Newport councilman shared lawsuit-related emails with lawyer suing the city

Newport Beach City Councilman Jeff Herdman shared two emails between himself and the city attorney about a lawsuit against the city with a local lawyer who filed the suit, the city says.

Now the city is trying to get that lawyer, Phil Greer, kicked off the case.

Both emails relate to a complaint Greer filed last month in Orange County Superior Court on behalf of Newport resident Martha Peyton, who claimed that Councilman Scott Peotter broke several state and local campaign finance rules by accepting noncash donations from Mayor Marshall “Duffy” Duffield and others that either pushed the donors over the contribution limit or were misreported, if they were reported at all.

According to the emails released by the city Tuesday, Herdman — using his city email account — blind-copied Greer on one message to City Attorney Aaron Harp in which Herdman argued — as Greer did in the complaint — that Harp shouldn’t give an opinion on the merits of the suit because he has a conflict of interest in serving the council.

In another thread of messages, Herdman asked Harp about the timing of potential closed meetings to discuss a response to the case. Harp replied that he has “retained outside counsel and we will be in position to respond.” Herdman forwarded that to Greer, with the following message:

“Phil,

Here’s Aaron’s response to the email I sent him tonight in front of you. Is this good?

Jeff.”

Harp said the emails were confidential conversations protected by attorney-client privilege.

The city found out about the exchanges after an anonymous public records request to the city clerk’s office April 20.

In an unusual procedural move, Harp had to seek approval from the council to release the emails, using purposefully vague language from the dais until the council members gave their unanimous “yes” vote. Because the council as a whole is Harp’s “client,” a majority vote was needed to approve sharing the information with the public — in other words, to waive the attorney-client privilege — even though one member already had shared information with an outside person.

On Wednesday, the city’s outside attorney, Patrick Bobko, filed a court motion to have Greer disqualified from the case.

Greer said Wednesday that the motion isn’t worth taking seriously.

“I think it’s frivolous. I think it’s irrelevant. I think it’s meaningless. I think it shows how desperate they are,” he said.

He argued that the emails in question were not protected by attorney-client privilege because nothing of substance was divulged.

“It was basically a question that Jeff had for Aaron based upon the statutory reality, and the response from Aaron was, ‘We’ve got counsel,’ ” Greer said. “There’s no breach. There’s no inside information disclosed. … They got counsel. That’s all.”

But the motion to disqualify states that “Mr. Greer has improperly inserted himself at the DNA level between the city attorney and his client. Mr. Greer has interfered with the City Council’s ability to access confidential legal advice from its lawyer. … This is an unfixable problem, and it is inescapable that Mr. Greer’s continued involvement in this case undermines the city attorney’s ability to represent his client and the city of Newport Beach.”

At Tuesday night’s council meeting, Herdman apologized for his part in the flap and thanked the council for its vote to disclose the emails.

“I made a mistake,” he said. “It was me that everybody is talking about here. There was a conversation between myself and our city attorney that should have taken place, but there’s one little piece of it that shouldn’t have taken place. All I can do is assure my colleagues up here that this will not happen again, and I will be a great deal more [cautious] in terms of using my city email account vs. my personal email account.”

“I goofed all right, and I admit it and I apologize,” he said.

Herdman declined further comment Wednesday.

In a separate incident, Herdman used his city email account to explicitly advocate for the election defeat of council colleagues who he and others believe secretly forced City Manager Dave Kiff out of his job.

Mayor Pro Tem Will O’Neill, who also is a lawyer, said Tuesday that privileged emails can’t be shared from any kind of account.

“In my decade-plus of litigating civil disputes, I have never, ever heard of a breach of the attorney-client privilege like this,” O’Neill said. “I have also never heard of a City Council member actively undermining the finances of a city by working with and colluding with an attorney suing the city to ensure that attorney can someday collect attorney’s fees. It’s just remarkably disappointing, and it’s more than a ‘goof.’ ”

Greer said the complaint seeks “cost of suit,” which can include attorney’s fees along with court fees. He said he does not intend to ask for attorney’s fees.

Greer ran unsuccessfully for City Council in 2016 — he lost to O’Neill — and was involved in last year’s unsuccessful recall movement against Peotter as a lawyer for the recall committee, the petition circulator and a campaign reporting compliance group.

[email protected]

Twitter: @Daily_PilotHD