Thursday, December 20, 2018
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City Attorney Reinstated as Counsel After Violating Privilege
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday reinstated the San Diego city attorney as counsel for that city’s Police Department in an employment lawsuit after the trial judge disqualified the office for its part in the department’s violation of the plaintiff’s attorney-client privilege.
Justice William Dato of Div. One delivered the opinion granting the city’s writ petition after San Diego Superior Court Judge Katherine A. Bacal ordered the disqualification.
Bacal credited San Diego police detective Dana Hoover’s contention that questions at an internal affairs interview about a phone call with her attorney constituted a violation of the attorney-client privilege, and that questions by a deputy city attorney at an interview violated Rules of Professional Conduct, rule 2-100, which prohibits lawyers from directly communicating with represented parties without their counsel’s permission.
Dato agreed that the department had violated the privilege and that then-Deputy City Attorney Christina Milligan had violated rule 2-100, but went on to say:
“Disqualification of counsel, however—particularly the elected City Attorney—is a drastic remedy that should be ordered only where the violation of the privilege or other misconduct has a ‘substantial continuing effect on future judicial proceedings.’ ”
Underlying Cases
Hoover sued the city in 2014, saying that she was harassed and improperly transferred after reporting alleged perjury by her fellow officers.
Her attorney, Daniel M. Gilleon, later took on a separate client in a suit against the city, Eileen Sofa, who claimed her son’s sexual assault by another student at his school was covered up by the school and improperly investigated by the police department. (Sofa died earlier this year from ongoing health problems.)
“The Voice of San Diego,” a news website, obtained a police report concerning Sofa’s case; suspecting Hoover’s involvement, the Police Department questioned her about the leak. The detective admitted accessing the report, but denied providing it to anyone outside the department.
During an interview with internal affairs investigators, Hoover was represented by a police officer’s association-provided attorney. Milligan was also present as an observer.
The investigators asked the detective questions about her discussions with Gilleon regarding the report.
Objection, Deputy’s Response
When Hoover’s counsel, Rick Pinckard, raised the attorney-client privilege in response to the investigators’ questioning, Milligan engaged him in a discussion of the applicability of the detective’s involvement with the leaked report to her own employment case against the city.
Pinckard responded by noting that “that claim might in some way support or relate to the claims that are asserted in her action and any discussions that she’s had with her attorney...regarding how this incident may or may not fit into that litigation, that would be privileged.”
A transcript of the interview was filed in both the trial and appellate courts under seal. Dato’s opinion relates that Hoover ultimately shared the contents of certain conversations with Gilleon with the investigators and Milligan.
One of those communications was a group text regarding the sexual assault case, which Hoover said piqued her “professional curiosity” and prompted her to look at the report. Another communication was a private phone conversation between client and attorney.
Procedure, Substance Flouted
Dato declared:
“The trial court correctly concluded that when the two sergeants from the internal affairs division questioned Hoover over her objection about the content of her phone conversation with Gilleon, they invaded the attorney-client privilege both procedurally and substantively. Procedurally, when the attorney-client privilege is invoked, questions concerning the applicability of the privilege require a hearing by the court before the allegedly confidential communication is disclosed to the opposing party….
“Substantively as well, the City’s approach to the privilege issue is flawed.…The fact that the sexual assault case was first discussed in a group text certainly suggests that the text itself was not confidential, but it hardly follows that Hoover’s subsequent private conversation with Gilleon was not in confidence.”
Milligan’s Rule Violation
The jurist noted that, prior to starting the interview, internal affairs investigator Sergeant John Huys indicated to Hoover and Pinckard that only he and Sergeant Robert Gassman would ask questions; Milligan and an intern from the City Attorney’s Office, Huys said, were only there as observers. Nevertheless, Dato noted, “Milligan asked several questions of Hoover” without asking “permission of attorney Pinckard before asking the questions.”
He said:
“By terms of Rule 2-100, Milligan could not communicate ‘directly or indirectly’ with Hoover about anything having to do with her lawsuit against the City unless she first obtained consent from attorney Gilleon, who represented her in that lawsuit.…These questions were indisputably ‘about the subject of [Gilleon’s] representation,’ yet Gilleon’s permission was never obtained and he was never consulted. Although we appreciate that Milligan may only have been trying to expedite the interview process, her direct questioning of Hoover—rather than pausing to advise Huys and Gassman—violated Rule 2-100.”
Notwithstanding the violations, Dato explained that disqualification was not an appropriate measure. He wrote:
“We do not disqualify a lawyer from representing a client to punish the lawyer’s mistakes or even bad behavior.…The discipline of lawyers in California is a function reserved to the State Bar….Rather, disqualification of counsel is a prophylactic remedy designed to mitigate the unfair advantage a party might otherwise obtain if the lawyer were allowed to continue representing the client.”
He went on to say:
“This case presents a somewhat unique set of circumstances. Unlike some others…, here we know exactly what was and was not disclosed when the City elected to question Hoover regarding her phone call with attorney Gilleon. We have the transcript of the March 22 interview. Reviewing that transcript, there is nothing Hoover said during the interview that could ‘likely be used advantageously against’ her in her case against the City….Hoover told the investigators she gave Gilleon no information about the sexual assault case. And although she acknowledged that Gilleon provided her with some information, she could not specifically identify what that information was because she had learned so many more details from the public press, particularly the Voice of San Diego article.”
The case is City of San Diego v. Superior Court (Hoover), 2018 S.O.S. 6052.
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