Recently a dispute arose surrounding acting City Attorney Carmen Trutanich’s ballot designation. The lawsuit by candidate Alan Jackson seeks to prevent L.A. City Atty. Carmen Trutanich from calling himself “chief prosecutor” or “chief criminal prosecutor” on the June ballot.
First, it is disturbing that this is the same City Attorney who promised he would serve out his term before running for higher office whose character is now being questioned in another ethical scandal. Attorneys have a duty of candor with the Court, but one who runs for office needs to be straight with the voters, mostly non- lawyers, and not engage in conduct that is clearly designed to make them something they are not.
I have lived in the County of Los Angeles my entire life. Los Angeles County is not the City of Los Angeles. According to the 2010 U.S. Census, the county had a population of 9,818,605, making it the most populous county in the United States. Los Angeles County alone is more populous than 42 individual U.S. states. The county seat is the city of Los Angeles.
Los Angeles County also includes two offshore islands; San Clemente Island and Santa Catalina Island. The county is home to 88 incorporated cities and many unincorporated areas. At 4,083 square miles, it is larger than the combined areas of the states of Rhode Island and Delaware. The county is home to over a quarter of all California residents. One of the most diverse counties in the country, Los Angeles, is home to the nation’s largest urban Native American population
Enough of the geographic facts, it is obvious that the District Attorney for the County of Los Angeles has a completely different role, both in the scope of prosecutorial discretion, budget, staff, and geographic territory.
The City Attorney is not the “chief prosecutor” for Los Angeles. Obviously, how can he be? It is in fact insulting and presumptuous to run for District Attorney and claim you are presently the “chief prosecutor” for Los Angeles without clarifying what City are the chief prosecutor for. It is insulting to the other 87 City Prosecutors around the County.
“The district attorney is the public prosecutor, except as otherwise provided by law.” (Govt. Code § 26500; see Penal Code § 691, subd. (d) [“prosecuting attorney” includes district attorney, city attorney, city prosecutor, prosecuting attorney, or any other title, having right or duty to prosecute any charge of a public offense]; People v. Eubanks (1996) 14 Cal.4th 580, 588, 59 Cal.Rptr.2d 200, 927 P.2d 310, [discussing powers and required impartiality of district attorney]; 28 Cal. Western L. Rev. 1 [rise of urban public prosecutor]; 108 Harv. L. Rev. 775 [ability of prosecutors to subpoena defense attorneys].)
The district attorney does the following:
(a) Arrest Proceedings.
He institutes proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses. (Govt. Code § 26501; see Taliaferro v. Locke (1960) 182 Cal.App.2d 752, 755, 6 Cal.Rptr. 813.)
(b) Grand Jury.
He attends grand jury sessions and advises the jurors on cases presented for their consideration. (Govt. Code § 26501; Penal Code § 935.)
(c) Accusatory Pleadings.
He draws all indictments and informations. (Govt. Code § 26502; see People v. Coleman (1948) 83 Cal.App.2d 812, 817, 189 P.2d 845.)
(d) Criminal Prosecutions.
The institution of a criminal proceeding must be authorized and approved by the district attorney. (People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 206, 103 Cal.Rptr. 645.) He conducts “all prosecutions for public offenses.” (Govt. Code § 26500; see Penal Code § 1256 [duty to assist Attorney General in criminal appeals]; Penal Code § 4703 [district attorney may transfer responsibility to Attorney General for prosecution of crimes committed by prisoners in state prison]; People v. Daggett (1988) 206 Cal.App.3d Supp. 1, 5, 253 Cal.Rptr. 195 [Govt. Code § 26500 does not require district attorney to be present at infraction trials]; 10 A.L.R.4th 605 [disciplinary action against attorney for misconduct while prosecuting attorney]; on authority to associate private counsel, see People v. Calkins (1935) 8 Cal.App.2d 251, 254, 47 P.2d 544; on appointment of special prosecutors, see 84 A.L.R.3d 29 [political or controversial prosecutions]; 84 A.L.R.3d 115 [where regular prosecutor charged with, or investigated for, criminal or impeachable offense].)
Beverly Hills and West Hollywood do not have City Charters. They are general law cities. However, Los Angeles does. A city by charter may create the office of “city prosecutor,” or provide that a deputy city attorney shall act as such, for prosecution of all misdemeanors within the city. (Govt. Code § 72193; see also Govt. Code § 41803.5, subd. (a) [city attorney, with consent of district attorney, may prosecute “any misdemeanor committed within the city arising out of violation of state law”].)
Government Code section 41803.5 states,
a) With the consent of the district attorney of the county, the city attorney of any general law city or chartered city within the county may prosecute any misdemeanor committed within the city arising out of violation of state law. This section shall not be deemed to affect any of the provisions of Section 72193.
The District Attorney for the County of Los Angeles prosecutes all misdemeanor violations of State law in Beverly Hills and West Hollywood, and other general law cites. Carmen Trutanich does not share concurrent jurisdiction. The title of Chief Prosecutor is without any office sanction by the County of Los Angeles and Steve Cooley. It is highly problematic. Furthermore, it is an unfair business practice to other attorneys. Finally, a district attorney is precluded from engaging in private practice in Los Angeles County. A city attorney cannot claim they are a chief prosecutor. There is no such thing.
If the words chief prosecutor had to be used to describe a particular person, that person could only be Steve Cooley, not Carmen Trutanich.
Attorneys are bound to different standards. Some concepts apply here. Business and Profession’s Code 6157.1 dealing with Advertisements—False, Misleading or Deceptive, states,
“No advertisement shall contain any false, misleading, or deceptive statement or omit to state any fact necessary to make the statements made, in light of circumstances under which they are made, not false, misleading, or deceptive.”
“It is settled that concealment of material facts is just as misleading as explicit false statements, and accordingly, is misconduct calling for discipline.” [Di Sabatino v. State Bar (1980) 27 C3d 159, 162–163, 162 CR 458, 459–460—misleading bail commissioner by failing to disclose 2 prior bail reduction motions; Best v. State Bar (1962) 57 C2d 633, 21 CR 589, 591–592—attorney disbarred for improper solicitation and lying to federal judge; Glade v. Glade (1995) 38 CA4th 1441, 1457, 45 CR2d 695, 706, fn. 16—lawyer criticized for lack of candor under CRPC 5–200 for failing to apprise court of existing stay order lawyer believed was invalid]
Obviously, the tactic of falsely labeling yourself in an election does not warrant disbarment or disciplinary proceedings, but it does create an ethical issue. If anything, the District Attorney should error on the said of clarity, straightforwardness, and truthfulness. Calling yourself a title that no one uses is clearly misleading to the average non-lawyer and would not pass muster in a courtroom in front of a jury. It should not be tolerated or ignored in an election for the County’s highest and largest prosecutorial post. We as attorneys can see right through Mr. Trutanich’s false embracing of titles that are non-existent, but the average voter unfortunately would not.
I am surprised at the apathy of the other candidates running in this election and I am glad that someone has brought this to the public’s attention.