State Bar Often Probes, But Rarely Charges, Elected Attorneys

Thursday, Nov. 29, 2007 | Political opponents of district attorneys and elected city attorneys in California can seek redress at the ballot box, but that hasn’t stopped them from also running to the state bar with complaints.

But for all the complaints the bar regularly receives, it has a limited experience in carrying out an investigation and disciplining elected attorneys, according to experts familiar with state bar prosecutions. Several attorneys who have taken part or observed the proceedings can recall only two elected attorneys receiving punishment over the past three decades for their conduct.

City Attorney Mike Aguirre could be the third name added to that list if the current state bar investigation finds his conduct as the city of San Diego’s chief lawyer to have breached the ethical rules set up by the guardians of California’s legal industry.

The San Diego Union-Tribune, a local newspaper, reported earlier this month that several individuals have been contacted by bar investigators looking into the city attorney’s behavior.

The State Bar of California does not share information about the complaints it receives or its investigations unless a prosecution reaches court or a settlement. Attorneys can be made ineligible to practice law, suspended from practicing, required to take ethics training, or have their records marked with a censure. Aguirre has refused to comment on the issue.

The city attorney’s critics allege he has acted unethically by filing malicious prosecutions, taking stances adverse to the city’s interests, and filing lawsuits improperly without the consent of the City Council.

Their complaints appear to closely resemble those lodged in the 1980s against former Los Angeles City Attorney Ira Reiner, who was censured by the state bar. Reiner was found to have worked on both sides of a conflict-of-interest case involving a city employee and also publicly criticized the legality of a police program that his office was defending in a lawsuit.

Bar officials say they proceed with caution when probing alleged ethical violations of those high-profile lawyers because of the likelihood that many of the complaints are merely political gripes.

“Sometimes it just turns out to be political mudslinging,” said Russell Weiner, deputy chief trial counsel for the state bar in Los Angeles. “It’s hard to distinguish that.”

Weiner maintains that the bar handles the investigations of all attorneys with equal weight, and that it doesn’t couch its charges or ratchet up the heat just because an investigation involves an elected official. The bar doesn’t have a unit assigned to investigating political figures and it doesn’t make note of investigations that are carried out against elected attorneys on its annual report, he said.

Others who have been close to the bar’s investigations disagree. They claim the bar recognizes not just the political nature of the complaints they receive, but also the political consequences of charging an attorney.

“Mike Aguirre is running for reelection next year. My guess is the state bar is very cognizant of that fact and it’s not going to be in a tremendous hurry to influence the results of that election,” said local attorney David Carr, a former state bar prosecutor.

The bar also has higher priorities than gunning for an elected official when many of the 14,000 complaints the bar receives each year deal with more pressing complaints against lawyers who, for example, are alleged to have bankrupted their clients by embezzling funds or charging exorbitant fees.

The public has a remedy for a bad district attorney or city attorney that they can use: voting him or her out of office.

“The state bar has a very decent filtering system where, if it’s obviously political, there’s little priority given as opposed to an attorney who just stole money from true victims who need their money,” said Mike Nisperos, Jr., an assistant U.S. attorney general who served formerly as the state bar’s chief trial counsel.

When the bar does probe an elected official, the investigation typically doesn’t yield much.

John Witt, San Diego’s former city attorney, was also investigated by the bar while he was in office. Witt said he didn’t take the investigation seriously because he believed there was political motivation behind the complaints. “It wasn’t that big a deal. I vaguely remember getting a note about it,” he said. Charges were never filed against Witt.

The case that most resembles the grumbles against Aguirre is the prosecution of Reiner, who was found by the bar to advocate for interests that were adverse to Los Angeles city officials that he was required to represent in legal matters.

The bar found Reiner acted counter to the Police Department’s interests when, at a City Council meeting in 1983, he bashed the police force for its legal tactics related to an intelligence program. At the time, the program was the subject of litigation, and police officers claimed Reiner was conflicted between his personal beliefs about the program and his legal duty to defend it. Reiner was recused from the case and the officers had to hire private attorneys at a cost of $2 million.

In another complaint, Reiner’s office assumed a prosecutorial role toward a city employee it had advised on the same matter.

In 1984, Los Angeles’ planning director met with a Reiner deputy to discuss in confidence a possible conflict of interest involving a business the planning official had a financial interest in.

After the meeting, Reiner authorized an investigation into the official. His office issued reports about the official’s relationship that the District Attorney’s Office tried to obtain so it could file felony conflict-of-interest charges. A judge later struck down the transmittal of the reports, saying the information contained within them was protected by attorney-client privilege.

The two incidents resulted in a censure against Reiner, which is listed on his bar file. Despite the reprimand, Reiner went on to serve two terms as Los Angeles County’s district attorney. Calls placed to Reiner’s private practice this week were not returned.

The complaints against Reiner mirror the frequent criticism of Aguirre, who has strayed from a traditional attorney-client relationship with city officials in an effort to represent the interests of the public as he best sees fit. Aguirre argues that the City Charter allows him independence from other city officials.

But his actions have rankled city officials who believe his candor damages the legal positions of the city and its officials.

Aguirre has issued reports proclaiming that city officials have likely committed conflict-of-interest violations and securities fraud. He has also proclaimed publicly that he believed this year’s round of pay raises for police officers is illegal, and that the city of San Diego continues to violate state law by not fully funding the pension system.

Aguirre also drew criticism for remarks he made about the city’s role in the recent Mount Soledad landslide, prompting Mayor Jerry Sanders and the City Council to hire outside attorneys to defend the city against lawsuits.

For the amount of acrimony that his interpretation of his role has caused, finding a clear-cut answer to the dispute to who an elected government attorney represents has been tricky.

“What’s unique about Aguirre’s situation is he raises a question that’s been debate for about five or 10 years,” said Nisperos, who was familiar with San Diego’s situation. “I think Mr. Aguirre has probably done more than anyone to present that question for ultimate resolution.”

Another aspect of Aguirre’s conduct that could be examined by the state bar is his handling of prosecutions. A judge removed him from a misdemeanor prosecution of a development executive when he found that Aguirre failed to erect barriers between that criminal case and a civil lawsuit involving the developer, Sunroad Enterprises, a tack that a judge said allowed Aguirre an unfair advantage in the civil suit. The judge also found that Aguirre engaged in prosecutorial bias against the executive, Tom Story, who was the former chief of staff to Aguirre’s one-time political rival, former Mayor Dick Murphy.

Aguirre has shrugged off the allegations of misconduct before, saying they are aired by his political enemies and that the public generally agrees with him. A test of the public’s loyalty toward Aguirre will come next June, when he faces reelection.

Both elected officials who were sanctioned by the bar went on to win subsequent elections, despite the political embarrassment of the ethics probes.

State bar investigations typically last less than six months, although more complicated cases can least more than a year.

Elected prosecutors don’t normally get charged for prosecutorial misconduct, said Jerome Fishkin, a Bay Area defense attorney who prosecuted bar complaints for 11 years. Instead, the complaints are often aimed at the officeholders’ deputies, who carry out the court cases instead of the elected officials who are normally resigned to setting policy, Fishkin said.

“The more you show up in court, the more you try court cases, the more likely you are to attract complaints,” Fishkin said. “It’s difficult to make ethical lapses in the public eye if you’re only doing policy and your people are the ones carrying it out.”

Aguirre, on the other hand, was very active in the prosecution of Story and often takes a significant role in trying the office’s bigger cases.

It was the discretion of Madera County District Attorney Ernie Licalsi, the other elected attorney in recent memory to be charged by the bar, that put him in the bar’s crosshairs.

The bar found that Licalsi promised not to seek prosecution of a motorist who collided with his son once the driver agreed to pay the $500 insurance deductible on his damaged car. The episode resulted in Licalsi leveraging his prosecutorial powers to gain financially, the bar found. He settled the bar’s case in 2005 by taking a course in legal ethics and filing quarterly reports swearing that he was upholding the rules of the state bar.

He contended in a recent interview that the state bar investigator was overly aggressive in the case against him, misquoting the testimony of witnesses and leaking the case file to others. Licalsi said he thought the bar was trying to make an example of him because of his prestigious job.

“I felt that, because of my position, I was being sought out,” Licalsi said.

Despite the bar’s rebuke of Licalsi, he went on to win reelection the following year, garnering 74 percent of the vote.

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