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A couple of attorneys have raised with us the concern that City Attorney Mike Aguirre may have crossed Rule 5-100 of the California Rules of Professional Conduct, which states that an attorney “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.”
Aguirre has already filed civil suit against Sunroad over the developer’s plans to build a 12-story building that the FAA says would be a hazard. The developer has countersued the city, seeking $40 million in damages.
At the same time, Aguirre recently obtained a search warrant as part of a criminal investigation into Sunroad executive and former city official Tom Story on allegations he violated the city’s “cooling off” period. That law forbids ex-city officials from lobbying high-level officials for a year after their employment.
I just spoke with Dennis Maio, vice chairman of the state bar’s Committee on Professional Responsibility and Conduct. He said you can both prosecute and sue simultaneously — but your prosecution has to be legitimate.
“So is not as though you can’t threaten to do it — or do it — if you’re a city attorney, it’s just that you can’t do it for an impermissible reason,” Maio said.
There’s not bright line rule, he said. The strongest evidence of an attorney’s misconduct is generally the absence of any basis for the criminal case, Maio said. If there’s an objective basis for the case, “it’s hard to argue it’s not valid,” he added.
The attorney general, district attorney and police chief all have said they chose not to execute Aguirre’s search warrant for Sunroad offices, citing questions of its adequacy.
In an interview today, Aguirre said the two actions are totally separate. “We do this all the time in code enforcement,” he said.
Also, on KPBS today, Aguirre cited police Chief William Lansdowne’s role in the aborted effort to arrest pension whistleblower Diann Shipione and the defense of former City Councilman Michael Zucchet as evidence that the chief has played politics in the past. Click here and here for background stories on those two incidents.