A Juicy Scandal or a Dumb Mistake?

Politically, he goofed. Big time.

But did Deputy Mayor Michael F. Keeley break any laws, violate any trusts or shred any ethical standards when he tipped off opposing attorneys to the city’s legal strategy by leaking a confidential memo in the midst of a long-running court battle?

“That’s the kind of question where, if you got two lawyers together [to debate it] you’d get three opinions,” former Los Angeles city attorney Ira Reiner said.

Indeed, for all the outrage that this case has provoked in City Hall, legal experts outside the case remain divided about whether Keeley’s actions constitute a juicy scandal or a dumb mistake--whether he was way out of bounds or fully within his powers.

They are equally split on another key point: whether City Atty. James K. Hahn was right to cut off all confidential communiques to the mayor’s office as long as Keeley remains in his post.

In fact, just about the only statement that analysts can agree on is that the dispute has exploded into prominence because of canny political maneuvering, not the legal or ethical principles at stake.

*

“It sort of resembles junior high school,” UCLA political scientist Xandra Kayden said. “You want to say, ‘What are we paying them for? Grow up!’ ”

Despite that frustration, city watchers say these sandbox spats are almost inevitable because Los Angeles’ charter deliberately divides power among competing groups, spawning not only political rivalries but genuine confusion about who has authority to act on the city’s behalf.

“Something like this was going to happen, and will happen again and again,” said Raphael J. Sonenshein, a political scientist at Cal State Fullerton and author of a book about Los Angeles. “It all has to do with [conflicting] attitudes about who runs the city.”

The mayor is the city’s most visible spokesman. But even the most popular mayor cannot get a law passed without the approval of at least eight of the 15 council members. Commissioners supervising the airport, harbor, Police Department and other city operations face similar constraints. The council can review all their decisions. But the council needs to put together 10 votes to override a mayoral veto.

Though the dizzyingly dense 693-page governing charter purports to sort out who rules what, few have read the entire document and fewer still understand it all. “The result is what you might see in a medieval palace,” municipal law expert Michael Jenkins said. “Byzantine intriguing and feuding.”

In a dramatic schism five years ago, the Police Commission and City Council battled for weeks over who, if anyone, had the authority to suspend Police Chief Daryl F. Gates. Then, as now, the city attorney’s office landed in the middle--first advising commissioners that they could place Gates on leave, then telling council members that they could take legal action to reinstate him.

Outrage at the city attorney’s seeming double talk in the Gates case prompted calls for reform, a movement that soon fizzled. But outside analysts who have studied the 1991 Gates fight see echoes in this month’s squabble.

*

“This was bound to happen sooner or later,” said Carol Langford, chairwoman of the State Bar of California’s ethics committee. “It’s a giant, complete mess and the city brought it upon itself because of the way they handle conflicts of interest in the city attorney’s office.”

In the Keeley case, the same deputy city attorney was working with council members and the mayor’s office to resolve a contract dispute over city-leased lands in Inyo County. The city attorney maintains that he has only one client: the city. Yet by simultaneously advising the council and the mayor--two groups with potentially conflicting agendas--the city attorney’s office may have created confusion about who held true authority, Langford said.

For his part, Keeley has apologized for using “poor judgment” when he faxed an internal strategy memo to attorneys for California Energy Co. to dissuade them from filing suit against the city in the Inyo County contract dispute. But he maintains that he was acting in the best interests of Los Angeles taxpayers.

Keeley has said he thought that the seven-page document spelled out the city’s position so forcefully that Cal Energy would read it, lose heart and drop the threatened lawsuit.

Critics find Keeley’s argument astoundingly arrogant.

*

“For one city official to unilaterally decide he speaks for the city of Los Angeles is enormously troubling,” said USC law professor Erwin Chemerinsky, who teaches legal ethics. “Keeley is not the city of Los Angeles. When he makes himself the city, he makes the decisions for everyone, and his decisions may impose tremendous costs and liabilities on the rest of the city.”

Apparently agreeing with that stance, council members voted 10 to 3 to declare that they have no confidence in the mayor’s chief operating officer. “The majority of council members cannot work with Mr. Keeley,” Councilman Mike Hernandez said flatly.

For all that sharp rhetoric, it is still unclear whether Keeley’s transgression was more than just a political blunder that played into the hands of Hahn, who has long been at odds with the mayor’s office over what he sees as attempts to weaken his office and force him out.

Keeley’s backers have argued that he had a perfect right to publicize the memo, because he requested and received it in his capacity as the city attorney’s client.

In municipal matters, various officials represent the impersonal entity of “the city” at various times--each, in turn, acting on behalf of the city’s 3.6 million residents.

If Keeley did have the authority to represent the city, then by implication he was acting as the city attorney’s client, and he should have the power to release confidential documents, said University of San Francisco law professor Richard Zitrin, who has written a text on legal ethics. “In a larger sense, the whole city is the client,” Zitrin said. But in individual cases, he added, “each agency you deal with . . . becomes the de facto client.”

*

Since the attorney-client privilege of confidentiality is meant to protect the client, not the attorney, the client can waive it at any point. O.J. Simpson, for example, would have had every right to hand prosecutors secret defense strategy memos. His lawyer would no doubt have counseled against it, but Simpson could even have slipped an advance text of the defense’s closing argument to the other side.

In his cover note, Keeley acknowledged that he was bucking orders to keep the memo hush-hush. “The city attorney did not want me to share these materials with you,” he wrote.

Furious when he discovered Keeley’s clandestine communication, Hahn fired off a letter last week accusing the deputy mayor of violating the public trust. His staff referred to a line in the City Charter--”the council shall have control over all litigation”--as proof that Keeley never had the authority to shape legal strategy.

But outside analysts are not convinced that the matter is settled.

*

“Forget Mr. Keeley. The question is whether any agency head can tell the city attorney to go to hell, or can decide to go into cahoots with the other side [during litigation],” said John K. Van de Kamp, a former state attorney general and now a Los Angeles lawyer.

In the meantime, Hahn has vowed to exclude Mayor Richard Riordan and the entire mayoral staff from all confidential discussions regarding litigation (unless a lawsuit specifically names the mayor as a target).

“If a city official has no formal or direct role in the litigation, it is our prerogative whether to share information with him,” said Pedro Echeverria, chief assistant city attorney.

To Zitrin, that decision sounds downright unethical. “When a client does something you don’t like, even against your advice, you do not just refuse to work with him,” he said. “That’s abandoning the client.”

In practice, however, analysts dismiss Hahn’s closed-mouth policy as a political ploy doomed to failure if it threatens to disrupt city business.

“You couldn’t pull a stunt like that on the most obscure council member, much less the mayor,” Reiner said. “You can huff and puff all you want . . . but you can’t pull it off.”