Lee Burdick—Mayor Bob Filner’s current Chief of Staff—has asserted attorney-client privilege and the attorney work-product doctrine to reject the City Attorney’s demands for documents related to the sexual misconduct allegations against the mayor. However, her theory is based upon questionable legal footing and is unlikely to succeed.
If Ms. Burdick claims attorney-client privilege, then who is her client? The City of San Diego, or Bob Filner? Her apparent answer is neither, or both, depending on how you look at it. In a letter to the City Council, Ms. Burdick hedges her bets by claiming “the Mayor” is her client. She apparently regards “the Mayor” as a unique entity that is separate from the City of San Diego and from Filner as an individual. In other words, she implies that the City can pay her to represent Bob Filner’s legal interests as mayor rather than as an individual (as though they were any different) without representing the City itself.
This distinction is questionable, since “the Mayor” is inextricably tied to the City. Regardless, as the City Attorney pointed out in a letter to Ms. Burdick, the City Charter does not legally authorize her to represent the City of San Diego or any of its departments or offices. To the contrary, Section 40 of the Charter clearly vests this power in the City Attorney. That obviously doesn’t prevent Filner from hiring his own independent counsel; it just means the City won’t pay its non-City Attorney employees to represent him.
The Charter’s implied prohibition of using the Chief of Staff as legal counsel is important because it may limit the scope of any attorney-client relationship. For example, the scope of attorney-client relationships in bankruptcy and juvenile proceedings is limited by statute. As a result, the attorneys and clients are placed on notice that their relationship (and accompanying privilege) are limited. The Charter language should have given Filner and Burdick similar notice, and makes it difficult for them to cry foul.
Perhaps more damaging to Ms. Burdick’s argument is her seemingly official purpose for creating the documents requested by the City Attorney, which include notes she took while interviewing city employees to investigate sexual misconduct allegations. However, she also claims it was to offer legal advice to the Mayor.
A dual-purpose communication like this is only privileged if the dominant purpose is to benefit the attorney-client relationship (rather than her duties as Chief of Staff). See Costco Wholesale Corp. v. Super. Ct. (2009) 47 Cal. 4th 725. It is fair to assume that Ms. Burdick gained access to these employees through her role as Chief of Staff, and for the implicit purpose of facilitating appropriate relations between the Mayor and his staff. After all, she is being paid by the City to perform exactly this kind of duty, rather than provide legal representation to the Mayor. It’s also reasonable to infer that some of the interview subjects legitimately wanted to improve the office environment, rather than assist the Filner legal defense team.
In other words, it appears Ms. Burdick acted completely within the scope of her duties as Chief of Staff, but is flashing her “Bar card” in order to protect the Mayor from the content of those interviews. The notes prepared by chiefs of staff are discoverable, and there is no reason to treat Ms. Burdick differently just because she happens to possess a law license.
The Charter prohibits Ms. Burdick from legally representing the Mayor through her position as Chief of Staff, and Ms. Burdick conducted these interviews and prepared her notes ostensibly as Chief of Staff rather than legal counsel. A full inquiry would require Ms. Burdick to reveal further details (likely behind closed doors) about the purported attorney-client relationship, and it is difficult to reach a firm conclusion without this information. However, the presently known facts cast serious doubt upon her arguments and suggest that she may need to produce her notes to the City Attorney.
Ryan T. Darby practices civil litigation in San Diego.