Can a city attorney defend or assist in the defense of a criminal action in which the employing city personnel are not involved in any significant respect?

We conclude that the Rhodes rule, its purposes, and the public interest will be served if, where a city attorney has been validly divested or prosecutorial responsibilities by the city which employs him, he or his law partners may 'defend or assist in the defense' (People v. Rhodes, Supra, 12 Cal.3d 180 at pp. 186--187, 115 Cal.Rptr. 235, 240, 524 P.2d 363, 368) of a criminal action in which personnel of the employing city are not involved in any significant respect. Assessment of the latter factor in a particular case, or other questions involving application of the foregoing criteria therein, should be resolved within the sound discretion of the trial court.

This conclusion covers only the eligibility of an affected city attorney or his professional associates to defend a person accused of crime. The interests of that person must therefore be considered, because the Rhodes court did not reach the subject. (See People v. Rhodes, Supra, 12 Cal.3d 180 at p. 185 (fn. 8), 115 Cal.Rptr. 235, 524 P.2d 363.) Since an accused may waive his right to counsel altogether, if he 'knowingly and intelligently' elects to do so (People v. Maddox (1967) 67 Cal.2d 647, 651, 63 Cal.Rptr. 371, 433 P.2d 163;

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We sum up: the city attorney of a city which has validly divested him of prosecutorial responsibilities, or his professional associates in the practice of law, may defend or assist in the defense of any criminal action (1) in which personnel of the employing city are not involved in any significant respect and (2) in which he defendant has knowingly and intelligently waived any irregularity which might be perceived by reason of the Rhodes proscription (People v. Rhodes, Supra, 12 Cal.3d 180 at pp. 186--187, 115 Cal.Rptr. 235, 524 P.2d 363), subject to appropriate exercise of the trial court's discretion in a particular case.

Although respondent court's purported disqualification of the attorney petitioners herein was obviously a good faith effort to comply with the Rhodes proscription, it amounted to an abuse of discretion according to the principles enunciated in this decision. Mandate is therefore the appropriate remedy. (See Smith v. Superior Court (1968) 68 Cal.2d 547, 559--562, 68 Cal.Rptr. 1, 440 P.2d 65.)