Commentary: Was It a Conflict of Interest?

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McGregor Scott

When the city of Davis hired McGregor Scott of Orrick, Herrington & Sutcliffe to be its investigator, the Vanguard soon learned that David Spencer, an attorney at Orrick, is working with the Yolo County DA’s office to get trial experience by prosecuting cases while on the payroll with Orrick.

Given that the DA’s office is prosecuting the five co-defendants in the Picnic Day case with felonies, it seemed like a potential conflict of interest for the same firm to have McGregor Scott as the supposedly independent investigator at the same time that David Spencer was prosecuting cases for the Yolo County District Attorney’s office.

The Enterprise asked the question as to whether this constituted a conflict of interest.  Chief Deputy District Attorney Jonathan Raven told the paper that “the attorney has not performed any work on the Picnic Day assault case and is not expected to have any involvement in the matter before his assignment there ends in about two weeks.

“The District Attorney has no role in the administrative investigation for which the city of Davis retained Mr. Scott,” Mr. Raven said. “From our position I do not see that there would be any conflict.”

But let’s think about this for a second.  If you have a co-defendant case, you cannot have the same office or firm represent multiple clients without a specific waiver.  Why is that?  Because sometimes co-defendants have the same interests, but other times, those interests may conflict and therefore they need independent attorneys to represent the individual needs.

In Yolo County, we have a separate panel of six felony attorneys who represent individuals who cannot afford an attorney and yet present a conflict for the public defender’s office.

Was there a clear conflict here?  It is not clear.  As Mr. Raven specified, Mr. Spencer was not working on the Picnic Day case directly – nevertheless, the appearance seemed at least questionable.

The Vanguard has now learned that Mr. Spencer’s time with the DA’s office will be ending on Friday of this week.  So, less than a week after the question was raised, someone made the call to pull the plug on the work experience project.

Coincidence?  Probably not.  It may be that both sides felt it better to have not even the possible appearance of a conflict of interest.

Given what happened with Mr. Scott’s predecessor, John McGinness, the city probably was pretty eager to avoid even appearances of a conflict of interest.

We will wait to see what Mr. Scott comes up with, in an incident that has already drawn quite a bit of contention and controversy.

—David M. Greenwald reporting



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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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9 thoughts on “Commentary: Was It a Conflict of Interest?”

    1. Matt Williams

      Delia, help me understand your comment. Here ar a couple of definitions of conflict of interest:

      A conflict of interest (COI) is a situation in which a person or organization is involved in multiple interests, financial or otherwise, one of which could possibly corrupt the motivation or decision-making of that individual or organization. (from Wikipedia)

      conflict of interest — n. a situation in which a person has a duty to more than one person or organization, but cannot do justice to the actual or potentially adverse interests of both parties. This includes when an individual’s personal interests or concerns are inconsistent with the best for a customer, or when a public official’s personal interests are contrary to his/her loyalty to public business.   An attorney, an accountant, a business adviser or realtor cannot represent two parties in a dispute and must avoid even the appearance of conflict. He/she may not join with a client in business without making full disclosure of his/her potential conflicts, he/she must avoid commingling funds with the client, and never, never take a position adverse to the customer.  (from law.com)

      Where do you see the current situation falling out of compliance with either of those standards … or any other definitional source that establishes standard criteria for determining whether conflict of interest exists?

  1. Delia M.,

    And now let the prosecutors begin their sickening defense of themselves, by picking apart the letter of the law to explain to all us non-lawyer types why it’s not a conflict.

    1. Matt Williams

      Delia, as you know I am, like you a “non-lawyer type” so I am looking at this from the perspective of a citizen.  The prosecutors are not involved in the investigation of police conduct, so why would any prosecutors begin a defense of themselves?  I can see the City defending its choice of Mr. Scott, but that is the only defense I can imagine happening here.

      Am I missing something?

  2. rrdavis

    You have to specify what you mean by conflict of interest.  According to the State Bar Rules of Professional Conduct, attorneys have a conflict of interest when they represent adverse interests.  If the question is whether Scott had a conflict of interest in that particular sense, I think the answer is no.  He doesn’t represent (i.e., he doesn’t have an attorney-client relationship with) anyone in his role as an investigator, does he?   If you’re using the phrase in a more colloquial sort of way, then that’s another story.

    1. Matt Williams

      rrdavis said … “You have to specify what you mean by conflict of interest.  According to the State Bar Rules of Professional Conduct, attorneys have a conflict of interest when they represent adverse interests.  If the question is whether Scott had a conflict of interest in that particular sense, I think the answer is no.  He doesn’t represent (i.e., he doesn’t have an attorney-client relationship with) anyone in his role as an investigator, does he?   If you’re using the phrase in a more colloquial sort of way, then that’s another story.

      How can you use a very specific term like conflict of interest in a colloquial way”

      col·lo·qui·al
      kəˈlōkwēəl/
      adjective

      adjective: colloquial
      (of language) used in ordinary or familiar conversation; not formal or literary.

      synonyms:

      informal, conversational, everyday, nonliterary;
      unofficial, idiomatic, slangy, vernacular, popular, demotic

      Several months ago an anonymous Vanguard poster used the term conflict of interest to impugn the personal integrity of Robb Davis. That anonymous poster then tried to hide behind his colloquial (your term, not his) use of the term based on his professional experience.[as an auditor]. Howard P. provided clear citations to the anonymous poster (and the Vanguard) of the legal definitions of the term, and challenged the anonymous poster to provide citations of the provenance for his “non-legal” usage of the term to support his assertions of the mayor’s conflict of interest. No such clear citations were ever provided. Lot’s of repetitions of the accusations by the anonymous poster though.

      So, the lesson from that is that there is (in my opinion) no legitimate use of the legal term “conflict of interest” in a colloquial way. Colloquial use of that term either is, or is tantamount to, slander/libel.

      [moderator] edited

  3. Todd Edelman

    Not that it applies directly to this investigation, but how do citizens of Davis feel about McGregor Scott’s support of capital punishment, most notably when he was a lead figure against Proposition 34 which was on the ballot in November 2012, and which approximately 65 or 70% of voters in Davis were for? I assume that Scott – unlike his predecessor for this gig – fully appreciates the 1964 Civil Rights Act, but isn’t there – I dunno – some kind of philosophical overlap between fully supporting civil rights and opposing state execution? Does McGregor Scott represent our community values… when they are pushed to the limit in seeking justice, such as might occur in relation to the most horrible crimes?

    1. David Greenwald

      I’m also concerned about his role and handling of the Lodi incident a decade ago.

      But – The key question is can he do a fair investigation here.

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