MAXWELL v. PEOPLE (1980)

This is a mandate proceeding brought to review an order of the superior court, made September 14, 1979, which removed private trial counsel retained by petitioner Bobby Joe Maxwell to defend him in the underlying ten-count murder prosecution.¹ The removal order was made on the ground that a conflict of interest exists between attorney and client by reason of the attorney retainer agreement executed by Maxwell and the removed attorneys. Under this agreement, in return for representation, Maxwell assigned to his trial counsel all dramatic rights to the story of petitioner's life including the pending criminal prosecution against him.

I

The Procedural and Factual Background

In the underlying criminal prosecution, Maxwell is charged with ten separate counts of murder, with “special circumstances” allegations of violations of Penal Code section 190.2 with respect to several of these counts, and with several counts of robbery (Pen.Code, s 211).

Maxwell was arrested on April 4, 1979, and a criminal complaint was filed against him on April 9, 1979. He was arraigned in the municipal court on the same date. He entered a plea of not guilty and reserved the right to enter a plea of not guilty by reason of insanity. On April 9, 1979, upon request of the prosecutor and defense counsel, a search warrant, materials seized under the warrant, and a police report attached to the warrant, were ordered sealed pending the preliminary hearing.

On April 26, 1979, in the process of requesting the court appointment of an investigator to assist the defense, due to Maxwell's indigency, retained counsel for Maxwell disclosed to the magistrate that an oral attorney-retainer agreement had been entered into between Maxwell and his defense counsel (a four attorney firm). A written agreement, providing that it was to become effective on May 1, 1979, set forth that, in consideration for representation by the attorneys up to and including trial, Maxwell transferred irrevocably and unconditionally to his attorneys all literary rights and interests in the story of his life and in the pending criminal prosecution and trial. Under the agreement, Maxwell retains an interest of 15 percent of the net profits derived by his counsel from their exploitation of the story. Provisions of the agreement disclosed to Maxwell that he had an option to have a court-appointed attorney represent him free of charge because of his indigency and that such attorney would not have any conflict in interest such as that caused by the retainer agreement.

Because of this disclosure, the magistrate expressed a concern regarding the retainer agreement and, preceding the preliminary examination on May 10, 1979, inquiry was made of defendant Maxwell concerning the agreement. The inquiry brought out Maxwell's knowledge of the potential conflicts in interest created by the agreement and his desire to accept those conflicts and be represented by retained counsel. Retained counsel defended Maxwell at the preliminary examination. They requested and obtained a closed hearing. Thereafter, Maxwell was held to answer in the superior court on all counts.

Maxwell was arraigned in the superior court on May 31, 1979. He entered a plea of not guilty to all counts, reserving, however, the right to enter a plea of not guilty by reason of insanity. A psychiatrist was appointed by the court.

1 On September 14, 1979, a special hearing was held in the superior court, Sua sponte, to determine whether the retainer agreement between Maxwell and his defense attorneys created such impermissible conflicts in interest that the attorney-client relationship was necessarily vitiated.

II

The Trial Court's Order Removing Maxwell's Retained Attorneys Because of the Retainer Agreement

At the hearing regarding the retainer agreement, the trial judge questioned Maxwell regarding his awareness of the terms of the retainer agreement and the possible conflict-of-interest provisions. The provisions of particular concern are found in paragraph 14, labelled “Disclosure of Conflicts of Interest.”

Paragraph 14 of the retainer agreement provides: “IT IS HEREBY DISCLOSED BY THE LAWYERS TO MAXWELL that the provisions of this agreement may create a conflict of interest between Maxwell and the Lawyers, and that the provisions of this agreement may give to the Lawyers a monetary interest adverse to the interests of Maxwell. This conflict of interest may manifest itself in many ways including but not limited to the following: (P) a. The Lawyers may have an interest to create publicity which would increase the money which they might get as a result of this agreement, even if this publicity hurt Maxwell's defense. (P) b. The Lawyers may have an interest not to raise certain defenses which would question the sanity or mental capacity of Maxwell because to raise these defenses might make this agreement between the Lawyers and Maxwell void or voidable by Maxwell. (P) c. The Lawyers may have an interest in having Maxwell be convicted and even sentenced to death so that there would be increased publicity which might mean that the Lawyers would get more money as a result of this agreement. (P) d. The Lawyers may have other interests which are adverse to Maxwell's interests as a result of this agreement. The Lawyers affirm that they will not be influenced in any way by any interest which may be adverse to that of Maxwell. 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.”

At the September 14 hearing, Maxwell stated to the trial court that he was aware of and understood the potential conflicts of interest set forth in paragraph 14 of the retainer agreement; that although given the opportunity to do so, he had knowingly and willingly decided not to seek the advice of independent counsel concerning the retainer agreement; and that, with the awareness and knowledge of all the provisions of the agreement, he nevertheless wanted only his retained lawyers to represent him.

In spite of the desires of Maxwell, the trial court, relying upon People v. Corona (1978) 80 Cal.App.3d 684, 145 Cal.Rptr. 894, ruled that the retainer agreement created such a conflict of interest that Maxwell would be deprived of effective assistance of counsel, removed retained counsel from Maxwell's case, and appointed other private counsel to represent him.

III

Are There Circumstances Under Which a Court Has Power To Remove Counsel Privately Retained by a Criminal Defendant Even Though Such Defendant Is Aware of Potential Conflicts of Interest but Nevertheless Desires that He Be Represented by Such Privately Retained Counsel?

Maxwell advances the contention that the order of the superior court in removing defense counsel retained by him violated his constitutional right to representation by counsel of his own choosing and that it interfered with sound public policy that recognizes the right of attorneys to make fair financial arrangements which enable them to represent a criminal defendant who is otherwise indigent and unable to retain private counsel.

Maxwell also argues that the case at bench presents no real probability of an adverse interest but purely an imaginary and illusory one. Maxwell asserts that any adverse interest assumes that the value of the lawyer's interest in the literary rights of Maxwell's life story will be greater if he is convicted than if he is found innocent, which provides a reason for the lawyer not to do his best to secure an acquittal. This is an erroneous assumption to begin with, claims Maxwell. But even if it has some slight validity, it is argued that any such claim of validity is clearly rebutted by an attorney's primary interest in maintaining a reputation of professional excellence in his chosen career.

In addition, Maxwell argues that, even if there exists a cognizable adverse interest possessed by his retained counsel, no violation of professional rules of conduct is committed because of the full and fair disclosure to him of such adverse interest created by the retainer agreement.²

Maxwell also argues that there is no statutory or decisional law authority for a court to remove privately retained counsel against the objections of the client and counsel under the circumstances presented in the instant case.

A. The impact of rules of professional conduct and responsibility

We first consider the question of whether Maxwell's lawyers have violated any rules of professional conduct and, if so, the bearing, if any, such fact has upon the issue of Maxwell's constitutional right to a lawyer of his choice. Respondent Court points out that the precise type of retainer agreement executed between Maxwell and his lawyers has been specifically proscribed by provisions of the American Bar Association's Code of Professional Responsibility. (See ABA Code of Prof. Responsibility, EC 5-4.)³ But Maxwell counters with the suggestion that the retainer agreement comports with the requirements of Rule 5-101 of the California Rules of Professional Conduct.⁴

At first blush it would appear that Maxwell's retained lawyers have complied with the literal wording of Rule 5-101 which appears to sanction an adverse interest by a client's attorney as long as the three conditions are satisfied of (1) full disclosure to the client in writing (provided the transaction and terms are fair and reasonable to the client), (2) giving the client a reasonable opportunity to seek advice of independent counsel, and (3) consent in writing by the client to the attorney's acquisition of the adverse interest. But a threshold question is whether the retainer agreement complies with the first condition of Rule 5-101 that “the transaction and terms” are “fair and reasonable to the client.”

There are provisions in the retainer agreement which render the agreement totally repellent to the concept of being “fair and reasonable to the client,” Maxwell. Paragraph 37 of the agreement provides for an Advance waiver by Maxwell of the lawyer-client privilege and of any and all other privileges and rights which the retained lawyers may consider as preventing them from exploiting, to their advantage, the right to commercialize Maxwell's life story, including his trial.⁵ Such an advance waiver might well inhibit Maxwell from fully disclosing to his retained lawyers all information that could be helpful in his defense. The confidential relationship between attorney and client is at the heart of a proper functioning of our judicial system. A compelled waiver of this privilege for the purpose of advancing the fee interest of the attorney cannot be tolerated. “One of the principal obligations which bind an attorney is that of fidelity, the maintaining inviolate the confidence reposed in him by those who employ him, and at every peril to himself to preserve the secrets of his client.” (Anderson v. Eaton (1930) 211 Cal. 113, 116, 293 P. 788, 789.)

Even if the advance compelled waiver of the lawyer-client privilege would not result in chilling the free flow of information between Maxwell and his retained lawyers during the lawyer-client relationship, the advance waiver might easily work to the disadvantage of Maxwell after termination of the relationship. Under the retainer agreement the lawyers have no obligation to represent Maxwell on appeal. If Maxwell were to be convicted and there is an appeal, the disclosure by the lawyers of former communications from Maxwell, made during the appeal period, could conceivably affect Maxwell's appeal. Because of the importance of the privilege, the lawyer-client privilege persists after termination of the lawyer-client relationship and until the client is deceased and his estate administered and closed. (See Evid.Code, ss 953, 954.) The long-lasting period for existence of the lawyer-client privilege is designed for the protection of the client. A compelled advance waiver such as we have in the retainer agreement before us cannot be deemed “fair and reasonable.”

But even if we were to conclude that the retainer agreement is not incompatible with the requirement of rule 5-101 of the Rules of Professional Conduct that such an agreement be “fair and reasonable to the client,” rule 5-101 cannot be construed as automatically sanctioning an attorney's conduct of acquiring every conceivable interest adverse to his client so long as the attorney scrupulously observes the three conditions set forth in rule 5-101. The initial rule of the Rules of Professional Conduct is rule 1-100 which provides, in part pertinent to the issue before us, that “(n)othing in these rules is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation thereof. The prohibition of certain conduct in these rules is not to be interpreted as an approval of conduct not specifically mentioned.”

Provisions of law that relate to the duties and obligations of attorneys are found in both the statutory and decisional law. The statutory law provides: “It is the duty of an attorney: . . . (P) (e) To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client.” (Bus. & Prof.Code, s 6068, subd. (e).) We consider the compelled advance waiver of the lawyer-client privilege set forth in paragraph 37 of the retainer agreement for the specific purpose of enabling the retained lawyers to commercially exploit Maxwell's life story as a violation of section 6068, subdivision (e), of the Business and Professions Code.⁶

Maxwell argues that there is no unfairness in the retainer agreement because, even though potential conflicts of interest are exposed in the agreement, the lawyers set forth in paragraph 14, subparagraph d, of the agreement, that “they will not be influenced in any way by any interest which may be adverse to that of Maxwell,” and that they “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,” and that they “will conduct all aspects of the defense of Maxwell as would a reasonably competent attorney acting as a diligent, conscientious advocate.” Maxwell argues that his lawyers' reputation for excellence constitutes the greater interest than permitting the fee interest to govern their trial performance.

We are not dealing here with a question of lack of competence. There is no way for anyone to determine in advance that, even though it is not a matter of competence or incompetence, the incentive for as large a fee return as possible will not influence the lawyers' making of trial decisions which would not be in the best interests of Maxwell, the client. It is the reasonable probability of such inherently pervasive conflicts of interest necessarily involved in the kind of retainer agreement that exists in the instant case that precludes the agreement from being considered “fair and reasonable to a client” within the meaning of rule 5-101 of the Rules of Professional Conduct.

B. The interests of the courts and the public in a fair trial and in the integrity of the judicial process take precedence over a criminal defendant's right to retain counsel of his own choice exercised through an agreement to compensate counsel by an award of publication rights to the story of defendant's life, including the criminal trial.

We grant full recognition to the constitutional principle that a criminal defendant has the right guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution and article I, section 15 of the California Constitution of effective assistance of trial counsel. (Powell v. Alabama (1932) 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; McMann v. Richardson (1970) 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.)⁷ It is not entirely clear, however, whether the right to effective assistance of counsel is the same for an indigent defendant for whom the court appoints counsel and a nonindigent defendant who retains his own counsel. In setting forth the appropriate standard by which trial counsel's performance for an indigent defendant was to be measured,⁸ the Pope court observed that there might be a difference where retained counsel was involved. Thus, the Pope court commented: “Appellant was indigent and represented by appointed counsel at trial. Thus, the present case does not involve the appropriate standard for adequate representation by a retained criminal attorney. This court need not decide whether that standard would differ from the one described herein.” (Pope, supra, 23 Cal.3d 412, 421, fn. 9, 152 Cal.Rptr. 732, 736, fn. 9, 590 P.2d 859, 863, fn. 9.)

Maxwell argues that he has a constitutional right to have retained counsel of his choice which is absolute, and that the court has no jurisdiction to determine that his retained counsel will render less than effective assistance. The assumption is made that, if a criminal defendant retains his own counsel, he waives any claim that such counsel may turn out to be less effective than counsel appointed for an indigent defendant. For this view, reliance is placed on a statement contained in People v. Cook (1975) 13 Cal.3d 663, 119 Cal.Rptr. 500, 532 P.2d 148, even though it is made in the context of multiple defendants retaining the same counsel when possible conflicts exist because of divergent interests. The Cook court observed that, “(o)n the other hand, when multiple defendants freely and voluntarily retain joint counsel the court is not required to assume a similar burden. (⁹ ) Indeed, it is extremely doubtful that defendants' right to retain counsel of their own choice could or should be challenged by the trial court.” (Id. at pp. 671-672, 119 Cal.Rptr. at p. 505, 532 P.2d at p. 153, fn. omitted.)

But this statement from Cook cannot be considered as setting forth a definitive rule of law that a defendant who retains his own counsel thereby waives his constitutional right to the effective assistance of counsel. The more recent case of Pope, discussed previously herein, indicates otherwise, and other statements from Cook would appear to be more consistent with the Pope view.¹⁰

We therefore reject the concept that a defendant who retains his own counsel automatically thereby waives his right that his retained counsel be one that is capable of affording him “effective” assistance, especially in the context of counsel retained under a retainer agreement such as presented in the case before us. It is our conclusion that the inherent nature of the retainer agreement before us negates the existence of Maxwell's constitutional right to effective assistance of counsel by reason of the constitutional requirement that “the services of the attorney be devoted solely to the interest of his client undiminished by conflicting considerations.” (People v. Corona (1978) 80 Cal.App.3d 684, 720, 145 Cal.Rptr. 894, 915.) A conflict of interest which arises from the fee-interest potential of the retainer agreement here is so inherently conducive to divided loyalties as to amount to a denial of the right to effective representation as a matter of law. (See Glasser v. United States (1942) 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Castillo v. Estelle (5th Cir. 1974) 504 F.2d 1243.)

1 The conflict of interest involved here is glaring and obtrusive. The situation is thus not unlike that presented in Corona in which the court remarked: “(I)t is indisputable that by entering into the literary rights contract trial counsel created a situation which prevented him from devoting the requisite undivided loyalty and service to his client. From that moment on, trial counsel was devoted to two masters with conflicting interests he was forced to choose between his own pocketbook and the best interests of his client, the accused.” (Corona, supra, 80 Cal.App.3d 684, 720, 145 Cal.Rptr. 894, 915.)

1 That full disclosure by counsel of an adverse interest and the client's consent thereto are insufficient to justify the court's sanction of an attorney's right to represent a client under particular circumstances is exemplified by the case of dual representation of conflicting interests. In Klemm v. Superior Court (1977) 75 Cal.App.3d 893, 898, 142 Cal.Rptr. 509, 512, the court made this cogent observation: “Though an informed consent be obtained, no case we have been able to find sanctions dual representation of conflicting interests if that representation is in conjunction with a trial or hearing where there is an actual, present, existing conflict and the discharge of duty to one client conflicts with the duty to another. (Citations.) As a matter of law a purported consent to dual representation of litigants with adverse interests at a contested hearing would be neither intelligent nor informed. Such representation would be per se inconsistent with the adversary position of an attorney in litigation, and common sense dictates that it would be unthinkable to permit an attorney to assume a position at a trial or hearing where he could Not advocate the interests of one client without Adversely injuring those of The other.” (Emphasis added.)

Maxwell advances the contention that an analysis of a criminal defendant's right to self-representation, enunciated in Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, leads to a conclusion that the courts are powerless to remove his retained counsel and force him to accept other counsel. The Faretta court does hold that the Sixth and Fourteenth Amendments to the United States Constitution guarantee to a defendant in a state criminal trial an independent constitutional right of self-representation. In so holding, it was stated that “it is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want.” (Faretta, supra, 422 U.S. 806, 833, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562.)

But the constitutional right of self-representation mandated by Faretta cannot logically be described as absolute. By exercising the right of self-representation, the defendant necessarily waives his constitutional right to assistance of counsel. But in order to represent himself, a defendant is required to make an Intelligent and Knowing waiver of his right to be represented by an attorney. “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” (Faretta, supra, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562.) It is the reasoning of Maxwell, however, that once a defendant makes the knowing and intelligent waiver of counsel, he is entitled to embark upon the course of self-representation even though he is woefully lacking in formal education and knowledge of the law and even though “(i)t is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts.” (Faretta, supra, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562.)

Since a defendant who represents himself “suffers the consequences if the defense fails” (Faretta, supra, 422 U.S. 806, 820, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562), it is argued that this rationale applies with equal validity to the right of a defendant to choose the counsel by which his defense will be conducted. If the defense fails, it is the defendant who will suffer. Maxwell claims that there is no more basis for the courts to regulate a defendant's choice of his own retained counsel than there is to regulate his choice of self-representation. Maxwell asserts that since Faretta holds that, as long as a defendant is made aware of the dangers and disadvantages of self-representation and the record shows that he knows the significance of his choice, he has the right to choose to represent himself, so should this same analysis apply to permit a defendant, at his own expense, to retain counsel of his own choice.

In Singer v. United States (1965) 380 U.S. 24, 34-35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, Mr. Justice Warren, speaking for a unanimous court, stated: “The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.” This rule of law alone is sufficient answer to Maxwell's argument that, since Faretta confers upon a criminal defendant the absolute right to represent himself no matter how inadequate that representation may be, he should be able to select as his counsel a lawyer with a fee interest contract that conflicts with the lawyer's duty to dedicate all efforts to defending his client, the defendant.

Furthermore, Faretta itself is not immune from criticism as being an unwise and improvident decision. We agree with the sentiments expressed by Mr. Chief Justice Burger: “Although we have adopted an adversary system of criminal justice, see Gideon v. Wainwright, (372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), Supra, the prosecution is more than an ordinary litigant, and the trial judge is not simply an automaton who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial. (Citations.) That goal is ill-served, and The integrity of and public confidence in the system are undermined, when an easy conviction is obtained due to the defendant's ill-advised decision to waive counsel. The damage thus inflicted is not mitigated by the lame explanation that the defendant simply availed himself of the ‘freedom’ ‘to go to jail under his own banner . . . .’ ” (Faretta, supra, 422 U.S. 806, 839, 95 S.Ct. 2525, 2543, 45 L.Ed.2d 562 (dis. opn. of Burger, C. J.).) (Emphasis added.)

We cannot reduce the issue before us to the simple denominator of looking solely to the Rights of a criminal defendant. Other elements of the criminal justice system must be considered especially the court itself as an integral component of the system, concerned with the judiciary as an institutional part of our governmental structure and concerned with the rights of the public, as well as the rights of the prosecution and the defendant.

Maxwell also asserts that there is no authority statutory or otherwise which empowers a trial court to remove retained counsel over the objections of such counsel and the defendant. The sole statutory authority for the removal of counsel is Code of Civil Procedure section 284¹¹ which is applicable to both civil and criminal cases. (In re Martinez (1959) 52 Cal.2d 808, 345 P.2d 449.) It is obvious that this statutory provision is not applicable to the order of removal made by the trial court in the instant case.

Maxwell relies upon Smith v. Superior Court (1968) 68 Cal.2d 547, 68 Cal.Rptr. 1, 440 P.2d 65, and Ingram v. Justice Court (1968) 69 Cal.2d 832, 73 Cal.Rptr. 410, 447 P.2d 650, for decisional law authority to support his contention that courts are without power to remove counsel retained by a defendant irrespective of the conflict-of-interest nature of the fee arrangement counsel has with a defendant. In Smith, the court held that a court has no statutory or inherent power to remove court-appointed counsel, over the objections of the defendant and counsel, “on the ground of the trial judge's subjective opinion that counsel is ‘incompetent’ because of ignorance of the law to try the particular case before him.” (Smith, supra, 68 Cal.2d 547, 559, 68 Cal.Rptr. 1, 9, 440 P.2d 65, 73.) In Ingram, the court held that “a court cannot remove an attorney on the far less relevant ground of the nature of the financial arrangement between him and his client.” (Ingram, supra, 69 Cal.2d 832, 840, 73 Cal.Rptr. 410, 414, 447 P.2d 650, 654.)

In Ingram, the public defender appeared for a defendant after being satisfied that the defendant was an indigent. The question presented below was whether the trial court could determine that the defendant was not an indigent and remove the public defender. In holding that the trial court had no power to do so, the court reasoned that to permit such a removal would “infringe upon the defendant's right to counsel of his choice and compromise the independence of the bar.” (Ingram, supra, 69 Cal.2d 832, 840, 73 Cal.Rptr. 410, 414, 447 P.2d 650, 654.) In Smith, the court also emphasized that if the outright removal of counsel on the ground of “incompetency” were permitted, it would constitute a threat to the independence of the bar.

But neither Smith nor Ingram is controlling or persuasive with respect to the power of the court to remove retained counsel under the circumstances presented in the case at bar. The Smith court itself fully recognized that a defendant's right to counsel of his choice is not absolute but exists with exceptions to be made. Thus, the Smith court pointed to one exception in its statement that “(a)ll will agree that if the defendant's attorney exhibits objective evidence of Physical incapacity to proceed with a meaningful defense of his client, such as illness, intoxication, or a nervous breakdown (citation), the court need not sit idly by; it should inquire into the matter on its own motion, and if necessary relieve the affected counsel and order a substitution.” (Smith, supra, 68 Cal.2d 547, 559, 68 Cal.Rptr. 1, 9, 440 P.2d 65, 72.) (Emphasis in original.)

The principles of noninterference with a party's right to counsel of his own choice and the policy against compromising the independence of the bar which motivated the Smith and Ingram holdings that precluded the trial court from removing counsel in those cases have exceptions and are nullified under circumstances different from the circumstances presented in Smith and Ingram.

One example of an exception is presented in Comden v. Superior Court (1978) 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971. In Comden, the court sustained the trial judge's action in disqualifying attorneys for a party upon motion of the opponent because a member of the firm was likely to testify at the trial. The firm's removal was predicated upon one of the rules of the State Bar's Rules of Professional Conduct. Supporting the removal was a rationale that “(a)n attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate.” (Comden, supra, 20 Cal.3d 906, 912, 145 Cal.Rptr. 9, 11, 576 P.2d 971, 973.) The Comden prohibition against permitting an attorney to be both an advocate and a witness finds its justification in the policy that “seeks to avoid the Appearance of attorney impropriety.” (Id. at p. 912, 145 Cal.Rptr. at p. 11, 576 P.2d at p. 973.) (Emphasis in original.)

Comden represents simply one instance in which a client's right to counsel of his choice must give way to other principles of greater significance. The Comden court significantly observed: “However, 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.’ (Citation.)” (Id. at p. 915, 145 Cal.Rptr. at p. 13, 576 P.2d at p. 975; fn. omitted.)

The Comden court also made clear that the right of court removal of an attorney is not limited to situations in which there are breaches of standards of conduct for which discipline may be imposed. The broad sweep of the court's power to remove an attorney in spite of the right of the client to be represented by an attorney of his choice and the principle that actions should not be taken which would compromise the independence of the bar is demonstrated by this observation from Comden : “Although there may be greater reason for disqualifying an attorney in a conflict of interest case, the court nevertheless has authority to disqualify in any instance when, as here, the court reasonably deems it necessary to ‘. . . control in furtherance of justice, the conduct of its ministerial officers . . . .’ (Citations.)” (Comden, supra, 20 Cal.3d 906, 916, fn. 4, 145 Cal.Rptr. 9, 14, fn. 4, 576 P.2d 971, 976, fn. 4.)

In People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164, it was held that the trial judge properly invoked the power to remove a prosecutor on the ground that the prosecutor's conflict of interest might bias him against the defendant. Although the Greer court's conclusion was predicated in part on the necessity for prosecutorial impartiality from the perspective of the accused, the court made clear that the interest of the accused was not the sole consideration. Thus the court stated: “Society also has an interest in both the reality and the appearance of impartiality by its prosecuting officials: ‘It is essential that the Public have absolute confidence in the Integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as is possible, the appearance of impropriety.’ (Citations.)” (Greer, supra, 19 Cal.3d 255, 268, 137 Cal.Rptr. 476, 485, 561 P.2d 1164, 1173.) (Emphasis added.)

We conclude that the right of a defendant in a criminal case to be represented by counsel of his choice is not absolute. We disagree with the authorities which espouse the view that, no matter how serious the conflict of interest may be, a defendant's retained lawyer may not be removed by the court without a showing that defendant has suffered actual prejudice, and that the possibility of prejudice is insufficient. To reverse the trial court's order removing Maxwell's lawyers would elevate Maxwell's right to be represented by lawyers of his choice above the principle of the Preservation of judicial integrity.

This principle of the preservation of judicial integrity is not new. It constitutes one of the two pillars that support the exclusionary rule for evidence seized or obtained in violation of a defendant's constitutional rights. It was set forth in People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272. In holding that a statement, taken from a defendant in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, could not be used for impeachment purposes any more than it could not be used in the prosecution's case in chief, the Disbrow court employed the following language to state the “preservation of judicial integrity” ground for the exclusionary rule: “In addition to the likelihood that police misconduct may be encouraged by Harris (Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1), we are further convinced of the impropriety of receipt of this evidence by a significant rationale of the exclusionary rule itself. In People v. Cahan (1955) 44 Cal.2d 434, 445, 282 P.2d 905, 912, (50 A.L.R.2d 513), the landmark case in which this court adopted the rule for California two decades ago, we said, ‘the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced. . . . Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such ”dirty business.“ ‘ ” (Disbrow, supra, 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 376, 545 P.2d 272, 279; fn. omitted.)

Under the circumstances presented in the case at bench, the principle of preservation of judicial integrity should be given full recognition, since “(s)ociety also has an interest in both the reality and the appearance of impartiality” by all components of our criminal justice system. If “ ‘(i)t is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice’ ” (Greer, supra, 19 Cal.3d 255, 268, 137 Cal.Rptr. 476, 485, 561 P.2d 1164, 1173) and we believe that it is then it is mandatory that Maxwell's retained lawyers be precluded from representing him in his forthcoming criminal trial.

In light of the retainer agreement executed by Maxwell and his lawyers which can only be described as unconscionable and outrageous it would constitute a substantial contribution to the utter prostration and malfunctioning of our criminal justice system to permit these lawyers to represent Maxwell at his forthcoming trial.

The removal of Maxwell's retained counsel does not impugn Maxwell's constitutional right to the effective assistance of counsel. It does impair, but properly so, Maxwell's desire to have these specific lawyers represent him at his forthcoming trial.

The alternative writ is discharged and the peremptory writ is denied.

My disagreement with the majority opinion rests on two fundamentals:

First: Absent the most compelling circumstances a person charged with crime should be allowed representation by the attorney of his choice who is willing to accept the responsibility.

Second: I reject the premise that any attorney who has the opportunity to profit by betraying his client is likely to do so.

In Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the court held that the Sixth Amendment implies a right of self representation. The right to choose from among available attorneys seems a corollary to the Faretta rationale. The high court (at p. 821, 95 S.Ct. at p. 2534) said: “An unwanted counsel ‘represents' the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not His defense.” (Emphasis in original.)

Prior to Faretta our own high court had spoken out against judicial interference with a defendant's choice of counsel.

In Ingram v. Justice Court (1968) 69 Cal.2d 832 at 840, 73 Cal.Rptr. 410 at 414, 447 P.2d 650 at 654 the court said:

“We recently held 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. (Smith v. Superior Court (1968) 68 A.C. 567, (68 Cal.2d 547,) 68 Cal.Rptr. 1, 440 P.2d 65.) 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.”

In Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678 at 697, 122 Cal.Rptr. 778 at 791, 537 P.2d 898 at 911 the court said:

“Smith makes it abundantly clear 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.”

The circumstances presented here afford no ground for removing the attorneys selected by the defendant. The decision of the majority here, like that of the trial judge, is based solely upon the terms of the written agreement. The trial judge questioned the defendant extensively and concluded that “the defendant has knowingly and willingly chosen to seek no advice as far as the review of the contract is concerned, and that in his own judgment he is satisfied with his present attorneys and the agreement with these attorneys.” The trial court added that its decision to remove the defendant's attorneys “in no way reflects on the present competency of counsel.”

To hold that the contract, by itself, is disqualifying, means that no member of the bar, when retained under such a contract, should be trusted to represent a defendant fairly and adequately. I do not subscribe to that libel of our profession.

In the first place, it is not necessary to construe the contract as creating any present conflict of interest. The contract contains this statement relating to professional duty:

“The Lawyers affirm that they will not be influenced in any way by any interest which may be adverse to that of Maxwell. 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.”

The recitals made under the heading “Disclosure of conflicts of interest” are doubtless intended to meet the disclosure requirements of rule 5-101 of the Rules of Professional Conduct. The recitals also serve the valuable purpose of establishing that all parties recognize the potential hazards of impropriety. But this recital neither authorizes nor excuses the attorneys' disloyalty to their client's interest.

Nor should any of the language granting literary rights be construed as authorizing any publicity or disclosure which might be inimical to the defendant's interest. With respect to these matters the defendant places his trust in his attorneys' loyalty, honesty and good judgment. This is not an unusual aspect of the attorney-client relationship.

In People v. Corona (1978) 80 Cal.App.3d 684, 145 Cal.Rptr. 894 the conviction was reversed because the defendant's attorney failed to provide competent representation at the trial. The appellate court concluded that the trial attorney's conduct had been motivated by his desire to exploit an assignment of literary rights. In that case the assignment of literary rights was a conflict because the attorney made it so. But that opinion surely does not mean that no attorney who had acquired such literary rights could be trusted to give his client proper representation.

Under other circumstances, courts have held that the defendant had not been prejudiced by the attorney's participation in the marketing of story rights. (See Wojtowicz v. United States (2 Cir. 1977) 550 F.2d 786, 793; Ray v. Rose (6 Cir. 1976) 535 F.2d 966; United States v. Hearst (N.D.Cal.1978) 466 F.Supp. 1068, 1082.)

Although the literary rights contract is not a common experience for attorneys, the kind of “conflict” discussed here is not at all unusual. Under the reasoning of the majority opinion, almost 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 served better 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.

I do not disagree with Section 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.”

I would issue the writ commanding the trial court to vacate its order removing defendant's attorneys.

FOOTNOTES

1.  The petition for writ of mandate was filed initially with the California Supreme Court. The Supreme Court then transferred the proceeding to this court.

2.  Maxwell has reference to Rule 5-101 (Avoiding Adverse Interests) of the California Rules of Professional Conduct which 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.” Thus, asserts Maxwell, he has knowingly and willingly waived any potential adverse interests.

3.  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.”

4.  See footnote 2, Supra.

5.  Paragraph 37 of the agreement provides: “Maxwell does hereby agree to waive upon demand by Lawyers the So called attorney-client privilege and any and all other privileges and rights which would prevent the full and complete exercise and exploitation of the rights granted to Lawyers herein.” (Emphasis added.)

6.  The significance and importance of Business and Professions Code, section 6068, subdivision (e), have been judicially recognized in a variety of contexts. (See, e. g., Anderson v. Eaton (1930) 211 Cal. 113, 116, 293 P. 788; Kraus v. Davis (1970) 6 Cal.App.3d 484, 490, 85 Cal.Rptr. 846; Jeffry v. Pounds (1977) 67 Cal.App.3d 6, 9, 136 Cal.Rptr. 373.)

7.  The Pope case described this constitutional right in the following language: “Both constitutional provisions accord defendants in criminal cases a right to the ‘assistance of counsel.’ The California Constitution's right to counsel provision ‘was adopted to secure to the accused person all the benefits which may flow from the employment of counsel to conduct his defense . . . .’ ” (Pope, supra, 23 Cal.3d 412, 422, fn. 12, 152 Cal.Rptr. 732, 737, fn. 12, 590 P.2d 859, 864, fn. 12.)

8.  The Pope court phrased the standard for an indigent counsel's lawyer in terms of a negative that “a conviction may not be upheld if the state has furnished an indigent with representation of lower quality than that of a reasonably competent attorney acting as a diligent, conscientious advocate.” (Pope, supra, 23 Cal.3d 412, 424, 152 Cal.Rptr. 732, 738, 590 P.2d 859, 865.)

9.  . The “burden” referred to is that, “(w)hen a trial court undertakes to appoint counsel for indigent codefendants (citation), it must assume the burden of assuring that its appointment does not result in a denial of effective counsel because of some possible conflict.” (Cook, supra, 13 Cal.3d 663, 671, 119 Cal.Rptr. 500, 505, 532 P.2d 148, 153.)

10.  Thus, in Cook, it was stated that “(w)e nevertheless believe that it would not be inappropriate for a trial court to indicate to codefendants represented by counsel jointly retained that if a conflict exists each might be better represented by separate counsel. Such admonishment following an inquiry as to whether defendants and their jointly retained counsel have considered the possible damaging effect of a potential conflict is highly recommended as appropriate trial court procedure.” (Cook, supra, 13 Cal.3d 663, 672, fn. 7, 119 Cal.Rptr. 500, 505, fn. 7, 532 P.2d 148, 153, fn. 7.)

11.  Section 284 of the Code of Civil Procedure provides: “The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: (P) 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; (P) 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

JEFFERSON, Associate Justice.

ROGAN (Assigned by the Chief Justice of California), J., concurs.