People Ex Rel. Deukmejian v. Brown , 29 Cal. 3d 150 ( 1981 )

Opinion

MOSK, J.

Before reaching the merits of this litigation in either this case or the companion case of Pacific Legal Foundation v. Brown (1981) post, page 168 [172 Cal.Rptr. 478, 624 P.2d 1206], we address a motion of the Governor to dismiss the petition of the Attorney General herein.

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

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

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

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

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

There is no question that at such time as he believed a potential conflict existed, the Attorney General could, as he did, properly withdraw as counsel for his state clients and authorize them to employ special counsel. (Gov. Code, § 11040; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 15 [112 Cal.Rptr. 786, 520 P.2d 10].) The issue then becomes whether the Attorney General may represent clients one day, give them legal advice with regard to pending litigation, withdraw, and then sue the same clients the next day on a purported cause of action arising out of the identical controversy. We can find no constitutional, statutory, or ethical authority for such conduct by the Attorney General.

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

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

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

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

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

In State of Ark. v. Dean Foods Products Co., Inc. (8th Cir. 1979) 605 F.2d 380, 384, it was held that the “‘attorney-client relationship raises an irrefutable presumption that confidences were disclosed.’” Disqualification of the Attorney General was upheld because of his prior representation of a litigant; whether he “did in fact receive confidential information is irrelevant, the policy considerations of the Code precluding that inquiry.” (Id., p. 386.) The same doctrine was enunciated in General Motors Corporation v. City of New York (2d Cir. 1974) 501 F.2d 639, 648, and Emle Industries, Inc. v. Patentex, Inc. (2d Cir. 1973) 478 F.2d 562, 571. Also see Kramer, Appearance of Impropriety (1981) 65 Minn. L.Rev. 243, 255.

But, contends the Attorney General, he is not bound by the rules that control the conduct of other attorneys in the state because he is a protector of the public interest. We have acknowledged “the Attorney General’s dual role as representative of a state agency and guardian of the public interest.” (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 15.) The Legislature has impliedly recognized that a conflict might arise because of that duality by giving the Attorney General the right to withdraw from representation of his statutory clients and to permit them to engage private counsel. (Gov. Code, § 11040.) We find nothing in that circumstance, however, to justify relaxation of the prevailing rules governing an attorney’s right to assume a position adverse to his clients or former clients, particularly in litigation that arose during the period of the attorney-client relationship. In short, the Attorney General cannot be compelled to represent state officers or agencies if he believes them to be acting contrary to law, and he may withdraw from his statutorily imposed duty to act as their counsel, but he may not take a position adverse to those same clients.¹

The Attorney General insists nevertheless that he has a common law right, undefined and unrestrained, to sue in his role as “the People’s legal counsel” the Governor and other public officials and agencies. This claim presupposes that the Attorney General may determine, contrary to the views of the Governor, wherein lies the public interest. While there is no question that we may consider common law practices, we may do so only if they are not superseded by or in conflict with constitutional or statutory provisions. (People v. New Penn Mines, Inc. (1963) 212 Cal.App.2d 667 [28 Cal.Rptr. 337].) In this instance the Constitution—the highest indicator of the public interest—is both apposite and unambiguous.

Article V, section 1, of the California Constitution provides that “The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed.” Article V, section 13, defines the powers of the Attorney General inter alia in this manner: “Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State.” The constitutional pattern is crystal clear: if a conflict between the Governor and the Attorney General develops over the faithful execution of the laws of this state, the Governor retains the “supreme executive power” to determine the public interest; the Attorney General may act only “subject to the powers” of the Governor.

Consistent with the Constitution, Government Code section 12010 provides: “The Governor shall supervise the official conduct of all executive and ministerial officers.” (Spear v. Reeves (1906) 148 Cal. 501, 504 [83 P. 432].) The Attorney General is an executive officer who “shall report to the Governor the condition of the affairs of his office” (Gov. Code, § 12522).

We recognize there are cases in other jurisdictions that permit their attorneys general to sue any state officer or agency, presumably without restriction. Such opinions arise, however, under the peculiarities of the prevailing law in those several states, and are not persuasive here. (See, e.g., Conn. Com'n. v. Conn. Freedom of Information (1978) 174 Conn. 308 [387 A.2d 533]); Feeney v. Com. (1977) 373 Mass. 359 [366 N.E.2d 1262]; E. P. A. v. Pollution Control Bd. (1977) 14 Ill.2d 394 [14 Ill. Dec. 245, 372 N.E.2d 50]; Commonwealth ex rel. Hancock v. Paxton (Ky.App. 1974) 516 S.W.2d 865.)

On the other hand, several jurisdictions have prevented the attorney general from acting without constitutional or statutory authority. A federal court found it incongruous for an attorney general, purporting to act for the people, to mount “an attack by the State upon the validity of an enactment of its own legislature.” (Baxley v. Rutland (D.Ala. 1976) 409 F.Supp. 1249, 1257; see also Hill v. Texas Water Quality Bd. (Tex.Civ.App. 1978) 568 S.W.2d 738; Motor Club of Iowa v. Dept. of Transp. (Iowa 1977) 251 N.W.2d 510, 515; People ex rel. Witcher v. District Court, etc. (1976) 190 Colo. 483 [549 P.2d 778]; Garcia v. Laughlin (1955) 155 Tex. 261 [285 S.W.2d 191, 194]; State v. Hagan (1919) 44 N.D. 306 [175 N.W. 372, 374]; State v. Huston (1908) 21 Okla. 782 [97 P. 982, 989].)

Arizona, the constitution of which, like ours, declares that its governor “shall take care that the laws be faithfully executed” (Ariz. Const., art. V, § 4), reached the same conclusion as we do herein. In Arizona State Land Department v. McFate (1960) 87 Ariz. 139 [348 P.2d 912, 918], the supreme court of that state declared in an unanimous opinion, “Significantly, these powers are not vested in the Attorney General. Thus, the Governor alone, and not the Attorney General, is responsible for the supervision of the executive department and is obligated and empowered to protect the interests of the people and the State by taking care that the laws are faithfully executed.”

The Arizona court further observed, with regard to a suit by the attorney general against a state agency: “Two propositions flow generally from this conception, embodied in our statutes, of the basic role of the Attorney General as ‘legal advisor of the departments of the state’ who shall ‘render such legal services as the departments require’ [citation]: the assertion by the Attorney General in a judicial proceeding of a position in conflict with a State department is inconsistent with his duty as its legal advisor; and the initiation of litigation by the Attorney General in furtherance of interests of the public generally, as distinguished from policies or practices of a particular department, is not a concomitant function of this role.” (Id. at p. 915.)

We are not unmindful that the Attorney General may have injected himself into the litigation initiated by Pacific Legal Foundation with the public interest in mind as he perceives it. We discussed a comparable circumstance in Anderson v. Eaton, supra, 211 Cal. at page 116: “Nor does it matter that the intention and motives of the attorney are honest. The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent.”

Finally, we conclude that the Governor has chosen a proper remedy. It has been held that one way “in which the issue of a violation of the rule [of professional conduct] may be raised is by a motion by the former client in the case before the court to enjoin the adverse representation.” (Big Bear Mun. Water Dist. v. Superior Court (1969) 269 Cal.App.2d 919, 927 [75 Cal.Rptr. 580], and cases cited.) To the extent People v. Johnson (1856) 6 Cal. 499, permitted the Attorney General to sue the Governor, it is disapproved.

For the reasons stated, we enjoin the Attorney General from proceeding in this matter and order that the alternative writ be discharged and the petition be dismissed.

Bird, C. J., Tobriner, J., and Newman, J., concurred.

1 Ward v. Superior Court (1977) 70 Cal.App.3d 23 [138 Cal.Rptr. 532], is not to the contrary. There the lawsuit was brought by the assessor but not as a public official; he sued the county supervisors '“individually and as a taxpayer.’” (Id. at p. 27.) Therefore the court held the county counsel could represent the supervisors in defending the lawsuit.