that insistence constitute an adequate waiver, precluding counsel’s removal? We believe that it did.

In determining whether a waiver of potential conflicts is knowing, intelligent, and unconditional, the trial court must “navigate adroitly between the Scylla of denying a defendant the right to determine his own fate and the Charybdis of violating his right to counsel. ...” (See Carter, supra, 66 Cal.2d at p. 667.) Some federal cases have implied that the court’s inquiry must separately explore each foreseeable conflict and consequence and that defendant’s waiver may extend only to matters discussed in detail on the record. (E.g., United States v. Eaglin (9th Cir. 1977) 571 F.2d 1069, 1086 [49 A.L.R.Fed 786]; United States v. Dolan, supra, 570 F.2d 1177, 1181-1182; United States v. Garcia (5th Cir. 1975) 517 F.2d 272, 278.) It also has been suggested that defendant must express in his own words his understanding of what he has been told. (Dolan, supra, at p. 1182; Garcia, supra, 517 F.2d 272, 278; cf., Fed. Rules Crim. Proc., rule 11.)

Rules that are that strict seem neither necessary nor workable. Not all imaginable consequences of a conflict that inheres in a life-story contract can be predicted before trial. Indeed, much of the information needed to assess the impact of the conflict on defendant’s case may be privileged. (See Cook, supra, 13 Cal. 3d at p. 672, fn. 7; Dolan, supra, at pp. 1181-1182; Geer, supra, 62 Minn.L.Rev. at pp. 148-151.) In the parallel area of self-representation, waivers have been deemed sufficient where defendant was warned of the general danger of proceeding on his own. (See, e.g., People v. Teron (1979) 23 Cal.3d 103, 108-109 [151 Cal.Rptr. 633, 588 P.2d 773]; People v. Lopez (1977) 71 Cal.App.3d 568, 573 [138 Cal.Rptr. 36].)

The trial court’s procedure here, we think, sufficiently established that petitioner was competent to waive his rights. The judge examined a psychiatric evaluation, and the record suggests neither mental nor emotional incapacity. (See Teron and Lopez, both supra.) The judge also acted properly by referring to the disclosure provisions of the agreement

and carefully determining that petitioner had read and understood each one. Those provisions explained the basic problem—that counsel’s economic motivations might run counter to petitioner’s trial concerns. They warned that counsel might be tempted in specified ways to sabotage petitioner’s defense. They also cautioned that not all problems could be foreseen. Waiver of the consequences of potential conflict was not inadequate simply because neither the court nor the agreement undertook the impossible burden of explaining separately every conceivable ramification. We therefore conclude that the trial court’s order recusing the chosen counsel must be overturned.

Conclusion

We stress that our opinion connotes no moral or ethical approval of life-story fee contracts. We have addressed only this narrow question: May a criminal defendant (here charged with capital crimes) be denied his right to representation by retained counsel simply because of potential conflicts or ethical concerns even when he has asserted, after extensive disclosure of the risks, that he wishes to proceed with his chosen lawyers and no others? Our answer is No.¹³

Let a writ of mandate issue directing respondent court to vacate its order discharging Messrs. Pierpont M. Laidley, Walter Alschuler, and Fred Alschuler as attorneys of record for the defendant in Los Angeles Superior Court action No. A350010 and to enter any and all orders necessary to reinstate them as defense attorneys in that action.

Mosk, J., Broussard, J., and Tobriner, J.,

* concurred.

1 The contract includes provisions designed to ensure counsel’s right to receive and exploit confidential material about petitioner’s life. In paragraph 37 he agrees to waive, on counsel’s demand, his attorney-client privilege and “any and all other privileges and rights which would prevent the full and complete exercise” of counsel’s interests. In paragraph 33 he promises to (1) give counsel all materials he has “pertaining to [his] life and experiences,” (2) use his best efforts to obtain and turn over such materials in the hands of others, and (3) “confer with [counsel] ... as often as [they] shall reasonably require so as to enable [them] to elicit from [him] all details” of his life.

A client may surrender his privilege of confidentiality (see Evid. Code, §§ 912, subd. (a), 954), and a fact he gives his lawyer permission to reveal is not a “secret” the lawyer must preserve (see Bus. & Prof. Code, § 6068). However, counsel conceded at oral argument that paragraph 37 overreaches and disclaimed intent to rely on it. Moreover, whether or not paragraph 33 was similarly waived, we think it cannot be invoked until after these criminal proceedings have become final. Though counsel contracted to represent petitioner only through trial, the State Bar’s Rules of Professional Conduct and the agreement itself impose duties of fairness, undivided loyalty, and diligent defense. (See rules 2-111 (A)(2) [lawyer withdrawing from employment must act reasonably to avoid prejudice to client], 5-101 [lawyer may not acquire interest adverse to client except as fair and reasonable]; cf. Agreement, pars. 14(d), 17.) Those duties would be violated if counsel disclosed prejudicial, confidential material at any time during the criminal proceedings.

2 The People, real party in interest, have taken a position on the recusal order in neither trial nor appellate courts.

3 The Supreme Court has ruled that the federal Constitution requires automatic reversal when defendant shows (1) that the trial court improperly refused a change of counsel sought by defendant after timely disclosure of potential conflict, or (2) that an actual, unwaived conflict “adversely affected” counsel’s performance. (Cuyler, supra, 446 U.S. 335, 348 [64 L.Ed.2d 333, 346]; Holloway v. Arkansas (1978) 435 U.S. 475, 488-489 [55 L.Ed.2d 426, 436-438, 98 S.Ct. 1173].)

4 Ingram recognized that the right to chosen counsel extends, insofar as feasible, to the poor. (69 Cal.2d at pp. 840-841.) But for them, of course, the right too often is illusory. Realistically an indigent defendant may have trouble finding a private lawyer acceptable to him who is willing to take his case and pursue it with zeal. One commentator recently observed: “If lawyers for nonpaying clients cannot be induced through a system of incentives to represent their clients zealously, the right to counsel may become a useless cosmetic that insults more than it serves the interests of the clientele. The reputation of the bar is a matter of interest to the community as a whole, for it is unlikely that the public’s regard for the law itself can long survive disdain for the craftsmanship of those who administer it.” (Carrington, The Right to Zealous Counsel, 1979 Duke L.J. 1291, 1307-1308; cf., Wheeler & Wheeler, Reflections on Legal Representation of the Economically Disadvantaged: Beyond Assembly Line Justice (1980) 26 Crime & Delinquency 319.)

We should not callously foreclose an indigent’s right to use the means at his disposal to provide the necessary incentives. (See Crovedi, supra, 65 Cal.2d at pp. 207-208.)

5 EC (Ethical Consideration) 5-4 provides: “If, in the course of his representation of a client, a lawyer is permitted to receive from his client a beneficial ownership in publication rights relating to the subject matter of the employment, he may be tempted to subordinate the interests of his client to his own anticipated pecuniary gain. For example, a lawyer in a criminal case who obtains from his client television, radio, motion picture, newspaper, magazine, book, or other publication rights with respect to the case may be influenced, consciously or unconsciously, to a course of conduct that will enhance the value of his publication rights to the prejudice of his client. To prevent these potentially differing interests, such arrangements should be scrupulously avoided prior to the termination of all aspects of the matter giving rise to the employment, even though his employment has previously ended.”

DR (Disciplinary Rule) 5-103(A) provides: “A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client [with exceptions irrelevant here]----”

The comment to proposed rule 1.9(d) currently provides: “An agreement by which a lawyer acquires literary rights concerning the subject matter of the representation involves incompatible standards for the lawyer’s performance, one being effectiveness in representing the client and the other being performance that has literary value.... ”

6 California Rules of Professional Conduct, rule 5-101 provides: “A member of the State Bar shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless (1) the transaction and terms in which the member of the State Bar acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in manner and terms which should have reasonably been understood by the client, (2) the client is given a reasonable opportunity to seek the advice of independent counsel of the client’s choice on the transaction, and (3) the client consents in writing thereto.”

The disclosure and the attorney-advice provisions of the contract in this case are a patent attempt to comply with the California rule.

7 Several states have laws providing that any proceeds from commercial exploitation of one’s crimes shall be paid into state-supervised escrow funds for disbursement to victims and for legal defense. (E.g., Ariz.Rev.Stats. (1978) §§ 13-4201, 13-4202; Ga.Code Ann. (1981 Supp.) § 27-3401; Ill.Ann.Stats. (1981-1982 Supp.) 70 ¶ 403 et seq.; N.Y.Exec.Law (1980-81 Supp.) § 632-a.) A similar proposal failed in the California Legislature. (Assem. Bill No. 2635 (1977-1978 Reg. Sess.).)

8 The budget system attacked in Barboza was a “direct ... financial disincentive for the public defender either to investigate or declare the existence of actual or potential conflicts of interest requiring employment of other counsel.” (29 Cal.3d at p. 379.) The conflict was not “tenuous” because the defender’s budget and income were “directly affected by his determination of whether a conflict of interest exists ...” (id., at p. 380), creating a “real and insoluble tension” between counsel’s professional and financial motives (p. 381).

A life-story agreement creates no such inherent or inevitable conflict. The contract here discloses that the value of petitioner’s story might benefit from a long, sensational trial leading to conviction and death. It seems not unlikely, though, that counsel’s self-interests might best be served by a careful, diligent defense that avoids conviction or minimizes the penalty. A quiet strategy that succeeds may well make a better story than a flamboyant failure. Counsel’s reputation, a precious professional and commercial asset, is enhanced; and the risks of professional discipline and demeaning criticism are reduced. Also, it may be commercially prudent to keep lurid facts confidential until the legal battle has ended.

Justice Files’ dissenting remarks in the Court of Appeal are particularly apt: “Although the literary rights contract is not a common experience for attorneys, the kind of ‘conflict’ discussed here is not at all unusual.... [Ajlmost any fee arrangement between attorney and client may give rise to a ‘conflict.’ An attorney who received a flat fee in advance would have a ‘conflicting interest’ to dispose of the case as quickly as possible, to the client’s disadvantage; and an attorney employed at a daily or hourly

rate would have a ‘conflicting interest’ to drag the case on beyond the point of maximum benefit to the client.

“The contingent fee contract so common in civil litigation creates a ‘conflict’ when either the attorney or the client needs a quick settlement while the other’s interest would be better served by pressing on in the hope of a greater recovery. The variants of this kind of ‘conflict’ are infinite. Fortunately most attorneys serve their clients honorably despite the opportunity to profit by neglecting or betraying the client’s interest.”

9 Comden’s application even to civil cases is weakened by developments in response to this court’s opinion. Effective November 1, 1979, the State Bar has liberalized the rule on attorney-witnesses. Counsel need no longer withdraw from either a civil or criminal case if the client consents in writing to continued representation after (1) full disclosure of the implications of counsel’s dual role as advocate and witness, and (2) an opportunity to seek independent legal advice—protections analagous to those accorded petitioner here. (Rules Prof. Conduct, rule 2-111(A)(4), as amended.) Thus the State Bar has concluded that a fully informed client’s right to chosen counsel outweighs potential conflict or threat to trial integrity posed by counsel’s appearance as witness. And it has determined also that counsel’s dual participation under the circumstances is not unethical.

10 We do not deprive the trial court of power to act when an actual conflict materializes during the proceedings, producing an obviously deficient performance. Then the court’s power and duty to ensure fairness and preserve the credibility of its judgments extends to recusal even when an informed defendant, for whatever reason, is cooperating in counsel’s tactics. (See Cannon v. Commission on Judicial Qualifications, supra, 14 Cal.3d 678, 697; Smith v. Superior Court, supra, 68 Cal.2d 547, 559.) No such facts appear here.

11 Prior California decisions seem to assume that the right to counsel unhindered by conflicts may be waived. (See, e.g., In re Hochberg (1970) 2 Cal.3d 870, 878 [87 Cal.Rptr. 681, 471 P.2d 1]; People v. Chacon, supra, 69 Cal.2d 765, 774.) The federal decisions are clearer. They affirm that conflicts may be waived and, if waived, provide no federal constitutional ground for attack on a conviction. (Holloway v. Arkansas, supra, 435 U.S. 475, 483, fn. 5 [55 L.Ed.2d 426, 433]; see also Wood v. Georgia (1981) 450 U.S. 261 [67 L.Ed.2d 220, 101 S.Ct. 1097]; Cuyler v. Sullivan, supra, 446 U.S. 335, 346-347 [64 L.Ed.2d 333, 345-346]; Glasserv. United States, supra, 315 U.S. 60, 70 [86 L.Ed. 680, 699].)

Nothing in People v. Chadd (1981) 28 Cal.3d 739 [170 Cal.Rptr. 798, 621 P.2d 837] (cert. den. sub nom. California v. Chadd (1981) 452 U.S. 931 [69 L.Ed.2d 431, 101 ] or People v. Stanworth (1969) 71 Cal.2d 820 [80 Cal.Rptr. 49, 457 P.2d 889] indicates that defendant lacks power to waive counsel’s potential conflicts of interest. Chadd held only that a capital defendant cannot circumvent his statutory disability to plead guilty without consent of counsel. (Pp. 746-755; see Pen. Code, § 1018.) Stan-worth ruled that no one may divest this court of its statutory and constitutional duty to review a death judgment against him. (Pp. 832-834; see Cal.Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) In both cases the state has asserted an overriding public interest in full examination of capital charges and sentences, even where the person accused or condemned wishes not to resist. The state has demonstrated no parallel desire to overrule a defendant who, with full information, chooses to make a vigorous defense through counsel in whom he has special confidence.

When a conflict is validly waived, defendant may still argue on appeal that he received ineffective assistance for reasons unrelated to the conflict. Because of the difficulty of isolating errors motivated by conflicts and because defendant has created the problem by his knowing insistence on conflicted counsel, the burden should be on him to show that deficiencies he later asserts did not arise from the conflict.

12 Our holding that disclosed but unwaived conflicts justify recusal does not contravene Smith, Chacon, or Cook, supra. Smith dealt with an unreasonable sua sponte conclusion by the trial court that counsel was incompetent; there we saw no need for removal. Though we stressed defendant’s repeated objections to recusal, the issue of waiver of effective assistance never arose. Cook’s suggestion that judges may never interfere with a choice of conflicted counsel was dictum since the case concerned trial prejudice. Again the issue of waiver was not confronted. In Chacon we held that prejudice arising from conflicted representation could be asserted on appeal. But there a silent record forced the conclusion that the conflict had not been waived, and the trial court had not attempted to remove conflicted counsel.

With recent guidance from the United States Supreme Court we now reaffirm that judges need not inquire about conflicts affecting retained counsel unless, as here, the issue is raised by counsel or a party. Counsel has the responsiblity to advise both client and court of potential conflicts as soon as they arise. Where this duty is breached and trial proceeds without disclosure and formal waiver, defendant may of course argue that a conflict of interest did adversely affect counsel’s efforts in his behalf. (Cuyler v. Sullivan, supra, 446 U.S. 335, 348 [64 L.Ed.2d 333, 346]; Holloway v. Arkansas, supra, 435 U.S. 475, 485-486 [55 L.Ed.2d 426, 435-436]; Cook, supra, 13 Cal.3d at p. 670; Chacon, supra, 69 Cal.2d at pp. 775-776.)

13 As Justice Files observed below: “I do not disagree with EC 5-4 of the American Bar Association’s Code of Professional Responsibility, which declares that the kind of contract which is here involved ‘should be scrupulously avoided.’ But we are here dealing with a fact and not a theory. The defendant and his attorneys have made the contract. The question now is whether this defendant, charged with four capital offenses, shall be deprived of his chosen attorneys and forced to accept the trial court’s choice who, in the words of the Faretta court: ‘“represents” the defendant only through a tenuous and unacceptable legal fiction.”’

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.