By Bruce Tichinin
Robert Mitchell: As you will recall from our long-ago days as
law partners, I have been subjected to some extraordinarily intense
public criticism during my 30-year legal career.
By Bruce Tichinin
Robert Mitchell: As you will recall from our long-ago days as law partners, I have been subjected to some extraordinarily intense public criticism during my 30-year legal career.
Nevertheless, your recent column easily outdistances all the rest for its viciousness and groundlessness. I didn’t realize that you hated me that much.
Ironically, reading it was so painful that I wondered, for the first time in the 16 years since our breakup as law partners, whether we shouldn’t try friendship again instead of continued hostility.
The only things I agree with you on are that (1) you knew me to be honest, and (2) in the period 15 to 30 years ago, when I tried to protect the bounty of irreplaceable open space in Morgan Hill by litigation, I never seriously counted the cost of that approach in injury to the developers, contractors, and others harmed by the halts to new construction that resulted occasionally from my efforts. I was young and struggling financially, and the developers of the time were less enlightened in their methods, both of developing and of fighting back. I wish I had come far earlier to my current strategy of embracing the growth and permanently preserving the open space from its profits.
Since I quit public interest litigation (you may not believe this because of our complete lack of contact since our breakup), I have attempted to make avoiding harm to the feelings of others the first consideration after truth, when choosing how to act. Not surprisingly, the attempt has served me well. I believe my current community service – recent president of the 4th of July celebrations, creating the Morgan Hill Community Foundation as one of its originating directors, and serving on the City’s Urban Limit Line/Greenbelt Committee – all give some evidence of the “new” me.
First, you target the innocent in saying that I brought the trauma of this matter to the wives and children of the principals. If that had not already been done (as of the point in time of the surveillance) by the apparently already – widespread perception that a relationship existed, then the city manager could have left the matter at Huntington Beach, as I attempted to do. It was he who persuaded the City Council to mount the extraordinarily intense manhunt for the surveillor’s identity, and it was the City Council that chose to make the matter public, rather than handle it privately, as I had been doing. I was blindsided by the publicity, comparably to the Pacific Fleet at Pearl Harbor.
Second, City Hall’s entirely unnecessary involvement of the wives and children of the principals has left its wounds in my household as well. My wife and daughter have watched the character of their loved one be officially “condemned” in a firestorm of ugly public controversy – at the hands of persons they had long known as friendly.
Third, I investigated because, if the relationship existed, it could explain why the city attorney had gone from telling me that she would advise the City Council my legal argument was “reasonable” (in saying that my client’s development project was consistent with the city growth control ordinance) – to instead telling the City Council that the project was prohibited by law, all following an intervening city staff/applicant meeting called by the city manager, in which he opposed the project.
Fourth, I had no choice, because it is the legal duty of an attorney to investigate his cases. (“It is the policy of the State to … encourage [attorneys] to investigate … aspects of th(eir) cases.” Code Civ. Proc., § 2018. Filing a lawsuit is a certification by the attorney that he has made “an inquiry reasonable under the circumstances,” and that its factual contentions “have evidentiary support,” or will, “after … further investigation.” Code Civ. Proc., §128.7) Had I failed to attempt to gather evidence, and had harm to my client’s interest resulted, I would have been liable to answer to him in damages for malpractice.
Fifth, contrary to the Subcommittee Report and media accounts repeating it, I hired a licensed private investigator (i.e., CC Investigations – California Bureau of Investigative and Security Services License No. PI 21126) owned by a former San Jose Police Department Lt. Mark Bell. I relied upon the judgment of the State of California, and fully expected the investigation to be conducted lawfully. I had no control over the methods employed, or choice of the person Mr. Bell engaged for the footwork.
Sixth, though the City Council concluded quite the opposite, even if we take the Subcommittee Report allegations as true, the surveillor never posed the least physical threat to the city manager. Certainly, the two cups of hot chocolate were harmless. The single instance of contact was initiated by the city manager himself, who, having been alerted to the surveillance, hung back to let the surveillor (who was following him with video camera) come up. When the surveillor noticed this, he immediately turned the camera away from the city manager and walked off.
Seventh, I regret that I untruthfully denied that I had commissioned the surveillance. The action now will remind me of my fallibility throughout life. I am glad, however, that I corrected the misrepresentation promptly, in six days, and before it did any harm. No such harm is claimed, even in the Subcommittee Report.
Finally, knowing how irritated the community has been by the city’s public airing of this matter, I intend to correct the damage done to me with as much dignity as possible.
