independence bar in California

2014It has been said that “it is the duty of the trial judge to protect the defendant’s right to a counsel who is effective,” “[b]ut in discharging that duty the judge must be on his guard neither to infringe upon the defendant’s right to counsel of his choice, nor to compromise the independence of the bar.” (Smith v. Superior Court (1968) 68 Cal.2d 547, 559 .) Thus, “when it appears to [a trial judge] that a defense counsel is making serious mistakes to his client’s prejudice,” “the judge may intervene, at least within reasonable limits, by disallowing pleas or motions to withdraw pleas, controll

2009The court must exercise circumspection in taking actions that may interfere with an existing attorney-client relationship, and must remain "on [its] guard neither to infringe upon the defendant's right to counsel of his choice, nor to compromise the independence of the bar." ( Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ] ["The value in issue ... is `the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.'"]; see Cannon v. Comm

2009The court must exercise circumspection in taking actions that may interfere with an existing attorney-client relationship, and must remain "on [its] guard neither to infringe upon the defendant's right to counsel of his choice, nor to compromise the independence of the bar." ( Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ] ["The value in issue ... is `the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.'"]; see Cannon v. Comm

2009The court must exercise circumspection in taking actions that may interfere with an existing attorney-client relationship, and must remain "on [its] guard neither to infringe upon the defendant's right to counsel of his choice, nor to compromise the independence of the bar." ( Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ] ["The value in issue ... is `the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.'"]; see Cannon v. Comm

1986In Bauguess v. Paine (1978) 22 Cal.3d 626 , at page 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ], our Supreme Court gave the Legislature the rationale for requiring detailed written findings when ordering attorney’s fees for frivolous motions. ‘The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system . . . .’ . . [A]ny power of the trial court to impose such sanctions should be created by the legislative branch of government with appropriate safeguards and guidelines developed following a t

1986In Bauguess v. Paine (1978) 22 Cal.3d 626 , at page 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ], our Supreme Court gave the Legislature the rationale for requiring detailed written findings when ordering attorney’s fees for frivolous motions. ‘The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system . . . .’ . . [A]ny power of the trial court to impose such sanctions should be created by the legislative branch of government with appropriate safeguards and guidelines developed following a t

2023To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” 35 as contempt, which is buffered by legislative safeguards. ( Bauguess, supra, 22 Cal.3d at pp. 637–638.) Approving an inherent power to impose sanctions in the form of attorney fees for misconduct could jeopardize the independence of the bar, undermine the adversary system, and give courts a power without procedural limits, potentially subject to abuse.

2007Such power does not “imperil the independence of the bar” and “undermine the adversary system.” (Bauguess, supra, 22 Cal.3d at p. 638 .) Rather, it restores balance to the adversary system when the misconduct of one party has destroyed it.

2023(Id. at pp. 247–248.) The Supreme Court reversed the Court of Appeal, finding that a letter of credit was not a form of guaranty in part because “suretyship involves no counterpart to the independence principle essential to letters of credit.” (Western Security, supra, 15 Cal.4th at pp. 250–251.) The court further found that “[b]y focusing on analogies to guaranties, the Court of Appeal also overlooked that the parties in this case specifically intended the standby 12 letters of credit to be additional security.” (Id. at p. 251.) The court concluded that it did not need to determine whether le

1997Code, § 5114, subd. (1); San Diego Gas & Electric Co. v. Bank Leumi (1996) 42 Cal. App.4th 928, 933-934 [ 50 Cal. Rptr.2d 20 ].) [2] The Court of Appeal perceived a conflict between the public policies behind Code of Civil Procedure section 580d and the independence principle under the facts of this case.

2009The court must exercise circumspection in taking actions that may interfere with an existing attorney-client relationship, and must remain "on [its] guard neither to infringe upon the defendant's right to counsel of his choice, nor to compromise the independence of the bar." ( Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ] ["The value in issue ... is `the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.'"]; see Cannon v. Comm

2009The court must exercise circumspection in taking actions that may interfere with an existing attorney-client relationship, and must remain "on [its] guard neither to infringe upon the defendant's right to counsel of his choice, nor to compromise the independence of the bar." ( Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ] ["The value in issue ... is `the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.'"]; see Cannon v. Comm

2008Without such procedural safeguards in place, “serious due process problems would result were trial courts to use their inherent power, in lieu of the contempt power, to punish misconduct by awarding attorney’s fees to an opposing party or counsel.” (Id. at p. 638.) Concluding that the use of the courts’ inherent power to punish misconduct by awarding attorney’s fees “may imperil the independence of the bar and thereby undermine the adversary system,” the California Supreme Court concluded that the power to impose such sanctions must be created by the Legislature with appropriate safeguards. 20

2008Without such procedural safeguards in place, “serious due process problems would result were trial courts to use their inherent power, in lieu of the contempt power, to punish misconduct by awarding attorney’s fees to an opposing party or counsel.” (Id. at p. 638.) Concluding that the use of the courts’ inherent power to punish misconduct by awarding attorney’s fees “may imperil the independence of the bar and thereby undermine the adversary system,” the California Supreme Court concluded that the power to impose such sanctions must be created by the Legislature with appropriate safeguards. 20

2015To do so would compromise the independence of our inquiry.” (Ibid.) “‘[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.’ [Citation.]” (Ibid.) Thus, we “must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’” (Bose Corp. v. Consumers Union (1984) 466 U.S. 485, 511 (Bose).) 2.

2009The court must exercise circumspection in taking actions that may interfere with an existing attorney-client relationship, and must remain "on [its] guard neither to infringe upon the defendant's right to counsel of his choice, nor to compromise the independence of the bar." ( Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ] ["The value in issue ... is `the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.'"]; see Cannon v. Comm

2009The court must exercise circumspection in taking actions that may interfere with an existing attorney-client relationship, and must remain "on [its] guard neither to infringe upon the defendant's right to counsel of his choice, nor to compromise the independence of the bar." ( Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ] ["The value in issue ... is `the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.'"]; see Cannon v. Comm

2007To do so would compromise the independence of our inquiry. `[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.'" ( McCoy, at p. 846, 231 Cal. Rptr. 518 , 727 P.2d 711 , italics added.) Independent review is applied with equal force in considering whether a plaintiff has established a probability of demonstrating malice by clear and convincing evidence in opposing an anti-SLAPP motion. ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358 , 42 Cal.Rptr.2d 464 ; see also Beilenson v. Superior Court (1996) 44

2007To do so would compromise the independence of our inquiry. `[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.'" ( McCoy, at p. 846, 231 Cal. Rptr. 518 , 727 P.2d 711 , italics added.) Independent review is applied with equal force in considering whether a plaintiff has established a probability of demonstrating malice by clear and convincing evidence in opposing an anti-SLAPP motion. ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358 , 42 Cal.Rptr.2d 464 ; see also Beilenson v. Superior Court (1996) 44

2007To do so would compromise the independence of our inquiry. `[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.'" ( McCoy, at p. 846, 231 Cal. Rptr. 518 , 727 P.2d 711 , italics added.) Independent review is applied with equal force in considering whether a plaintiff has established a probability of demonstrating malice by clear and convincing evidence in opposing an anti-SLAPP motion. ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358 , 42 Cal.Rptr.2d 464 ; see also Beilenson v. Superior Court (1996) 44

2007To do so would compromise the independence of our inquiry. `[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.'" ( McCoy, at p. 846, 231 Cal. Rptr. 518 , 727 P.2d 711 , italics added.) Independent review is applied with equal force in considering whether a plaintiff has established a probability of demonstrating malice by clear and convincing evidence in opposing an anti-SLAPP motion. ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358 , 42 Cal.Rptr.2d 464 ; see also Beilenson v. Superior Court (1996) 44

2007To do so would compromise the independence of our inquiry. `[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.'" ( McCoy, at p. 846, 231 Cal. Rptr. 518 , 727 P.2d 711 , italics added.) Independent review is applied with equal force in considering whether a plaintiff has established a probability of demonstrating malice by clear and convincing evidence in opposing an anti-SLAPP motion. ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358 , 42 Cal.Rptr.2d 464 ; see also Beilenson v. Superior Court (1996) 44

2007To do so would compromise the independence of our inquiry. `[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.'" ( McCoy, at p. 846, 231 Cal. Rptr. 518 , 727 P.2d 711 , italics added.) Independent review is applied with equal force in considering whether a plaintiff has established a probability of demonstrating malice by clear and convincing evidence in opposing an anti-SLAPP motion. ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358 , 42 Cal.Rptr.2d 464 ; see also Beilenson v. Superior Court (1996) 44

2007To do so would compromise the independence of our inquiry. `[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.'" ( McCoy, at p. 846, 231 Cal. Rptr. 518 , 727 P.2d 711 , italics added.) Independent review is applied with equal force in considering whether a plaintiff has established a probability of demonstrating malice by clear and convincing evidence in opposing an anti-SLAPP motion. ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358 , 42 Cal.Rptr.2d 464 ; see also Beilenson v. Superior Court (1996) 44

2007To do so would compromise the independence of our inquiry. `[T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting.'" ( McCoy, at p. 846, 231 Cal. Rptr. 518 , 727 P.2d 711 , italics added.) Independent review is applied with equal force in considering whether a plaintiff has established a probability of demonstrating malice by clear and convincing evidence in opposing an anti-SLAPP motion. ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358 , 42 Cal.Rptr.2d 464 ; see also Beilenson v. Superior Court (1996) 44

2001It is also noteworthy that the United States Supreme Court does not appear to share the view expressed in Bauguess that sanctions in the form of attorney fees might “imperil the independence of the bar and thereby undermine the adversary system.” (Baugess, supra, 22 Cal.3d at p. 638 .) In Roadway Exp., Inc. v. Piper (1980) 447 U.S. 752, 765 [ 100 S.Ct. 2455 , *196 2463-2464, 65 L.Ed.2d 488 ], the high court upheld the inherent power of federal courts to assess attorney fees against attorneys who failed to comply with discovery orders.

2001It is also noteworthy that the United States Supreme Court does not appear to share the view expressed in Bauguess that sanctions in the form of attorney fees might “imperil the independence of the bar and thereby undermine the adversary system.” (Baugess, supra, 22 Cal.3d at p. 638 .) In Roadway Exp., Inc. v. Piper (1980) 447 U.S. 752, 765 [ 100 S.Ct. 2455 , *196 2463-2464, 65 L.Ed.2d 488 ], the high court upheld the inherent power of federal courts to assess attorney fees against attorneys who failed to comply with discovery orders.

1997(See Roseleaf Corp. v. Chierighino (1963) 59 Cal.2d 35, 43-44 [ 27 Cal. Rptr. 873 , 378 P.2d 97 ].) [1] The independence principle, in summary form, makes the letter of credit issuer's obligation to pay a draw conforming to the letter's terms completely separate from, and not contingent on, any underlying contract between the issuer's customer and the letter's beneficiary.

1997(See Roseleaf Corp. v. Chierighino (1963) 59 Cal.2d 35, 43-44 [ 27 Cal. Rptr. 873 , 378 P.2d 97 ].) [1] The independence principle, in summary form, makes the letter of credit issuer's obligation to pay a draw conforming to the letter's terms completely separate from, and not contingent on, any underlying contract between the issuer's customer and the letter's beneficiary.

1996I, § 7; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651-654 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ]; Bauguess v. Paine (1978) 22 Cal.3d 626, 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ] (Bauguess); Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App. 3d 1019, 1029 [ 215 Cal.Rptr. 708 ]; O’Brien *931 v. Cseh (1983) 148 Cal.App. 3d 957, 961 [ 196 Cal.Rptr. 409 ].) As Bauguess, supra, 22 Cal.3d. 626 observed: “The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system.” (Id., at p.

1996I, § 7; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651-654 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ]; Bauguess v. Paine (1978) 22 Cal.3d 626, 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ] (Bauguess); Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App. 3d 1019, 1029 [ 215 Cal.Rptr. 708 ]; O’Brien *931 v. Cseh (1983) 148 Cal.App. 3d 957, 961 [ 196 Cal.Rptr. 409 ].) As Bauguess, supra, 22 Cal.3d. 626 observed: “The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system.” (Id., at p.

1996I, § 7; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651-654 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ]; Bauguess v. Paine (1978) 22 Cal.3d 626, 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ] (Bauguess); Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App. 3d 1019, 1029 [ 215 Cal.Rptr. 708 ]; O’Brien *931 v. Cseh (1983) 148 Cal.App. 3d 957, 961 [ 196 Cal.Rptr. 409 ].) As Bauguess, supra, 22 Cal.3d. 626 observed: “The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system.” (Id., at p.

1996I, § 7; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651-654 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ]; Bauguess v. Paine (1978) 22 Cal.3d 626, 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ] (Bauguess); Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App. 3d 1019, 1029 [ 215 Cal.Rptr. 708 ]; O’Brien *931 v. Cseh (1983) 148 Cal.App. 3d 957, 961 [ 196 Cal.Rptr. 409 ].) As Bauguess, supra, 22 Cal.3d. 626 observed: “The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system.” (Id., at p.

1996I, § 7; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651-654 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ]; Bauguess v. Paine (1978) 22 Cal.3d 626, 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ] (Bauguess); Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App. 3d 1019, 1029 [ 215 Cal.Rptr. 708 ]; O’Brien *931 v. Cseh (1983) 148 Cal.App. 3d 957, 961 [ 196 Cal.Rptr. 409 ].) As Bauguess, supra, 22 Cal.3d. 626 observed: “The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system.” (Id., at p.

1996I, § 7; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651-654 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ]; Bauguess v. Paine (1978) 22 Cal.3d 626, 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ] (Bauguess); Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App. 3d 1019, 1029 [ 215 Cal.Rptr. 708 ]; O’Brien *931 v. Cseh (1983) 148 Cal.App. 3d 957, 961 [ 196 Cal.Rptr. 409 ].) As Bauguess, supra, 22 Cal.3d. 626 observed: “The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system.” (Id., at p.

1996I, § 7; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651-654 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ]; Bauguess v. Paine (1978) 22 Cal.3d 626, 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ] (Bauguess); Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App. 3d 1019, 1029 [ 215 Cal.Rptr. 708 ]; O’Brien *931 v. Cseh (1983) 148 Cal.App. 3d 957, 961 [ 196 Cal.Rptr. 409 ].) As Bauguess, supra, 22 Cal.3d. 626 observed: “The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system.” (Id., at p.

1996I, § 7; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651-654 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ]; Bauguess v. Paine (1978) 22 Cal.3d 626, 638 [ 150 Cal.Rptr. 461 , 586 P.2d 942 ] (Bauguess); Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App. 3d 1019, 1029 [ 215 Cal.Rptr. 708 ]; O’Brien *931 v. Cseh (1983) 148 Cal.App. 3d 957, 961 [ 196 Cal.Rptr. 409 ].) As Bauguess, supra, 22 Cal.3d. 626 observed: “The use of courts’ inherent power to punish misconduct by awarding attorney’s fees may imperil the independence of the bar and thereby undermine the adversary system.” (Id., at p.

1987Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." ( 466 U.S. at p. 690 [ 80 L.Ed.2d at p. 695 , 104 S.Ct. at p. 2066 ].) We must emphasize, however, that deferential scrutiny of counsel's performance is limited in extent and indeed in certain cases may be altogether unjustified. "[D]eference is not abdication" ( People v. McDonald (1984) 37 Cal.3d 351, 377 [ 208 Cal. Rptr. 236 , 690 P.2d 709 , 46 A

1987Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." ( 466 U.S. at p. 690 [ 80 L.Ed.2d at p. 695 , 104 S.Ct. at p. 2066 ].) We must emphasize, however, that deferential scrutiny of counsel's performance is limited in extent and indeed in certain cases may be altogether unjustified. "[D]eference is not abdication" ( People v. McDonald (1984) 37 Cal.3d 351, 377 [ 208 Cal. Rptr. 236 , 690 P.2d 709 , 46 A