Thursday, Sept. 6, 2007 | Everyone is missing the point on how to decide the extent of the city attorney’s power. All that needs to occur is the council should hire an outside attorney to represent the municipal corporation, based on the fact that City Attorney Mike Aguirre is violating the California Rules of Professional Conduct by representing, or feigning to represent, two clients with potentially adverse interests: the municipal corporation and “The People of the City.”

The position that he has taken as counsel for the municipal corporation and counsel for the “People of the City of San Diego” has a fundamental flaw — in order to represent both, he has to violate the Rules of Professional Conduct with which he is required to comply. Unfortunately, neither a ballot pamphlet from 1931, nor a bazooka bubble gum wrapper, nor another Interim Report will change this fact.

These foundational principles are expressed in the Rules of Professional Conduct, California Business and Professions Code, California Government Code, case law, and to a lesser extent the Model Rules proposed by the American Bar Association, which courts occasionally look to for guidance when a subject matter is not addressed in other sources. Failure to adhere to these principles can result in sanctions, including disbarment.

The foremost principle is that an attorney has a duty of undivided loyalty to his/her client. This duty includes an obligation that an attorney “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

A corollary to this rule is that an attorney must avoid representation of adverse interests and shall not represent more than one client in a matter in which the interests of the clients potentially conflict.

In the municipal context, the application of these rules appears more complicated by the difficulty in identifying the client. Rule of Professional Conduct 3-600, however, makes clear that in general, the client is the entity itself. This is true when an attorney represents a private corporation, which acts through its directors, officers, and others. This is also true when an attorney represents a municipal corporation, which acts through its officials, boards and commissions, or other sub-entities. In representing the city, the city attorney, like a private attorney, “shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized office, employee, body or constituent overseeing the particular engagement.” Rule 3-600.

Here is how Mike’s position doesn’t jive with the basic rules that guide the legal profession. If he is, as he claims, the attorney for the amorphous blob, known as the people of the city of San Diego, then who is the attorney for the municipal corporation, known as the city of San Diego? Two potential answers exist: 1) it is not Mike and 2) it is Mike. If Mike is not the attorney for the municipal corporation, one must be hired, and he should stop pretending to represent the corporation. If he claims that in addition to being the attorney for the amorphous blob, he is also the attorney for the municipal corporation, then he has two clients and Rule of Professional Conduct 3-310 must be consulted constantly during his representation of the two clients.

Is there a potential for the interests of the “People of San Diego” to be adverse to that of the Municipal Corporation? History answers this question. Not only is there a potential: there are actual conflicts. In the absence of informed written consent from each client, Aguirre cannot represent both the people of San Diego and the municipal corporation (the role of Prosecutor for misdemeanors is not addressed here).

Another thing should be made clear. Where an individual, city attorney or otherwise, represents a municipal corporation, the municipal attorney owes the duty to the organization. Something Aguirre consistently forgets.

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