In Glenn Sabey v. City of Pomona (April 16, 2013) B239916, the Court of Appeal ruled it violates due process to have partners in the same law firm act as advocate seeking termination and adviser to the City, overturning a police officer's termination. The case stems from an advisory arbitration case against a police officer. Unlike binding arbitration, advisory arbitration lets the employer reject the arbitration decision. Here, two attorneys from Liebert Cassidy Whitmore acted as the attorney advocating for termination at the arbitration and legal adviser to the city council about whether to honor or reject the arbitrator's recommendation
The Court ruled the second attorney's "role as an adviser to the city council violated Sabey's right to due process." The Court explained "that an attorney cannot act as both an advocate for an agency and then as an adviser to the decision maker who reviews the result that the advocate achieved." The Court said the rule should be the same for two different attorneys in the same law firm because "a partner would want to make another partner look good by seeking—consciously or unconsciously—to validate the job done by that partner" and "this creates an appearance of unfairness and bias." The Court noted different rules apply to government lawyers.
As a remedy for the violation, the Court ordered the case "remanded back to the City Council for further consideration with the proviso that it must obtain independent legal advice to eliminate the taint of [the second attorney]’s involvement." But the Court left the door open to quashing the discipline altogether in similar cases, noting it declined to do so in this case because the appellant "cited no law in support of this contention," and "[i]t is not [the Court's] responsibility to develop an appellant’s argument.”
