28th Feb 2013
First scenario: You walk into my office, hire me as your attorney, and ask me various questions about the legalities of operating a certain business. Later that day, you send out a press release announcing the details of your latest, greatest business plan. The next day, I go on TV and announce to the world that your business plan is illegal. Thoughts? Second scenario: You hire me as your attorney to defend you against a one million dollar lawsuit. The next day I reject an offer from the other side to settle the case for one dollar. You call me and say, “Hey, you’re my attorney so why didn’t you tell me about that offer before you rejected it.” I respond, “You’re not my client. I can do what I want with your case, and I didn’t feel like settling it for one dollar.” Thoughts? In general terms, these two scenarios describe the way the City Attorney has behaved in recent representation of the City through the Mayor, the City’s representative.
Last week, Mayor Filner interrupted a press conference called by City Attorney Jan Goldsmith. Basically, the Mayor had recently announced a new policy concerning his position on hotel taxes in San Diego. The City Attorney called the press conference to point out why the Mayor’s new policy is illegal. The Mayor was upset that the City Attorney went to the public with his legal opinion without talking to him first. The City Attorney was upset that he first read about the Mayor’s policy change in the newspaper. So, who was right? Thinking of the scenarios above, the Mayor was spot on. The City Attorney owes a duty of loyalty to the City and the Mayor, and he blatantly violated that duty by holding the press conference.
Under the City Charter, which is like the constitution for the City, both the Mayor and the City Attorney are elected officials. The Mayor of San Diego, a so-called strong mayor, is given all enforcement powers and is designated as the head official of the City. On the other hand, the City Attorney serves three roles: (1) adviser to the City and its employees; (2) attorney for the City in civil actions in which the City sues someone or is being sued; and (3) prosecutor for the City for criminal offenses under the Municipal Code. In his role as adviser, the City Attorney’s job is to provide legal advice to the City and its employees. In fact, under well-established rules, the City Attorney owes a duty of loyalty to the City’s employees, a duty he violated by attacking Mayor Filner’s policies in public. Contrary to popular perception and the City Attorney’s assertions, he is not the attorney for the people of San Diego when serving in his role as adviser (in fact, the only time he represents the people of San Diego is in a criminal case). If the City Attorney were doing his job ethically, he should have gone to the Mayor and the Mayor’s staff with his concerns and discussed the in confidence.
In the medical marijuana dispensary cases filed by the City Attorney in civil court, I have seen the City Attorney continue to abuse his office. In these cases, the City Attorney’s Office has made settlement offers and rejected settlement offers without consulting with any authorized representative of the City outside of the City Attorney’s Office. Because the Mayor is the chief enforcement officer, the Mayor (or his designated representative) should be making all of these decisions. However, the City Attorney’s Office rejects the notion that it even has a client in those cases. The attorneys there refer to themselves as “prosecutors” and behave like the cases are criminal prosecutions where they have unfettered authority to deal with the cases as they see fit.
To understand this in a more familiar context, imagine for a moment that a law firm represents a corporation in various civil cases. Without ever consulting a corporate officer, the law firm decides how to settle those cases, making offers and rejecting offers without any input. Under the State Bar Rules of Professional Conduct governing attorneys, the law firm and the City Attorney’s Office are treated identically. And under those Rules, this conduct constitutes a massive ethical violation that could end up with the responsible attorneys being kicked out of the practice of law. In sum, the City Attorney’s conduct has been, as Mayor Filner said, unethical and unprofessional. First and foremost, attorneys represent their clients and owe them the utmost loyalty and confidentiality while ensuring that their clients control the ultimate goals and outcomes of litigation. These concepts form the foundation of the attorney-client relationship, and politics cannot be allowed to interfere. It is for these reasons that Mayor Filner is justifiably fed up with the City Attorney. And it is for these reasons that the rest of us should be too.