Monday, December 14, 2009
Page 7
PERSPECTIVES (Column)
Reiner Brushes Off State Bar Public Reproval, Terms It a Differing Viewpoint
By ROGER M. GRACE
110th in a Series
Ira K. Reiner on Oct. 17, 1986, received a public reproval from the State Bar, which announced its action four days in advance of taking it. The district attorney pooh-poohed the discipline, dismissing it as a mere difference of opinion between him and the regulatory body.
“They have their point of view, I have my point of view” was the DA’s flip response.
The Los Angeles Times, the Daily News and the Herald-Examiner were in agreement: Reiner had been a bad boy, and should own up to it.
The irony is that the ethical breaches Reiner now refused to recognize were expressly admitted by him in a stipulation he executed on Aug. 8, 1986. In that document, he acknowledged not only incontestable facts, but also conclusions that his conduct ran afoul of specified canons.
In that stipulation, Reiner agreed that as Los Angeles city attorney, he represented officers in the Los Angeles Police Department’s Public Disorder Intelligence Division (“PDID”) in a lawsuit against them; that on Jan. 17, 1983, he told members of the City Council’s Police, Fire and Safety Committee, meeting in a public session, that PDID funding should be cut off; and that he commented that many who were engaged in PDID intelligence work “are so utterly convinced that what they are doing is right, that they in absolute good faith feel that it is completely appropriate to abuse every single moral or ethical precept that is involved.”
(The lawsuit alleged spying activities in violation of rights of privacy.)
Reiner joined in the recital that some of the officers moved for the disqualification of him and his office as their counsel “on the ground of conflict of interest due to Respondent’s aforementioned remarks and attendant publicity”; that the motion was granted; and that “[a]s a result of the City Attorney’s disqualification, the City of Los Angeles was required to find substitute counsel to represent the officers and it incurred legal expenses in excess of two-million dollars.”
Most meaningful is that Reiner admitted fault by stipulating to the following:
“By the aforesaid conduct, Respondent violated Rule 5-102(B) of the Rules of Professional Conduct.”
That stricture (in effect through May 26, 1989) provided:
“A member of the State Bar shall not represent conflicting interests, except with the written consent of all parties concerned.”
The DA also conceded that on Jan. 25, 1984—while he was still city attorney—one of his deputies met with City Planning Director Calvin Hamilton, at Hamilton’s request, for “the stated purpose of discussing a possible conflict of interest”; that “Mr. Hamilton answered various questions…regarding TRAICE, a tourism and trade firm in which Mr. Hamilton and his wife had a substantial interest, as well as TRAICE’s finances and Mr. Hamilton’s involvement therein”; and that “Mr. Hamilton alleges that he believed that the City Attorney’s Office represented him in his official capacity as City Planning Director, and that [the deputy] said nothing before or during the meeting to indicate that the normal benefits of an attorney-client relationship were not present.”
(Hamilton was being asked questions by the Los Angeles Times and wanted legal advice as to whether he was doing anything wrong.)
Reiner concurred in the recitation that he then “authorized an investigation into Mr. Hamilton’s involvement with TRAICE”; that he sent a memo on Feb. 1 to Mayor Tom Bradley and other city officials concerning his preliminary investigation and, the next day, tipped off the California Fair Political Practices Commission; that he “informed the news media that his office was investigating Mr. Hamilton for possible criminal violations regarding his involvement with TRAICE”; and that on April 19, 1984, Reiner announced at a press conference that he would prosecute Hamilton on a misdemeanor charge.
(A Feb. 2 Times report says that Reiner had declared in a report that a “preliminary investigation” by his office indicated that allegations against Hamilton could spawn “both criminal prosecution and removal from office.”)
The stipulation tells of the involvement by Ronald M. George. Now the state’s chief justice, he was then supervising judge of the Los Angeles Superior Court’s Criminal Department. On May 8, 1984, the stipulation recites, George “filed his Memorandum of Opinion which held inter alia that an attorney-client relationship existed between the City Attorney’s Office and Mr. Hamilton in Mr. Hamilton’s conflict-of-interest matter and that the District Attorney was precluded from reviewing materials obtained from the City Attorney and from the Mayor to the extent of the City Attorney’s participation therein.”
Again, Reiner admitted a breach of ethics. The stipulation sets forth:
“By the aforesaid conduct, Respondent violated Rules 4-101 and 5-102(B) of the Rules of Professional Conduct.”
Rule 4-101, then in effect, provided:
“A member of the State Bar shall not accept employment adverse to a client or former client, without the informed and written consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client.”
Listed as a factor in mitigation was that “Respondent has been candid and cooperative with the State Bar.” Had he not acknowledged the commission of ethical transgressions, it’s possible the State Bar would have sought and obtained more severe discipline. After all, the violations were plain, and the consequences substantial.
Reiner secured the benefit of what was akin to a “plea bargaining”—discipline of a lesser variety—while later seeking to avoid its sting by publicly professing innocence.
Surely the DA did not forewarn the State Bar in August, when he acknowledged the breaches, that he would disavow any misbehavior after the discipline proposed in the stipulation was approved by the Review Department of the State Bar Court and publicly announced.
His course of conduct after signing the stipulation was sly and duplicitous. His course of conduct throughout his career in public office, in fact, was marked by those sorry attributes.
The Daily News on Oct. 15 became the first of the three major dailies to comment, and was the gentlest on Reiner.
“Los Angeles County District Attorney Ira Reiner is a man who holds strong opinions, and there is nothing wrong with that,” the editorial starts off. “Unfortunately, Reiner still doesn’t seem to understand that there are times when he should, as a responsible public official, keep some of those opinions to himself.”
The editorial goes on to say:
“Reiner’s 1983 outburst in the police spying case forced the City Council to hire private counsel, rather than use the city attorney’s office, to represent police officers named as defendants in the suit.
“That cost the city $1.8 million in legal fees. Meanwhile, a judge said the information given by Hamilton to the City Attorney’s Office could not be used against Hamilton in a grand jury investigation. The judge also denounced Reiner’s actions in the Hamilton case.
“The district attorney signed a letter accepting the bar’s rebuke, but then defended his actions in an interview Monday. ‘The State Bar,’ he said, ‘does not recognize that a public lawyer has an obligation to the public. It is the bar’s view that I should have concealed the wrongdoing … On that point we will have to agree to disagree.’
“The Hamilton case did raise a difficult professional problem due to the city attorney’s dual role as a prosecutor as well as the legal adviser for municipal officials. But the police spying matter was clearcut. Reiner’s obligation as a public lawyer was to serve as an advocate for the police, rather than pass a public political judgment on their actions—and ultimately pass on a hefty bill for legal services to the taxpayers.
The Times, the following day, was a bit sterner, saying:
“The State Bar’s decision to reproach Los Angeles County Dist. Atty. Ira Reiner for actions he took while Los Angeles’ city attorney is appropriate. Reiner’s refusal to take his medicine shows why he got in trouble in the first place.”
The Times repeats the line he used in interviews that “we’ll have to agree to disagree,” and comments: “That flippant reply is simply not acceptable.” The editorial continues:
“Once again, Reiner is trying to glide past criticism of his grandstanding on public issues with a disingenuous aplomb that suggests he can’t figure out why everybody is so upset. Reiner would do more for his political, and legal, reputation by showing remorse on this occasion rather than bravado. At least then the public could be reassured that our district attorney will think twice before taking such ill-advised actions again.”
The phrase “we’ll have to agree to disagree” struck me as being of a smart-alec nature when Reiner used it in 1986, and my reaction was the same when Court of Appeal Justice Frank Jackson of this district’s Div. Seven employed it recently at an oral argument.
On Oct. 17, the Herald-Examiner took up the matter. Its editorial says:
“Few elected officials have to confront as many double binds as the Los Angeles city attorney. He gives counsel to city employees, but as the public’s advocate he sometimes has to prosecute those same people. District Attorney Ira Reiner, who will be disciplined by the State Bar for his botched handling of two such predicaments when he was the city attorney, also has stumbled in his reaction to that reproval.
“It’s clear Reiner deserves the State Bar’s evenhanded punishment.”
After reciting the facts, the editorial observes:
“It’s easy to understand how a city attorney might find himself entrenched in these situations. What doesn’t make sense is why Reiner couldn’t find a way out. For instance, in the case involving the police, the former city attorney had no business climbing onto his soapbox to rail against a client. In the Hamilton scenario, Reiner should have told his planning director that the traditional, protective attorney-client relationship may not have been applicable. And Reiner could have refused to pursue the case, turning it entirely over to the district attorney’s office.
“As a result of those errors, Los Angeles had to payout some $2 million in legal fees in the police case and crucial evidence in the Hamilton case could not be used in a subsequent investigation. To top it all off, Reiner now is refusing to show any remorse for the errors.
“Reiner should admit his bad judgment.”
The Herald-Examiner’s take on what Reiner should have done in the Hamilton case was in sync with George’s view, expressed in his May 8, 1984 opinion (precipitated by the Grand Jury’s request for advice). The opinion says:
“Because the City of Los Angeles unlike many other California municipalities does not provide for the handling of its criminal and civil functions by separate offices of City Prosecutor and City Attorney, the options available to the City Attorney in the present situation should have been clear: (1) refrain from giving legal advice on conflict-of-interest matters to city officers under City Charter Section 28.1 (or first obtain a written waiver of the potential conflict) and be free to maintain an ethical prosecutoria1 stance toward such officers who misuse their official position or otherwise engage in criminal activity, or (2) render advice to such officers under the Charter provision but respect the attorney-client relationship which ensues by adhering scrupulously to the prohibitions in the Business and Professions Code and the Rules of Professional Conduct against taking an interest adverse to one’s client and against violating the confidences of one’s client, thereby recusing the City Attorney’s office from any direct or indirect involvement in the criminal prosecution of his client.
“It is only by electing between these two courses of action that the City Attorney can ensure adherence to the high ethical standards that are expected of its public attorneys.
“Even aside from the clear dictates of the statutes and rules which outline the duties of an attorney toward his client, it is virtually a truism that any person who consults an attorney for legal advice—whether that person be a public official seeking counsel as to the performance of his official duties or an ordinary citizen needing guidance in the conduct of his personal or business affairs—expects that the communications between himself and his attorney will remain inviolate and that his attorney will not assume an adversary position to him on the very subject matter of their discussions or divulge the person’s confidences to a prosecuting agency.”
That does seem easy to follow—and basic. After two-and-a-quarter years, Reiner either hadn’t been able to grasp what George said, or was posturing pointlessly. In an Aug. 8, 1986 letter to the State Bar—dated the same day as the stipulation he signed (and referenced by it)—he insisted:
“The City Attorney was subject to conflicting responsibilities in the Hamilton matter because the Los Angeles City Charter obligated the City Attorney to represent the City as his client and to prosecute all misdemeanor violations of state law and all violations of the Charter and ordinances of the City, while the Charter also obligated the City Attorney to advise City employees regarding possible conflicts of interest. Having been advised by Mr. Hamilton that he had engaged in conduct in violation of law, the City Attorney believed that he was obligated to the City under the Charter to investigate those violations and to have them prosecuted.”
Did he actually believe the city charter obligated him to abandon the fundamental obligation of a lawyer not to divulge client confidences? Did he truly imagine that the charter compelled him to prosecute a person based on disclosures made by that person in the course of seeking legal advice?
If he did, he was daft. If he didn’t, he was seeking to flimflam. My guess would be that it was the latter.
Copyright 2009, Metropolitan News Company