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LOS ANGELES Tuesday, December 1st 2015 9:17

Does CA Trutanich Get to Take His Confidential Info with Him to the DA’s Office?

THE CITY - It is rumored that the present City Attorney, Carmen Trutanich, who fancies himself “Los Angeles’ Chief Prosecutor,” was perturbed by the prior CityWatch article which argued that the Los Angeles City Attorney, even a competent and honest one, should not be allowed to become the Los Angeles County District Attorney.   This legal issue is somewhat thorny in this particular case since the present City Attorney threatened to arrest Councilmember Jan Perry.  Thus, councilmembers who have offended the present City Attorney have a reasonable basis to fear that if Carmen Trutanich becomes the District Attorney that he will arrest and prosecute them.  Perhaps the most vital attorney duty is to keep his clients’ confidential information completely and totally secret and never, ever disclose that information, even if it might advance his own political career.

As shown below, there is no way for the former City Attorney who becomes the District Attorney not to know tons of ultra secret information.  Let’s assume that Councilmember Perry (foolishly) confided to Trutanich that she did engage in criminal conduct.  If Trutanich becomes District Attorney and launches a criminal investigation of Councilmember Perry, his subsequent disqualification from the case would be worthless since he would have already used his confidentially obtained information to start the criminal proceedings.

The courts have determined that rules for disqualification for heads of departments are more stringent than for lower level attorneys.  A  newbie  city attorney who only prosecuted small shoplifting cases and who later was hired by the District Attorney would not have confidential information about the City, and if she had some bit of information, it would be easy to screen her off from a particular case.  

The City Attorney, however, has access to all the files in the City Attorney’s Office and the District Attorney will control everything that occurs in that office.

"Individuals who head a government law office occupy a unique position because they are ultimately responsible for making policy decisions that determine how the agency's resources and efforts will be used.  Moreover, the attorneys who serve directly under them cannot be entirely insulated from those policy decisions, nor can they be freed from real or perceived concerns as to what their boss wants.  The  power to review, hire, and fire is a  potent one. Thus, a former client may legitimately question whether a government law office, now headed by the client's former counsel, has the unfair advantage of knowing the former client's confidential information when it litigates against the client in a matter substantially related to the attorney's prior representation of that client."  Christian and City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 853-854

Generally, when a person has headed two law firms, the second law firm is disqualified from any case involving the clients of the former law firm.  That solution is inapposite for Los Angeles.  The harm can be caused long before anyone sees the conflict.  Private law firms represent different private persons and at times they are criminally prosecuted.  The City Attorney presents an existing entity and has given advice to perhaps hundreds if not thousands of personnel.  

In essence, City Attorney Trutanich has been part of The City.  A City Attorney may be involved before there is any wrongdoing and his advice may actually institute the bad behavior, as we have seen with the recent dispute over Trutanich’s advising the Fire Chief Cummings to conceal data under the guise of HIPPA and with the mayor’s subsequently ordering Chief Cummings to divulge the information.  Before that in 2009 and 2010, Trutanich interfered with the sharing of fire department information with the Independent Assessor.  There are serious questions about Trutanich’s ACE program or his position on the sidewalk repairs.

Upon becoming District Attorney, Trutanich could use his confidential knowledge about Councilmember Eric Garcetti’s involvement with the CRA Cesspool at 1601 N. Vine with $1.4 M appraisal swindle.  He could form a Special Economic Crimes unit to investigate any situation where the now defunct CRA overpaid for property.  Any attorney with confidential knowledge can easily formulate a special investigation that he knows will stumble upon the confidential data.

At that point, disqualifying the entire DA’s office would not suffice.  The harm would have been done.

On the other hand, with the hundreds of millions of tax dollar losses at the defunct CRA, the public has the right to expect some criminal investigations from the District Attorney. Surely, the public has a stake that the District Attorney is not compromised in protecting the public from corruption.  A former City Attorney could use his special knowledge of where the bodies are buried to make certain that the DA’s investigators never dig in the right place.  There is a question whether he would owe a duty to his former clients to cover up confidential information of criminal behavior – that’s why there is a conflict.  Which will he chose?

What we have at stake is not only the threat to the City Attorney’s former clients, but also an equal threat to the public’s trust in the District Attorney’s Office.  

Back in 1978, the courts took these matters of public perception seriously – now, well – not so much.  Nonetheless, let’s delve into the lore of yesteryear and see how things used to operate.

When yet-to-be world famous, Johnnie Cochran was appointed to the #3 position in the District Attorney’s Office in 1977, the issue arose whether the entire District Attorney’s Office should be recused from criminal cases involving the Cochran criminal defense law firm.

Back then in ancient history, the California courts found that the entire District Attorney’s Office was recused from involvement in any case where Mr. Cochran’s former law firm represented a current defendant.  The court explained its reasoning.

In any event the district attorney's office would always be "on the spot" in the public's mind as regards its handling of any of the Cochran cases. The problem is a "Caesar's wife" problem. Not only must evil itself be avoided but any significant appearance thereof must likewise be avoided. The presence of a former leading criminal defense attorney, near the top of a public prosecutor's office, suggests to those of a paranoid and conspiratorial turn of mind the presence of a fox in the hen house. We do not think that such abnormal suspicion has any reasonable basis in fact whatsoever, but since a public prosecutor must "perform his functions with the highest degree of integrity and impartiality, and with the appearance thereof" (cite), for appearance's sake, the basis for this suspicion must be eliminated.  Younger v. Superior Court (1978) 77 Cal.App.3d 892, 898

The Court also noted that at that time, Johnnie Cochran and the rest of the District Attorney’s Office had the integrity to support the recusal motion rather than try to hang onto the cases.  It also should be noted that the Courts were not speaking about defendants who had been Mr. Cochran’s clients before he went to the DA’s Office and who were still being prosecuted.  It was the perception that due to his close ties to The Law Firm, he might be accused of throwing new cases to benefit his law firm.  

Back in 1978, the courts worried about such quaint notions as the public’s perception of the judiciary.  But we live in a new era which may explain why Trutanich saw no problem plunging the city into this legal quagmire.  His former clients must live in fear that he will abuse his confidential information to persecute them while the public has to fear that Trutanich will be more concerned with covering up his own prior ineptitude and transgressions while City Attorney than to vigorously protect the public from corruption.

To paraphrase the Younger Court, “The presence of a former City Attorney at the very top of the District Attorney’s Office suggests to those of a paranoid and conspiratorial turn of mind the presence of a fox in the hen house.”  In other words, the public would fear that no criminal investigations into City Hall corruption would take place as the former City Attorney was motivated to protect himself and his former clients.

So, who is to act?  We know that the State Bar doesn’t care as it’s too busy looking the other way.  Isn’t there a single judicial official in Los Angeles with integrity to speak up? (It’s a rhetorical question. If LA weren’t a moral basket case, Trutanich wouldn’t even be running for DA.)

(Richard Lee Abrams is an attorney living in Los Angeles. He is also an occasional contributor to CityWatch. He can be reached at: Rickleeabrams@Gmail.com )

Tags: Carmen Trutanich, City Attorney, District Attorney, election, running for DA

Vol 10 Issue 29
Pub: Apr 10, 2012