Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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(1) Must defense counsel in a criminal case disclose to the client and the court that a police officer who is an anticipated prosecution witness is a former colleague, and obtain the client's consent to further representation?
(2) Must defense counsel in a criminal case disclose to the client and the court that counsel is married to the bailiff who will have charge of the jury or the court reporter who is assigned to the courtroom in which the proceedings are occurring, and obtain the client's consent to further representation?
(3) Must a deputy district attorney disclose to the court that counsel is married to the bailiff who will have charge of the jury or the court reporter who is assigned to the courtroom in which the proceedings are occurring?
(1) A defense attorney in a criminal case must disclose to the client and obtain the client's consent to further representation when a police officer who is a former colleague of defense counsel and close personal friend will be a prosecution witness on a contested matter.
(2) A defense attorney who is married to either the court reporter who is assigned to the courtroom in which the proceedings are transpiring or the bailiff who will have charge of the jury must disclose the relationship to the client and the court and obtain the client's consent for further representation.
(3) A deputy district attorney who is married to either the court reporter who is assigned to the courtroom in which the proceedings are transpiring or the bailiff who will have charge of the jury must disclose the relationship to the court if the prosecutor is unable in the first instance to avoid being assigned to the spouse's courtroom.
Business and Professions Code 6068, subdivisions (d) and (e).
A defense attorney in a criminal case must disclose to a client and obtain the client's consent to further representation when a police officer who is a former colleague of defense counsel and close personal friend will be a witness on a contested matter.
Business and Professions Code section 6068, subdivision (e) provides:
It is the duty of an attorney to do all of the following:
. . .
(e) To maintain inviolate the confidence, and at every peril to himself [or herself] to preserve the secrets, of his or her client.
In State Bar of California Formal Opinion 1984-83, we opined:
Perhaps the most fundamental quality of attorney-client relationship is the absolute and complete fidelity owed by the attorney to his or her client. As the Supreme Court put it, '[t]he relationship between the attorney and client is a fiduciary relationship of the very highest character.' (Clancy v. State Bar (1969) 71 Cal. 2d 140.) It is that total loyalty to the interests of the client which makes possible and encourages the confidences essential to the effective attorney-client communications and, as important, to the administration of justice. [Footnote omitted.]
Section 6068(e) is derived from the Code of Civil Procedure 211(5) enacted March 11, 1872. The concept of confidence as trust is firmly embedded in the decisional law of California. It first appears in Kisling v. Shaw (1867) 33 Cal. 425, 441, which was decided by the California Supreme Court five years before the enactment of the original statute:
The general principle governing the class of cases [attorney and client] and forming the basis of the rule is that if a confidence is reposed, and that confidence is abused, and the other party thereby suffers injury, the Court will grant relief.
In In Re Crowley (1886) 69 Cal. 32, 35, the Court wrote:
One of the principal obligations which bind [an attorney] is that of fidelity under all circumstances to his client, 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. [Emphasis added.]
More recently, in Smith v. Superior Court (1968) 68 Cal.2d 547, 561, Justice Mosk explained:
But... the attorney-client relationship involved not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney.
The ethical issue arises not necessarily from the fact that the police officer is a former colleague but rather from whether the police officer is a friend who will be a witness on an issue which is in controversy. The Committee believes that the confidence of the client in the attorney would not be affected if the officer were only a witness on an issue which is not controverted. However, the Committee believes that if the relationship between the defense counsel and the police officer, who will be a witness on a controverted matter, is that of close personal friend, the confidence of the client in the attorney could be adversely affected.
The Committee believes that an attorney cannot provide the client with the undivided loyalty due the client while simultaneously questioning the competence, if not the integrity, of a friend. The client's confidence in the attorney would certainly be compromised. Thus, the Committee believes that in order to maintain the confidence of the client in the attorney, the attorney should disclose the existence of the personal relationship between the attorney and the police officer to the client and continue representation only with the consent of the client when the officer will be a prosecution witness on a contested matter.
A defense attorney who is married to either the court reporter who is assigned to the courtroom in which the proceedings are transpiring or the bailiff who will have charge of the jury must disclose the relationship to the client and the court and obtain the client's consent for further representation.
The bailiff and the court reporter are neutral participants in the adversary proceeding. They are not aligned with either party but are extensions of the court, and each serves a critical function. It is the importance of neutrality in those critical functions - the court reporter to accurately transcribe the proceeding, and the bailiff to preclude any external influences when taking charge of the jury - that the marriage calls into question.
As discussed above, the Committee believes that Business and Professions Code section 6068, subdivision (e) includes the element of trust. This trust could well be adversely affected by the marriage of defendant's counsel to either the court reporter or bailiff. During the course of a hearing or trial, counsel, for example, may well have to question the accuracy of a transcript, (see People v. Shanon (1952) 110 Cal.App.2d 153, 154-155 [defendant queried accuracy of transcript as to whether defendant waived jury trial]; In Re Evans (1945) 70 Cal.App.2d 213 [defendant queried accuracy of transcript as to whether defendant pled guilty],) or the actions of the bailiff. (See People v. Ferdinand (1924) 194 Cal. 555, 573-574 [defendant queried bailiff's conduct as to whether bailiff told jury that unless a verdict were returned "that the court would keep them out until the balance of the week [sic], or until they had arrived upon a verdict"] People v. Martinez (1968) 264 Cal.App.2d 906, 911-913 [defendant queried bailiff's conduct as to whether bailiff had talked with a juror].) Moreover, in many jurisdictions, the bailiff may well be a law enforcement officer, such as a deputy sheriff, whose affiliation with the People and the prosecution may raise questions in the client's mind as to the defense attorney's independence.
If counsel is married to the one whose integrity, competence, or actions counsel may have to challenge, the duty counsel owes to the client to provide competent legal representation unfettered by divided loyalties would be called into question. Thus, the Committee believes that defense counsel should disclose the relationship to the client and continue representation only if the consent of the client is obtained.
The defense attorney must disclose to the court counsel's marriage to either the court reporter or bailiff. While in most instances this fact will be known, it could happen that it is not. Because the existence of the marriage calls into question the impartiality of the spouse, not to disclose it runs afoul of Business and Professions Code section 6068 subdivision (d) which provides in pertinent part that an attorney must "... maintain the respect due to the courts of justice and judicial officers."
When counsel is married to either the court reporter or bailiff, counsel should disclose this relationship to the client and the court at the outset of the proceeding. As counsel must disclose the relationship to the court, consent to further representation, which must be knowing and intelligent (see Johnson v. Zerbst (1938) 304 U.S. 458; State Bar Formal Opinion 1984-83), will be on the record.
A deputy district attorney who is married to either the court reporter who is assigned to the courtroom in which the proceedings are transpiring or the bailiff who will have charge of the jury must disclose the relationship to the court if the prosecutor is unable in the first instance to avoid being assigned to the spouse's courtroom.
While the Committee believes also that in most, if not all such situations, the fact of the relationship will be known to the court, Business and Professions Code section 6068, subdivision (d) provides, as we have discussed above, for disclosure. The fact of the marriage could well give rise to subtle bias on the part of the court reporter or bailiff spouse. It is possible that the spouse of the district attorney could perform their duties in a manner unfavorable to the defendant. Thus, the deputy district attorney must disclose the relationship to the court.
We offer two pragmatic considerations. A deputy district attorney should attempt to preclude being assigned to cases which will be heard in the courtroom in which the spouse is employed. When that is not possible, the deputy district attorney must notify the court at the earliest possible time to allow the court, if possible, to temporarily switch the court reporter or bailiff.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar.
1 The concerns raised by the Committee regarding issues 2 and 3 should also be considered when defense attorney or deputy district attorney is in a non-marital relationship with the court reporter or bailiff that would raise concerns about the neutrality of the functions performed by the court reporter or bailiff.
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