Government Attorneys Shouldn’t Give Political Legal Advice

Going to the city attorney or county counsel for outside legal advice is like going to a proctologist for a head injury. Yes, they are doctors—but they are not the right kind of doctor. Moreover, government attorneys do not represent individuals, they represent government entities and their advice on legal matters pertaining to political questions is often wrong.

The latest example involves San Jose Councilwoman Magdalena Carrasco. She dutifully asked the city attorney for legal advice regarding a trip to New York. The advice cleared the way for her to take the trip based on the counsel given. But the analysis was incomplete. The city attorney, Rick Doyle, correctly looked at the issue strictly from the city of San Jose’s point of view. He did not look at the issue from Carrasco’s entire situation—she was also an East Side school board member at the time and still restricted by law on gifts to elected officials.

The city attorney did not take this detail into account and he was not required to—Carrasco was a council member-elect, and not yet a client of the city attorney.

Now, Carrasco has to deal with the political and legal fallout of breaking state law by accepting a $2,400 trip from the Chamber of Commerce. Unfortunately for her, she sought advice from the wrong counsel; she should have retained her own private attorney.

Carrasco is not the first person who was ill served by a government attorney. I have seen first hand with several of my own previous clients.

Years ago, John McLemore relied on the Santa Clara city attorney regarding a conflict of interest vote—his wife had stock in Intel. McLemore was given the wrong advice, and as a result he was fined $10,000 by the FPPC. He could have appealed the decision and won in a court of law, but the cost of doing that was more than the FPPC fine. It didn’t make economic sense and he had to live with the consequences.

In Cupertino, the city attorney ruled “incorrectly” that Congressman Mike Honda could not sign a local ballot argument. A less sophisticated campaign would have amended the statement and taken the congressman’s name off of it. Instead, the organizers sued the city and won the case, and Cupertino ended up paying the legal costs for both sides.

More than a decade ago in Campbell, the city attorney sent a letter to a candidate warning them not to use the logo of the city or any police officers in their campaign literature. This made the newspapers and may have cost the candidate the election based on a published story and the deference given to the city attorney position. But, once again, it was the wrong legal analysis. Campbell’s logo is not owned by the city, but by the people of who live in Campbell. There is also a huge difference between political speech and commercial speech—a distinction many government lawyers fail to grasp.

Most government attorneys are competent in their area of expertise. But it has been my experience that they do not understand distinctions of a political nature. Moreover, they have an inherent conflict of interest in giving advice to politicians when their client is the government entity they serve.

You would be better off asking Josh Koehn for legal advice on these issues than a government attorney who does not represent you.

Office holders should be fully advised that any advice coming from a government attorney is for the benefit of the entity they serve and not personal. Moreover, they should decline to give political advice to their office holders and advise them to seek their own counsel.

There many types of doctor, and most of them are not competent to perform brain surgery. So it is with attorneys. Seek competent counsel.

Rich Robinson is an attorney and political consultant in Silicon Valley. Opinions are the author’s own and do not necessarily reflect those of San Jose Inside.

7 Comments

  1. Rick Doyle’s political expertise seems to greatly exceed his legal acumen. How he has remained SJ’s city attorney for so long, despite his oft-demonstrated lack of significant legal acumen, can only be explained by political prowess. However, I am at a loss to understand how Ms. Carrasco thought to seek council regarding her obligations as the holder of an office she had not yet assumed, while completely neglecting to seek legal advice regarding her obligations regarding the office she then held. Her presence as a school board member seems kinda scary when observed under that light. No es una marvilla que Juanito no puede leer en Ingles. :( Why do you suppose it is, Rich, that so many corrupt and/or incompetent people get elected in that council district? Are they using Chicago, Harlem, or Louisiana as role models?

  2. >More than a decade ago in Campbell, the city attorney sent a letter to a candidate warning them not to use the logo of the city or any police officers in their campaign literature. This made the newspapers and may have cost the candidate the election based on a published story and the deference given to the city attorney position. But, once again, it was the wrong legal analysis. Campbell’s logo is not owned by the city, but by the people of who live in Campbell. There is also a huge difference between political speech and commercial speech—a distinction many government lawyers fail to grasp.

    This paragraph seems particularly poorly written and unclear, Rich. You explain the logo, but what about the police? And what specific different between political and commercial speech are you referring to?

  3. A simple rule of thumb that obviates any need to seek legal advice- Pay your own damned way.

  4. Wow Carrasco sure has drawn the full attention of SJI and it’s part time bloggers. I don’t remember SJI ever chastising Pete Constant or Pierluigi or Mayor Sam ever being called out for using Rick Doyle’s services for legal advice related to their campaign shenanigans.

    Constant used to rely on uniformed police to “provide security” for himself and others walking precincts in his district – then there was the Chamber PAC and chairmanship problem while seving as a councilman. … PLO had Doyle advising him that it was 100% legal to remove trash and especially when the trash was campaign signs that opposed (who is Doyle advising in the harassment casee and why has that disappeared?)…. Sam campaigned and collected cash before the date he was allowed even after Doyle sent out a friendly reminder about prohibitions acting not as the City’s lawyer but as a candidates consigliere.

    Is it the candidates fault? Maybe partly but where does the City Attorney’s duty to represent the City end? Does it include giving legal advice to candidates and employees who are acting outside the scope of their elected or appointed offices? I doubt it.

  5. It took me a few reads to understand the gist of what Rich is trying to convey, then I realized it’s just another “RichVertisement”, but this one is targeted purely towards Carrasco. Does Rich pay SJI for these, or does SJI pay Rich?

    He starts off by flipping the bird at City Attorney’s all over, by saying *none* of them have the capacity to understand a politicians obligations to their office regarding gifts. He then goes on about his knowledge in these matters, citing several different *mistakes* made by politicians when seeking advice from the city attorney. He wraps it up with, “There many types of doctor, and most of them are not competent to perform brain surgery. So it is with attorneys. Seek competent counsel.”

    Rich to your credit I have no doubt you can step back, and see the broader picture of a politicians actions and consequences, but so can a lot of people. Also, I think when this *gift* goes to the FPPC the major argument to be made here will be the context of her gift. Did she receive it as a school board member, or as a councilmember elect?

    As for Doyle, he will learn from this. I don’t think he’ll be lawyering these types of inquiries within such a narrow scope anymore.

  6. Carthagus,

    To answer your question. The police cannot campaign in uniform, but their picture can be used if it is taken in public in the course of their duties–even if the picture is used for political purposes. That is free speech, you can use a cop car etc. That is free speech.

    Commercial Speech is different than political speech. Commercial speech is when the use of a logo or copywrited material is used for a commercial purpose. .ie. to make money. Thus a city can, as a representative of the people of the city, demand a fee for publicily owned materials that are used in advertisements, movies et al that are of a commercial value.

    Political speech is different. Cities may not regulate the use of the publicily owned materials if they are being used for political purposes or for journalism. There is a public use exception. There is no commericial value in the use of the material. Because ordinary definitions lump a political “commercial” with a advertisement, some people do not immediately understand the distinction. But political speech is different. In fact, you can lie in political commercials–where an advertiser of a commericial product would be fined for such activity.

    The problem is that lawyers unfamiliar with this area of the law are not qualified to opine on these matters–unless they do the proper research.

  7. “You would be better off asking Josh Koehn for legal advice on these issues than a government attorney who does not represent you.”

    To clarify, even when someone is an elected official, the government attorney doesn’t represent that person – they represent the government. The narrow scope of review that Rich mentions will still be present (e.g., if the official is also on a board of directors of a non-profit, the attorney likely won’t be warning.the official about a potential conflict an action poses to the service on the non-profit board).

    I’d also add that Rich points out some instances where he says government attorneys were wrong – that can happen of course, but it’s not limited to government attorneys.