1.28.2009

JN 2003 - Scare tactics

Scare tactics

by KEITH EASTHOUSE

At least three times now, the Pacific Lumber Co. has threatened to sue Humboldt County for legal fees and damages if District Attorney Paul Gallegos goes ahead with a lawsuit charging the timber concern with fraud.

The first time was at the March 11 Board of Supervisors meeting, when Ukiah-based PL lawyer Jared Carter talked ominously of the consequences of a "malicious prosecution." In a letter last week, Edgar Washburn, a San Francisco-based attorney who does work for PL, bluntly warned Gallegos the company would sue if the suit isn't withdrawn. Finally, in this week's Arcata Eye, PL communications director Jim Branham was quoted as saying, "We will consider all our legal options, and they could well include recovering our costs."

The warnings have all been accompanied by claims that Gallegos' suit has no legal merit and that it contains significant factual errors. And they have had an impact.

After Carter spoke at the March 11 meeting, more than one supervisor voiced concern that the DA's suit was exposing the county to a potentially dangerous liability. Concern about liability, along with doubts about the merits of the suit, were two major reasons the board rejected Gallegos' request to bring in a San Francisco Bay Area law firm with expertise in corporate fraud to help him litigate the case.

Additionally, the liability issue has been brandished as proof that Gallegos' suit is reckless by leaders of a fledgling movement to recall Gallegos. The movement is being headed up by Robin Arkley, father of businessman Rob Arkley and the former owner of Blue Lake Forest Products.

As worrisome as it may sound to some, it turns out that all this sword-rattling probably doesn't signify much.

According to David LaBahn, interim executive director of the California District Attorneys Association, it is common for a defendant to file a motion for dismissal on the grounds that the case against it has no merit. It is also common for a defendant to claim that it is the victim of a malicious prosecution.

What is not common -- indeed, what is almost unheard of -- is for a defendant to successfully countersue a district attorney for malicious prosecution and obtain monetary damages.

"It's often threatened but very rarely if ever" is a malicious prosecution motion granted, LaBahn said in a telephone interview last week from his Sacramento office.

The reason, he explained, is that district attorneys are shielded from damages liability; if they weren't, it would seriously weaken their ability to prosecute cases on behalf of the public.

"As long as we are acting within the course and scope of our duties we have absolute immunity," La Bahn said. Absent clear proof that a district attorney is intent on, as LaBahn put it, "screwing up someone's life," a DA does not need to worry about getting financially penalized for doing his or her job.

Which explains why Gallegos seems completely unfazed by PL's threats. "We're solid on what we have. Our decisions are driven by evidence and law," Gallegos said this week.

In an interview with the Journal 10 days ago, Gallegos suggested he might launch a counter-attack of his own. He said that PL may have made a mistake in making public a March 10 letter from Washburn to Carter, the PL lawyer.

The letter, a "preliminary assessment" of Gallegos' case, was made available to the supervisors apparently to persuade them to reject Gallegos' bid to bring in an outside law firm. But Gallegos said that in making the letter public, Pacific Lumber's lawyers may have inadvertently waived attorney-client privilege.

If a judge were to see it that way, it could be a boon to Gallegos' case. "There might be all sorts of interesting materials that we normally wouldn't have access to," Gallegos said.

"It would be kind of a shame for them," Gallegos went on, "but our job if they've opened the door is to walk in."