Any torch-and-pitchfork-toting progressives eager to string Mayor Gavin Newsom up from the nearest Maypole for leaking a confidential memo to the SF Chronicle last week might be sorely disappointed: Newsom abused the attorney-client relationship he has with City Attorney Dennis Herrera and puts Herrera in a difficult spot going forward, but the Mayor did not break the law by handing the memo to the media, as Peter Keane, dean emeritus of Golden Gate University’s School of Law related to The Appeal on Wednesday.
A client can break the attorney-client confidentiality agreement at any time, Keane noted. “He (Newsom) has that right, and that’s what he did,” he said. “It’s perfectly legal — but it puts the city attorney in a difficult spot.”
If a private client did this to a private attorney, the private attorney could tell the client to fuck off and get a new lawyer. Herrera can not. That spot is thus: going forward, Herrera might be wary of including sensitive or otherwise useful information in so-called confidential memos to the Mayor or the Board, for fear of said memos going public. “If you issue something confidential, you want it to stay confidential,” Keane said, and now there’s a precedent for confidentiality being blown. That could render those memos essentially useless, if Herrera decides to self-edit instead of ending up on the front page again.
Of course, if a private client did this to a private attorney, the private attorney could tell the client to fuck off and get a new lawyer. Herrera can not — “it’s his job to be the lawyer to these characters,” Keane said, characters who now might have inclination to return the favor and leak something to their political advantage.
While an Ethics Commission investigation is ongoing — according to a city supervisor, that is, as Ethics staffers have not returned calls from The Appeal — Keane’s analysis backs up off-the-record statements The Appeal has received from various City Hall sources. Whether or not Ethics will deem Newsom’s actions as censure or misconduct-worthy is unclear.
Keane also agreed with the analysis Herrera put forth in his memo and echoed by District Attorney Kamala Harris in the Chronicle story: David Campos’s legislation, though championed by the American Civil Liberties Union and other progressive legal groups, would put the city in a vulnerable spot.
“What Campos wants to do is to be compassionate,” Keane said, “and ensure illegal aliens who are here are treated with respect. But at the same time, (the sanctuary city policies) need to be treated in very delicate ways. They cannot be used to protect felons” and not incur challenges in the courtroom.
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