Opinion by Wiener, Acting P. J., with Work and Butler, JJ., concurring.
The difficult and sensitive question in this case is whether ethical considerations require disqualifying the county counsel as attorney for the County of San Diego (County) in the pending litigation between the County and the Civil Service Commission of the County of San Diego (Commission). The Commission seeks a writ of mandate after it unsuccessfully moved to disqualify the county counsel. We will grant the writ.
Factual and Procedural Background
Preliminarily we observe the functions of government make it necessary for some public agencies within a governmental body to be accorded a
considerable degree of independence vis-a-vis that body. The Commission is such an agency. It is charged with administering the County's personnel system, in the context of which it is empowered to investigate complaints filed by county employees regarding personnel actions taken by various county agencies, and to make rulings based on those investigations. Needless to say, an adverse Commission ruling is not always warmly embraced by the affected county agency.
The present case arises out of two such complaints -- one filed by Ardelia McClure and one filed by William Chapman -- and the consequent investigations. Both employees held positions with the County's department of social services (Department) and complained of assignment and classification actions taken by the Department to implement budget cutbacks. As is true with respect to nearly all Commission actions, Commission members and staff working on the McClure and Chapman investigations freely consulted with the office of county counsel for advice on legal matters. These consultations included discussions with County Counsel Lloyd Harmon and Deputy County Counsel Ralph Shadwell. At the time of the investigations, Shadwell was also the principal legal counsel for the department of social services, whose actions the Commission was investigating. The topics of discussion included the extent of the Commission's authority to remedy any perceived violation of the County's personnel regulations. The Commission kept county counsel apprised of the status of the investigation and the Commission deliberations with respect to the appropriate remedy.
Based on its investigations, the Commission ordered reinstatement of the affected employees, who had been demoted or laid off, and ordered backpay compensation. Disagreeing with the two rulings, the County filed suit in October 1983 against the Commission seeking judicial review of the Commission's action pursuant to Code of Civil Procedure sections 1085 and 1094.5.
The County is and has been represented in the underlying mandate proceeding by the office of county counsel. The Commission has obtained independent counsel. Based on county counsel's prior advisory role to the Commission on these matters, the Commission unsuccessfully moved to disqualify county counsel on the grounds of a conflict of interest. The court concluded the issues presented by the underlying writ proceeding were of a legal rather than factual nature -- generally concerning the Commission's power to act -- and that there was no showing that county counsel received any confidential information in the context of its prior representation of the Commission which could be used to the Commission's disadvantage in the present proceeding. Because the facts of this case present an important and recurring issue in the field of governmental law, we issued the alternative
writ. (See generally Hogya v. Superior Court (1977) 75 Cal. App. 3d 122, 129-130 [142 Cal. Rptr. 325].)
We are thus faced with the question whether a public attorney who has advised a quasi-independent public agency with respect to a given matter may, consistent with his professional and ethical obligations, later represent other governmental entities suing the quasi-independent agency over the same matter. Our task is guided by two recent cases which reach different conclusions on questions of a public attorney's possible conflict of interest. Each party here relies on one of the cases and attempts to distinguish the other.
The County relies on Ward v. Superior Court (1977) 70 Cal. App. 3d 23 [138 Cal. Rptr. 532] in which Los Angeles County Assessor Phillip Watson sued Baxter Ward, Chairman of the Los Angeles County Board of Supervisors, and certain county employees for violation of his constitutional rights and defamation. The Los Angeles County Counsel represented Ward and the employees. Because county counsel's office had previously represented Watson and the assessor's office in numerous unrelated matters arising out of Watson's official duties, he moved to disqualify county counsel on the grounds of a conflict of interest. The Ward court rebuffed Watson's attempt on two separate bases. It first noted that county counsel had "only one client, namely, the County of Los Angeles." (Id., at p. 32.) It therefore concluded that no independent attorney-client relationship had been established with Watson or the assessor's office. (Id., at p. 34.) As a second ground, the court focused on Watson's claim that county counsel had obtained confidential information about him in the context of the prior representations. Because the prior representations of Watson and the assessor's office were substantively unrelated to the Watson v. Ward action, Watson necessarily contended that information concerning the operation of the assessor's office obtained by county counsel in the prior representations would be relevant to issues in the present case. (Id., at pp. 34-35.) The court responded by pointing out that whatever information was disclosed to county counsel, it could hardly be considered confidential in that the assessor's office was directly responsible to the board of supervisors, which was entitled to full disclosure from the assessor regarding all material facts. (Id., at p. 35.) It concluded, therefore, that county counsel could not have obtained confidential information which could be used against Watson. (Ibid.)
The County reads Ward for the broad proposition that there can never be a separate attorney-client relationship between county counsel and a County
official or constituent county agency because county counsel has a single client, namely, the County. With only one client, a fortiori there can be no conflict of interest.
The Commission disagrees with the County's broad reading of Ward, relying heavily on People ex rel. Deukmejian v. Brown (1981) 29 Cal. 3d 150 [172 Cal. Rptr. 478, 624 P.2d 1206]. In Deukmejian, the Governor and various state agencies were sued by the Pacific Legal Foundation (PLF) and the Public Employees Service Association based on allegations that a major new piece of public employee collective bargaining legislation was unconstitutional. (See Pacific Legal Foundation v. Brown (1981) 29 Cal. 3d 168 [172 Cal. Rptr. 487, 624 P.2d 1215].) After the PLF suit was filed, deputies from the Attorney General's office met with members of the State Personnel Board, one of the respondent state agencies in the lawsuit, pursuant to the Attorney General's statutory mandate to serve as counsel for state agencies. (Deukmejian, supra, 29 Cal. 3d at p. 154.) At the meeting, the deputies outlined four options available to the board in responding to the suit and advised the board of the Attorney General's recommendation that it join in challenging the constitutionality of the statute. (Ibid.; see also id., at p. 163 (dis. opn. of Richardson, J.).) The board declined to follow the Attorney General's recommendation. Approximately one week later, he filed an independent action against, inter alia, the State Personnel Board asserting that the collective bargaining statute was unconstitutional.
The Governor successfully moved to disqualify the Attorney General. The Deukmejian court held there was "no constitutional, statutory, or ethical authority" allowing the Attorney General to "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." (29 Cal. 3d at p. 155.) Of particular interest is the manner in which the Deukmejian court deals with Ward. Although Justice Richardson's dissent places considerable reliance on both prongs of the Ward holding (id., at pp. 165-166), the majority finds it distinguishable because the assessor brought his action "not as a public official" but rather "'individually and as a taxpayer.'" (Id., at p. 157, fn. 1.)
As we shall explain, we believe Deukmejian controls the result in this case. Ward, to the extent it is not inconsistent with Deukmejian, does not compel a contrary result.
Before an attorney may be disqualified from representing a party in litigation because his representation of that ...