8.05. Reading: Linsk v. Linsk, 70 Cal. Rptr. 544 (Cal. 1969)

Reading Guide

Before reading. This case was decided before the current Rule 1.2 was adopted. Take a look at ABA Model Rule 1.2(a) and Comments [1] – [3]. Do you think the decision in this case (as a matter of ethics) was one left to the lawyer or the client under the current rule?

Issues:
– What are the decisions that the court says traditionally resides with the lawyer? With the client?
– What is the line that marks the difference between decisions left to the lawyer and those left to the client?
– What was the decision to be made in this case? Who did the court decide had the authority to make the decision? What was the consequence?

Linsk v. Linsk

70 Cal. Rptr. 544, Supreme Court of California, 1969

Plaintiff wife brought an action for divorce against defendant husband, who filed a cross-complaint, also seeking a divorce. The original proceedings ended in a mistrial due to the disability of the trial judge who heard the evidence.

Subsequently plaintiff’s attorney stipulated over his client’s express objection that the case could be decided by a different judge entirely on the basis of the record previously made. Counsel for both parties were aware of plaintiff’s objections, as was the presiding judge, who nevertheless accepted the stipulation and assigned the case to a trial court. There the trial judge, not shown by the record to be advised of the adamant position of plaintiff, examined only the record at the prior trial and, without hearing testimony, entered judgment against plaintiff on her complaint and in favor of defendant on his cross-complaint. Plaintiff appeals therefrom, maintaining that the court exceeded its jurisdiction in proceeding to determine the matter on the record of the prior trial pursuant to a stipulation made by plaintiff’s attorney over her express objection. …

In retaining counsel for the prosecution or defense of a suit, the right to do many acts in respect to the cause is embraced as ancillary, or incidental to the general authority conferred, and among these is included the authority to enter into stipulations and agreements in all matters of procedure during the progress of the trial. Stipulations thus made, so far as they are simply necessary or incidental to the management of the suit, and which affect only the procedure or remedy as distinguished from the cause of action itself, and the essential rights of the client, are binding on the client. (internal quotes, footnotes and citations omitted)

Under the foregoing concept it has been held that an attorney may refuse to call a witness even though his client desires that the witness testify; may abandon a defense he deems to be unmeritorious; may stipulate that the trial judge could view the premises that a witness, if called, would give substantially the same testimony as a prior witness and that the testimony of a witness in a prior trial be used in a later action; and he may waive the late filing of a complaint. (internal citations omitted)

On the other hand, an attorney may not, by virtue of his general authority over the conduct of the action, stipulate that his client’s premises constituted an unsafe place to work where such a stipulation would dispose of the client’s sole interest in the premises, nor may he stipulate to a matter which would eliminate an essential defense. He may not agree to the entry of a default judgment, or a summary judgment against his client, may not compromise his client’s claim, or stipulate that only nominal damages may be awarded, and he cannot agree to an increase in the amount of the judgment against his client. Likewise, an attorney is without authority to waive findings so that no appeal can be prosecuted, or agree that a judgment may be made payable in gold coin rather than in legal tender. (internal citations omitted)

An attorney is also forbidden without authorization to stipulate that the opposing party’s failure to comply with a statute would not be pleaded as a defense, or to write a letter to a creditor asking it to join in a bankruptcy petition where he has been employed only to institute bankruptcy proceedings, and he may not bind his client by a statement that it stands ready to pay a stated sum or that if the jury finds for plaintiff the amount of the verdict would constitute a landlord’s lien against livestock. (internal citations omitted)

The dichotomy in the foregoing cases appears to relate to whether the attorney has relinquished a substantial right of his client in entering into a stipulation on his behalf. If counsel merely employs his best discretion in protecting the client’s rights and achieving the client’s fundamental goals, his authority to proceed in any appropriate manner has been unquestioned. On the other hand, if counsel abdicates a substantial right of the client contrary to express instructions, he exceeds his authority.

It seems incontrovertible that the right of a party to have the trier of fact observe his demeanor, and that of his adversary and other witnesses, during examination and cross-examination is so crucial to a party’s cause of action that an attorney cannot be permitted to waive by stipulation such right as to all the testimony in a trial when the stipulation is contrary to the express wishes of his client. Indeed, it has been held that the very right to trial contemplates the “right to be present at and to participate in every phase of the trial.” A trial judge’s personal observation of the deportment of witnesses is particularly significant where, as here, both parties prayed that the court grant them a divorce and each testified to acts of extreme cruelty by the other during the course of the marriage. Defendant does not deny that plaintiff was entitled to a decision upon the controverted facts from the judge who heard the evidence, absent a waiver of that right.

[Judgment was reversed for a new trial]