The right to counsel of one’s
own choice is one of this nation’s most fundamental freedoms. (See People v. Holland (1978) 23 Cal.3d 77, 86 [151 Cal.Rptr. 625, 588 P.2d 765].) This court has been diligent in its efforts to ensure that all our citizens, regardless of their status in life, have the opportunity to be defended by counsel of their choice. (See Harris v. Superior Court (1977) 19 Cal.3d 786 [140 Cal.Rptr. 318, 567 P.2d 750]; People v. Byoune (1966) 65 Cal.2d 345 [54 Cal.Rptr. 749, 420 P.2d 221]; People v. Crovedi (1966) 65 Cal.2d 199 [53 Cal.Rptr. 284, 417 P.2d 868].)
In our criminal justice system, the poor have basically two choices. They can accept court-appointed counsel or make some arrangement with private counsel that ensures that counsel will receive some remuneration for the services rendered. One of the problems this case underscores is the fact that our courts do not properly or completely compensate appointed counsel for the work they perform. As a result, if an attorney in the private practice of the law accepts a court appointment, it usually means that the attorney will be less than fully compensated for his or her work.
In a complex and serious case such as the one before the court, it may not be economically feasible for counsel to accept a court appointment. Therefore, the only way in which an indigent may be able to secure counsel of his choice may be through a “life story” arrangement. *624For this court to hold any “life story” agreement, regardless of its contents, impermissible would be to foreclose to the indigent perhaps the only opportunity he may have to secure counsel of his choice. At the same time, counsel should not exploit the circumstances in which the accused finds himself. If the only “money” the accused has is the potential profit from publishing his story, counsel should be scrupulous in any retainer agreement of this type. Exploitation of the poor and powerless is not unique to this society. However, members of the legal profession are sworn to uphold and defend the rights enumerated in our Constitution. They should never be a party to their violation.
I agree with those portions of the majority opinion which hold that (1) a “life story” agreement is not an impermissible means by which a person accused of crime may retain an attorney but (2) the accused must “knowingly and intelligently” waive on the record the potential conflicts flowing from this arrangement. (Maj. opn., ante, at p. 619.)
I . have grave misgivings about permitting an accused to waive a right if he has not been given specific, understandable, and detailed information sufficient to enable a person untrained in the law to make a truly knowing and intelligent decision. A mere statement of “the basic problem” and a recitation that “not all problems could be foreseen” might suffice if the decision were to be made by a legal scholar. However, they are woefully inadequate when the decision-maker is a criminal defendant unschooled in the law.
The Faretta line of cases is inappropriate here. (Cf., Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525].) Petitioner Maxwell is a layman. He does not seek to represent himself for he does not believe—even superficially—that he is competent to understand or deal with the legal system without the assistance of counsel. He needs and wants skilled legal assistance. Where questions arise as to a potential inadequacy in that very assistance, Maxwell cannot be expected to be aware of the magnitude and ramifications of the problem without the assistance of someone skilled in the law. Further, he cannot be deemed to have waived his right to obtain that knowledge.
The deficiencies in the record of the present case highlight the problem. At no point has petitioner been told that by accepting these particular attorneys with their potentially conflicting interests, he could be losing his right to assert certain issues on appeal. For example, he could be precluded from obtaining a reversal on the basis of inadequacy of *625counsel if that claim were based upon the conflicts waived by him at the trial court level. This could be a substantial limitation of petitioner’s appellate rights, yet he has not been informed of it. An intelligent and knowing waiver of those rights was never elicited.
Moreover, the “life story” agreement signed by petitioner may well adversely affect other protections he might otherwise enjoy. In section 37 of the agreement, petitioner has agreed to “waive upon demand by Lawyers the so called attorney-client privilege and any and all other privileges and rights which would prevent the full and complete exercise and exploitation of the rights granted to Lawyers herein.” (Italics added.) No specific mention has been made to petitioner of the impact of this provision on his privilege against self-incrimination, nor indeed has the attorney-client privilege been explained elsewhere.
To a person trained in the law, a host of legal problems come easily to mind. Suppose, for example, that petitioner is convicted, but the conviction is reversed on appeal and remanded for retrial. Under the terms of the ajgreement, these counsel are not obligated to represent him at any stage beyond the present superior court proceedings. If they decide not to represent him in the retrial proceedings, they may demand that he waive his privilege prior to the retrial.
Indeed, if counsel speak with petitioner at any time after their representation terminates—the agreement seems to allow counsel to demand such cooperation—no privilege will protect petitioner’s statements to them. The prosecution may obtain those statements simply by serving a subpoena on the attorneys.
None of these issues was ever explored with petitioner, either in the written agreement or at the court hearing on the issue of recusal. In sum, I do not believe that this record establishes a knowing and intelligent waiver by petitioner of his right to a counsel whose interests are not in potential conflict with his own.
A peremptory writ should issue directing the trial court to conduct further hearings at which petitioner would be given an adequate advisement of all the conflicts and potential consequences. Then, petitioner may decide whether or not he wishes to be represented by these particular attorneys. (See United States v. Dolan (3d Cir. 1978) 570 F.2d 1177, 1180-1182; United States v. Gaines (7th Cir. 1976) 529 F.2d *6261038, 1043-1044; United States v. Garcia (5th Cir. 1975) 517 F.2d 272, 276-278.)