You may recall that multiple public speakers at recent City Council meetings, and some of the same people in social media posts, praised the RPA City Council members for their direction to the city attorney to file a brief supporting the appellants in the Point Molate Brown Act litigation (RPA City Council Members Take Nuclear Option, October 19, 2021).

Well, it’s not that simple, and that’s not how it turned out. The city attorney, to her significant credit, rebuked the RPA City Council members and refused to follow their directions because it would be illegal and unethical to do so.

Following is what she wrote to City Council members:

1. Federal Rule of Civil Procedure 11 and Rule 3.1 of the California Rules for Professional Conduct preclude the City’s lawyers from filing a brief that agrees with and concedes Appellants’ factual and legal arguments

Federal Rule 11 requires every document that is filed in federal court to include a signature from an attorney (or the party if not represented by counsel).  The attorney’s signature constitutes various representations by counsel to the court, including the representation that (1) the factual contentions in the document have “evidentiary support;” and (2) the legal claims and contentions are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”  Rule 11 subjects the attorney and the party to monetary sanctions for violation of the Rule.  (Estate of Blue v. County of Los Angeles(9th Cir. 1997) 120 F.3d 982, 985.)  Under this rule, by signing any document submitted to the federal courts, the lawyer is representing that the legal claims are justified based on existing law or a nonfrivolous argument to modify or change the law, and that there is evidentiary support for the facts asserted in the document.  A copy of Rule 11 is attached for your reference.
In addition, Rule 3.1 of the California Rules of Professional Conduct states that a lawyer shall not present a claim or defense that is not “warranted under existing law” unless there is a good faith argument to extend, modify or reverse the existing law.  Violation of the Rules of Professional Conduct subjects counsel to disciplinary action by the State Bar of California, up to and including disbarment.  Rule 3.1 is attached for your convenience. 
Filing the brief the City Council directed me to file would violate Rule 11 and Rule 3.1 in the following ways:

1. In the district court, the City made the factual representation in all its briefing that the original and Amended Judgments did not grant any land use entitlements or approvals.  Appellants’ factual assertion in the district court and Court of Appeals is that the original and Amended Judgments granted land use entitlements and approvals.  Thus, if our office files a brief agreeing with and conceding Appellants’ points, our office would necessarily be making the factual representation that the judgments granted land use entitlements and approvals.  Based on our review of the record—including review of the original and Amended Judgments which expressly state that  no entitlements are given—and the draft Answer Brief prepared by special counsel, our office has no factual or evidentiary basis to switch positions from the facts that the City repeatedly asserted in the district court that the judgments did not grant any land use entitlements or approvals. 

Rule 11 prohibits counsel from filing a document with factual assertions that lack evidentiary support and that asserts facts that contradict prior factual assertions.  (See, e.g., Zamanyan v. Northland Group, Inc. 2012 WL 2756644.) 

1. In the district court, the City made the legal arguments based on existing law that:  (1) because the original and Amended Judgments do not grant any land use entitlements, the City did not violate the Brown Act; (2) because the Amended Judgment reiterated that it did not grant any land use entitlements and was adopted by public vote at open session, the Amended Judgment cured any alleged Brown Act violation; and (3) because the original and Amended Judgments did not grant any land use entitlements, the City did not violate the Planning and Zoning law.  In submitting briefs making these arguments, the City represented that existing law supported those legal arguments.  Appellants’ arguments on appeal are that based on existing law, the City violated the Brown Act and Planning and Zoning Law.  Based on our review of the law, the record in the case, Appellants’ Opening Brief and the draft Answer Brief, we have no legal basis on which to conclude that, contrary to what the City argued in the district court, the City violated the Brown Act or Planning and Zoning law.  Our office has no legal basis on which to switch legal positions from what was represented in the district court.

Rule 11 prohibits counsel from filing a document that contains legal arguments that are not based on existing law (or a nonfrivolous argument to change the law, but that is not relevant here because Appellants do not request a change in existing law).  Rule 3.1 also prohibits counsel from filing a document that does not have a legal basis in existing law (unless there is a good faith argument for changing the law, but again Appellants do not request a change in existing law).

1. Filing a brief that agrees with and concedes Appellants’ position would effectively be representing that all the factual and legal arguments made on behalf of the City in the district court had no basis in law or fact.  Based on our review of the law, the record on appeal, Appellants’ Opening Brief and the draft Answer Brief, our office has no legal or factual basis to make that representation.  The closed session direction is based on a discretionary policy decision by the Council majority, not a change in the law or facts.   

Making such representation to the Court of Appeals would violate Rule 11 because it lacks factual and legal basis.  Similarly it would violate Rule 3.1 because such a representation lacks legal basis. 
For the above reasons, we conclude it would violate Rule 11 of the Federal Rules of Civil Procedure and Rule 3.1 of the California Rules of Professional Conduct for the City’s lawyers to file a brief that supports and concedes Appellants’ arguments.  As such, I am unable to follow that part of the City Council’s direction.  In addition, because filing a brief on behalf of the City that supports Appellants’ arguments would violate Rule 11 and Rule 3.1, such action would place the City’s attorneys, as well as the City and City Council, at serious risk of being found in contempt of court. 

2. Letter to Court of Appeals regarding the City’s decision not to file Answer Brief

Under Federal Rule of Appellate Procedure 31-2.3, if an Appellee elects not to file an Answer Brief, the Appellee must notify the court by letter on or before the due date of the Answer Brief.  An Answer Brief necessarily responds to and opposes the Opening Brief.  Because I have been directed not to file a brief that opposes the Opening Brief, we have an obligation to inform the Court of Appeal.  We have prepared the attached letter, which as explained above, we will file the Court of Appeals on Tuesday.