Tuesday, Nov. 27, 2007 | A hypocrite by any other name … Did we all see San Diego Assistant City Attorney Don McGrath on television the other day lambasting former employees of the City Attorney’s Office for speaking with the press about an “alleged” on-going investigation by the State Bar into his boss, City Attorney Mike Aguirre.

Here are some questions for Mr. McGrath: Is it improper for a witness to an unethical act to speak about the act? Is it improper for a witness to a crime to speak about the crime?

The ethical rules for attorneys related to speaking about on-going investigations focus on the behavior of the body or individual conducting the investigation, not the witnesses. The justification behind such rules is an attempt to balance first amendment concerns with an accused’s right to a fair trial. Pre-trial or extra-judicial statements might, in certain cases, prejudice a jury. See Sheppard v. Maxwell, 384 U.S. 333 (1966). A.B.A. Model Rule 3.6 attempts to balance these fundamental concerns. It reads:

[A] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extra-judicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

However, the lawyers involved in the investigation may speak of certain matters, specifically:

1) that an investigation of a matter is in progress;

2) the identity of investigating and arresting officers or agencies and the length of the investigation; and

3) information contained in a public record.

Thus, even if the rules were intended to apply to attorneys, who happen to be witnesses, the exceptions would allow them to speak to the press to say who is investigating (i.e. the State Bar) and mention the nature of their comments if they had been previously made public, including such facts that may prove that Mr. Aguirre has used his position as city attorney inappropriately.

So, Mr. McGrath, your office, unlike the attorney’s who spoke with the press, is in a position to prosecute crimes, it is in a position to investigate crimes, it is in a position to initiate and participate in litigation as a party and does so regularly (without Council approval). Does your office adhere to these rules? Appalled, indeed.

David Miller is a former deputy city attorney.

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