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Mayor Bob Clearly Isn’t an Attorney (But he did stay at the Holiday Inn last night)

Thursday, February 21, 2013
posted by Ryan T. Darby

Lawyers sometimes encounter strange, and occasionally belligerent clients; it just comes with the territory. But Mayor Bob Filner clearly takes the cake, as we witnessed in his unhinged confrontation with City Attorney Jan Goldsmith.

Long story short: Filner revealed his demands in his hotel-tax squabble to the media; Goldsmith learned about these demands from the media, rather than Filner; so Goldsmith shared his thoughts on the legality of that demand with the media. And, Filner reacted by interrupting Goldsmith’s press conference with a temper tantrum.

Filner: “It would have been nice, Mr. Goldsmith, to have a memo. It would have been nice to have advice. I am your client. That’s privileged communication. You not only have been unprofessional but unethical in this press conference. And I resent it greatly that you’re giving your advice through the press.”

Goldsmith responded that Filner should have consulted him if he wanted his advice. Filner’s response, in a nutshell? I don’t have to tell you squat.

So, Filner wants Goldsmith to offer him advice, but Filner refuses to consult Goldsmith. In the words of Jerry McGuire: Help me help you! Even the greatest lawyers cannot assist uncooperative clients. Filner disseminates his plans to the media, so why is he surprised when Goldsmith responds to the media?

Furthermore, Filner has a poor understanding of the City Attorney’s obligations to him. Filner’s accusation that Goldsmith was disseminating “privileged communication” to the media is absurd. Not quite sure how Goldsmith could have conceivably divulged a confidential communication when—by Filner’s own admission—there was no communication between them. Quite ironic, then, that Filner took the opportunity to berate Goldsmith’s assistant with incessant rants of “Are you an attorney? Are you an attorney? Are you an attorney?” Go figure that Filner proceeded to rewrite the California Rules of Professional Conduct for attorneys during the press conference.

Filner manifests what we can only assume is a lack of confidence in his own leadership by provoking bizarre confrontations with other municipal leaders. Goldsmith is a well-respected City Attorney, but Filner has repeatedly targeted him in an apparent attempt to show everyone who’s running the show. Filner’s behavior is terribly undignified, and San Diegans deserve better.

But, hey—this is Bob’s Town; the rest of us just live here.

Ryan T. Darby practices civil law in San Diego. He loves his clients, primarily because he would never represent someone like Bob Filner.

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32 Responses to “Mayor Bob Clearly Isn’t an Attorney (But he did stay at the Holiday Inn last night)”

  1. doug porter says:

    I find it very curious that there’s no discussion about the legality of this tax-that’s-not-a-tax.
    “Hey everybody, Bob Filner’s a clown….Now move along and don’t pay attention to the funny little men with their hands in the public till…”

  2. Doug, I believe the legal discussion was the whole point of the press conference that Filner hijacked with his sideshow antics….

  3. I got a call from the press today on another matter. In passing, they asked if I knew where Mayor Filner was. Apparently he is laying low, trying to avoid the press.

    Well maybe the press he deems unfit for interviews. At any rate, a bizarre aspect to consider.

  4. Thor's Assistant Thor's Assistant says:

    Yes, this would be the “no discussion” doug mentions…
    http://sdrostra.com/?p=32766

  5. Bastinda says:

    Someone needs to tell Bob that Jan is an attorney and can do whatever he wants.

  6. Hypocrisy questioned says:

    A client (in this case, the Mayor) can legally take action without consulting his attorney. It may not be the wisest of moves, but it is legal. On the other hand, an attorney is not supposed to hold press conferences and question the legality of his client’s actions without his client’s consent. I believe this is a serious breach of ethics; if I am wrong, I would like a lawyer (a real one, not one who only plays one on Rostra) to explain why I am wrong.

    From Admin: Hypocricy previously asked that a lawyer weigh in on the Goldsmith-Filner battle. Now that a lawyer has, Hypocricy belittles him because he writes for Rostra. Ok, so we get it — you want an attorney’s opinion, but only certain ones who meet your specific criteria. Hypocrisy, you may not like Mr. Darby’s opinion, but why play in the gutter simply because you disagree with him?

  7. Thor's Assistant Thor's Assistant says:

    Oh, and yes, we will post directly on someone else’s comments if we see fit, especially when insults are being tossed around.

  8. Jan Goldsmith says:

    Hypocrisy,

    Since I’m an attorney, I’m happy to respond. Actually, its a good question.

    You are right that a client normally can take action without consulting an attorney and attorneys normally don’t announce that a proposed contract would be illegal. But, municipal lawyers have other duties, particularly in charter cities.

    Under our city charter, the city attorney must sign off on the legality of all contracts, agreement, resolutions and ordinances. Private lawyers don’t have that duty.

    Here, the mayor of my client city proposed an agreement to give the city part of the TMD funds as an inducement to get his signature on the TMD contract. Well, signing bonuses are OK for ball players, but not governments. For the reasons cited at the press conference, this arrangement would be illegal and I would not sign off on it.

    If you want the city attorney to look the other way on illegal contract proposals then ask voters to amend the charter to eliminate the city attorney’s duty to sign off as to legality. I think you will discover that the public likes this check and wishes it had been used to prevent MP1 and MP2, the pension deals in 1996 and 2002.

    I hope that answers your question and explains why our office will not hesitate to speak up.

    Jan Goldsmith

  9. D7 Voter says:

    Question — Under the new strong-mayor structure is the mayor the city attorney’s client, or is the City (as a municipal entity) the client? If the latter, then isn’t the City Attorney obligated to defend the actions of not only the Mayor but also the City Council? In this case, the actions — or at least the positions on the issue — are at odds with each other. The City Council already acted on this matter, and the Mayor has, in fact, not taken any action. So it seems to me that it is the City Attorney’s responsibility to defend the City Council’s earlier actions (unless, of course, he deems it illegal and/or provided legal counsel at that against the action). Sorry for this late night ramble, which takes us back to the days of Mike Aguirre claiming to be the “people’s attorney.” LOL.

  10. Hypocrisy questioned says:

    T.A,

    I was unaware that Mr. Darby was an attorney. I don’t believe he stated that anywhere in his post. I also don’t believe he answered my question about whether it was ethical to question the legality of a client’s actions in a press conference called without consulting the client.

    Mr. Goldsmith on the other hand, is an attorney and I appreciate his response. For the record, I supported our City Attorney in both of his elections for that position. However, I still believe what he did was unethical and frankly unworthy of someone who promised that he knew the job of City Attorney was not to be a politician. After he heard of Filner’s plan (as Mr. Goldsmith agreed, the client is not obligated to consult his attorney before proposing any action), he could have, and should have, demanded a meeting in the Mayor’s office and made his feelings known in private. That is what a lawyer would do; a politician, on the other hand, would do exactly what Mr. Goldsmith did.

  11. Thor's Assistant Thor's Assistant says:

    What is it about “Ryan T. Darby practices civil law in San Diego” that is so difficult to understand? Yes, it was there from the time the post was first up, it wasn’t added. Again, disagreement is the hallmark of Rostra, so if you don’t like his take or believe he hasn’t addressed your questions, that is perfectly acceptable. Far different than assuming someone is “playing a lawyer on Rostra,” simply because you disagree. We appreciate both Darby and Jan Goldsmith weighing in here, as well as Hypocricy. Please, however, caution with the assumptions and insults.

  12. Spin Zone says:

    What Hyp. is saying is that because he didn’t like Darby’s opinion, he dismissed reading all of it, or else he clearly would have seen the bio-line at the bottom. Very dismissive. Who’s the one playing lawyer on Rostra?

  13. Pat Flannery says:

    Jan,

    I think we all agree that you are entitled, indeed obliged, by the City Charter to opine on the legality of what a mayor may negotiate with hoteliers or with any other special interest group – when you are asked! Please remember that Mayor Filner’s four points are for the purpose of negotiation only.

    I would not want to be interrupted by my own lawyer in my own conference room while negotiating a real estate deal on behalf of a client. It is up to the other side in any negotiation to tactically throw legal spanners into negotiations, not my own lawyer, my wife, or my eldest son or daughter for that matter.

    It is time enough to bring in the lawyers when the negotiations are done so that both parties can ensure that everything negotiated is legal. Too many lawyers think they are endowed with divine insight in all matters, not just legal. I banned them from my real estate conference room until we were done. And I was never sued in 36 years!

    I watched various videos of the presser and the controversy seemed to start when you declined to answer 10News reporter Maryann Martinez’s s question, which I think went right to the heart of the matter.

    The reporter’s question was “before this news conference had you advised the mayor’s office of your legal opinion ….?” Having failed to deflect her question you answered with “I’m not going to respond”. Speaking for the first time Filner then answered for you with: “the answer is no”.

    Whatever the merits of your legal opinion regarding Filner’s four-point negotiating position, you were out of line in calling a premature press conference. Are we now back to Aguirre’s discredited use of such pressers?

    The City Attorney, whoever he/she is, should let the Mayor, whoever he/she is, do his/her executive job. Lawyers should stay out of the negotiating room until the baby is born.

  14. I gotta start writing under a pseudonym like Hypocrisy so I can claim I’m an attorney too!

    Just sayin’ . . .

  15. Mr. Goldsmith, thank you for reading and for distinguishing between the ethical duties of your office and those of private attorneys. I think most readers will find that explanation very helpful.

    Hypocrisy—everything Thor’s Assistant stated is accurate. And yes, I am an attorney, as my posting clearly states. My legal commentary dealt exclusively with Mr. Filner’s flagrantly false contention regarding confidential communications, and I believe Mr. Goldsmith responded sensibly to your broader ethical questions.

    You continue, however, using the term “unethical.” Attorneys consider this a term of art pertaining to our obligations under California’s Rules of Professional Conduct. Mr. Goldsmith has not violated any of his ethical duties, nor have you articulated a cognizable argument that he has. Instead, it seems fair to conclude that you just don’t like what he did. Would you have preferred the City Attorney provide his opinions to the Mayor in a Memorandum of Law—which is publicly accessible, anyway?

  16. A. says:

    Pretty funny… Filner is probably laying low because Voice of San Diego has everyone on alert to tweet his whereabouts and doings: http://filnereverywhere.com/

  17. La Playa Heritage says:

    The Hoteliers, downtown elite, and Republicans need the cooperation of both Mayor Filner and the public to campaign for a 2/3 public voter approval to increase our Hotel TOT for visitors by 5 percent for Tourism Marketing/Advertisement and the Convention Center Expansion.

    Without public voter approval, the Hoteliers will get zero dollars in new taxes for advertising/promotion.

    With their greed and lack of cooperation, the Hotelier will be hurting San Diego because the Convention Center Expansion will not be built, and there would be no hope of a privately financed multi-purpose NFL Chargers Stadium and Convention Center Expansion on our public waterfront.

    http://www.tinyurl.com/20110124a

    No matter, by early March 2013, the courts will have voted against the City Attorney’s Validation lawsuit, the 40-year TMD (5 years maximum) time frame, and allowing TMD funds for civic events that benefit the general public, and do not directly benefit each Hotel guest.

  18. Thor's Assistant Thor's Assistant says:

    Fyi, from the Mayor’s office…

    MAYOR BOB FILNER
    CITY OF SAN DIEGO

    Statement from the Mayor on the Tourism Marketing District’s Decision to Sue

    Last November, before I was inaugurated, I began asking for negotiations with the hoteliers on the Tourism Marketing District to secure a better deal for San Diego taxpayers.  Unfortunately, the hoteliers have steadfastly refused all attempts at negotiations.  They continue to insist that — for 40 years — they alone will decide what happens to $30 million per year of public funds.

    I offered to discuss ways to create greater transparency and accountability in the use of these public funds.  They refused to discuss it. 

    I offered to discuss, as I often did during my campaign, a better deal for the taxpayers, in which tourism pays its fair share of public safety and other costs directly linked to tourism.  They refused to discuss it. 

    I offered to discuss a better deal for San Diegans who work to clean the rooms in our local hotels, providing a living wage to help support workers’ families.  They refused to discuss it. 

    I offered to discuss ways to better protect San Diego taxpayers from having to foot the bill if the courts find, as I suspect they will, that this entire scheme is illegal.    They refused to discuss it.

    I even offered to simply implement the currently proposed agreement for a one-to-two year period, so that we could have time to discuss the concerns of San Diego taxpayers.  But again, they refused to discuss it.

    Throughout this entire process, my repeated requests for negotiation have been met with threats and scare tactics.

    Now those same hoteliers who have refused to negotiate for three months have decided to sue me in an effort to force me to sign an agreement that rips off San Diego taxpayers.  Well I wasn’t elected to fight for the interests of a small band of wealthy hoteliers – I was elected to fight for the taxpayers of San Diego.

    Tourism is a vital and important part of San Diego’s economic recovery.  We must move quickly to lawfully and effectively promote San Diego as the amazing tourist destination it is, but we must also safeguard the interests of San Diego taxpayers in the process.

    In the days ahead I will be conferring with leaders of our City Council, the Convention Center Board, the San Diego Tourism Authority, and respected business leaders to develop and implement a different approach for marketing San Diego.  Working together we will maximize our tourist economy while protecting local taxpayers.

    As Mayor I cannot and will not allow a small group of wealthy hoteliers to hold our economy hostage to their personal agenda of secrecy and greed.

    ###

  19. There are provisions in the City Charter that, in theory, give the Council authority to order the City Attorney to sue Filner for refusing to sign the deal and implement ts policies. The role and duties of city attorney is far more complex than Mr. Filner seems to believe.

    As for the legality of the MTD, I will defer to the courts for that decision.

  20. B-Daddy B-Daddy says:

    Mayor Filner is not addressing the issue that I raised previously. It defies logic to say that the tax is illegal AND to demand that the money from the tax be used for “public safety.” I could respect the mayor’s position if he wasn’t proposing negotiations. The hoteliers are closer to being correct, if the tax is legal under Proposition 26, then no other conditions can be attached. If the tax is illegal under Proposition 26, then there is no legal use of the money. Filner’s demand for negotiations is a pretext to seize money for the city for his own priorities. How very Hugo Chavez of him.

  21. Hypocrisy questioned says:

    OK, I have read all the posts including some from the past and I think I now understand the rules. Please correct me if I am wrong in any of these; I don’t want to make any further errors.

    1. It is acceptable to post anonymously, but it is even better to discount someone’s opinion because they posted anonymously.

    2. It is not acceptable to post sarcastic and “insulting” comments unless you are referring to a Democrat (ex: “How very Hugo Chavez of him when referring to Mayor Filner”)

    3. It is unethical and potentially costly to the City for a Democratic City Attorney (Aguirre) to publicly criticize the Republican Mayor of San Diego (Murphy or Sanders) but it is perfectly acceptable for a Republican City Attorney (Goldsmith) to publicly criticize the Democratic Mayor of San Diego (Filner).

    4. Tax increase enacted by a publicly elected legislative body or even by a direct vote of the people themselves are to be vehemently opposed, but a tax increase voted on by a small group of private businesses is perfectly acceptable.

    5. It is outrageous for a Democratic elected official to try to renegotiate a better deal for the taxpayers because “a deal is a deal (TMD),” but a Republican elected official who tries to redo a done deal on behalf of the taxpayers (pension) is a hero to the people.

    Please let me know if I have these rules correct and if there are any others I should know about before I comment again.

    Thank you,

    Hypocrisy Questioned (and answered)

  22. Hypocrisy, were you talkin’ to ME in that second paragraph (about anonymous posting)? I’m the one who poked fun at you for choosing that option.

    I’ve been clear about this point for some time — on this board and elsewhere — I oppose anonymous posting. I don’t do it, and I’m puzzled that you do.

    And yes, I think names should be used regardless of political persuasion — except in the rare instance where the moderator is convinced that a person is at risk if they reveal their identity (you likely wouldn’t qualify).

    But my point was this — to buttress your position, you claim to be an attorney (that is a claimed fact put into evidence — not an opinion). Why should anyone believe you? You may be, but such an assertion is — well — without foundation. Perhaps “hearsay” is a better description.

    Yes, you can give your opinions, but don’t make claims about who you are unless you are ready to reveal WHO YOU ARE. Anonymous, for you to employ “argument from authority” (argumentum ad verecundiam — gosh, I LOVE Google) while hiding behind your pseudonym is just plain hilarious.

  23. Hypocrisy questioned says:

    Richard,

    When did I claim to be an attorney?

  24. D7 Voter says:

    Hypocrisy, I think you are correct on the rules. I believe similar rules (just replace “Republican” with “Democrat” and vice versa in your list above) apply on that left leaning blog…I cannot recall the name. Frankly, I’m not even sure if it’s even around anymore.

    Some may say similar rules apply between Fox and MSNBC or Al Gore’s (now Al Jazeera-owned) tv station.

  25. Hypocrisy questioned says:

    D7,

    You are certainly correct that the postings on progressive blogs are no less hypocritical. Knowing the intellect of some of the contributors to this particular blog, I just expected more insightful discourse and less partisan cheerleading

  26. Oh damn! Hypocrisy, you are correct. I apologize. I misread a previous post. Much time and effort spent in skewering you for something you didn’t say.

    Well, in my defense, you MIGHT claim you are an attorney some day, so keep my devastating response handy if you do! And keep this handy as my lamest rationalization of all time.

    Damn.

  27. Greg Larkin says:

    Hypocrisy:

    You bring up some good points, as well as an apology out of Richard Rider!

    Yet, I remain confused about your apparent confusion over the differences between things like rules, common sense, individual opinions, and insults, which you seem to label all within the context of “rules.”

    But, I won’t address any of that at present. Maybe I won’t at all.

    I will address the obvious. Mr. Darby is an attorney. He noted he practiced civil law at the end of this post.

    That was following you requesting on another post your desire that a lawyer weigh in on the appropriateness of Jan Goldsmith holding his press conference of a couple of days ago on the hotel tax issue.

    I don’t know if Darby was responding to you. He could have simply been posting his opinion. You may disagree with his assertions. You may think his opinion didn’t address your request the way you wanted. Fine.

    But, the FACT is that he DID post his opinion and he IS an attorney. Yet, your response to him was that you believed Goldsmith’s press conference to be a breach of ethics and that you “would like a lawyer (a real one, not one who only plays one on Rostra) to explain why” you are wrong.

    Such a comment could be construed in a few ways…

    1) You didn’t read his entire post, so therefore didn’t take note that Darby is an attorney.

    2) You believed Darby to be falsifying his credentials.

    3) You didn’t like Darby’s opinion on the matter (which, again, would be your prerogative). Thus, you decided that although he is an attorney and that you had asked for one to opine, you would be dismissive of THIS attorney’s opinion and act like he isn’t really one by belittling him while asking for a “real one,” not one “who only plays one on Rostra.”

    Number 3 would best be described as, “Uhhh, would you go two out of three?,” after your original request for a lawyer to share an opinion.

    Speaking of RULES, since you brought it up, that’s no different than, “I’m now going to change my stated rules to my benefit, because I didn’t like the way it worked out for me … Yeah, I said I wanted a lawyer’s opinion, but now I want one that doesn’t write for Rostra.”

    But, you picked number 1 — you hadn’t noted Darby is an attorney. I could accept that, but no apology followed from you. Not even an, “I’m sorry my comment made it look like I thought you really aren’t an attorney…however, I still disagree with you, and you haven’t addressed my original question” … or something of that sort.

    This point is not about Rostra Rules. It’s about COMMON SENSE. Stating or implying, even in error, that someone is only pretending to have a certain background is not about opinion and it’s not simply about insults. It’s a misstatement of fact.

    It’s no different than making a comment that Jan Goldsmith isn’t really the city attorney, he’s just playing the city attorney on this blog.

    That would be a pretty dumb statement, wouldn’t it? Any regular reader on Rostra would know it to be false.

    Yet, for someone lesser known than Goldsmith, let’s just move along once we make a mistake about his credentials.

    Richard Rider apologized to you for mistakenly commenting that you said you were an attorney. Did you see that? Take a lesson.

    You owe Mr. Darby an apology, not a just a flippant “I didn’t know.”

    Then, maybe one of the other Thor’s Assistants will address your “rules.”

  28. Hypocrisy questioned says:

    Greg,

    My comment about “a real (lawyer), not one who only plays one on Rostra” was not meant in reference to to Mr. Darby. In fact, it wasn’t meant for anyone in particular. I was simply repeating my request to have an attorney, not a layperson (like myself) who is willing to opine on anything, explain why Mr. Goldsmith was not violating the code of ethics that attorneys lived by when he publicly accused his client of potentially illegal acts. As I had stated before, I didn’t even realize that Mr. Darby was an attorney and Mr. Darby’s post didn’t address my question anyway. Nor should it have; that clearly wasn’t the intent of his post.

    I understand that the statement above may not appear to even “pass the smell test” and that is probably why I hadn’t responded to the comments about my unintended slight. Still, it is the truth but if my comment offended, even if unintentionally, then Greg you are correct; I owe Ryan Darby an apology and I do apologize.

  29. Greg Larkin says:

    Hypocricy,

    That’s fair and appreciated. You didn’t realize that in making your “real lawyer” comment , it appeared to be directly in response to Darby, since it was on his blog post.

    Again, fair enough, in my mind. Understood, clarified, explained, and appreciated.

    Thank you.

  30. Hypocrisy questioned says:

    Richard,

    Apology accepted but I will definitely keep your response handy. Even though I will never claim to be an attorney, I am sure I will do something equally egregious warranting the response to be trotted out again.

    I do want to address your concern with anonymity. I understand that you want to understand the motivation of the commenter, but wouldn’t it be better to focus on the comment instead?

    How many good ideas have been rejected and frankly not even seriously considered because we didn’t like the author of the idea? Look at the dysfunction of our government at all levels due in part to the fact that ideas are summarily dismissed by one side or the other simply because they emanated from the “wrong” side. The individual mandate for health coverage and the idea of carbon taxes and credits to reduce pollution were both originally Republican ideas, but were fought by these same Republicans when proposed by President Obama. Democrats had always railed against the high cost of drugs for seniors but weren’t overly supportive of the Medicare prescription drug plan because it was proposed by President Bush.

    Perhaps it would be better if all comments were anonymous and all bills had no listed authors; maybe then each would rise and fall strictly on its merits.

  31. Mole says:

    If you liked the Goldsmith press conf. episode then you would have awarded an Oscar for the SANDAG Board of Directors episode on 2-22-2013. It is on audio at http://www.sandag.org click on calendar click on Brd of Dir Mtg for 2-22-2013 click on Audio
    At 37:30 Mayor Bob Filner(San Diego) or is that “Strong” Mayor Bob Filner(San Diego) playing off of the UT $40 million scandal story above the fold lit up the normally staid, reserved Brd. Mtg. Of course, you don’t get to see the “Strong” Mayor waving the UT article about to intimidate the “Not So Strong” Mayor Mary Sessom(Lemon Grove) or the frequently interrupted Ms. Colleen Windsor(SANDAG) Communication Director. The UT article/prop from one of the Jack Lynch Presenters(no More Journalists at the UT) was a follow up to his spanking his audience at the recent SANDAG Retreat. Why that man ain’t got no respect for nobody ‘cept Papa Doug.
    Folks, I have a feeling that you have not seen anything yet. It is “Strong” Mayor Bob Filner vs. SANDAG “A large Committee” with “Agent Provocateur” Jack Lynch throwing on the gasoline. All here in America’s Finest City.

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