The Morning Report
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Tuesday, March 11, 2008 | After she left the employ of the City Attorney’s Office in 2006, Amy Lepine filed a lawsuit against Mike Aguirre and the city of San Diego alleging a slew of employment law violations including wrongful termination, gender discrimination and sexual harassment.
Lepine’s complaint alleges she was bullied by Aguirre into filing a case she believed at the time had “potentially fatal problems.” Lepine signed off on a complaint against former Mayor Dick Murphy and two former city councilmen knowing that the action was politically motivated and was designed to “keep the pressure on” Aguirre’s political opponents, according to the document. Despite her concerns about the action, Lepine was ordered by Aguirre to “just do it,” the document says. She ended up filing the suit.
Several legal ethics experts said the wording of Lepine’s complaint raises questions about whether she acted appropriately by filing a complaint she thought was flawed and politically motivated. And Lepine’s opponents in the race for city attorney said the complaint raises questions about Lepine’s integrity and judgment.
Legal experts cautioned that more evidence is needed to make any conclusion about Lepine’s actions, but said that in general lawyers are discouraged from filing actions they believe are unmeritorious.
“If, at the end of the day, she concluded it had no legal merit, she shouldn’t have filed it,” said David McGowan, a professor of law at the University of San Diego. “But if she simply had some reservations, but went on to do it, that’s different.”
Lepine said she never thought the complaint she filed against Murphy and former councilmen Michael Zucchet and Ralph Inzunza, which sought to repeal their pension benefits, was without merit. The “potentially fatal problems” she alludes to in her complaint against Aguirre were procedural problems, she said. Although the lawsuit states that “it was understood that the decision to file was in large part political,” Lepine said that she only later realized the lawsuit was politically motivated.
“I just thought the remedies we were asking for didn’t fit,” Lepine said. “The idea was to file it now and sort it out later.”
Under California State Bar rules, attorneys are forbidden from taking on work that is “without probable cause and for the purpose of harassing or maliciously injuring any person.”
That’s a two-pronged test and it’s one that’s very hard to prove, said Diane Karpman, a legal ethicist who writes on ethics for the California Bar Journal. Under the State Bar rules, there’s nothing essentially wrong with bringing a case for strictly political reasons, as long as it has “probable cause” or, in other words, as long as the legal reasoning for bringing it is sound.
But figuring out whether there are sound reasons behind a legal action is not a subjective test, Karpman said. Just because one lawyer believes a case is going nowhere does not mean that case does not have probable cause, she said. Often, a junior lawyer filing a motion might not fully understand the reasoning behind the case and may think it has no merit. But other attorneys in the organization might know better.
“Often, subordinates don’t have the whole picture,” Karpman said. “So, frequently, a supervising lawyer can say ‘just get it done.’”
The ethical question, therefore, is not whether Lepine thought the complaint she filed for Aguirre had probable cause, but whether it had probable cause in an objective sense. The case was eventually dismissed and the city was ordered to pay the former politicians’ legal fees.
In the grey world of legal ethics, therefore, the fact that Lepine signed off on a complaint she disagreed with does not mean on its face that she committed any sort of ethical breach.
But in the colorful world of politics, such distinctions are not as stark.
Two of Lepine’s opponents in the race said her complaint against Aguirre raises serious questions about her integrity. Council President Scott Peters, who is also running for city attorney, said Lepine should never have filed a complaint she didn’t fully agree with, and said the decision detailed in Lepine’s complaint against Aguirre shows Lepine has poor judgment.
“It’s a huge problem,” Peters said.
In 2004, Aguirre won election on the premise that he would be a watchdog against corruption in City Hall. Lepine has made it clear over the past few weeks that she supports Aguirre’s interpretation of the role of the city attorney — one that has drawn plenty of controversy itself. She said she believes the city attorney is a representative of the people of San Diego and should not be beholden to the City Council.
Lee Burdick, who dropped out of the city attorney’s race last month and has endorsed Peters, said Lepine’s complaint against Aguirre jars with her portrayal of herself as an independent watchdog for the city.
“It’s hard to imagine how Amy Lepine as the city attorney could stand up to either the City Council or the strong mayor trying to influence her opinions and advice as a city attorney if she can’t even stand up to Aguirre,” Burdick said.
Peters, Lepine and Burdick are all Democrats, as is Aguirre.
John Witt, who served as San Diego’s city attorney for 27 years, said there’s a notable difference between an attorney disagreeing with their boss and an attorney disagreeing with their client. The city of San Diego is the city attorney’s client, Witt said, and just because Lepine signed off on litigation she disagreed with while she was working for Aguirre doesn’t mean she won’t stand up to her clients if they ask her to do something she’s not comfortable with.
Glen Sparrow, a professor emeritus of San Diego State University’s School of Public Affairs said Lepine was just being a good employee when she did what she was told to do by her superior. And Sparrow said voters are very unlikely to pay attention to Lepine’s legal spats with Aguirre in any case.
“Before this came up, 99 percent of the voters didn’t know who Amy Lepine was anyway. Her opponents should have just kept their mouths shut,” Sparrow said.