Appellate Law

Writ review appropriate when right to counsel of choice is implicated: County of Santa Clara v. Superior Court (Atlantic Richfield Co.)

By Kimberly A. Kralowec

In County of Santa Clara v. Superior Court (Atlantic Richfield Co.), ___ Cal.App.4th ___ (Apr. 8, 2008), the Court of Appeal (Sixth Appellate District) explained that writ review is particularly appropriate in cases implicating the right to counsel of one's choice:

In this case, the companies, for whatever reason, did not style their motion as a motion to disqualify the public entities? private counsel. While an order disqualifying counsel is an appealable order (Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 599, fn.1), the order issued by the superior court granting the companies? motion was not appealable because it did not explicitly disqualify the public entities? private counsel. Instead, it precluded the public entities from employing their private counsel under any contingent fee arrangements.

?It would be naive not to recognize that the motion to disqualify opposing counsel is frequently a tactical device to delay litigation.? (Comden v. Superior Court (1978) 20 Cal.3d 906, 915.) In this case, the companies? motion threatened not only to deprive the public entities of their choice of counsel but also to preclude them from pursuing any appellate remedies. Writ review of this order is appropriate because appellate review is unavailable, and any error in the order would result in unjustifiably depriving the public entities of their right to counsel of choice.

Slip op. at 5 (emphasis in original) (footnote omitted).

Full post as published by The Appellate Practitioner on April 14, 2008 (boomark / email).