Metropolitan News-Enterprise


Monday, January 28, 2002


Page 1


Court of Appeal Rules:

Conflict Does Not Require City to Pay Separate Counsel for Employee


By KENNETH OFGANG, Staff Writer/Appellate Courts


A public employee named as defendant in a job-related lawsuit is entitled to a defense at public expense, but not to separate and independent counsel even if there is a conflict of interest between employer’s counsel and employee, the Fourth District Court of Appeal has ruled.

Div. Two Thursday rejected an appeal in which four Huntington Beach officers and their independent counsel claim that the city should pay the lawyers’ bills for representing the officers in two civil rights cases.

Two of the officers, Daryk Rowland and Mike Willett, were among the defendants in Nammari v. City of Huntington Beach, filed in Orange Superior Court in September 1996. Rowland, Tim Chambers, and James McLean were defendants in Ice v. City of Huntington Beach, filed in the U.S. District Court for the Central District of California the same month.

The city hired Los Angeles attorney Thomas Feeley to represent all defendants in Nammari and the firm of Beam, Brobeck, and West to represent all defendants in Ice. In April 1997, however, the four officers filed substitutions designating the Petersen Law Firm—a Tustin-based firm that represents a number of peace officer groups in Orange and Los Angeles counties—as their counsel in the two cases.

Unpaid Fees

The city refused to pay the firm’s fees, and the officers and the law firm sued. Orange Superior Court Judge Michael Brenner ruled for the city, rejecting the officers’ contentions that actual and/or potential conflicts of interest entitled them to be represented by separate counsel at city expense.

Justice Art McKinster, writing for the Court of Appeal, agreed with the trial judge. A public employee, the justice said, generally must waive any conflicts of interest in order to gain the benefit of legislation requiring the employer to provide a defense.

When there is an actual conflict of interest, McKinster said, Government Code Sec. 995.2(a)(3) excuses the employer from providing any defense.. “The public entity’s right to refuse to provide any defense at all necessarily includes the right to refuse to provide a separate defense,” the jurist wrote.

Statutory Liability

While the statute does require the public entity to defend the employee when a conflict of interest is merely potential, the justice went on to say, there is nothing to require that a separate defense be furnished. Since the liability of public entities is entirely statutory, the jurist reasoned, any requirement that the entity pay the fees of lawyers retained independently by individual employees would have to be expressly mandated by the Legislature.

McKinster rejected the argument that a duty to provide a separate defense may be inferred from the Rules of Professional Conduct.

“If there is a potential conflict of interest that the public entity is willing to waive, the employee is put to a choice,” the justice explained. “The employee may join the public entity in waiving the potential conflict and accept the public entity’s offer of a joint defense.  Or the employee may refuse to waive the potential conflict of interest, decline the proffered joint representation, and retain separate representation at the employee’s own expense.”

Ethics rules impose duties on lawyers, not governments, he added.

A public entity might be obligated to pay for separate counsel, he suggested in a footnote, if it refused to waive a conflict. But in this case, he explained, the city made it clear all along that it would waive any conflict rather than pay two sets of lawyers.

A different result might also obtain, he said, if the city interfered with the lawyer’s performance of ethical obligations to the employee-clients or if the clients complained to the city about the ethical lapses and the city failed to act.

The case is City of Huntington Beach v. Petersen Law Firm, 02 S.O.S. 405.


Copyright 2002, Metropolitan News Company