This past week, we had the opportunity to witness first hand why San Diego is considered by many to be “America’s Finest City,” as our police, fire fighters, civic leaders, and our citizenry all came together in a common cause. Soon San Diegans will have the opportunity to go to the polls and decide who will lead this great city of ours. The most watched and hotly contested race will no doubt be that for the office of the city attorney. With that in mind, I offer my thoughts as to what I see as the proper role of the city attorney.
Most attorneys understand that their primary responsibility is to their clients. One need only browse the Model Rules of Professional Conduct established by the American Bar Association to understand that the client’s interest is paramount in the relationship. In fact, it is the client that possesses and controls the attorney-client privilege. Attorneys consult, advise, and make recommendations to their clients, but in the end, it is the client who has the final say and makes all substantive decisions. So, who is the city attorney’s client anyway?
The current city attorney, citing an anonymous campaign brochure from 1931, (never mind what the city charter, our city’s constitution, says), has taken the most unusual position that he is independent of the mayor and council, and his client is really the “People of San Diego” who elected him. Sounds good right? What could be more noble than being the “Attorney for the People!”
Unfortunately, what this means in practice is that there is no real client, at least not one you can consult with, advise, and carry out its interests. Under this system, it is the city attorney who is the both the attorney and the de facto client, something the Model Rules clearly prohibits. How seriously do the courts take this issue? Prominent class action attorney William Lerach has recently entered into a plea agreement, including a prison term for himself for paying individuals to act as a plaintiff/client. The courts take the attorney-client relationship very seriously. There is no more important concept in the legal profession. A system in which there is no actual client to consult with and seek direction from creates an absurd and conflict-laden arrangement fraught with peril. The current arrangement has resulted in millions upon millions of taxpayer dollars being expended without the authorization and approval of any client. It seems to me an attorney should consult with his client more than once every four years at the polls.
Finally, who represents and advises the mayor and City Council under such an arrangement? What happens with the city attorney’s idea of interests of the people of San Diego conflict with those of the mayor and council? An attorney cannot publicly accuse an individual of misconduct and then represent that same individual on another matter. It just doesn’t work; most people, and certainly most attorney, would recognize that. The only arrangement consistent with the Rules of Professional Conduct as set forth by the State Bar, is where the city attorney represents the interests of the citizens by providing competent legal advice to their elected officials, namely, the mayor and City Council.
However, all of this brings up another interesting question: Should the City Attorney even be elected or should he be appointed?
— PAUL E. COOPER