San Francisco Chronicle

Sunday, November 3, 2002

Whistling in the wind

By Reynolds Holding

Holding Court

In California, here’s how we know what we know.

We know that Chuck Quackenbush sold us out to Big Insurance because insurance department attorney Cindy Ossias blew the whistle on her devious boss.

We know that Davis administration entered into a scandalous software contract with Oracle Corp. because general services lawyer Cynthia Curry complained to state legislators about the deal.

And we know that state consumer affairs officials pursued a dubious investigation against two employees because staff counsel Mary-Alice Coleman exposed the political motives behind the investigation.

Unfortunately, we also know that none of these courageous women, or the dozens of lesser known state attorneys who have disclosed official wrongdoing, will likely risk their legal careers again in the public interest. That’s because a bill that would have protected government attorneys who blow the whistle died at the hand of Gov. Gray Davis.

Why?

The official view, and the one offered in his veto message, is that Davis believed the bill would inhibit “candor between attorney and client.” The cynical view is that the governor had something to hide. The realistic view is probably that Davis, inundated with hundreds of bills in the Legislature’s closing days, never carefully considered the measure, sponsored by Assemblyman Darrell Steinberg, D-Sacramento.

Whatever the reason, Davis missed a chance to clarify the perilous murk that surrounds the rights of government attorneys who must choose between their clients and the public good.

Traditional rules of legal ethics require lawyers to keep their clients’ secrets, come hell, high water or Chuck Quackenbush. Even in the face of egregious wrongdoing, they can rarely do anything but honor client confidentiality – or quit.

But government attorneys are different.

“Unlike a private practitioner, the loyalties of a government lawyer….must not lie solely with his or her client agency,” said a U.S. Court of Appeals in forcing White House attorney Bruce Lindsey to testify about Monica-gate.

The lawyer, said the court, must also honor the public’s interest in honest government. But as Cindy Ossias discovered, that is easier said than done.

In April 1999, she reviewed documents settling the insurance department’s case against State Farm. They said the company had handled claims involving the 1994 Northridge earthquake “in good faith.” But as the lead attorney on the investigation, she knew it was a lie.

After a year of trying to leak the truth about State Farm and three other companies, Ossias blew the whistle that brought down Insurance Commissioner Quackenbush and made her a statewide hero.

But even then, she endured a State Bar of California investigation into her alleged breach of client confidences. The bar cleared her, but the issue remained: If a government lawyer smells a rat, where can she go when the rat turns out to be the boss?

Ossias went to the state Assembly’s insurance committee and, after more than a year of uncertainty, survived unscathed. Cynthia Curry went ti her supervisor and says she received immediate support. But Mary-Alice Coleman went to the director and was “treated like a pariah,” her attorney says.

There women had to improvise, a dangerous approach that the proposed new law would have made unnecessary. It would have explicitly authorized them to take their concerns to the agency with “oversight or regulatory responsibilities” over the matter, but only after exhausting other options.

Now with Davis’ veto, “it is unlikely that a fair-minded lawyer will risk her job to do the right thing,” says San Francisco attorney Richard Zitrin, who helped draft the bill. “And that’s a damn shame.”

Because, in the end, what we don’t know will hurt us.