“Agencies are barred from using a partner in a law firm as an advocate in a contested matter and another partner from the same law firm as an advisor to the decision maker in the same matter,” the California Court of Appeal has ruled in an arbitration case involving the termination of a police officer. Sabey v. City of Pomona, No. B239916 (Cal. Ct App. Apr. 16, 2013).
Glenn Sabey was a City of Pomona police officer who was terminated for misconduct. He appealed his termination and an administrative hearing was held before an advisory arbitrator. A partner from a private law firm represented the City at the hearing. The arbitrator found Sabey had engaged in the misconduct alleged, but determined that termination is not appropriate, recommending reinstatement without back pay or benefits instead. The City Council, which can accept, modify, or reject the arbitrator’s recommendation, reviewed the matter with a different partner from the same private law firm acting as an advisor. The attorneys had erected, and respected, an ethical wall; they did not communicate with each other about the matter and they were prevented from accessing each other’s files. The City Council rejected the arbitrator’s recommendation for reinstatement. Sabey then objected to the two attorneys’ participation. The trial court ruled against Sabey and he appealed.
Under Howitt v. Superior Court, 3 Cal.App.4th 1575 (1992), attorneys from the same public law office (e.g., a county counsel’s office) can advocate for one side of an administrative dispute and advise the decision maker if the two attorneys are ethically screened from each other.
Noting the Howitt rule has been applied only to government lawyers, the California Court of Appeal determined the Howitt rule does not apply to partners from a private law firm who are fulfilling the advocacy and advisory roles of government lawyers on a particular case. The Court explained that partners in a private law firm owe each other the fiduciary duties of loyalty and care. Consequently, in this case, when one of them advised the City Council, the Court explained, he was in the position of reviewing the result achieved by his fiduciary. Even though there was no evidence of bias, the Court said the danger is too great that one attorney would support his law partner (even unwittingly) that the situation “creates an appearance of unfairness and bias.” Therefore, the Court decided, an ethical wall is not sufficient to allow attorneys from the same law firm to act as advocate and advisor in the same matter. Accordingly, the Court reversed the judgment and returned the case to the trial court to remand the matter to the City Council.
This decision establishes a new rule that both public agencies and firms providing legal services to those agencies must consider and follow: attorneys from the same firm cannot fill the roles of advisor and advocate in the same matter; the past accepted use of an “ethical wall” is not sufficient to prevent actual or the appearance of unfairness and bias.