City Seeks to Oust Playhouse Attorney

By Teresa Rochester

Legal wrangling over a five-year-old Sunset Park boy's playhouse took an unusual turn last week when the City Attorneys Office sought to disqualify the law firm that represents the boy's family charging a conflict of interest.

The City will ask a Santa Monica Superior Court judge Monday to remove the prominent law firm Harding, Larmore, Kutcher & Kozal from the case because Laurie Lieberman, a part-time attorney with the firm, once served as a deputy city attorney in charge of land use issues. City officials say those issues are part of the playhouse suit.

Officials in the City Attorneys Office also claim that Lieberman had addressed issues involving a section of the City Charter mandating City Council members to only deal with administrative staff through the City Manager unless they have questions. The city also is arguing that Lieberman was in a prime position to witness interaction between council members and city staff, a key component of the playhouse suit.

"The motion is based on a member of the Harding firm who worked as a deputy city attorney for the city," said Deputy City Attorney Cara E. Silver. "This member of the firm gave one of the City Council members legal advice regarding Charter [section] 6.10, which is the Charter issue involved.

"Ms. Lieberman was intimately involved in a position to observe council members' actions," Silver said.

Representatives of the Harding firm -- which has filed several lawsuits against the city with no calls for disqualification -- called the allegations baseless.

They flatly deny that Lieberman, who is married to the firm's principal partner, Chris Harding, ever advised council members on staff interactions or dealt with land issues involving playhouses. They pointed out that Lieberman left the city nine years ago and stopped handling City land use cases 11 years ago.

"The council has asked to have our firm disqualified on trumped up grounds," Harding said. "They apparently made a decision... that instead of stepping back and addressing larger issues in a constructive way they chose the disqualification of the Levy's attorneys. The courts have recognized that this is often used for the purpose of harassment."

David and Beth Levy hired Harding last fall to file suit against the City and then-Mayor Ken Genser -- who is currently a council member -- after the City ordered the couple to tear down an $11,000 playhouse they had built for their son Jacob. The City had initially approved the olive green structure after David Levy had followed confusing and contradictory instructions from the City staff.

While the playhouse was being built, Genser forwarded a complaint to City staff from an acquaintance who lived behind the Levy property. In a subsequent email to Planning director Suzanne Frick, Genser suggested that the playhouse was a two-story structure and may be in violation of the zoning code. Not long after that, the Levys received a notice that the structure was in violation and needed to come down.

The suit filed by the family in September calls for the City to rescind the notice of violation, which it did in November 2000. But Harding and the Levys felt that there were larger issues that the City needed to address.

The lawsuit demands that the City clarify or change codes on backyard playhouses and directs the City Attorney to craft and make public rules for City Council interaction with staff. It also seeks Civil Rights damages for the alleged violation of the Levy's constitutional rights, including their right of procedural due process, according to court documents.

The suit also alleges that Genser and possibly other council members engaged in a pattern and practice of interacting with City staff in violation of Charter Section 6.10.

City officials said they are concerned that Harding's research may encompass the time that Lieberman was employed with the city.

"The reason why we are treating this lawsuit differently than other lawsuits is this lawsuit contains a very broad practice and pattern allegation, which could conceivably cover conduct involving advice given by Ms. Lieberman," Silver said.

Harding said that his firm is prepared to only research the allegation back to 1996, four years after Lieberman left the City Attorneys Office, thereby rendering the City's argument of a conflict of interest pointless.

"The central flaw in Defendants' 'conflict of interest' argument is their failure to recognize that the Levy matter involves recent events which occurred many years after Ms. Lieberman's City employment ended," states the firm's response to the city's motion. "Thus it is inconceivable that Ms. Lieberman could possess confidential information gained during her City employment that is relevant to this case."

The response notes that Lieberman was hired as a deputy city attorney to handle land use issues in 1985. Two years later she was reassigned by then-City Attorney Robert Myers to non-land use issues when she started dating Harding, who has represented numerous clients before the city's Planning Commission and City Council.

In September of 1990 Harding and Lieberman married. Lieberman took a leave of absence in mid-1991 and returned in January 1992 on a part-time basis. She resigned from her position in September of 1992, according to court documents.

Lieberman and Myers deny that she gave advice to council members regarding the City Charter's section regulating council members' interaction with staff or on land use matters involving playhouses, according to court documents.

"Generally speaking, I was rarely privy to confidential communications between the City Attorney and the City Council," said Lieberman in a declaration filed with the court. "The City Attorney was the City Council's primary legal advisor, in public and private.

"To my knowledge, I was never present nor did I ever participate in any communication touching upon Section 6.10 of the City Charter or upon the general topic of council member/City Staff communications."

Myers, who was fired by the City Council in 1992 for refusing write an anti-camping ordinance, agreed.

"At no time during my tenure as City Attorney did I ask Ms. Lieberman to provide any advice to any member of the City Council or City staff on the subject of City Charter Section 6.10," Myers said in a declaration.

"At no time during my tenure as City Attorney was my office asked to render any opinion concerning the application of city laws to backyard playhouses. In fact, it is not an issue that I ever considered."

Silver disputed the charge that the City's request that the court remove Harding's firm is a tactic, saying that legal ethics is a serious matter.

"Ethical duties of lawyers must be taken extremely seriously whenever there is an actual or potential conflict," she said. "A former lawyer must withdraw from the lawsuit. Lawyers cannot use confidential information against their former clients. If they did so it would impair the judicial process and discourage clients from freely consulting with their lawyers."

Harding's client, David Levy, said he was angered by the City's move and more resolved than ever to continue the suit through its resolution.

"I'm not surprised," said Levy of the City's motion. "Up until this point they've tried not to face the issues directly. This seems to me like a ruse couched in legalese... I'm fighting this for other families in Santa Monica."