Comden v. Superior Court

In Comden v. Superior Court (1978) 20 Cal.3d 906, 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 "an 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.) 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.) Comden represents simply one instance in which a client's right to counsel of his choice must give way to other 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.' " ( Id. at p. 915.) The Comden court also made clear that the right of court removal of an attorney is not limited to situation is which there are breaches of standards of conduct of 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....' " ( Comden, supra, 20 Cal.3d 906, 916, fn. 4.)