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Lawyer suing Newport calls city's effort to get him ousted from the case 'hysterical'

Lawyer suing Newport calls city's effort to get him ousted from the case 'hysterical'
Phil Greer, left, and current Mayor Pro Tem Will O'Neill attend a City Council candidates forum in 2016. O'Neill defeated Greer in the subsequent election. (File Photo)

The lawyer representing a Newport Beach resident who is suing the city called the city’s motion to have him kicked off the case a “hysterical screed” in a response he filed last week in Orange County Superior Court.

Phil Greer said the city’s effort to have him disqualified is an attempt to cloud the issue and stall until the November City Council elections have passed.

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“All that appears to be missing from [the city’s] hysterical screed reminiscent of a New York Post Page Six rant are Russian oligarchs, North Korean zombies and a couple of Kardashians,” he wrote.

The call for disqualification centers on two emails Greer received via Councilman Jeff Herdman’s city account related to a complaint Greer filed in April on behalf of Newport resident Martha Peyton. She claimed Councilman Scott Peotter broke several state and local campaign finance rules by accepting noncash donations from Mayor Marshall “Duffy” Duffield and others that either pushed the donors over the contribution limit or were misreported, if they were reported at all. The suit also requests a court-appointed special prosecutor to investigate the donations.

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Newport Beach City Attorney Aaron Harp said the two emails Greer got from Herdman were confidential conversations between Harp and Herdman that were protected by attorney-client privilege. One was a note saying the city had retained outside counsel in the Peyton case. In the other, blind-copied to Greer, Herdman argued that Harp shouldn’t give an opinion on the merits of the lawsuit because he has a conflict of interest in serving the City Council.

The city’s outside attorney, Patrick Bobko, filed the motion to disqualify Greer last month, saying “it is inescapable that Mr. Greer’s continued involvement in this case undermines the city attorney’s ability to represent his client and the city of Newport Beach.”

But Greer said neither email contained anything of legal substance — not even the name of the law firm the city retained — and that he didn’t use the information to his advantage.

“Based upon an innocuous email acknowledging only that the city of Newport Beach and Mr. Harp had retained unnamed outside counsel, defendants hypothecate that their entire litigation strategy has been disclosed,” Greer wrote in his response. “Bring on the Kardashians.”

In a written statement attached to the response, Greer said he and Herdman were at UC Irvine on April 19 for a symposium on homelessness and were chatting in a lobby when Herdman asked Greer if he had heard from the city about the Peyton complaint. Greer told him he had not, and Herdman pulled out his phone and said he was going to send a message to Harp asking about the status of the case, Greer said. He added that Herdman did this on his own accord, with no instructions.

After Herdman forwarded Harp’s reply to him, Greer and Herdman had no further communication about the case, Greer said.

Greer said he never saw the message about whether Harp should give an opinion on the lawsuit but said that also contained nonproprietary information.

The City Council, including Herdman, voted to waive attorney-client privilege and release the emails. Herdman apologized for his role in the flap, saying “I made a mistake.”

The city found out about the exchanges after an anonymous public records request to the city clerk’s office.

In a related matter, Chad Morgan, an attorney representing Duffield and Peotter, sought to have the Peyton case thrown out using the same arguments as the city’s outside attorney — that Harp lacks the legal authority to prosecute the alleged violations, that a simultaneous complaint with the same allegations filed with the California Fair Political Practices Commission takes priority over the lawsuit, and that the constitutional separation of powers doctrine bars direct judicial interference with the City Council, a legislative body.

Morgan also said the complaint is politically motivated.

Greer ran unsuccessfully for City Council in 2016 — he lost to current Mayor Pro Tem Will O’Neill — and was involved in last year’s unsuccessful recall movement against Peotter as a lawyer for the recall committee, the petition circulator and a campaign reporting compliance group.

“While there may be a political controversy in that one Newport Beach political faction has sour grapes or bad feelings because they lost election to the City Council, this is not the type of ‘actual controversy’ necessary to resolve the question (Peyton) presents,” Morgan wrote.

A hearing on the motion to disqualify Greer is set for June 28. A hearing on the motion to dismiss the lawsuit is set for July 12.

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