Tuesday, May 12, 2009
Page 7
PERSPECTIVES (Column)
Jack Weiss’s Campaign Approach Is Affront to the Legal Profession
By ROGER M. GRACE
Attorneys—liberal, conservative, whatever—have a particular reason, a sound one, to support Carmen Trutanich for Los Angeles city attorney over his rival in the May 19 run-off, City Councilman Jack Weiss.
In a day when the bar is struggling to uplift its public image, Weiss is slandering, by implication, masses of lawyers by equating them with the most repugnant of their clients. He’s doing that by lambasting one of them—Trutanich—based on persons and concerns Trutanich or his firm has represented. The underlying proposition is that a lawyer is no better than those for whom he or she has served as an advocate.
The traditional notion in our society is that all—even the lowliest, the most wicked—are deserving of competent legal representation. Yet Weiss would discourage representation of unpopular parties by creating the precedent of a lawyer, in a highly publicized contest, being denigrated based on whom his clients have been.
Trutanich’s law partner represents the National Rifle Assn. and Trutanich personally was attorney for a man who illegally possessed a cache of firearms—and on that basis, Weiss seeks to portray Trutanich as a foe of gun control and the ally of gun-toting extremists. This guilt-by-association ploy reflects the desperate manufacturing of an issue by a man committed to political self-advancement at the sacrifice of fair play and ethics.
Under the reasoning Weiss is putting forth, Los Angeles County Public Defender Michael Judge must be viewed as the chief enemy of our local citizenry, having represented more miscreants than other single individual in this vicinage in the last several years. And what of someone like Gerald Chaleff, a former president of the Los Angeles County Bar Assn. and former president of the Police Commission? Surely he’s unfit to be serving as an administrator in the Los Angeles Police Department—under Weissian logic—because he represented, and thus was in league with, the Alphabet Bomber, the Night Stalker, and other notorious slayers.
What such falderal ignores is that a lawyer is the client’s champion, but not the client’s alter ego. It is the lawyer’s job to put forth the client’s cause in the most favorable possible light, short of lying, short of seeking to mislead the court, short of knowingly putting on perjured testimony. That’s our adversarial system.
I first encountered Trutanich in connection with his representation two years ago of Los Angeles Superior Court Judge William G. Willett. The jurist had drawn heat from city authorities in Torrance because he was maintaining a fence around his home which exceeded the legal height limit and was partially on a city right-of-way.
Trutanich and an associate skillfully played the roles of advocates in presenting Willett’s position to me—with the defenses they articulated being quoted here. By virtue of those quotes, any damage to Willett from the matter being revealed was minimized. (By the time I got to the third column on the subject, I realized that Willett was in the wrong.)
Far more significantly, Trutanich, while a writ petition was pending before a dilatory Orange Superior Court judge who had not yet coughed up a ruling, succeeded in striking a deal with the city, exacting concessions to which his client was not entitled. In other words, he did what a lawyer is supposed to do: advance the interests of the client.
Is Trutanich, himself, an arrogant scofflaw because his client is one? Of course not. He’s a skilled advocate, capable of vindicating the city’s interests in courts and other forums.
While his client was dubbed here a “cheeky scoundrel,” I’d suggest that cheeky scoundrels—as much as union terrorists in the early part of the last century and seditionists in the middle of that century—and slayers and rapists and arsonists, have Sixth Amendment rights. For that matter, so does the NRA.
Here’s the approach Weiss took at the outset of the campaign:
•On Dec. 8, his forces put out a press release making note of a threat by Trutanich’s law firm to sue the city on behalf of the NRA. Weiss is quoted as proclaiming:
“This is an outrageous conflict of interest. Mr. Trutanich needs to fire the NRA as a client or quit the race for City Attorney. It is a bedrock obligation of a lawyer—he cannot serve two masters. He is either representing the people of Los Angeles or the NRA.”
That’s claptrap. Trutanich is, at present, not “representing the people of Los Angeles”; he’s a private attorney, representing private clients. Should he be elected city attorney—and I hope that happens—he will no longer represent private clients; his one “master” will be the city.
•A Dec. 18 Weiss press release is headed, “Carmen ‘Nuch’ Trutanich claims that he is not a member of the National Rifle Association—but his supporters maintain that he is.” And who are these “supporters” (note the plural)? The release quotes one person, who posted an unsigned blog on the NRA website, as decrying “political attacks on Carmen A. Trutanich, who is a candidate for City Attny, who is also a member of the NRA.” The release implies that Trutanich is lying based on a posting by one anonymous person. What level of responsibility does this reflect?
Following the primary, Weiss adopted as his theme the insistence that Trutanich, if elected as city attorney, would have to recuse himself in cases involving his past clients, so he’s obliged to reveal his client list at once. At a debate on April 4, he bellowed at Trutanich:
“You are a walking, talking conflict of interest. You need to tell the people of this city who the conflicts are and how much it’s going to cost us. Please do us a favor now, rather than on July 1, of ’fessing up on who your clients are.”
At an April 15 debate, he hammered at the theme again, declaring:
“At the last debate that we had over a week-and-a-half ago, I called on Mr. Trutanich to do something very simple and very non-controversial which is to disclose his clients to the people of this city so they have an opportunity to judge him on the basis of full and fair information….And I call upon him tonight, Mr. Trutanich, disclose your clients.”
Trutanich responded by citing Business & Professions Code §6068 which provides, in relevant part, that it is a duty of an attorney “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”
That is an answer, but an answer only in part. That provision absolutely bars an attorney (except to prevent a crime) from identifying a client the representation of whom is not a matter of public record, and where the client does not wish his or her name to be stated. An example Trutanich supplied is mentioned in Steve Lopez’s column Sunday in the Times:
“Let’s say your wife comes to me and says, ‘I want to divorce my husband.’ ”
Trutanich told him, Lopez recounts, that if he were to call and make inquiry as to the consultation, no acknowledgement would be supplied by Trutanich of his ever having met with the wife.
The Court of Appeal in 2000 dealt with an effort to obtain an attorney’s client list in a judgment debtor examination. The court noted the general rule that the attorney-client privilege is unavailable to keep secret the identity of clients, and found that exceptions that have been drawn to that rule were inapplicable. However, the opinion says, “we conclude that the identity of an attorney’s clients is sensitive personal information that implicates the clients’ rights of privacy,” guaranteed by Art. I, §1 of the state Constitution.
Writing for the Fourth District’s Div. One, Justice James A. McIntyre says in Hooser v. Superior Court, 84 Cal.App.4th 997:
“[W]e conclude that the identity of an attorney’s clients is sensitive personal information that implicates the clients’ rights of privacy….Clients routinely exercise their right to consult with counsel, seeking to obtain advice on a host of matters that they reasonably expect to remain private.”
McIntyre uses the example Trutanich did in talking with Lopez: “A spouse who consults a divorce attorney may not want his or her spouse or other family members to know that he or she is considering divorce.” The opinion continues:
“Similarly, an employee who is concerned about conduct in his workplace, an entrepreneur planning a new business endeavor, an individual with questions about the criminal or tax consequences of his or her acts or a family member who desires to rewrite a will may also consult an attorney with the expectation that the consultation itself, as well as the matters discussed therein, will remain confidential until such time as the consultation is disclosed to third parties, through the filing of a lawsuit, the open representation of the client in dealing with third parties or in some other manner.”
There, in a discovery context, the court had to weigh the privacy interest against competing concerns. With respect to voluntary disclosure asked of a lawyer as to clients who want privacy, the lawyer has no concern that can outweigh the interest of the client other than that set forth in §6068: to prevent a criminal act.
Once the identity of the client becomes known, under Hooser, the privacy interest will “evaporate.” So, too, the obligation under §6068 of protecting the client’s “secrets” cannot pertain where the identity is not a secret. Yet, even where the identity of a client is a matter of public record, the lawyer retains an obligation not to accommodate requests for identification of those clients who want to shun a light being cast on them. Why? It’s a matter of loyalty…of not turning on a client. Since 1893, the courts have recited that “[t]he relation between attorney and client is a fiduciary relation of the very highest character, and binds the attorney to most conscientious fidelity,-uberrima fides [perfect good faith].” In 1906, it was observed, as courts still recite, that a lawyer is obliged to “protect his clients in every possible way.”
In the context of the campaign Weiss is waging, compliance by Trutanich with the request that he produce his client list would be unconscionable.
Weiss has caused untold humiliation to one Trutanich client: Wayne William Wright, described by the city lawmaker as “a one-man arsenal.” Police, in raiding his home, uncovered 459 firearms. (In exchange for a guilty plea, Truntanich suceeded in getting felony charges reduced to a misdemeanor charge of unlawful possession of an assault weapon.) Weiss has held Wright out as the symbol of Trutanich’s supposed tie to, in the Weiss’s words, “the gun business, gun dealers, illegal gun criminals.”
There is a big reason for Trutanich not to disclose his clients in this instance: it would set them up for possible public embarrassment by Weiss.
As it happens, many of Trutanich’s clients have already been identified. If you go to the Trutanich•Michel website, you’ll find that names of 158 representative clients are listed. They include the NRA and other gun clubs, the Congress of Racial Equality, KMart Corporation, Catalina Classic Cruises, Inc., Alioto Fish Market, the City of Stockton, Fresno County District Attorney Edward Hunt, the Huntington Beach Police Officers’ Assn., the San Francisco Veteran Police Officers’ Association, three individual police officers, an actor, and a musician.
As to other clients: Lopez says they’re hard to search for unless you already know the name of a plaintiff or defendant. Not so. Members of LACBA can go to the members-only portion of the association’s website and search the Los Angeles Superior Court register by the name of an attorney or law firm. You can find, for example, that in 1999-2000, Trutanich’s firm represented Shirley and Vincent Montefusco in an action against the Lincoln Termite Company Inc.
Now, just how the public would be served if Trutanich publicly released a list with past clients like the Montefuscos, I don’t know.
There are various other means of ascertaining who an attorney’s clients have been. For example, a check of “Adverse Filings” on WestLaw shows that Trutanich’s firm represented one Jasmine Netzamadeh in a civil rights case in Orange Superior Court in 2001. A search of appellate court cases on Westlaw reveals that Trutanich in 1998 gained affirmance of a new-trial order for his client, an investigator for the DA’s office, who had been arrested in Santa Monica by mistake and brought suit for false imprisonment. In searching electronic newspaper archives, a story pops up from the April 28, 2006 edition of the Orange County Register relating that Trutanich “represented USC players Eric Wright and Hershel Dennis in recent sexual assault investigations that led to no charges being filed.”
Apparently, Weiss was not stymied in seeking information. He learned about Wright and he learned about alleged polluters whom he’s derided Trutanich for representing.
It is possible to uncover the names of the vast number of persons Trutanich has had as clients…but some names are bound to be missed, and Trutanich, to his credit, is not going to point them out. Perhaps it would have been expedient for him to have done so, putting the issue to rest, but it would have been unethical.
It is true that in the 2006 case of City and County of San Francisco v. Cobra Solutions, Inc., 38 Cal.4th 839, the California Supreme Court affirmed the recusal of the entire Office of San Francisco City Attorney because the city attorney, himself, had been counsel to a company which the city was now suing for fraud and other wrongs.
Weiss implies that the entire Los Angeles City Attorney’s Office would have to be disqualified in any case involving a former client of Trutanich, with this entailing potentially huge expenditures to secure outside counsel. Nonsense. In Cobra, the city attorney had represented the company in connection with securing a city contract. The trial court found that the city attorney had “obtained confidential information” as to “matters related substantially to the issues raised against defendants in this litigation.”
Recusal was, of course, mandatory unless the city attorney could simply be cut off, or “screened,” from the case. The high court held that wasn’t feasible.
If he wins, it can be expected that Trutanich will recuse the office when required to do so. The circumstance might arise on rare occasion, perhaps never.
Copyright 2009, Metropolitan News Company